TB9-07779

RAD File / Dossier de la SAR : TB9-07779 TB9-07780 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision September 21, 2020 Date de la décision Panel Alison Kennedy Tribunal Counsel for the persons who are the subject of the appeal N/A Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Venezuela. She is appealing the decision of the Refugee Protection Division (RPD) that she is not a Convention Refugee or a person in need of protection. While the Appellant's claim was initially joined with that of her husband, who was the Associate Appellant in their claim before the RPD, the Appellant advised during this proceeding that her husband has unfortunately passed away. As such, this decision will consider only the appeal of the Appellant. BACKGROUND [2] The Appellant is basing her refugee claim against Venezuela on criminality, having experienced multiple robberies and thefts while living there. However, the RPD determined that Lebanon is also an appropriate country of reference in this instance, and that the Appellant had Lebanese citizenship previously and would automatically be granted Lebanese citizenship again. Consequently, the RPD found that the Appellant has citizenship in Lebanon and found that she made no claim against that country. As such, the RPD found that she had not proven that she faces a serious possibility of persecution or a s. 97 risk in Lebanon. [3] The Appellant has not made any arguments related to the RPD's findings on citizenship in Lebanon. Rather, her appeal is based on the hardships she would experience if she was forced to leave Canada and live in Lebanon. DETERMINATION [4] I find that the RPD was correct in finding that Lebanon is a country of reference in this case, and that the Appellant has not demonstrated a serious possibility of persecution nor, on a balance of probabilities, a s. 97 risk if she returns to Lebanon. NEW EVIDENCE Rule 29 application evidence presented by the Appellant is accepted [5] The Appellant is seeking to submit a letter explaining a change to her personal circumstances as per RAD Rule 29.1 In determining whether to allow the application to admit new evidence pursuant to Rule 29, I must consider any relevant factors, including: i. the document's relevance and probative value; ii. any new evidence the document brings to the appeal; and iii. whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record.2 [6] I find that this letter is relevant and probative to the appeal before me, given that it includes new information about the Appellant's personal circumstances and claim, notably, that the Appellant's husband passed away in XXXX of 2020. I do not find that the Appellant could have reasonably provided this information with her appeal record, given that her husband did not pass away until after the appeal record was submitted. I also find that this evidence is credible, as it is written by the remaining Appellant. As such, accept this document on appeal. Subsection 110(4) evidence presented by the Appellant is accepted [7] The Appellant is seeking to submit many new documents on appeal, including two medical reports and many letters from family members in support of their appeal. According to the law,3 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.4 [9] I find that the medical reports post-date the RPD's decision. As such, I find that the reports arose after the RPD decision and satisfy the criteria of subsection 110(4) of IRPA. I find that these reports are credible, given that they are written by a medical doctor. I also find that this evidence is new and relevant, given that it provides greater detail about the medical conditions facing the Appellant. [10] Similarly, the letters provided by the Appellant's family members post-date the RPD decision. Consequently, I find that they arose after the RPD decision and satisfy the criteria of subsection 110(4) of IRPA. I find that these letters are credible and new, given that they are written by the family of the Appellant and speak to the care her family provides for her in Canada. Finally, I find that these letters are relevant insofar as they relate to the difficulties the Appellant may face upon a return to Lebanon. Oral Hearing [11] Given that I have admitted new evidence on appeal, I must consider whether an oral hearing is necessary under s. 110(6) of IRPA. Having reviewed the new evidence and the record, I find that an oral hearing is not required in this appeal because the new evidence does not raise a serious issue about the Appellant's credibility that is central to the decision and that, if accepted, would justify allowing or rejecting her claim. ANALYSIS [12] The RPD found that the Appellant is entitled to citizenship given that she has a father that is Lebanese, and that Lebanese citizenship is granted automatically to those with Lebanese fathers. Furthermore, the RPD noted that Lebanon allows for multiple citizenships. The RPD also noted that Lebanese citizenship is automatic and obtaining such citizenship is within the control of the Appellant. Finally, the RPD found that the Appellant made no refugee claim against Lebanon. As noted, the Appellant made no arguments regarding the RPD's findings on her ability and control over obtaining Lebanese citizenship. I see no error in the RPD's findings in this instance, and therefore will not interfere with these findings and uphold the RPD's decision that Lebanon is a country of reference in this instance. [13] On appeal, the Appellant focused her arguments on the difficulties she would face returning to live in Lebanon.5 The Appellant argues that she has no support in Lebanon, and that it would be nearly impossible for her to live a sustainable life there.6 The Appellant notes that the economy in Lebanon is in poor shape and worsening, with the country facing an economic crisis.7 The Appellant further argues that the RPD failed to consider that although she has a son in Lebanon he would be unable to help support her due to his own health issues.8 Finally, the Appellant argues that she has been facing depression as a result of the passing of her husband and the COVID-19 pandemic.9 [14] I am mindful of the difficulties the Appellant may have in returning to Lebanon where she has not lived for many years. However, in order to make a successful claim for refugee protection, the Appellant must demonstrate that she faces a serious possibility of persecution based on a Convention ground, or, on a balance of probabilities, a risk to her life, a risk of cruel and unusual treatment or punishment, or a danger of torture as per section 97 of IRPA. [15] As noted by the RPD, the Appellant made no such claim against Lebanon in her RPD hearing. On appeal, the Appellant noted that she left Lebanon during the civil war in 1976 because she was being targeted and threatened because of her faith. However, she has not argued or provided any evidence that she would face a serious possibility of persecution on this basis if she were to return to Lebanon now. Nor has she put forward sufficient evidence to show that she would face a serious possibility of persecution or, on a balance of probabilities, a risk to her life, a risk of cruel and unusual treatment or punishment, or a danger of torture on another basis if she were to return to Lebanon. Unfortunately, the existence of personal hardships that the Appellant may face upon her return to Lebanon - including, for instance, a lack of familial support, economic difficulties, and the potential for worsening depression - is not sufficient to demonstrate a serious possibility of persecution or a s. 97 risk pursuant to IRPA. Similarly, I do not find that the Appellant has demonstrated that she would face a serious possibility of persecution or a s. 97 risk upon her return to Lebanon based on the current economic conditions there. [16] The Appellant has argued that she wishes to stay with her family in Canada, especially given the loss of her spouse and the ongoing COVID-19 pandemic. Similarly, her family has provided evidence that they wish to have the Appellant remain here and ask that she be able to stay on humanitarian and compassionate grounds. I am certainly empathetic to the Appellant's wish to remain in Canada with her family. Unfortunately, I have no jurisdiction to make a determination that the Appellant is a refugee of a person in need of protection based on humanitarian and compassionate considerations. As noted by the Federal Court: ...only the Minister has jurisdiction under section 25 of IRPA to waive the requirements set out in the Act when he is of the opinion that it is justified by humanitarian and compassionate considerations. This authority has not been delegated to the RPD with respect to the requirements set out in sections 96 and 97 of IRPA. ...the fact remains that the RPD simply did not have the power to grant any status to the respondents without properly qualifying each of them as persons who fear persecution and are unable or unwilling to claim the protection of their own country [emphasis added].10 [17] Similarly, the Federal Court of Appeal has commented on the distinction between refugee claims and humanitarian and compassionate applications, which it noted are "two procedures governed by different objectives and considerations". As noted by the Court, "humanitarian and compassionate considerations normally arise after an applicant has been found not to be a Convention refugee. The panel's failure to consider humanitarian and compassionate factors in its Convention refugee determination in this case was not an error."11 [18] In summary, the role of the refugee determination process before the RPD and the RAD is to assess whether individuals are Convention refugees or persons in need of protection pursuant to the relevant legislative provisions and jurisprudence. The onus is on the Appellant to demonstrate that she is a Convention refugee or a person in need of protection pursuant to s. 97, and I do not find that she has done so in this instance. [19] While there may be other legal or procedural options available to the Appellant to remain in Canada beyond the refugee process, consideration of these options are outside of the scope of my jurisdiction. Nevertheless, the Appellant may wish to explore other options that may allow her to stay in Canada which can properly consider the humanitarian and compassionate considerations she has brought forward on appeal. CONCLUSION [20] 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) Alison Kennedy Alison Kennedy September 21, 2020 Date 1 Exhibit P-3, Appellant's Rule 29 application 2 Refugee Appeal Division Rules, Rule 29(4). 3 Subsection 110(4) of the IRPA. 4 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 5 Exhibit P-2, Appellant's Record at p. 6. 6 Ibid. 7 Rule 29 application, supra note 1 8 Ibid. at p. 8 9 Ibid. 10 Canada (Minister of Citizenship and Immigration) v. Khan, 2005 FC 398. 11 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-07779 TB9-07780 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français