MB8-04520

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 No. / N° de dossier de la SAR : MB8-04520 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 Appeal considered at Montréal, Quebec Appel instruit à Date of decision July 17, 2019 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the person who is the subject of the appeal Me Bashir A Khan 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 I. INTRODUCTION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Colombia, appeals a decision of the Refugee Protection Division (RPD) rendered on December 19, 2017, denying his claim for refugee protection. The Appellant submits that the RPD erred in determining that he is excluded from refugee protection by virtue of s. 98 of the Immigration and Refugee Protection Act (IRPA) and Article 1E of the United Nations Convention Relating to the Status of Refugees.1 The Appellant requests that the Refugee Appeal Division (RAD) set aside the decision and order that the matter be returned to the RPD for re-determination. [2] After conducting my own analysis of the record, I conclude that the RPD did not err in finding that the Appellant is excluded from refugee protection. The appeal is denied. II. BACKGROUND [3] The Appellant worked as a XXXX XXXX in Colombia from 1991 to 2011. He claims to fear returning to Colombia where he will be killed by gang members, including members of the FARC or BACRIM, given his past work as a XXXX XXXX. [4] In XXXX 2012, the Appellant moved to Chile with the intention of living there permanently. After obtaining a working visa as an XXXX, he became a permanent resident (PR) of Chile in XXXX 2014.2 While living in Chile, the Appellant returned to Colombia on several occasions. [5] In XXXX 2014, while leaving the XXXX XXXX XXXX office in Chile, the Appellant saw two members of BACRIM that he had previously XXXX while working as a XXXX XXXX in Colombia. While the men did not address the Appellant or utter any threats, this encounter led the Appellant to fear remaining in Chile. As such, he rented out his business and moved back to Colombia where he operated a XXXX business. [6] On XXXX XXXX, 2014, the Appellant received a threatening note from the FARC at his company in Colombia telling him to leave the country or else pay the consequences. While he reported the incident to the authorities, they could not do anything for him. On XXXX XXXX, 2014, a bomb exploded near his parents' home where he was staying. He relocated elsewhere in Colombia. [7] Between XXXX and XXXX 2014 he travelled to the USA where he did not make a refugee claim. [8] The Appellant returned to Chile where he joined his wife and daughter. They returned to live in Colombia until XXXX 2015 at which point the Appellant moved back to Chile. [9] In XXXX 2015, there was a break-in and robbery at the Appellant's XXXXstore in Chile. Fearful, the Appellant sold his business and returned to Colombia to live with his wife and daughter in XXXX 2016. [10] From XXXX 2016 to XXXX 2017, the Appellant lived in different places in Colombia but feared for his safety and that of his family given that everywhere he went, he encountered people that he had previously XXXX while working as a XXXX XXXX. The Appellant travelled to the USA to explore the possibility of claiming asylum and then returned to Colombia. [11] On XXXX XXXX, 2017, the Appellant left Colombia and travelled to the USA. He then made his way to Canada on XXXX XXXX, 2017, and made a refugee claim. [12] After considering the evidence, the RPD determined that the Appellant is excluded from refugee protection pursuant to s. 98 of IRPA and Article 1E of the Refugee Convention on the basis that he was a PR of Chile which granted him substantially similar rights and obligations as nationals of that country; he voluntarily and unreasonably renounced his PR status in Chile; and he did not establish persecution or personal risk of harm if he returns to Colombia. III. DETERMINATIVE ISSUE [13] The Appellant raises the following issue on appeal: - Did the RPD err in finding that the Appellant is excluded from refugee protection considering that he no longer had PR status in Chile when he was admitted to Canada? IV. SCOPE OF THE RAD APPEAL [14] The RAD reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.3 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.4 I have applied the correctness standard in the present case. V. ANALYSIS [15] In certain circumstances, a person can be excluded from refugee protection.5 For instance, through the operation of s. 98 of IRPA, Article 1E of the Refugee Convention excludes an individual from refugee protection when he is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.6 [16] In the present case, the Appellant does not contest that he obtained PR status in Chile in XXXX 2014 which accorded him substantially similar rights and obligations as nationals of that country. This being said, he lost his PR status in Chile XXXX XXXX, 2017, following an absence of 12 consecutive months. By the time he came to Canada XXXX XXXX, 2017, he no longer had the right to return to Chile as a PR. [17] Relying on the decision of Mahdi,7 Counsel submits that in assessing whether the Appellant is excluded from refugee protection, it was incumbent on the RPD to determine whether the Appellant was able to return and remain in Chile at the time that he applied for admission to Canada. When the Appellant came to Canada XXXX XXXX, 2017, the right to return and remain in Chile (automatically or by application) was no longer available to him. As such, the RPD erred by excluding the Appellant from refugee protection. [18] With respect, Counsel's argument cannot succeed. [19] It is true that the decision in Mahdi determined that at a minimum, the refugee claimant had to be able to return to and remain in the putative Article 1E country before invoking the exclusion provision. [20] However, it bears noting that the Federal Court of Appeal decision in Mahdi was rendered in the mid-1990s. Since then, the Federal Court of Appeal in Zeng has qualified the applicable test for exclusion as follows: Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. 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. 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, Canada's international obligations, and any other relevant facts.8 [21] Turning to the present case, the RPD correctly set out the applicable test for exclusion in Zeng and applied it as a framework of analysis to the facts in the present case. [22] As per Zeng, the Panel member concluded that on the date of the RPD hearing, the Appellant was excluded from refugee protection pursuant to Article 1E of the Refugee Convention based on the following: - The Appellant's evidence established that he was a PR of Chile which allowing him to reside indefinitely in Chile and perform any lawful activity. The Appellant who lived and worked in Chile and made return trips to Colombia and the USA, had substantially similar rights as nationals of Chile including the right to return and reside in the country, the right to work; the right to study; and access to social services.9 - The RPD further noted that PR status in Chile is automatically revoked if the PR spends more than one year uninterrupted outside Chile. In certain cases, the PR permit can be extended if the holder is unable to return to Chile during the year. This requires requesting an extension within 60 days prior to the expiration of the one-year period.10 - The Appellant's evidence is that he left Chile XXXX XXXX, 2016, and never returned. Since he did not request an extension of his PR status, the RPD concluded that he likely lost his PR status on XXXX XXXX, 2017. - Applying Zeng, the RPD then continued the exclusion analysis by balancing various factors including the reason the Appellant lost his PR status; whether he could return to Chile; the risk that he faced in Colombia and Canada's international obligations. - In this regard, the RPD considered that the Appellant lost his PR status in Chile voluntarily and did not avail himself of applicable legal provisions in order to seek an extension of his PR status in Chile. While the Appellant states that he had no intention of returning to Chile following the robbery at his store, the RPD found that the Appellant's decision to let his PR status lapse was unreasonable. The RPD noted that the robbery corresponds to a generalized risk and the Appellant did not rebut the presumption of adequate state protection in Chile given that he did not follow up with the police. The RPD determined that the robbery at the Appellant's store did not justify his decision to voluntarily give up his PR status in Chile. - With respect to the Appellant's risk if he returns to Colombia, the Appellant alleges that he fears people that he previously XXXX while working as a XXXX XXXX. The RPD noted that after the Appellant moved to Chile in 2012, he made numerous return trips to Colombia; he lived in Colombia from XXXX 2014 to XXXX 2015; and in XXXX 2016 he chose to leave Chile and moved back to Colombia even though he states that he received threats from criminal gangs and a bomb exploded near his parents' home in 2014. The RPD found that the Appellant's behaviour is inconsistent with someone who has a credible fear in Colombia. - Moreover, in assessing the Appellant's risk in Colombia, the RPD noted that his daughter attended school in Colombia and his wife returned to Colombia even after claiming refugee protection in Canada based on her fear of criminal gangs. As such, the RPD concluded that the Appellant did not demonstrate a serious possibility of persecution or personal risk of harm in Colombia impeding exclusion. - Finally, in balancing the various factors, the RPD also took into account Canada's international obligations, noting that the 1E exclusion clause "protects the integrity of the refugee system from 'asylum shopping'" such as the present case where the Appellant seeks protection in Canada despite being entitled to status in Chile, a safe third country. [23] All things considered, I find that the RPD correctly applied the Zeng factors in determining whether the Appellant is excluded from refugee protection on the date of the RPD hearing. While it is true that the Appellant had lost his PR status in Chile on the date of the RPD hearing, the Panel member was required to continue the analysis and balance other factors set out in the Zeng decision in order to determine whether the Appellant is nevertheless excluded from refugee protection. On a balance of probabilities, the RPD did not err in finding that the Appellant who voluntarily left Chile and unreasonably allowed his status to lapse, did not demonstrate a serious possibility of persecution or a personal risk of harm in Colombia impeding exclusion. VI. REMEDY [24] For all these reasons, I confirm the decision of the RPD in accordance with ss. 111(1)(a) of the IRPA, namely that XXXX XXXX XXXX XXXX is excluded from refugee protection pursuant to section 98 of the IRPA and Article 1E of the Refugee Convention. The Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Patricia O'Connor Me Patricia O'Connor July 17, 2019 Date PO/lp 1 United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 [Refugee Convention]. 2 Copy of permanent resident card for Chile and Certificate of Permanent Residence, RPD record pp 178, 185. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras. 78, 103. 4 Ibid, paras. 58, 59 and 70. 5 Section 98 of IRPA "A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection." 6 Refugee Convention, supra, note 1. 7 Mahdi v Canada (Minister of Citizenship and Immigration) (1994) 26 Imm. L.R. (2d) 311 (F.C.T.D.) affirmed on appeal Canada (Minister of Citizenship and Immigration) v Mahdi (1995) 32 Imm. L.R. (2d) 1 (F.C.A.). 8 Canada (Minister of Citizenship and Immigration) v Zeng, 2010 FCA 118, para. 28 [Zeng] 9 NDP for Chile, April 28, 2017, Tab 3.2 Rights and obligations or permanent residents; instances under which permanent residence is lost, CHL105735.E , p 1. 10 Tab 3.2, ibid, p 2. See also the Certificate of Permanent Residence, RPD record p 185. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB8-04520 7