MB9-01728

RAD File No. / No de dossier de la SAR : MB9-01728 MB9-01729 / MB9-01730 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision February 11, 2020 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subject of the appeal Me Juan Cabrillana 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX, her son XXXX XXXX XXXX XXXX and her daughter XXXX XXXX XXXX XXXX, all citizens of El Salvador, are appealing the decision of the Refugee Protection Division (RPD) to reject their refugee protection claim. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" under section 97 of the IRPA. BACKGROUND [3] Before the RPD, the appellants' refugee protection claim was heard jointly with that of the spouse (and father of the two other appellants) of the principal appellant, XXXX XXXX XXXX XXXX XXXX. They jointly alleged fear in El Salvador of an organized crime group (the Maras), which had been threatening and extorting funds from them since 2016. They left their country on XXXX XXXX XXXX XXXX, to come to Canada, where they claimed refugee protection. [4] Further to a hearing on October 23, 2018, and by decision dated November 16, 2018, the RPD granted refugee protection to the principal appellant's spouse, but rejected the appellants' claim because they were able to obtain citizenship in Nicaragua through a mere formality, as the principal appellant's father had citizenship in that country. The RPD found that nothing in the evidence filed demonstrated a fear of persecution or a risk for the appellants in Nicaragua. [5] Before the RAD, the appellants submit that the RPD erred by its assessment and analysis of their obtaining citizenship in Nicaragua, for reasons which will be described in detail below in the Analysis section. [6] For these reasons, the appellants are asking the RAD to set aside the RPD's determination and grant them refugee protection or, alternatively, to refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [7] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting its own analysis of the record, in order to determine whether the RPD erred, as submitted by the appellants. NEW EVIDENCE [8] The appellants submitted two documents before the RAD asserting that they constitute new evidence under subsection 110(4) of the IRPA, which indicates that: 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. [9] In addition to the explicit conditions in subsection 110(4) of the IRPA, the RAD must also take into account the implicit conditions concerning the admissibility of new evidence, as established by the Federal Court of Appeal in Singh (M.C.I. v. Parminder Singh, 2016 FCA 96), specifically, in this case, the credibility and relevance of the new evidence. [10] First, I note that the appellants have not complied with paragraph 3(g)(iii) of the Refugee Appeal Division Rules, in that they did not include with their memorandum full and detailed submissions regarding how any evidence meets the requirements of subsection 110(4) of the Act. In her written statement within the appellants' file, the principal appellant writes that she received the documents in January 2019, and that she did not submit them before the RPD because she had never applied for Nicaraguan citizenship. [11] The first document, submitted as D-11, is a United States of America Certificate of Naturalization dated May 19, 1970, certifying that the principal appellant's father obtained citizenship in that country. I cannot accept this document into evidence for two reasons. [12] First, the document was issued prior to the date the refugee protection claim was rejected, and the appellants had been notified in writing, prior to the RPD hearing date, that the question of obtaining Nicaraguan citizenship would be discussed. I therefore consider that the document could have been filed before the RPD. [13] Second, the appellants failed to explain in their memorandum how the document is relevant to the issue under appeal, that is, their ability to acquire Nicaraguan citizenship. The fact that the principal appellant's father had obtained citizenship in the United States is not relevant to the issue in this case. What is relevant is the fact that he had Nicaraguan citizenship. [14] The second document, submitted as D-12, seems to date back to 2006, but is only filed in Spanish (pages 91 to 93 of the appellant's record). No translation of the document into French or English is included. For this reason, I cannot accept it into evidence. ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [15] Subsection 110(6) of the IRPA states that: 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. [16] As no new evidence has been accepted before the RAD, there is no cause to hold an oral hearing in this case. ANALYSIS [17] At issue in this appeal is whether the RPD erred in its assessment of the appellants' ability to obtain Nicaraguan citizenship. [18] In my opinion, the answer to this question is no, for the following reasons. [19] The RPD's decision was based on the following factors: [20] -The principal appellant's father, who is now deceased, was born in Nicaragua and consequently had citizenship in that country; [21] -Based on the wording of Nicaragua's General Law for Migration and Foreigners, No. 761, as shown in the document filed into evidence before the RPD (Tab 3.2 of the National Documentation Package on Nicaragua dated October 31, 2018, and also included in the most recent package dated October 31, 2019), children born abroad to Nicaraguan parents are recognized as Nicaraguan citizens, regardless of the parents' nationality. A footnote in the document indicates that, even if Nicaraguan parents gave up their Nicaraguan citizenship to acquire another, their children need only request Nicaraguan citizenship when they reach the age of majority; [22] -The principal appellant can consequently obtain Nicaraguan citizenship upon request, and therefore through mere formalities. It follows that the other two appellants can do the same if their mother is a Nicaraguan citizen. [23] In their memorandum, the appellants submit that the RPD erred in its analysis that Nicaragua's Law No. 761 indicates that those born abroad to Nicaraguan parents are citizens provided that they request it, and that the principal appellant never requested it. The principal appellant only learned that her father was Nicaraguan when she was an adult, when he acknowledged his paternity in 2006. [24] In my opinion, the fact that the appellant did not request Nicaraguan citizenship does not vitiate the RPD's determination. [25] Indeed, the RPD's determination is centred on the fact that the principal appellant, and consequently the other appellants, can request and obtain Nicaraguan citizenship through mere formalities, regardless of whether she had done so by the date of the hearing or the date of this decision. [26] Applying the principle established by the Federal Court of Appeal in Williams (Williams v. Canada, 2005 FCA 126, paragraph 22), the appellants in this case are therefore considered Nicaraguan citizens. [27] Upon reading and analyzing the documentary evidence cited above, as well as Williams, I can only come to the same conclusion as the RPD on the matter. [28] I note that the RPD uses the term mere formalities in its reasons. In my opinion, however, the RPD correctly applied the test established in Williams, that is, the power within the control of the applicant to acquire citizenship in a country. [29] Moreover, the RPD considered that the evidence filed failed to demonstrate a well-founded fear of persecution or likelihood that the appellants would face any risk if they were required to return to Nicaragua, particularly because the documentary evidence shows that the criminals whom the appellants fear in El Salvador have a minimal presence in Nicaragua, and these criminals would have no interest in hunting them down in Nicaragua. [30] The appellants do not challenge this conclusion by the RPD in their memorandum. Upon analysis of the same evidence filed, I can see no error by the RPD on the matter. [31] Consequently, in light of the foregoing, I find that the appellants failed to demonstrate that the RPD committed any errors justifying the RAD's intervention. RECOURSE [32] For these reasons, I confirm the RPD's determination, that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA, nor "persons in need of protection" under section 97 of the IRPA. [33] The appeal is dismissed. Normand Leduc Normand Leduc February 11, 2020 Date IRB translation Original language: French RAD File No. / No de dossier de la SAR : MB9-01728 MB9-01729 / MB9-01730 RAD.25.02 (January 2020) Disponible en français 7 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