TB9-13495

RAD File / Dossier de la SAR : TB9-13495 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 December 11, 2019 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person who is the subject of the appeal Rodney L Woolf Barrister and Solicitor Conseil de la personne en cause Designated representative XXXX 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 XXXX (the Appellant), citizen of United States of America, appealed a decision of the Refugee Protection Division (RPD), dated March 21, 2019, rejecting his claim for refugee protection. The Appellant has submitted new evidence with the appeal as referred to in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)1 and does not request an oral hearing be held pursuant to subsection 110(6) of the IRPA. [2] The Appellant XXXX XXXX XXXX XXXX XXXX is a minor and, as such, his father XXXX XXXX XXXX XXXX XXXX was made his designated representative pursuant to subsection 167(2) of the Immigration and Refugee Protection Act. [3] In making this decision, the RAD has considered the Chairperson's Guideline 3 - Child Refugee Claimants: Procedural and Evidentiary Issues.2 DETERMINATION [4] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND [5] The Appellant's allegations of harm before the RPD were based on those of his parents. Before the RPD, he did not put forward any specific allegations of harm against the United States (US), his country of citizenship. [6] The Appellant had a refugee determination hearing on March 21, 2019. In an oral decision on the same day, his claim was rejected by the RPD. The RPD found that the Appellant did not advance any evidence that he will face harm in the US and that he was neither a convention refugee, nor a person in need of protection. SEPARATION OF THE FAMILY IS NOT A RELEVANT CONSIDERATION IN THIS APPEAL [7] The Appellant submits that being separated from his parents would amount to cruel and unusual treatment further to section 97 of the IRPA. In my view, the question of the separation is not a relevant consideration because the physical separation of the children from their parents would be carried out by Canadian authorities, not by American immigration officials, the country of reference in this appeal. [8] Consideration of children's interests and family unity is not contemplated by sections 96 and 97 of the IRPA. "The consequences of denying refugee status to the principal Applicant's dependents seems harsh at first glance. But according to the case law, there is no concept of family unity incorporated into the definition of Convention refugee, this Court having chosen to adopt a very narrow view of the definition."3 Family reunification is an objective of the IRPA but, where the criteria for sections 96 and 97 of the IRPA are not met, these objectives do not allow the RPD and RAD to confer of refugee or protected person status. In this appeal, the separation of the children from their parents by Canadian officials does not constitute persecution or cruel and unusual punishment, as contemplated in the IRPA. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [9] As provided for in subsection 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of IRPA provides that 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 present, at the time of the rejection. It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the Appellants.4 [10] A series of documents5 were tendered as proposed new evidence. The Appellant submits that the documents meets the statutory requirements of subsection 110(4), as they were recently obtained. The negative RPD decision was issued on March 21, 2019. The RAD notes in its review of the documents that there is no specific reference as to when the documents were published. (Documents one and two may have been authored in June 2018, document three has no evidence of any date). The first document abruptly ends, it is not complete. The Appellant has not made full and detailed submissions explaining why the documents which appear to have been produced prior to the rejection of his RPD claim were not before the RPD. The Appellant was represented by the same experienced counsel who ought to have known that the Appellant's US citizenship would be an issue at his hearing. The RAD finds the evidence does not meet the test of new evidence and, as such, it will be considered in this appeal. REQUEST FOR AN ORAL HEARING [11] According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [12] The Appellant has submitted no admissible new evidence in support of his appeal. As such, the RAD must proceed without a hearing on the basis of the RPD's Record. The Appellant has not established that he will be returned to the United States [13] The Appellant is a US citizen. The same Counsel who represents the Appellant in this appeal did not present any evidence whatsoever or make submissions that the Appellant would be persecuted or be at risk in the US at the RPD. [14] The RAD notes as protected persons, the parents of the Appellant have options to secure their child's status in Canada. For instance, the parents can include their children in an application for permanent residence in Canada, even if the children themselves are not protected persons.6 The ability of the Appellant to be included in the parents' permanent residence applications is not subject to any discretionary limitations. The Appellant is legally entitled to be included in this application and, subject to a screening for inadmissibility, he will be similarly entitled to permanent resident status. [15] There is no evidence in this appeal that suggests that the parents are not entitled to permanent residency status, and, as a result, the Appellant has not established that he would not be entitled to permanent residency status. In addition, there are other authorities who could consider the Appellant's situation and consider his best interests prior to any potential removal from Canada: Various decisions rendered in Canada state that Parliament has provided other means for dependents of Convention refugees to reunite with their family members and obtain permanent resident status. In this regard, I note, among other things, the pre-removal risk assessment or humanitarian and compassionate considerations applications under section 25. These are remedies for which it is presumed that the competent authorities will take into account the best interests of the child and consider the international human rights instruments to which Canada is a signatory.7 [16] With his parents now having direct access to permanent resident applications from within Canada, the RAD finds that the Appellant has not established, on a balance of probabilities, that he will be removed from his parents and returned to the United States by Canadian authorities. The RAD finds the risk of removal is speculative and remote. The Appellant would not face persecution or cruel and unusual treatment in the United States [17] The Appellant submits that he would be left with government authorities and either placed in a shelter or in foster care or, in some similar situation, until he can be brought into Canada to join his parents or alternative arrangement are made for him. He implies that the trauma he would experience living in the United States without parents is analogous to that experienced by migrant children of illegal immigrants in the United States who undergo the stress of living with parents who may be detained or deported. [18] The RAD does not agree with this argument. The parents have legal status in Canada, and, according to the argument put forward by the Appellant, the parents would not be with the children in the United States. The Appellant is not a "child migrant," but rather an American citizen without family in the United States. Regarding the alleged psychological risk to the Appellant, the RAD finds that the situation of the child in this appeal, an American citizen whose parents have legal status in Canada and is not a migrant in the United States and is unlike the situation facing US-born children of "illegal" migrants. [19] Although recent years have seen some erosion of rights and freedoms in the United States, its citizens still benefit from democracy, a strong rule-of-law tradition, robust freedoms of expressions and religion.8 American children generally, and those in the care of child welfare authorities, also benefit from oversight and a protection system.9 The Appellant has not established, on a balance of probabilities, that he would be at risk of persecution in the United States, nor has he established that the United States is incapable of protecting the children, if required. [20] Finally, even if being placed into the care of American child welfare agencies could be considered cruel and unusual treatment, the RAD finds that any risk he might face is of a generalized and non-targeted nature. Being placed in the care of child welfare authorities is what would happen to any American child without parents or family. No evidence has been advanced to indicate that the Appellant would be targeted for mistreatment. The evidence presented in this appeal does not indicate that there has been a specific threat against this child or similarly situated children. [21] The Appellant has not advanced any persuasive evidence to suggest that he would face a serious possibility of persecution in the US, nor that, on a balance of probabilities, he would face a risk of torture, a risk to his life or cruel and unusual treatment or punishment in the US, were he to return there. CONCLUSION [22] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Robert Bebbington" Robert Bebbington December 11, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 2. 2 Child Refugee Claimants: Procedural and Evidentiary Issues, issued by the Chairperson pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, September 30, 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. 3 Dawlatly v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7952 (FC) para 15; Ammar v. Canada (MCI), 2006 FC 1041, para. 15; Zheng v. Canada (Citizenship and Immigration), 2011 FC 181, paras. 23-27; Canada (Minister of Citizenship and Immigration) v. Ranganathan, 2000 CanLII 16789 (FCA), [2001] 2 F.C. 164, para. 17; I also note that IRB Guideline 3 on Child Refugee Claimants states: The best interests of the child principle has been recognized by the international community as a fundamental human right of a child. In the context of these Guidelines, this right applies to the process to be followed by the CRDD. The question to be asked when determining the appropriate process for the claim of a child is what procedure is in the best interests of this child? With respect to the merits of the child's claim, all of the elements of the Convention refugee definition must be satisfied.... ." https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx, Akinfolajimi v. Canada (Citizenship and Immigration), 2018 FC 722. 4 Rule 3(3)(g)(iii), Immigration and Refugee Board of Canada, Refugee Appeal Division Rules, SOR/2012-257. 5 Exhibit P-2, Appellant's Record, pp.9-16. 6 See the Immigration and Refugee Protection Regulations, specifically regulation 176(1) : An applicant may include in their application to remain in Canada as a permanent resident any of their family members. See also regulation 1(3) for the definition of a family member: (b) a dependent child of the person or of the person's spouse or common-law partner. Immigration, Refugees and Citizenship Canada manuals also instruct officers on the eligibility of dependent children, see https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/protected-persons/stage-1-eligibility.html . 7 X (Re), 2017 CanLII 142905 (CA IRB), para. 56; regarding the best interests of the child and family separation due to deportation, see Simoes v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 15668 (FC), paras. 14-15. 8 National Documentation Package for the United States, March 2017, Item 2.1, United States. Freedom in the World 2017. 9 Ibid., Item 5.4, Child Maltreatment 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-13495 RAD.25.02 (April 04, 2019) Disponible en français 8 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