TC3-14773

RAD File / Dossier de la SAR : TC3-14773 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX) Personne en cause Date of decision 15 June 2023 Date de la décision Panel Sybil Thompson Tribunal Counsel for the person who is|are the subject of the appeal Annie N. O'Dell Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant XXXX XXXX XXXX, a citizen of Romania, is appealing a decision of the Refugee Protection Division (RPD) dated February 27, 2023 (amended reasons dated March 2, 2023), refusing her claim for refugee protection. DECISION [2] For the following reasons, I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND The Appellant's allegations [3] The Appellant, a Romanian citizen of Roma ethnicity, relocated to Spain from Romania in XXXX 2011 with her two children from a previous marriage. Thereafter the Appellant, who identified as a lesbian from her early teens, made some trips to Romania while living in Spain to finalize her divorce from her spouse. In 2016 members of the Appellant's family, including her parents, also moved to Spain and settled in the same city as the Appellant. While visiting Romania during this time, she commenced a relationship with another woman. This relationship was discovered by the Appellant's family in Romania, who physically assaulted her when they learned of the Appellant's same-sex romantic relationship. The Appellant travelled to Canada and claimed refugee status. The RPD's decision [4] The Minister of Immigration, Refugees and Citizenship made a written intervention in the Appellant's claim, arguing she should be excluded under article 1E of the Convention relating to the status of refugees. The RPD determined the Appellant was excluded. According to the RPD, the Appellant was prima facie excluded as she had access to status in Spain that was substantially similar to that of Spanish nationals. The RPD also found the Appellant failed to discharge the onus of showing she should not be excluded. The present appeal [5] The Appellant submits the RPD's exclusion analysis was faulty. She submits the RPD "erred by failing to correctly apply the test for exclusion to [her] particular circumstances."1 She submits further the RPD "failed to adequately address the means and motivation of her agents of harm" to find her in Spain and "improperly required [the Appellant] to cut ties with her mother in order to live safely in Spain."2 [6] The Appellant has not requested an oral hearing and has not asked me to admit any documents as new evidence in this appeal. ANALYSIS [7] My role is to look at all the evidence and decide if the RPD made the correct decision. I will apply the correctness standard of review after independently assessing the record to determine whether the RPD erred. I will only show deference to the RPD's credibility assessment and its weighing of the oral evidence in situations where the RPD enjoys a particular advantage. If I find the RPD had a particular advantage, my reasons will explain why. [8] My determination is based on my independent assessment of the evidence before me. This includes the records prepared by the RPD and the Appellant, an audio recording of the Appellant's RPD hearing on January 12, 2023, and documents contained in the current compilation of the NDP for Spain and Romania. The RPD's prima facie article 1E exclusion analysis [9] The RPD found the Appellant had access to status in Spain akin to that of Spanish nationals but failed to acquire it.3 The Appellant submits the RPD should have considered the reasons why she failed to acquire permanent resident status in Spain. At the hearing, the Appellant testified (i) that she didn't think she qualified and (ii) that she didn't want to stay in Spain "after her family found out about her sexual orientation and she was faced with violence."4 [10] The Appellant submits she does not want to return to Spain "because of her family's presence, even if she could, in theory, seek state protection or access IFA."5 She argues her "actions in failing to acquire permanent residence in Spain were reasonable,"6 and that the RPD's failure to consider this explanation means the panel wrongly applied the Zeng test, thus invalidating its article 1E exclusion finding.7 [11] I disagree. [12] According to the record, the Appellant was a citizen of Romania at the time of the RPD hearing and, as such, had the right to enter and remain in Spain indefinitely as a citizen of an EU country. The Appellant was also eligible to apply for and receive permanent resident status in Spain, having resided in that country since XXXX XXXX XXXX 2013, with only occasional travel to Romania. [13] The Reasons show the RPD turned its mind to the question of the Appellant's status in Spain and investigated whether her status was "substantially similar" to that of Spain's nationals, following the Federal Court of Appeal's guidance in Zeng.8 The RPD correctly found this was prima facie evidence article 1E of the Convention applied in the circumstances. The Appellant does not dispute the legitimacy of this finding. [14] My own review of the record shows the RPD considered the Appellant's rationales for not acquiring permanent resident status in Spain at paragraph 29 of the Reasons. It acknowledged her submission that "she decided not to pursue PR [RAD's edit: permanent residency] in Spain because her extended family had arrived, and so she no longer felt free or safe" in that country but found that "regardless of her reasons," she "did not apply for PR" and that she "had a pathway to PR but did not pursue it."9 [15] In short, the RPD did not fail to consider the rationales offered by the Appellant for her failure to apply for permanent resident status in Spain. However, the Zeng framework of analysis did not require the RPD to consider the possible risk faced by the Appellant in Spain at this stage of the article 1E exclusion analysis. [16] At this stage of the analysis, the RPD was required only to assess whether a pathway to permanent residency in Spain was open to the Appellant. It was after the RPD correctly found a prima facie case of exclusion had been made out the onus shifted to the Appellant to show why she could not have acquired permanent resident status in Spain and why she could not return to that country. [17] Having reviewed the record in my independent assessment, the RPD did not err at this step of the article 1E exclusion analysis. The RPD's IFA analysis Prong One: Means available to the putative agents of persecution [18] The RPD went on to consider the Appellant's submissions on the risk posed by her extended family in Spain as part of its analysis of the possible risk of persecution or harm faced by the Appellant in Spain as part of its treatment of Canada's international obligations. The RPD found "[t]here was no evidence or testimony offered to establish that her extended family have made any effort to locate her through her parents, especially her mother lives in Todera where the claimant's extended family live and who has cared for the claimant's children since the claimant left Spain."10 [19] In this appeal, the Appellant simply re-states that she does not want to return to Spain because living there freely as a lesbian "would not be possible because of her family's presence, even if she could, in theory, seek state protection or access IFA."11 This on its own is not evidence sufficient to discharge the onus upon her to show why returning to Spain and acquiring permanent resident status there is impossible. [20] The Appellant's submission that the RPD "failed to acknowledge that [her] extended family might know she is in Canada, and thus efforts to harm her while she is here are futile"12 is speculative and ignores the RPD's observation that the Appellant's mother "was willingly lying to conceal the [Appellant's] presence in Canada."13 [21] It was the Appellant herself who testified that if her mother was asked by her extended family about the Appellant's whereabouts, she would likely lie.14 Absent any evidence, the Appellant's "extended family are aware that she is in Canada"15, it was open to the RPD to consider the Appellant's mother would in future continue concealing the Appellant's whereabouts in Spain from her extended family as she did in the past. [22] The evidence on record is simply insufficient to ground a finding that the Appellant's extended family is motivated to locate her in Spain or that they would threaten to harm her mother in order to compel her to reveal the Appellant's whereabouts. In my independent assessment, the RPD did not err in its assessment of the motivation of the putative agents of harm to locate the Appellant in the IFA in Spain. Prong One: Motivation of the putative agents of persecution [23] The Appellant submits the RPD "did not adequately consider XXXX's testimony regarding the ease with which her extended family would be able to locate her in either of the IFAs."16 In written submissions to the RPD, replicated in her submissions in this appeal, the Appellant asserted that if "her children went to live with her in either of the IFA locations, the remaining family members would soon learn that the children were no longer residing with XXXX's mother." She argues that her mother's travel to meet with her and the children would cause suspicion amongst her extended family, who "could then force XXXX's mother to reveal her location or follow her and find out where XXXX was on their own."17 The RPD characterized the Appellant's concern that her extended family would trace her to one of the IFA locations in Spain as speculative.18 [24] I agree with the RPD's assessment. The Federal Court's guidance is that even refugee claimants who have credibly established their subjective fear must still establish the forward-facing nature of their risk with sufficient objective evidence.19 The Appellant's speculation is not sufficient evidence to rebut the RPD's finding. [25] Additionally, there is no merit to the Appellant's submission that the RPD failed to "adequately consider [her] testimony" about how easily her extended family could find her in Spain. Paragraph 42 of the RPD Reasons states: The claimant believes that the close-knit nature of Romani communities means that it is more likely than not that her uncles and cousins would eventually discover where she lives. She believes that they would pursue her to Madrid and Valencia. She also believes that once her family discover that her children are no longer being cared for by her mother, they would use personal networks to find her.20 [26] The RPD clearly turned its mind to the concerns raised by the Appellant about her family's ability to locate her in Spain, and considered the Appellant would be able to avail herself of state protection mechanisms in Spain that are available to victims of gender-based violence. In item 5.6, the Group of Experts on Action against Violence against Women and Domestic Violence discusses the Spanish governments responses to gender-based violence, including policy initiatives supported by data collection. Specialty courts, police with specialized training in legal remedies, including protection orders restraining a perpetrator from contacting their victim and even from knowing where their victim resides.21 [27] The Appellant contends that while she "might have access to protection against her family such as restraining orders," any such protections "[do] not outweigh the very real risk of physical violence she faces upon [her] return."22 However, the circumstances in this appeal are distinguishable from those described in Saidoun23, a Federal Court case relied on by the Appellant. Unlike in Saidoun, here the evidence does not support a finding the Appellant would be seriously assaulted upon returning to Spain. [28] The Appellant's speculation about the harm that might materialize upon her return to Spain fails to discharge the onus upon her of establishing that the risk she alleges in Spain is likely to materialize on a balance of probabilities. Prong Two: Reasonableness of the IFA location [29] The Appellant does not take issue with the RPD's finding, that the proposed IFA locations would be reasonable in her circumstances. She submits, however, that the RPD improperly required XXXX to cut ties with her mother in order to live safely in Spain."24 [30] I have reviewed the RPD's Reasons, and at no point does the panel state the expectation that the Appellant ceases contact with her mother upon returning to Spain, as the Appellant suggests. In fact, the opposite is true: the RPD noted the Appellant "has maintained contact with her mother after her departure from Spain and while she has been in Canada" and pointed to the need for the Appellant's mother to continue to conceal the Appellant's whereabouts for the IFA to be viable.25 [31] In my view, the RPD's reasoning implies the Appellant and her mother would stay in contact with each other upon the Appellant's return to Spain. Moreover, the evidence on the record tends to support such a finding as this was the Appellant's mother's regular practice while the Appellant lived in Spain. Contrary to paragraph 54 of the Appellant's submissions, the RPD was not required to assess whether the Appellant would have to cease all communication with her mother in order to relocate safely in Spain. The evidence on record simply does not support a finding that the Appellant would have to cut ties with her mother at any point. [32] Overall, I find the RPD correctly assessed the availability of a viable IFA for the Appellant in Madrid and Valencia. [33] In my independent assessment, as no error arises from the RPD's article 1E exclusion assessment, the panel's determination must stand. [34] The appeal is therefore dismissed. CONCLUSION [35] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Sybil Thompson Sybil Thompson 15 June 2023 Date 1 Appellant's Record, Memorandum, at p. 28, para. 21. 2 Ibid., at p. 33, para. 40. 3 RPD Record, RPD Reasons (amended), at p. 9, para. 23. 4 Appellant's Record, Memorandum, at p. 29, para. 27. 5 Ibid., at p. 31, para. 35. 6 Ibid., at p. 31, para. 35. 7 Appellant's Record, Memorandum, at p. 32, para. 39. 8 Zeng v Canada (Minister of Citizenship and Immigration), 2010 FCA 118 [Zeng]. 9 RPD Record, RPD Reasons (amended), at p. 30, para. 29. 10 Ibid., at p. 14, para. 40. 11 Appellant's Record, Memorandum, at p. 31, para. 35. 12 Ibid., at pp. 35-36, paras. 48. 13 RPD Record, RPD Reasons (amended), p. 15, para. 44. 14 Transcript of January 12, 2023, RPD Hearing, at p. 30, lines 13-19. 15 RPD Record, RPD Reasons, at p. 15, para. 44. 16 Appellant's Record, Memorandum, at p. 33, para. 44. 17 Ibid., at p. 34, para. 44. 18 RPD Record, RPD Reasons (amended), at p. 15, para. 44. 19 Vyshnevskyy v Canada (Citizenship and Immigration), 2020 FC 881 at para. 34. 20 Ibid., at p. 15. 21 RPD Record, RPD Reasons (amended), at p. 15, para. 44. 22 Appellant's Record, Memorandum, at p. 32, para. 38. 23 Saidoun v Canada (Citizenship and Immigration), 2019 FC 1110. 24 Ibid., at p. 33, para. 40. 25 RPD Record, RPD Reasons (amended), at p. 18, paras. 53-54. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC3-14773 RAD.25.02 (August 20, 2021) Disponible en français 2 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.25.02 (August 20, 2021) Disponible en français