TB7-21094

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File / Dossier de la SAR : TB7-21094 TB7-21095 / TB7-21096 / TB7-21097 TB7-21098 / TB7-21099 / TB7-21100 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 11, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal John Rokakis Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellants, XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) (the "Principal Appellant" or "PA"), XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX), XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX), XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX), XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX), XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX), and XXXX XXXX XXXX (a.k.a. XXXX XXXX), originally claimed to be citizens of Iraq; however, after the Minister intervened, the Appellants admitted to being citizens of Norway. The Minister has provided a "table" outlining the Appellants' identities. [2] The Appellants appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. They have not submitted new evidence in support of this appeal. The Appellants are not requesting an oral hearing. The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [3] The Appellants' original Basis of Claim (BOC) forms1 alleged that the Appellants were citizens of Iraq and no other country. There were various allegations of persecution in Iraq. When the Minister intervened, exposing the truth of the Appellants' identification as citizens of Norway, the Appellants submitted a totally revised BOC which included an admission of their Norwegian citizenship and a lengthy story including possible incarceration of the PA in Norway and the removal of the children from her care. RPD's Reasons [4] In its reasons, the RPD found that the Appellants had failed to rebut the presumption of adequate state protection. [5] Further, the panel found that there was less than a mere chance that the agent of persecution (former husband) would be able to harm the Appellants as he has no right of entry to Norway. [6] Lastly, the panel found the Appellants to lack any credibility based on the facts that the Appellants lied about who they are, lied about their citizenship and lied about their original basis of claim. It was obvious to the panel that these Appellants would do or say anything in order to gain status in Canada. [7] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. Appellants' Issues [8] Unfortunately, the Appellants have failed to produce an actual Memorandum of Argument and instead have filled out the IRB Form 3005 (02/16) which makes it very difficult to actually determine the nature of the Appellants' issues. I will attempt to determine, from this poorly done memorandum, what those issues may be and will deal with them as I am able. [9] I believe that the Appellants' issues are as follows: 1) Did the panel err by finding that the Appellants are neither Convention refugees nor persons in need of protection? 2) Did the panel err in dismissing the testimony of the Appellant "XXXX"? 3) Did the panel err in its finding that the agent of harm would be unable to re-enter Norway? ANALYSIS Determinative Issue [10] The determinative issues in this appeal are state protection and credibility. Standard of Review [11] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.2 Arguments [12] Counsel argues that the panel erred in finding that the Appellants are neither Convention refugees nor persons in need of protection. Counsel argues that the Appellants established that there is a serious possibility that they would be harmed in Norway due to their membership in a particular social group, that group being family members of XXXX XXXX, the alleged agent of harm, husband of the PA and father of the minor Appellants. [13] Counsel argues that the State of Norway is also an agent of harm, such agency arising when Norway attempted to intervene in the abusive relationship allegedly being endured by the PA and her daughter, XXXX XXXX. [14] The Minister has argued that Norway was acting to protect the child in accordance with the law, the law is neutral and consequently, Norway is not an agent of harm. [15] I concur with the Minister on this issue. When the state intervenes to protect a child from an abusive parent, the state is acting on the best interests of the child. Even though it does not always appear to be so, that is the case and, as counsel points out, it often amounts to the removal of a child from the abusive situation. In the case of Norway, the removal rate approaches 40% of the cases brought to the attention of the Child Protection Agency. Such removal is done for the safety of the child involved and is not persecution but protection. The onus lays squarely on the Appellants to show that any law of general application is in fact persecutory. In this particular case, the Appellants have not done so. [16] Counsel argues that the panel erred when it made a negative inference based on the Appellants' use of Iraqi documents and their failure to disclose their Norwegian citizenships. Counsel argues that the Appellants were fleeing an abusive relationship and that they feared being separated by Norwegian authorities. [17] What the Appellants may have feared was the law (of general application) which the state (Norway) may have used to protect the minor Appellants from an abusive father. There has been no reasonable explanation as to how the use of fraudulent documents to enter Canada in any way would protect the Appellants from any persecution. Counsel states that the Norwegian Child Protection Agency has been accused of kidnapping but provides no supporting evidence of such an outlandish accusation. [18] Had the Appellants used fraudulent documents for the sole purpose of escaping persecution, it would have been reasonable; however, once safely in Canada, there is no reasonable explanation for continuing the fraud against the Canadian people, as was done by these Appellants. When one flees persecution to a country described by the Appellants as "one of the greatest countries in the world regarding the human rights and child rights," it is unreasonable, for that person not to properly identify herself and her issues to the country from which she seeks protection. The Principal Appellant stated in her new and totally different BOC that "All what I want now and I swear to that is the protection for my children and myself and to live in peace and protection in Canada."3 As previously mentioned, it is unreasonable for an appellant to commit identity fraud against the country from which she is seeking protection while at the same time stating that that host country is one of the greatest countries in the world regarding human and child rights. [19] Counsel blames the PA's husband regarding the "discrepancy in names". That may be true in regards to the fraudulent documents; however, it does not excuse the PA from unnecessarily continuing that fraud against the country from which she is seeking protection, [20] Counsel argues that the panel was overzealous in her attack upon the credibility of the PA and her dismissal of the testimony of the minor, XXXX. [21] The panel dismissed the testimony of XXXX because of the scarcity of credible evidence in the case coupled with the level of misrepresentation and outright fraud. The panel's reasoning was that a child who has been subject to and expected to continually lie about her identity and other details of her life in the past is unable to provide testimony which can be deemed credible enough to off-set the major concerns based on the fraudulent identity issue. [22] Counsel argues that the panel erred by failing to conduct a credibility assessment on the Appellants' reasons for being reluctant to claim against Norway. Counsel argues again that the PA was afraid of losing her children to the Norwegian state. Further that the Norwegian state made matters worse by going to Interpol over the issue of possible child abduction and possible murders. [23] Counsel is stretching here. In the first instance, it is the duty of the state to protect its citizens and that duty extends to children who are being abused. As the PA had left the country with the children, she may well have been under suspicion of a crime against The Hague Convention.4 Once in Canada, the story no longer stands, and there is no reasonable explanation as to why the Appellants continued their fraud against the Canadian government up to the minute when the Minister, by intervening, exposed the fraud. Only once exposed did the PA come clean and present a story of persecution in Norway. [24] In the first BOC narrative, the PA alleged that due to her family being Shiite and their living in a Sunni dominated area, they had received death threats and demands that they leave the neighbourhood immediately. There was no mention of spousal abuse, no mention of potential child abuses but only mention of religious abuse against the Appellants' family by Sunni extremists. According to that story, the husband sold his XXXX in order to pay for the rest of the family to flee Iraq for Canada. The husband in this story is not an abusive monster but a heroic father and husband. [25] It is with this background of lies and deceit that the panel decided that it was next to impossible to believe the young Appellant, XXXX, who has been coached and coerced into perpetuating the lie of her mother. How can one possibly give credibility to the testimony of such a person? The panel could not and that decision was reasonable under the circumstances. [26] Counsel argues that the panel erred in its finding that the husband could not re-enter Norway as there was insufficient evidence to support the panel's finding. Counsel argues that the husband would only lose his right to return to Norway after two years' absence, which has not occurred yet. The family, including the husband, is alleged to have departed Norway in the XXXX XXXX XXXX 2016. It is true and correct that the RPD decision was handed down on September 14, 2017 which is four months short of the two years required from Norway for one to lose the right to regain permanent resident status. At the time of filing the "memorandum of argument" and perfecting this appeal, there were still two months remaining in that two-year requirement. However, at this time, the two years is well past and as no request to submit late evidence has been made, I presume that there is no evidence of that husband reclaiming his right to enter Norway. Such evidence would be very probative for the Appellants which leads me to infer that there is no such evidence. Given that the husband had not taken up Norwegian residence by the time of this appeal's perfection, I find that there is less than a mere possibility that, in those last two months of the two-year period, the husband would reclaim his right to Norwegian residency. I find that, although the panel did in fact commit a technical error in this instance, it is not a fatal error for the reasons I just gave. [27] Counsel also argues that the husband's propensity to access and use fraudulent documentation does not guarantee the Appellants' safety in Norway. I am uncertain as to exactly what counsel refers to in this instance; however, there is no guarantee of safety for any person, anywhere. That is why there is state protection, an instrument designed to assist those needing help from persecution. [28] Counsel has argued that because there is a slight possibility that the minor Appellants may be separated from their mother (PA), then there is no state protection for them in Norway. [29] That is an unrealistic assessment by counsel. The state is mandated to protect children who are in an abusive environment. The fact that the state may investigate and find that these minors are in need of protection from abusive parents is proof that state protection does exist. Further, the meeting with the PA took place in a government facility (school) and the state was to provide legal and financial aid and advice, including helping the Appellants to escape the abusive husband and father. [30] Further, the evidence provided alleges that the police have actively been looking for the Appellants as missing persons and perhaps presumed dead. Entirely opposite to what counsel argues, the preponderance of the evidence suggests that state protection is not only adequate but also effective, a condition the Appellants would be aware of had they remained in Norway long enough after the exposure of the abuse to find out. [31] The panel found that the presumption of state protection had not been rebutted. I concur with that finding. Summary [32] A finding of adequate state protection is determinative. [33] As the Appellants are citizens of Norway and Norway offers adequate and effective state protection, the appeal is dismissed. Disposition [34] The RAD has found that the RPD decision will stand. CONCLUSION [35] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe September 11, 2018 Date 1 Exhibit RPD-1, RPD's Record, Exhibits 2,3,4,5,7,and 8, at pp. 13-85. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Ibid., at p. 98, at para. 62. 4 Hague Convention on the Civil Aspects of International Child Abduction. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-21094 TB7-21095 / TB7-21096 / TB7-21097 TB7-21098 / TB7-21099 / TB7-21100 RAD.25.02 (August 08, 2018) Disponible en français 2 RAD.25.02 (July 05, 2018) Disponible en français