TB5-03421

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 File No. / N° de dossier de la SAR : TB5-03421 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX a.k.a.XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 22, 2015 Date de la décision Panel LUIS F. AGOSTINHO Tribunal Counsel for the person(s) who is(are)the subject of the appeal Leigh Salsberg Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of the Eritrea and a permanent resident of Uganada, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision and substitute its own confirming the Appellant to be a Convention Refugee or a Person in need of protection. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection, as he is excluded based on Article 1E of the Convention. BACKGROUND [3] The Appellant alleged before the RPD that he fears returning to Eritrea as a result of his religion as he became a Pentecostal from being an Orthodox Christian. The Appellant further alleges that after his wife was arrested, and he too was arrested sometime later, he fled to Uganda via Sudan. [4] The Appellant arrived in Uganda in XXXX 2008, where he made a claim for refugee protection. The Appellant alleges that his wife travelled to Canada and made a successful refugee claim, and included him on her claim. The Appellant was also successful in his refugee claim in Uganda and was granted permanent refugee status. The Appellant left Uganda and travelled to Canada where he entered on September 11, 2012. The Appellant made an inland claim on April 10, 2013. [5] The Minister of Citizenship and Immigration Canada intervened before the RPD in the Appellant's refugee claim. The Minister argued that the Appellant is excluded from refugee protection in Canada by virtue of Article 1E of the Refugee Convention, as he has permanent residence in Uganda, and has not rebutted the presumption of state protection in that country. The Minister asked the RPD to reject the Appellant's refugee claim.1 [6] The Appellant's application for refugee protection was heard on September 12, 2013, December 17, 2013 and September 30, 2014. By a written decision dated March 20, 2015 the RPD rejected his claim, citing that the Appellant was excluded under Article 1E. [7] The RPD found the following: * The Appellant was excluded from protection pursuant to Article 1E of the Convention, as he has permanent resident status which gives him rights substantially similar to Ugandan nationals in Uganda which conforms to the direction in Zeng2 at the time of issuing the decision. [8] The Appellant's counsel argued that the RPD erred in law for the following reasons: * The RPD erred in finding that the Appellant was excluded based on Article 1E given that the Appellant does not have the right to return to Uganda, and that he is also denied the right to freedom of movement and residence and right to association (Uganda) in addition to the country of their citizenship (Eritrea). Application for an Oral Hearing [9] The Appellant asks the Appeal be allowed without a hearing, and is asking in the alternative for an oral hearing to be held, pursuant to Section 110(6) of IRPA. [10] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), 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." [11] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) 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. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [12] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] The Appellant has not submitted any new evidence. As such, the RAD must proceed without a hearing. ANALYSIS ROLE OF THE RAD [14] The Appellant argues that the RPD made numerous errors in rejecting his refugee claim. For reasons set out below, this appeal raises questions of fact in respect to those errors. [15] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,3 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [16] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [17] The Appellant argues that the RPD erred in applying the Article 1E test set out by the Federal Court of Appeal in Zeng4 to the evidence, and in determining that they could expect adequate state protection in Uganda. The Application of Zeng [18] The RPD relied upon Article 1E of the Refugee Convention, which provides that "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 that country." This article is reflected in Section 98 of IRPA, which states that a person referred to in Article 1E is not a Convention refugee or a person in need of protection.5 [19] In Zeng, the Federal Court of Appeal set out a test to be applied to Article 1E determinations, using the following factors: * Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals in the third country? If so, the claimant is excluded. * If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. * If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts.6 [20] The RPD found that the Appellant was the holder of a resident permit for Uganda when he arrived in Canada and that resident permit "is entitled to government social welfare, health care and employment a benefit" in Uganda. Further evidence at the RPD hearing, which was submitted by the Minister, demonstrated that the Appellant did indeed have all the rights and benefits that Ugandan citizens were entitled to.7 The evidence before the RPD, which was submitted by the Minister, showed that the Refugee Identity Card had been issued on XXXX XXXX XXXX XXXX2008 with no expiration date. Further the RAD also in reviewing RIR UGA103053.E found that this documentary evidence confirms that the Appellant has the same rights and to be treated the same as Ugandan nationals with respect to property rights, transferring assets into Uganda, education beyond elementary school, access to employment, practise a profession, and participates in business activities. [21] In Shamlou,8 the Federal Court considered the rights and obligations set out in Article 1E, and held that these include the right of return, the right to work freely without restrictions, the right to study, and full access to social services. In the case of the Appellant, the RPD considered recent objective evidence, which states clearly that the Appellant had status in Uganda and there are no impediments to his return.9 That same evidence explains that such permit holders may also travel outside of and return to Uganda. Holders of resident permits are also entitled to government social welfare, health care, and employment benefits. [22] While the Appellant challenges the RPD's finding here, he fails to provide evidence in support of his argument. The Appellant does not challenge the RPD's finding that the Appellant had the same rights as Permanent Residents in Uganda and those rights are substantially similar to Ugandan nationals. The objective evidence (RIR UGA 103053.E residence permit as referred to in the RPD reasons) cited above indicates that holders of residence permits are entitled to the same benefits as nationals. The Appellant did not provide, either to the RPD or the RAD, objective evidence to support his contention that refugee/permanent residents enjoy lesser rights than do Ugandan nationals, and it was sensible for the RPD to accept the objective evidence over the Appellant's uncorroborated allegations. The RAD did its own independent assessment of this evidence, and it arrived at the same conclusion as did the RPD. The RAD notes that there is no requirement that such benefits be identical in order to engage Article 1E, as the Court held in Zeng, the status must be "substantially similar" to that of nationals.10 The RAD, after assessing all the evidence in its entirety, finds that, based on the objective evidence found in the Appeal record which included the audio of the hearing, it was rational for the RPD as it was for the RAD to conclude that the rights and obligations of permanent residents are substantially similar to those of Ugandan nationals, and the RPD did not err in not applying the second Zeng factor to the facts of the Appellant's claim. It is the understanding of the RAD that the Appellant as a refugee/permanent resident has substantially similar rights to that of a Ugandan national. [23] The Minister bore the onus before the RPD to prove that the Appellant had status in Uganda, and the Appellant, by his own admission in the documents submitted where he described himself as a permanent resident.11 [24] The first Zeng question is answered by the RAD in the positive: the Appellant did have status in Uganda at the time of her RPD hearing as there is no expiration in his status prior or after the hearing. After considering the evidence relating to the second question, the RPD found that the Appellant did have status similar to nationals of Uganda. These conclusions did not require the RPD to then "consider and balance various factors," as set out in the third question of the Zeng test, which mentions the reasons for the loss of status, the ability to return to the third country, the risk faced in the country of origin, Canada's international obligations, and any other relevant facts. If the answer to the first questions is yes, then the second and third questions do not need to be answered. [25] As such, the RAD finds that the RPD's decision to consider exclusion despite the Appellant's indicating that he had a fear in the Article 1E country was correct in law and supported by the Federal Court of Appeal in the Zeng decision. Given that the RAD has found that the RPD did not err in assessing the claim under Article 1E, the RAD finds that the remaining concerns of the Appellant (contamination of RPD's reasoning and closed mind to risk in Eritrea) were no longer an issue. [26] The RPD, in its reasons, found that the Appellant could return to Uganda and resume his residency.12 In assessing the evidence before it the RAD arrived at the same conclusion as the RPD did. [27] In this case, the RPD determined that the Appellant can return to Uganda, where he can expect protection. In such a context, it would make no sense for the RPD to proceed to consider the risk to the Appellant in Eritrea, even though this is one element set out in the third question of the Zeng test. If the Appellant can return to Uganda, the risk that he may face in Eritrea is simply not relevant, as he is excluded from refugee protection, and the RPD did, in fact, consider and discuss that risk.13 [28] The Appellant also claimed a fear of persecution there;14 it proceeded to undertake an analysis of the state protection available to him in Italy and, as such, continued the assessment of whether Uganda is a 1E country for the Appellant. State Protection in Uganda [29] The Appellant does not argue that the RPD's state protection analysis for Uganda was flawed. The RPD noted the Appellant's alleged fear in Uganda - that the Appellant never approached police to ask for protection there. It noted that the Appellant did seek help from the police during his stay in Uganda, based on his own testimony at the hearing.15 The RAD, in its assessment of the evidence, which was provided by the audio hearing, notes that evidence from the Appellant related to what he had heard about the treatment of Eritreans by Ugandans, he did provide details of incidents in his amended BoC narrative. The only evidence found by the RAD was regarding an incident where a taxi driver allegedly overcharged him and the police allegedly sided with the taxi driver. Another incident provided by the Appellant that he was stopped by the police and asked for his identification. The Appellant was not able, and the police asked for what he described as a bribe. However, there was no evidence before the RAD as to when these incidents took place or any other details regarding the incidents. There is no evidence of any threats of harm or persecution. There is a presumption that a state is capable of protecting its citizens except in situations where there is a complete state breakdown. To rebut that presumption of state protection, a claimant must provide clear and convincing evidence of the state's inability to protect that national. While the effectiveness of the protection is relevant consideration, the test is whether the protection offered is adequate. [30] The RAD notes in the case of Ward,16 at paragraph 10. "The claimant must provide clear and convincing confirmation of a state's inability to protect absent and admission by the national's state of its inability to protect that national. Except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting a claimant." [31] It is well-established in Canadian refugee law that a claimant's failure to approach the state for protection will defeat his refugee claim where such protection might reasonably have been forthcoming.17 The Appellant had status in a democratic country, and has not produced any evidence that he could not regain that status, where the rule of law prevails. In such a context, the Appellant could reasonably be expected to approach the authorities for protection, including protection against reprisals from these alleged members of police service who allegedly asked for bribes; as such, protection might reasonably have been forthcoming. The Appellant has failed to do so, and it was rational for the RPD to conclude that he has not rebutted the presumption of state protection. As such, Italy remains an article 1E country as the Appellant has failed to establish that he is at risk of harm there. DISPOSITION [32] The Appellant had argued that the RPD erred in its finding in respect that the Appellant could return to Uganda. The RAD applied the Zeng case, and considered that he has permanent residency and that he has not lost his permanent residency at the time of his hearing. Thus, according to Zeng, the RAD need only apply the factors outlined and need to determine if the RPD did a proper analysis. The RAD has concluded, after assessing the evidence in its entirety, that it has arrived at the same conclusion as that of the RPD, when it found that the Appellant is excluded from refugee protection by virtue of Article 1E of the Refugee Convention. The RAD further concludes that the RPD finding the Appellant had not rebutted the presumption of state protection in Uganda is supportable. CONCLUSION [33] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is, therefore, dismissed. (signed) "LUIS F. AGOSTINHO" LUIS F. AGOSTINHO July 22, 2015 Date 1 RPD Record, at pp. 317-321. 2 Zeng, Gianqui et al, v. M.C.I., (A-275-09) Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118. 3 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 4 Supra, footnote 3. 5 Appellants' Record, p. 8, Reasons for Decision, at paras 12-13. 6 Zeng, para. 28. 7 Appellant's record, at p. 9, paragraph 20, and RPD's Record, at pp 337-340. 8 Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.). 9 Appellants' Record, at p.9, Reasons for Decision paras 24 and 27. 10 Zeng, para. 28. 11 RPD record page 36, Form IMM 0008 question 12. 12 Appellant's Record, at pp. 9-10, Reasons for Decision, at paras 20-21. 13 Appellant's Record, at pp. 9, 11-14, Reasons for Decision, at paras 21, 28-30. 14 Appellants' Record, p, 20, Basis of Claim, Question 3. 15 Appellant's Record, page 11, Reasons for Decision, at paras 27-29. 16 Canada (Attorney General) v Ward, [1993] 2 SCR 689. 17 Canada (Attorney General) v Ward, [1993] 2 SCR 689. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03421