VB9-02633

RAD File / Dossier de la SAR : VB9-02633 VB9-02634 / VB9-02635 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 XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 5, 2020 Date de la décision Panel James Sloan Tribunal Counsel for the persons who are the subject of the appeal Fadi Yachoua Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the male Appellant), his wife XXXX XXXX XXXX XXXX XXXX XXXX (the female Appellant) and her son XXXX XXXX XXXX (the minor Appellant) made a joint claim for refugee protection, which was refused by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (Board). For the reasons that follow, I endorse the findings of the RPD and reject this appeal. [2] The male Appellant was born in the Kurdish region of Iraq. He claims that his family will harm him because they disapprove of the fact that he used to own a bar. He left Iraq for Brazil on XXXX XXXX XXXX 2016, where he married the female Appellant in XXXX 2016. He travelled to the US in XXXX 2017. He claims that his passport was seized by US authorities. He claimed asylum in the US in XXXX, but came to Canada in XXXX 2017. He claims that he only has visitor status in Brazil. The Minister, who intervened in the claim, submitted evidence which indicates that he holds permanent status in Brazil, valid until 2025. [3] The female Appellant claims to have converted to Islam in 2015. She says that she cannot return to Brazil because she fears persecution based on her religion. The minor Appellant claims that he cannot return to Brazil because of the persecution faced by his mother. The female Appellant and the minor Appellant left Brazil and joined the male Appellant in Canada on XXXX XXXX, 2018. [4] The RPD found that the male Appellant was excluded from refugee protection by virtue of Article 1E of the United Nations Convention Relating to the Status of Refugees,1 because he has a status in Brazil that is substantially similar to that held by its nationals. [5] The RPD found further that neither the female Appellant nor the minor Appellant had a well-founded fear of persecution based on religion. In the alternative, it found that they have available to them a viable internal flight alternative in Rio de Janeiro. DETERMINATIVE ISSUE [6] The determinative issue in this case is whether the male Appellant is excluded from Convention protection under article 1E. STANDARD OF REVIEW [7] In my review of the RPD's decision, I will apply a standard of correctness.2 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.3 ANALYSIS 1. Procedural issues [8] The Appellants were represented by Robert Kincaid at the RPD. The RPD issued its decision rejecting their claim on March 8, 2019 and it was sent to the Appellants and Mr. Kincaid on March 11, 2019.4 In a March 28, 2019 document, signed by each of them, the Appellants gave notice of their attention to appeal.5 At that point, they were apparently without representation.6 [9] In a letter dated April 23, 2019, Mr. Thaer Abuelhaija contacted the Board notifying it that he was counsel for the male Appellant and attaching the Appeal Record.7 The Record included a Legal Memorandum, in which Mr. Abuelhaija argues against the RPD's findings in relation to the male Appellant. No arguments are made in relation to the female Appellant or the minor Appellant. [10] On May 3, 2019 Mr. Abuelhaija made an Application for an Extension of Time to Perfect the Appeal in relation to all three Appellants.8 On May 16, 2019, the Application was allowed by the Refugee Appeal Division (RAD). The appeal was perfected on May 16, 2019. [11] On October 25, 2019, the Board received a letter from Mr. Fadi Yachoua in which he stated that he was representing the three Appellants. On November 13, 2019, Mr. Yachoua sent the Board Use of Representative Forms in relation to the three Appellants.9 [12] I was vested with this appeal on November 15, 2019. [13] Beginning on December 10, 2019, Mr. Yachoua engaged in a series of requests to the Board for delays or other relief. As outlined below, there has been something of an evolution in the justifications for the relief requested by Mr. Yachoua. Mr. Yachoua's first request [14] In his first request, on December 10, 2019, Mr. Yachoua requested that the RAD defer taking action indefinitely so that he could consider whether to bring an application for further evidence and arguments. He justified this by arguing that, as a recently appointed counsel, he required more time. [15] In a December 11, 2019 reply to Mr. Yachoua's communication, Ms. Jennifer Mensink, on behalf of the Minister, opposed Mr. Yachoua's request and highlighted the significant amount of time (some five months) that that elapsed between the Board's May 16, 2019 decision to grant the Appellants' Application for an Extension of Time to Perfect an Appeal and the Appellants' retention of Mr. Yachoua as new counsel in late 2019. [16] I decided-subject to further submissions-not to take any action in the appeal until January 17, 2020. I also sought guidance from Mr. Yachoua regarding whether the April 23, 2019 Appeal Record was relied upon by him in relation to the three Appellants or only in relation to XXXX XXXX XXXX XXXX XXXX XXXX. I required clarification on this point from Mr. Yachoua by January 10, 2020. Mr. Yachoua's second request [17] In a second letter, dated January 10, 2020, Mr. Yachoua again requested that the RAD defer taking action indefinitely. This time, Mr. Yachoua stressed the importance of XXXX XXXX XXXX XXXX XXXX XXXX having the opportunity to obtain Brazilian legal advice in order to rebut the findings of the RPD that, owing to his Brazilian residence status, Article 1E of the Refugee Convention excluded him from protection. Mr. Yachoua noted that lawyers in Brazil had already been contacted. In addition, Mr. Yachoua suggested that the Brazilian legal advice may indicate that the Appellants' counsel at the RPD had provided inadequate legal representation or that there had been a violation of procedural fairness. [18] Mr. Yachoua failed to advise the Board whether he relied on the April 23, 2019 Appeal Record in relation to all three Appellants or in relation to XXXX XXXX XXXX only. [19] By letter dated January 13, 2020, Ms. Mensink again objected to Mr. Yachoua's request. She again noted that the appeal had been perfected on May 16, 2019 and that no explanation had been given as to why the Appellants had allowed so much time to elapse before seeking new counsel. In addition, she noted that Mr. Yachoua's January 10, 2020 request for an extension featured no supporting documentation or evidence. She noted further that the Appellants had failed to offer a reasonable explanation as to why they were unable to provide a legal opinion or any other documentation to the RPD prior to its rejection of their claims-as is required pursuant to subsection 110(4) or the Immigration and Refugee Protection Act where Appellants seek to adduce new evidence at appeal. She noted that it was highly speculative of Mr. Yachoua to suggest that the contents of a legal opinion, which had not yet been written, would assist XXXX XXXX XXXX XXXX XXXX XXXX case in relation to his Article 1E exclusion or show that the Appellants had been inadequately represented or subjected to breaches of procedural fairness. [20] By means of a communication of January 14, 2020, I again required Mr. Yachoua to provide clarification regarding whether he relied on the April 23, 2019 Appeal Record in relation to all three Appellants or in relation to XXXX XXXX XXXX XXXX XXXX XXXX only. I advised Mr. Yachoua that if such clarification was not provided by January 17, 2020, I would conclude that the Appeal Record was relied upon in relation to each of the three Appellants. [21] No such clarification was received. Mr. Yachoua's third, fourth and fifth requests [22] By a letter dated January 17, 2020, Mr. Yachoua advised the Board that XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX had separated and planned to file for divorce. As a consequence, Mr. Yachoua stated that he no longer represented XXXX XXXX XXXX XXXX XXXX XXXX XXXX instead only representing XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX. Mr. Yachoua stated that it "is our understanding that XXXX XXXX XXXX is in the process of finding counsel." In consequence, Mr. Yachoua stated he was applying, pursuant to RAD Rules10 37, 41, and 52: 1. to remove himself as counsel for XXXX XXXX XXXX XXXX XXXX XXXX appeal; 2. to separate XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX XXXX XXXX appeals from that of XXXX XXXX XXXX XXXX XXXX XXXX; and, 3. for an extension of time until February 14, 2020 to perfect XXXX XXXX XXXX XXXX XXXX XXXX appeal.11 Mr. Yachoua argued that the application for an extension of time was necessary because the April 23, 2019 Appeal Record addressed XXXX XXXX XXXX XXXX XXXX XXXX case only and because, "among other steps in the process of perfecting the appeal, we need time to secure a copy of the RPD's audio recording and arrange for transcription." [23] In a letter dated January 28, 2020, Ms. Mensink opposed the request for an extension of time. She argued that the appeal had been perfected as of May 16, 2019, that the (second) Application for an Extension of Time to Perfect an Appeal was not in compliance with the RAD Rules, and that no reasonable explanation had been provided by the Appellants as to why they had allowed so much time to elapse before taking steps to seek additional information in support of their RAD Appeal. My findings on the Mr. Yachoua's most recent requests [24] My findings are as follows: a. Mr. Yachoua remains counsel of Record for XXXX XXXX XXXX XXXX XXXX XXXX. RAD Rule 19 provides that for counsel for a person who is the subject of appeal to be removed as counsel of record, he or she must 1) first, provide to the person represented and the Minister with a copy of a written request to be removed, and 2) then, provide the written request to the RAD, accompanied by proof that copies of the written request were provided to the person represented and the Minster. There has been no written request accompanied by the requisite proof that copies were provided to XXXX XXXX XXXX XXXX XXXX XXXX and the Minister. b. The request to separate the appeals of XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX XXXX from that of XXXX XXXX XXXX XXXX XXXX XXXX is denied. RAD Rule 40 provides that appeals that were joined at the time the RPD decided the claims are automatically joined at appeal. Rule 41(2) provides that a party may make an application to the RAD to separate appeals that are joined, in accordance with Rule 37, as modified, and must provide a copy of the application to any person who will be affected and proof that that person has been provided a copy of the application. In accordance with Rule 41(4), documents in relation to the application must be received by their recipients at the same time the RAD receives the person's notice of appeal. I have received no proof that affected persons have been provided with the documentation as required. c. The request to hold the matter in abeyance until February 14, 2020 in order to perfect the appeal is denied. As noted above, the RAD, in a decision of May 16, 2019, granted an Application for an Extension of Time to Perfect the Appeal and held that the joint appeal of each of the three Appellants was perfected on May 16, 2019. In his January 17, 2020 letter, Mr. Yachoua did not directly state whether the April 23, 2019 Appeal Record was relied upon by him in relation to the three Appellants or in relation to XXXX XXXX XXXX XXXX XXXX XXXX alone. However, his observation that the April 23, 2019 Appeal Record only addresses arguments in relation to XXXX XXXX XXXX XXXX XXXX XXXX and his request that the matter be held in abeyance in order that he may perfect the appeal, suggests that he does not rely on the April 23, 2019 Appeal Record for all three Appellants. His view that the appeal has not been perfected for XXXX XXXX XXXX XXXX XXXX XXXX or XXXX XXXX XXXX XXXX XXXX ignores the fact that the RAD, in a decision of May 16, 2019, granted an Application for an Extension of Time to Perfect the Appeal for the three Appellants and held that their joint appeal was perfected on May 16, 2019. I can see no basis upon which the appeals of XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX XXXX XXXX may be said not to have been perfected-and no such basis is advanced by the Mr. Yachoua. Nor has Mr. Yachoua advised me why he did not take steps to perfect their appeals earlier if he views them as not having been perfected. RAD Rule 6, which provides for an Application for an Extension of Time to Perfect the Appeal, must surely envisage a situation where the Appeal has not already been perfected. In addition, as correctly noted by Ms. Mensink, RAD Rule 6(5) calls for the provision of accompanying documents, which Mr. Yachoua has not included. Finally, I note that-as Ms. Mensink correctly pointed out-no reason is given by Mr. Yachoua as to why the Appellants waited for so before seeking new counsel or before taking steps to seek additional information in support of their appeal. Nor has any evidence been provided in support of any of the various justifications for Mr. Yachoua's requests. I can see no basis for Mr. Yachoua's request for an extension of time "to perfect XXXX XXXX XXXX XXXX appeal" and to take steps "in the process of perfecting the appeal." Consequently, I reject this request. [25] As is clear from the foregoing, I have held this decision in abeyance since December 10, 2020 in order to address a series of requests made by Appellants' counsel. I have done so with a view to ensuring the procedural fairness of this Appeal. Because of my findings above, it falls to me to proceed on the basis of the perfected Appeal Record dated April 23, 2019, despite the fact that the Legal Memorandum therein does not make any argumentation in relation to the RPD's rejection of the claim as it pertains to the female Appellant and the minor Appellant. 2. Is the male Appellant excluded based on article 1E? [26] The Appellants argue that the RPD erred in its determination that the male Appellant was excluded under Article 1E. They made the following arguments: a. Appellants' argument. The RPD read the male Appellant's "Legal Status Certificate for Foreigner", issued by the Federal Police, selectively because it did not refer to a sentence in that document stating that the male Appellant had filed a request for permanent residence based on his XXXX XXXX XXXX 2016 marriage to the female Appellant; that he had merely filed for status, they argue, implies that he had not received it. My finding. The Legal Status Certificate states in the relevant part as follows: the male Appellant "is in lawful legal status in National Territory, duly registered on the National System of Process Tracking...having filed the Permanent Residence for having a Brazilian Spouse on XXXX XXXX, 2016."12 It is true that the document states that he filed for permanent residence. However, the RPD relied on other documents in the same paragraph of the decision to show that the male Appellant was a permanent resident: i) the male Appellant's statement that he was a permanent resident of Brazil in his XXXX 2016 application for a Canadian visa and ii) a "protocol" that is largely illegible-the female Appellant claims the male Appellant had left it in his pants pocket and that she laundered the pants-but which notes his status as a permanent resident with a Brazilian spouse. These documents (as well as others, including the Solemn Declaration of a Canadian Border Services Agency official, dated XXXX XXXX XXXX 201813), when read together with the Legal Status Certificate, show that it is likely that he had permanent resident status. I do not find that the RPD was selective in its analysis of the evidence. b. Appellants' argument. The RPD failed to consider the Murcia Romero case.14 In that case, a female applicant and her daughter held expired US permanent resident cards. Because the Court found that their ability to re-acquire permanent residence was, under US law, dependent on the cooperation of the estranged spouse and because that support was being withheld, it held that they could not be excluded under Article 1E. The Appellants argue that the fact that the female Appellant travelled with the male Appellant to Canada and claimed refugee status here provides a strong indication that she does not support his residency status in Brazil. My finding. The Murcia Romero case is inapposite on three bases: first, the male Appellant's residence status in Brazil has not expired; second, there is no evidence that the female Appellant does not support the male Appellant obtaining residency; and third, there is no evidence that the law of Brazil requires that support. Moreover, I do not accept that the female Appellant's having travelled to Canada to seek asylum may be interpreted as her withholding her support for the male Appellant's permanent residence in Brazil. c. Appellants' argument. The RPD, in finding that the male Appellant's status in Brazil was substantially similar to Brazilian nationals, assigned considerable weight to the male Appellant's statement that he was a Brazilian permanent resident in his application for a visitor's visa to Canada in 2016.15 The RPD held that it was not reasonable that he would attest to being a permanent resident in XXXX 201616 but later (once his request to visit Canada had been rejected) claim to only have a visitor status in Brazil. The Appellants argue that the RPD failed to consider that the temporary resident visa was filed by a third party, not the male Appellant. My finding. I find that the Appellants' claim is not borne out by the male Appellant's testimony: A. I -- once I filled out a form when I applied for visa in the embassy, it was something like this, looked like this.[17] Q. Is that the one that you filled out and submitted to the embassy? A. I'm not sure exactly, it looks -- they look the same, but I'm not sure if it's the same or not, because I cannot read Portuguese. Q. On page 7, is that your signature? A. Yes. Q. Did you complete this application form? A. No, it was a computer asking questions and I answered questions. Q. What language were the questions in? A. It was in Arabic, the phone. Q. I though you said like a computer was asking questions and you answered them? A. There was a person sitting behind a computer asking me questions, and I answered these questions. Q. So where did the phone come in? A. Because I could not speak the language, I had to write it on my phone and use the interpreter and then show it to him. Q. Who was this person? A. It was an officer, their officer, something like immigration officer, it's called a federal (inaudible/speaking simultaneously). I find that the male Appellant did represent himself as a permanent resident in Brazil in XXXX 2016, only to change his status after his request for a visa was rejected. I find, in the alternative, that even if it were the case that, due to the assistance the male Appellant received in applying for a Canadian visa, his claim to be a permanent resident in Brazil in relation to that application did to reflect his true understanding of his status, there is, nevertheless, sufficient evidence outlined by the RPD to show that he does hold permanent resident status there. d. Appellants' argument. The RPD failed to consider documents that were presented mid-hearing which show that while the Brazilian visa entitles a resident to live and work indefinitely in Brazil, it is subject to revision after the third year of its issuance and, as such, the holder should visit the country regularly. My finding. The Board is not required to refer to every piece of evidence that it received that is contrary to its finding or to explain how it dealt with it.18 Based on the RPD's decision, I have no reason to believe that it did not consider all the documents. After all, even if the male Appellant is required to visit the country it does not mean that he does not have permanent resident status. The Federal Court considered and rejected a similar argument in Choovak:19 [35] It was argued before me that a person cannot be excluded under Article 1E if he has some sort of temporary status which must be renewed, and which could be cancelled, or if the applicant does not have the right to return to the country of residence free from any restrictions. It is thus submitted that the fact the respondent had to renew her "unrestricted" or "unlimited" permanent resident visa meant that her status was one of a qualified "unlimited" permanent resident, that she was not able to freely return to Germany and therefore did not enjoy the right of return to the country of residence that a German national would enjoy. I am not persuaded that the words of Article 1E should be so narrowly construed as the respondent suggests, or that the words by their plain meaning can be said to exclude the circumstances of this case. The right of return of a German permanent resident is not necessarily an unconditional one but is more along the rights of a permanent resident in Canada. A permanent resident in Canada has practically all the rights and obligations of a national, except the right to vote. However, even a permanent resident in Canada can have his or her status revoked if he or she is outside the country for more than six months. Therefore, even in Canada there are no unconditional rights to a permanent resident. e. Appellants' argument. Aside from the foregoing, the Appellants list the following alleged errors: i) the RPD erred by excluding the male Appellant; ii) it erred in its determination of the status of the male Appellant in Brazil; iii) it erred by not considering that his status renewal is subject to the female Appellant's approval; iv) it erred by not taking into consideration that his status does not give him the same rights as Brazilian nationals; v) it erred by selectively interpreting facts; and vi) it erred by not considering the male Appellant's explanation in relation to his XXXX 2016 visa application. My findings. Items iii) and vi) have been dealt with above. As to the other arguments, they are made in a general way, without any submissions detailing the basis on which they are made and without setting out where in the RPD Decision the alleged errors are to be found, as required by RAD Rule 3(3)(g).20 In the absence of any guidance in this regard, I have reviewed the record; however, I am unable to see that any of the arguments are supported. As such, I will not address them further. CONCLUSION [27] I confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeal is dismissed. (signed) "James Sloan" James Sloan February 5, 2020 Date 1 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.refworld.org/docid/3be01b964.html. Section E of Article 1 of the Convention provides "This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of the country." Section 98 of the Immigration and Refugee Protection Act provides that a person referred to in section E of Article 1 of the Convention is not a Convention refugee or a person in need of protection. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 3 Ibid., at paras 69-74. See also Rosas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 4 Exhibit P-2, Appeal Record, at p. 21. 5 Ibid. 6 The box on the form for where counsel would be listed was left blank. 7 Exhibit P-2, Appeal Record, letter from counsel. 8 He argued that he needed more time to prepare given that he had only been retained on April 10, 2019 and only received the file from the previous counsel on April 12, 2019. 9 The forms had been signed by the adult Appellants on October 28, 2019 and by Mr. Yachoua on November 1, 2019. 10 Refugee Appeal Division Rules (SOR/2012-257). 11 Given his statement that he represents both XXXXandXXXXMr. Guilherme Santos Mendes, it may well be that his request for an extension of time is for both appellants-despite his only making mention of XXXX 12 Exhibit RPD-1, RPD Record, Exhibit 10.1, at p. 418. 13 Ibid., Exhibit 6, at p. 308. It relayed information from the Brazilian government to the effect that the male Appellant "...currently holds a status of Permanent resident of Brazil valid until 2025. No adverse information stating that he could not be returned to Brazil as he currently holds a legal status in Brazil...." 14 Murcia Romero v. Canada (Minister of Citizenship and Immigration), 2006 FC 506 (CanLII). 15 Exhibit RPD-1, RPD Record, Exhibit 10, at p. 404-405. Note in his November 5, 2017 Basis of Claim (BOC) form, the male Appellant initially stated that he had made no visa application to Canada (Ibid., at p. 27, para 7); in his February 27, 2018 BOC form, he stated that he had applied for a visa in 2018 (Ibid., p. 67, para 7). 16 I note that the RPD made mention of a September 2016 visa application; however, this appears to be in error. The documentation and the male Appellant's testimony speak of a November 2016 visa application. 17 Referring to Exhibit RPD-1, RPD Record, Exhibit 10, at p. 405. 18 Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC), at para 16, relying on see, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). 19 Canada (Minister of Citizenship and Immigration) v. Choovak, 2002 FCT 573. 20 Rule 3(3)(g) obliges an Appellant to provide "full and detailed submissions regarding...the errors that are the grounds of the appeal [and] where the errors are located in the written reasons of the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing." (RAD Rules, supra, endnote 10.) The Federal Court, in addressing the application Rule 3(3)(g), held: "The RAD cannot be faulted for failing to consider arguments that were never raised." (Hoch v. Canada (Citizenship and Immigration), 2018 FC 580 (CanLII), at para 8). Elsewhere, it held: "appellants before the RAD that fail to specify where and how the RPD erred do so at their own peril". (Ghauri v Canada (Citizenship and Immigration), 2016 FC 548, at para 34). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-02633 VB9-02634 / VB9-02635 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