MB9-10219

RAD File / Dossier de la SAR : MB9-10219 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 3, 2020 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Alima Racine Conseil de la personne en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. The Appellant, XXXX XXXX XXXX XXXX XXXX, is a citizen of the United States of America (U.S.) and a minor who was born in that country in 2015. [2] The Appellant arrived in Canada with her parents who are citizens of Yemen and of Saudi Arabia. Her mother, the designated representative, was successful in her pre-removal risk assessment (PRRA) application. A family application for permanent residency has been made, but ha not yet been decided. The family arrived in Canada on XXXX XXXX, 2018 at which time her father had temporary protected person status, but his mother had lost her status the day before her arrival in Canada. Neither parent have any current immigration status in the U.S. [3] Although no risk to the Appellant was identified in the U.S., the refugee claim was based on separation of the Appellant from her parents. The hearing was held on April 3, 2019 at which time the claim was rejected. The determinative issue of the Refugee Protection Division (RPD) was lack of potential treatment that meets the definitions in sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [4] The RPD made the following findings: i) No refugee grounds were invoked; ii) Risk of separation from parents if returned to the U.S. does not amount to persecution or risk to life, of torture, or of cruel or unusual treatment or punishment; iii) The Designated Representative testified that she believed that U.S. authorities would protect her daughter; iv) Documents about risk in Saudi Arabia and Yemen are not relevant. DECISION Submissions in support of the appeal [5] First, counsel submits the Appellant's claim must be analyzed with that of her parents. [6] Second, counsel submits that the best interests of the child is a general principle that must be taken into account in all proceedings in Canada. Separation of a three-year-old child from her parents is a violation of this principle. Refugee Appeal Division (RAD) Summary [7] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither Convention refugees nor a person in need of protection. [8] The RPD erred in providing no meaningful assessment of the reasons in support of its conclusion. Nevertheless, the RPD did not err in its conclusion that the stated risk of separation from parents does not meet the definitions found in section 96 and 97. ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The Appellant has not applied to admit new evidence, nor has she requested an oral hearing. The Position of the Appellant [10] The Designated Representative agrees that U.S. authorities are able to protect the Appellant. [11] Counsel submits that the RPD erred by not assessing the claim with those of her parents. [12] Counsel submits that the RPD erred by failing to consider the best interest of the child which must be taken into consideration in all proceedings in Canada. Separation of the Appellant from her parents would be in conflict with her best interests and would be contrary to Canada international and national child protection commitments. Reasons of the RPD [13] The RPD divided its reasons and decision into two parts: risk of harm and state protection. The Designated Representative acknowledged that adequate state protection is available in the U.S. and counsel did not submit that the RPD erred on this issue. The contested issue is whether the RPD erred in its assessment of harm. [14] Although the Designated Representative testified that the Appellant would not face risk of serious harm in the U.S., she submits that separation of the Appellant from her parents meets this definition. RAD Assessment [15] First, the requirement to assert a refugee claim against one's country of nationality or, if stateless, against one's country of former habitual residence, forms part of the definitions of a Convention refugee and a person in need of protection. In addition, it is settled law that risk assessments under sections 96 and 97 must be done with reference to this criteria.2 The RPD did not err by failing to assess risk to the Appellant on the basis of her parents' countries of nationality. [16] The RPD erred by failing to provide reasons in support of its conclusion. As a result, the decision is not transparent and fails to explain how the panel arrived at its decision. Notwithstanding this lack of any meaningful analysis of the legal issues, I agree with the result. [17] According to the Supreme Court of Canada, "The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At common law, an alien has no right to enter or remain in the country."3 [18] The Federal Court of Appeal has held that the principle of the best interests of the child does not form part of an assessment under sections 96 and 97 of the IRPA.4 Canada's international obligations with respect to the best interest of the child are respected through an application for permanent residency for humanitarian and compassionate grounds under subsection 25(1) of the IRPA5, not through sections 96 and 97.6 The Federal Court of Appeal looked at the statutory scheme of the IRPA as a whole and concluded that a refugee status determination decision-maker may not assume jurisdiction to conduct a subsection 25(1) analysis. The two processes are separate.7 [19] The Federal Court of Appeal has also found that the execution of a deportation order that would separate a child from his or her parents does not contravene Canadian law.8 In particular, the Court held that a child has no constitutional right never to be separated from its parents. Deportation of a foreign national is not imposed as a punishment and does not contravene section 12 of the Charter of Rights and Freedoms (the Charter) which protects against cruel and unusual treatment or punishment. In particular, it is not something that would outrage Canadian standards of decency.9 [20] On the facts of this appeal, the Appellant would be separated from her parents in Canada for potential foster care. This treatment arises in Canada under the Charter and then would continue in the U.S. It is not a risk that is inherent to removal to the U.S. itself. In addition, it is not a treatment that violates section 12 of the Charter. As the Federal Court of Appeal noted in the Langner decision, children are separated from parents for a number of reasons, including when a parent is imprisoned, extradited, or even divorced.10 Separation of the Appellant from her parents for purposes of maintaining the integrity of the IRPA is not something that would outrage Canadian standards of decency and rise to the level of cruel and unusual treatment as understood by the Supreme Court in R. v. Smith. [21] Similarly, the requirement for an unaccompanied minor to be placed in foster care in the U.S. does not meet this threshold of cruel and unusual treatment either. [22] The RAD has previously dealt with the issue of whether treatment of unaccompanied minors is excluded from protection by virtue of paragraph 97(1)(b)(ii) of the IRPA in MB7-24219.11 The panel noted that the need of an unaccompanied minor for foster care is common to orphans or to those without family support in the U.S. As such, this issue is excluded because it is not particular to the Appellant, but is rather a generalized risk to which the population in general is subject. I agree with the RAD's reasoning in this decision. [23] My assessment of the appeal leads me to conclude that the RPD decision fails to provide clear and transparent reasons to support its determination, but is nevertheless correct in its outcome. The question of family unity and the best interests of the child have been assigned by Parliament to other IRPA programs for determination. Second, the separation of the Appellant from her parents has not been done for a reason described in the definition of a Convention refugee. Third, the separation of a child from a parent for purposes of executing a lawful removal order does not constitute cruel and unusual treatment. Finally, this is a generalized risk which is excluded by operation of paragraph 97(1)(b)(ii) of the IRPA. CONCLUSION [24] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither Convention refugee nor a person in need of protection. (signed) "H. Shepherd" H. Shepherd March 3, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Yah Abedalaziz v. Canada (Citizenship and Immigration) 2011 FC 1066 (CanLII); Hanukashvili v. Canada (Citizenship and Immigration), 1997 CanLII 6020 (FC). 3 Canada (Minister of Employment and Immigration) v. Chiarelli, 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711. 4 Varga v. Canada (Minister of Citizenship and Immigration), 2006 FCA 394 (CanLII), [2007] 4 FCR 3. 5 Immigration and Refugee Protection Act, S.C. 2001, c.27. 6 de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 (CanLII), [2006] 3 FCR 655. 7 Sherzady v. Canada (Minister of Citizenship and Immigration), 2005 FC 516 (CanLII). 8 Langner v. Canada (Minister of Employment and Immigration) (1995) 184 N.R. 230(F.C.A.) [Langner]. 9 R. v. Smith (Edward Dewey), 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1072. 10 Langner, supra, footnote 8, at p. 234. 11 X (Re), 2019 CanLII 76047 (CA IRB). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-10219 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