MC2-16631

RAD File / Dossier de la SAR : MC2-16631 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Date of decision March 23, 2023 Date de la décision Panel Cheryl Braden Tribunal Counsel for the person who is the subject of the appeal Felipe Morales 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] XXXX XXXX XXXX XXXX (Appellant) is a citizen of Nigeria. He alleges that he fears persecution from the traditionalists of the XXXX XXXX XXXX community in Nigeria because he has refused to become the new chief oracle priest. [2] The Appellant alleges that he was told by the community elders that he was chosen by the oracles to become the chief priest in 2000. He alleges that he did not want to accept this role and left Nigeria as a result. [3] The Appellant relocated to Spain, where he became a permanent resident. He alleges that he left Spain for the United States in 2016 because he could not find work in Spain. On XXXX XXXX, 2018, he was ordered to be removed from the US. He subsequently made his way to Canada by crossing between ports of entry on February 24, 2018, and made a claim for refugee protection. [4] The Minister intervened in the Appellant's claim on the grounds that he is excluded from refugee protection by virtue of Article 1E of the Convention, and also on credibility grounds. [5] The Appellant's claim was heard before the Refugee Protection Division (RPD) on July 22, 2022, and rejected orally from the bench on the same day on the grounds that the Appellant is excluded from refugee protection by virtue of Article 1E. [6] The Appellant now appeals, arguing that the RPD erred in its Article 1E analysis. The Minister is not participating in this appeal. [7] Following my independent assessment of the evidence and arguments in the record, I find that exclusion is a determinative issue in this appeal, and I find that the RPD correctly found that the Appellant is excluded by virtue of Article 1E. DECISION [8] 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. NEW EVIDENCE The evidence presented by the Appellant is rejected [9] According to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), I can only accept evidence that arose after the RPD decision, that was not reasonably available at the time of the decision, or that could not reasonably have been expected in the circumstances to be brought to the RPD before the decision. Further, according to jurisprudence, I must also find that the evidence is new, credible, and relevant before I can accept it.1 [10] The Appellant has submitted a copy of Spain's Regulation on the Status of Foreigners, articles 62-72. He submits that this evidence clearly demonstrates that he had temporary, not permanent, status in Spain. [11] I find that the Appellant has not met his onus to establish the admissibility of the document as new evidence. He has not provided any submissions to establish that this evidence is admissible pursuant to subsection 110(4) of the IRPA. It appears that the regulation is dated from the year 2011, long before the RPD decision, and is in the public domain and was therefore available to the Appellant. The Appellant was represented by counsel before the RPD, and there is no obvious reason why he could not have provided this evidence to the RPD. [12] The onus is on the Appellant to provide full and detailed submissions as to how his new evidence meets the requirements of subsection 110(4) of the IRPA. The Federal Court has confirmed that the absence of such submissions is a sufficient basis upon which to reject an application to submit new evidence.2 I thus find that the regulation is inadmissible as new evidence. No oral hearing will be held [13] The Appellant has requested an oral hearing. Subsection 110(6) of the IRPA provides that the Refugee Appeal Division (RAD) may hold an oral hearing if new evidence is accepted that raises a serious credibility issue with respect to the Appellant, is central to the decision with respect to the refugee claim, and if accepted, would justify allowing or rejecting the claim. As no new evidence was admitted, the RAD will proceed without an oral hearing. ANALYSIS [14] My role is to look at all the evidence and decide if the RPD made the correct decision.3 [15] The RPD found that the Appellant is excluded from refugee protection pursuant to Article 1E of the Convention, which is incorporated into the IRPA at section 98, due to his status in Spain. [16] Article 1E "precludes the conferral of refugee protection if an individual has surrogate protection in a country where the individual enjoys substantially the same rights and obligations as nationals of that country."4 [17] The Federal Court of Appeal outlined a three-pronged analysis to determine the application of Article 1E in Zeng, as follows: 1. Considering all relevant factors to the date of the hearing, does the claimant have a status substantially similar to that of its nationals in the third country? If the answer is yes, the claimant is excluded. 2. If the answer is no, the next question is whether the claimant previously had such status and lost it or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. 3. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, and Canada's international obligations, and any other relevant facts.5 [18] The RPD noted that the Appellant had testified that he entered Spain in 2003, was subsequently given permanent residence there, resided there, attended school and worked there until he left for the US in 2016. The RPD considered the Appellant's experience and the objective evidence about the rights of permanent residents in Spain and found that permanent residents in Spain have rights substantially similar to that of nationals. [19] The RPD applied the Zeng test and answered the first question in the negative, as it found that the Appellant did not have status in Spain as of the date of the hearing. [20] The RPD went on to the second prong of the test and found that the Appellant did previously have Article 1E status in Spain as a permanent resident, but lost it after he left Spain and remained out of the country for several years. [21] The RPD therefore proceeded to the third prong of the test. The panel considered the relevant factors and found that: * the reason for the Appellant's loss of status was voluntary, as he left Spain to seek employment in the US; * the evidence suggests that he has the ability to renew his permanent resident status in Spain, and he did not meet his onus to establish that he cannot renew it; * he has not established that the agents of persecution in Nigeria have the means or ability to locate him in Lagos, Abuja, or Port Harcourt, and therefore can return to Nigeria and live in safety in those locations, and * there is nothing to suggest that excluding the Appellant would result in a violation of Canada's international obligations. [22] The RPD found that the third prong factors individually and collectively weigh in favour of exclusion, and thus found that the Appellant is excluded from refugee protection pursuant to Article 1E. [23] The Appellant argues on appeal that the RPD erred in its exclusion analysis by finding that he had permanent status in Spain when he actually had a work permit which only allowed him to remain temporarily in Spain. He submits that when he left Spain because he could not find work, it was not a personal choice, but a condition set by the legislation and regulations that had the effect of extinguishing his right of residence and his right to remain in Spain. [24] I reject these arguments. They are not grounded in the evidence. Contrary to the Appellant's arguments on appeal, he did not provide a Spanish work permit card to the RPD or testify that he had temporary work authorization. Rather, he testified that he had permanent resident status in Spain6 and provided a copy of his permanent resident card.7 I note that the back of the residence permit indicates "residencia larga duracion," which is confirmed by objective evidence to refer to permanent resident status.8 [25] The Appellant has not raised any further arguments with respect to the RPD's analysis and findings. [26] Having reviewed the RPD's analysis and findings carefully, I find that they are comprehensive and correct, and I adopt them in their entirety. I thus find, for the same reasons given by the RPD, that the Appellant is excluded from refugee protection by virtue of Article 1E of the Convention. CONCLUSION [27] 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) Cheryl Braden Cheryl Braden March 23, 2023 Date 1 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII). 2 Zararsiz v. Canada, 2020 FC 692, at para. 72 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Zeng v. Canada (Minister of Citizenship and Immigration), 2010 FCA 118, at para. 1. 5 Ibid., at para. 28. 6 Transcript of July 22, 2022 RPD Hearing, at pp. 7-8. 7 RPD Record, at p. 114. 8 National Documentation Package (NDP) for Spain (November 30, 2022), tab 3.6: Permanent residence status, including requirements, whether it expires and procedures for renewal; rights for permanent residents, including rights to enter and remain, employment rights, education rights, and access to social services (2014-August 2015), Immigration and Refugee Board, Response to Information Request ESP105326.E, October 8, 2015. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC2-16631 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