MB7-21558

RAD File / Dossier de la SAR : MB7-21558 MB7-21559 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision September 9, 2019 Date de la décision Panel Daniel Tucci Tribunal Counsel for the persons who are the subject of the appeal Cristian Roa-Riveros Barrister and Solicitor Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Appellant) and XXXX XXXX XXXX XXXX (Appellant's Daughter) are citizens of Venezuela. The Appellant was appointed as the Designated Representative for his minor daughter for the purpose of this appeal. The Appellants are appealing a decision of the Refugee Protection Division (RPD) rejecting their respective claims for refugee protection. They request that the Refugee Appeal Division (RAD) set aside the RPD's decision under section 111(1)(b) and substitute a determination by finding that they are Convention1 refugees. DETERMINATION OF THE APPEAL [2] The Panel finds that the Appellants are not Convention refugees or persons in need of protection and therefore rejects their claims under section 96 and 97 of the Immigration and Refugee Protection Act (IRPA).2 The Panel therefore confirms the determination of the RPD pursuant to section 111(1)(a) of the IRPA. BACKGROUND [3] The Appellant is a citizen of Venezuela and Italy. The Appellant's Daughter is a citizen of Venezuela. The RPD heard the refugee claims of the Appellant, the Appellant's Daughter as well as the Appellant's common law spouse who is also a citizen of Venezuela. The RPD Member accepted the claim of the Appellant's common law spouse pursuant to section 96 of the IRPA based on political opinion and the risk of persecution she faced in Venezuela. [3] The RPD Member rejected the claim of the Appellant and the Appellant's Daughter based on the fact that the Appellant is a citizen of Italy and that the Appellant's Daughter can acquire Italian citizenship through her father's Italian citizenship. As the RPD Member concluded that the Appellant was an Italian citizen and his daughter could acquire Italian citizenship and based on the fact that the Appellants did not have a well-founded fear of persecution or that they were not persons in need of protection in Italy, the RPD Member rejected their claims under section 96 and 97 of the IRPA. The RPD Member did not assess the Appellants' refugee claims against Venezuela given her finding that the Appellant was a citizen of Italy and his daughter could acquire Italian citizenship as a formality and that they faced no risk in Italy. The Appellants filed an appeal of the RPD Member's decision arguing that she erred in law and fact with respect to her findings on the Appellants' Italian citizenship and risk they face in that country. ISSUES [4] The RPD Member found that the determinative issue in the Appellants' claims was their Italian citizenship and the lack of risk in Italy for both of them. The RPD Member also drew a negative inference with respect to the Appellant's credibility as it relates to his Italian citizenship. The RPD Member determined that the Appellants' did not need Canada's protection as they could live safely in Italy as citizens of that country. NEW EVIDENCE AND ORAL HEARING [5] The Appellant seeks to enter new evidence in this appeal pursuant to section 110(4)3 of the IRPA. In addition, the Appellant seeks an oral hearing pursuant to section 110(6)4 of the IRPA. The new evidence that the Appellant seeks to enter is a statutory declaration he drafted subsequent to the RPD decision rejecting his and his daughter's claim. Although the statutory declaration postdates the rejection of the claims, the Panel finds that this is not new information. [6] The Appellant states in his statutory declaration that he learned new information about Italy following the rejection of his claim that leads him to believe that he and his daughter's life will be in danger in Italy. The risk he believes he will face includes the discrimination, racism and harassment he will be subjected to as an immigrant in Italy despite being a citizen of that country. The appellant argues that he will be a visible minority in Italy and this will lead to his and his daughter's persecution in Italy. [7] The Panel notes that the issue of his return to Italy was canvassed at his RPD hearing. The Appellant stated at his hearing that he has no risk in Italy. Although the Appellant's view of Italy has changed, he has not provided any additional or new objective evidence to substantiate his claim. The Panel finds that the new evidence the Appellant wants to enter in this appeal does not comply with section 110(4) of the IRPA. The Panel will therefore not accept the Appellant's statutory declaration as new evidence. As the Panel has not accepted the new evidence, there is no need for the Panel to conduct a hearing in this appeal. SCOPE OF RAD APPEAL [8] When reviewing the RPD decision, the Panel is required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. The Panel may defer to the RPD's credibility assessment of oral testimony, if the Panel finds that the RPD had a meaningful advantage in the circumstances. Reasons will be provided in the Panel's analysis if the Panel finds that the RPD had a meaningful advantage. ANALYSIS OF THE MERITS OF THE APPEAL [9] The Panel has reviewed the evidence in the record and has reviewed the recording of the RPD hearing. The Panel has also considered Appellant's Counsel Memorandum of Argument. [10] The Panel has considered the issue of the Appellant's citizenship in Italy. The Panel agrees with the RPD Member that the Appellant has Italian citizenship. The RPD Member drew a negative inference with respect to the Appellant's credibility as he seemed to suggest that he lost or renounced his Italian citizenship. The Panel does not draw a negative inference from this. The Panel finds, on a balance of probabilities, that the Appellant is a citizen of Italy. [11] The Appellant's daughter is a citizen of Venezuela and not a citizen of Italy. The Panel has reviewed the objective evidence in the record and agrees with the RPD Member that the Appellant's Daughter is eligible to obtain Italian citizenship based on her father being an Italian citizen. The Panel has considered whether the Appellant's Daughter will receive Italian citizenship if her father applies for it on her behalf. The Panel acknowledges that Italy as a country of citizenship for the Appellant's Daughter should not be considered if there is some discretion on the part of the authorities in granting her citizenship. The Panel finds that based on the evidence in the record, the Appellant's Daughter will be granted Italian citizenship if she applies for it. The objective evidence does not appear to provide the official who will deal with the citizenship application discretion to accept or reject her application. As the application process appears to be a formality, the Panel finds that the Appellant's Daughter will be receive Italian citizenship when she applies for it. The Panel therefore must consider her claim on the basis of her ability to obtain Italian citizenship. [12] The Appellant stated at the RPD hearing that he had no issues or concerns with respect to returning to Italy. He did not identify any risk of harm for him and his daughter. As there is a presumption that a state can provide its citizens with adequate state protection and the Appellant raised no risk concerns in Italy, the Panel finds that the RPD Member was correct in rejecting the claims on the basis that the Appellants could live safely in Italy. [13] The Appellant raised some concern that he and his daughter will be at risk if they return to Italy. His position in this appeal contradicts his position at the RPD hearing. As the Panel rejected the statutory declaration as new evidence, the Panel finds that the presumption that Italy can provide the Appellant's with adequate state protection has not been rebutted. That being said, the Panel finds that based on the evidence presented before the RAD, that it confirms the determination of the RPD and as such rejects the Appellants' claims on both section 96 and 97 of the IRPA. [14] The Panel has nonetheless reviewed the objective evidence in the record regarding country conditions in Italy. The Panel finds that immigrants in Italy do face some discrimination and harassment. The authorities have made efforts to deal with this. The situation of the Appellants is somewhat different than it is for immigrants in Italy. They may be perceived as immigrants because they do not speak the language or on the basis that they are visible minorities, but they are in fact citizens. This will give them opportunities and benefits that immigrants are not privy to in Italy. The Panel finds that the Appellants will be provided with adequate state protection by the authorities in Italy. REMEDIES [15] For all these reasons, the Panel confirms the determination of the RPD pursuant to section 111(1)(a)5 of the IRPA. (signed) "Daniel Tucci" Daniel Tucci Sept 9, 2019 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 3 110(4) Evidence that may be presented On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 4 110(6) Hearing The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;(b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 2001, c. 27, s. 110 2010, c. 8, s. 13 2012, c. 17, ss. 36, 8 5 111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions:(a) confirm the determination of the Refugee Protection Division --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-21558 MB7-21559 RAD.25.02 (April 04, 2019) Disponible en français 4 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 (April 04, 2019) Disponible en français