diff --git "a/data/processed/caselaw.json" "b/data/processed/caselaw.json" --- "a/data/processed/caselaw.json" +++ "b/data/processed/caselaw.json" @@ -42370,5 +42370,1625 @@ "last_amended": "", "history": "", "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "irb-MB8-00025-1", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 1–2", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "This decision addresses whether the Refugee Protection Division (RPD) erred in finding that XXXX XXXX XXXX is excluded from refugee protection by the combined effect of Section E of Article 1 (“Article 1E”) of the United Nations Convention Relating to the Status of Refugees (“Convention”) and s. 98 of the Immigration and Refugee Protection Act (IRPA). It also addresses the more general issue of whether the RPD and the RAD must take into account any risk raised by a claimant in respect of their country of residence prior to excluding them from refugee protection under Article 1E.\n\nAs I describe below, there currently exist two lines of case law on the interpretation of Article 1E in cases such as the present where, at the date of the RPD hearing, a claimant continued to hold a status in their country of residence that conferred on them substantially the same rights and obligations as nationals. After the judicial review decision in this case, two Justices of the Federal Court developed an interpretation of Article 1E and relevant IRPA provisions that differs from the approach that has consistently been followed by the RPD, the RAD, and the Federal Court in other decisions. Under this new approach, the RPD and the RAD would not have the power to take into account any risk raised by a claimant/appellant in respect of their country of residence in cases such as the present.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-2", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 3–5", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In the sections that follow, I detail my reasons for preferring the approach that traditionally has been followed by the RPD, the RAD, and the Federal Court. This approach accepts that the RPD and the RAD must assess whether the claimant’s country of residence offers a form of safe surrogate protection for them before finding that they are excluded from protection on the basis of their status in that country. In other words, the RPD and the RAD must take into account and assess the risk raised by claimants in respect of their country of residence prior to finding that they are excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA.\n\nThe traditional framework of analysis which I support in this decision involves asking the following questions:\n\nApplying this approach to the circumstances of this case, I find that the RPD correctly concluded that Mr. XXXX is excluded from refugee protection by the combined effect of Article 1E and s. 98 of the IRPA. The RPD was correct to take into account the risk raised by Mr. XXXX in respect of Brazil. However, the RPD erred in taking this risk into account after it had already found that Mr. XXXX was excluded under Article 1E rather than as part of its Article 1E analysis. Despite this error in the sequence of its analysis, the RPD correctly concluded that Mr. XXXX does not face a serious possibility of persecution or a likelihood that he would be subjected to danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment in Brazil. Therefore, the RPD correctly concluded that he is excluded from refugee protection.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-3", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 6–7", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Mr. XXXX is a citizen of Haiti. He fears that, if he returns to Haiti, he will be killed or seriously harmed by a criminal group that beat him and threatened him with death in 2011. Mr. XXXX left Haiti for the Dominican Republic and then made his way to Brazil in XXXX 2011, where he acquired permanent resident status. The situation for Haitians in Brazil became less secure starting in 2014. Mr. XXXX alleged that many Haitians were assassinated in Brazil and that Brazilian citizens accused Haitians of stealing their jobs. Mr. XXXX was hit by a car one day when he was riding his bicycle. He also could not find work during the latter part of his stay in Brazil and he often had insults directed at him by Brazilian citizens. Mr. XXXX left Brazil for the United States in XXXX 2016 but fled to Canada because he feared deportation from that country. He claimed refugee protection in Canada in August 2017.\n\nThe RPD found that, as a permanent resident of Brazil, Mr. XXXX had access to substantially the same rights and obligations as Brazilian nationals. As a result, the RPD found that he was a person referred to in Article 1E of the Convention. The RPD then went on to consider the risks that Mr. XXXX raised in respect of Brazil. Due to a contradiction and an omission in his evidence, the RPD found that Mr. XXXX had not met his onus of credibly establishing that he would face a serious possibility of persecution on a Convention ground in Brazil or a likelihood that he would be subjected personally to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-4", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 8–9", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Mr. XXXX appealed the RPD’s decision to the RAD. The RAD denied his appeal and confirmed the RPD’s conclusion that he was excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. The Federal Court allowed Mr. XXXX application for judicial review because it found the RAD’s analysis unintelligible and inconsistent with the language of section 98 of the IRPA.Footnote 2 Specifically, in the Justice’s view, the RAD examined the fear that Mr. XXXX raised in respect of Brazil after already finding that he was excluded from protection by the combined effect of Article 1E of the Convention and s. 98 of the IRPA.Footnote 3 The Justice questioned the basis for the RAD’s evaluation of the risk that Mr. XXXX had alleged in Brazil once it had already found him to be excluded from protection under the Convention. The Justice set aside the RAD’s decision and referred the matter back to the RAD for redetermination.\n\nMr. XXXX tendered the following two documents as proposed new evidence after he submitted his appeal record: (1) a statement sworn on March 16, 2018, in which he described the contents of WhatsApp messages he received on XXXX XXXX–XXXX XXXX 2018; and (2) an extract of minutes from a XXXX XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2011.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-5", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "para 10", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "I find that the statement should be admitted as new evidence based on a weighing of the factors set out in Rule 29(4) of the RAD Rules and because it meets the other conditions for the admissibility of new evidence set out in s. 110(4) of the IRPA and applicable case law.Footnote 4 The statement describes WhatsApp messages that Mr. XXXX allegedly received after he filed his appeal record. The sender demanded that Mr. XXXX send him money or else his life would be in danger if he returned to Haiti. The WhatsApp messages described in the statement post-date the filing of the appeal memorandum. The statement would have relevance and probative value relating to Mr. XXXX claim against Haiti and it brings new evidence regarding Mr. XXXX claim against Haiti. The statement also meets the conditions set out in ss. 110(4) of the IRPA and applicable case law. It post-dates the RPD decision in this case. As such, it would not have been available to Mr. XXXX to present to the RPD and, therefore, he could not reasonably have been expected to present it to the RPD. The statement also meets the conditions set out in the applicable case law. While the timing of the messages does seem remarkably fortuitous, I am prepared to find that there is no basis to find them not credible at this stage. The statement is relevant to Mr. XXXX claim against Haiti and the information in it is new. Based on all of the above, I find the statement admissible. However, ultimately, it does not affect the result in this case because the RPD was correct to conclude that Mr. XXXX is excluded from refugee protection. Therefore, it is unnecessary to conduct an assessment of the risk that Mr. XXXX alleged in relation to Haiti.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-6", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 11–14", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The extract of the minutes from the Justice of the Peace Tribunal submitted by Mr. XXXX is not admissible as new evidence. Even if I were to find that the extract met the conditions for the late submission of evidence set out in Rule 29(4) of the RAD Rules, it does not meet the conditions for admissibility of new evidence contained in ss. 110(4) of the IRPA. Specifically, the extract predates the RPD’s decision and there is no evidence that it was not reasonably available to Mr. XXXX at the time of the RPD’s decision. Therefore, Mr. XXXX can reasonably have been expected to present the extract to the RPD before it rendered its decision.\n\nFor these reasons, Mr. XXXX request to admit his statement as new evidence is granted but his request to admit the Justice of the Peace extract is denied.\n\nMr. XXXX request for an oral hearing is denied as the statement that I have admitted as new evidence does not meet these conditions for the holding of an oral hearing found in s. 110(6) of the IRPA. In particular, the determinative issue in this case centers on whether Mr. XXXX is excluded from protection due to his permanent resident status in Brazil. Therefore, even if accepted, the statement would not justify allowing or rejecting his claim since it relates solely to his risk in Haiti.\n\nThis case raises the following three issues: (1) what is the appropriate date for the evaluation of Mr. XXXX permanent resident status in Brazil?; (2) are the RPD and the RAD required to take into account the risk raised by a claimant in respect of their country of residence before excluding them from refugee protection in cases such as the present?; and (3) if the answer to question (2) is affirmative, did the RPD err in its assessment of the risk Mr. XXXX raised in respect of Brazil?", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-7", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 15–17", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "An issue that arises in this case is the date on which the RAD must assess Mr. XXXX permanent resident status in Brazil. Mr. XXXX counsel argues that, although Mr. XXXX had permanent resident status in Brazil at the time of the RPD hearing in November 2017, he likely lost this status in XXXX 2018 because he had been outside of Brazil for two years by that time.\n\nThe RAD and the Federal Court have consistently followed the Court of Appeal’s determination in Majebi that the relevant date for the RAD’s evaluation of an appellant’s status in a country of residence for the purpose of Article 1E is the date of the RPD hearing.Footnote 5 In this case, this means that I must consider whether Mr. XXXX had permanent resident status on the date of the RPD hearing in 2017 rather than considering whether he has permanent resident status in Brazil as of the date of this appeal.\n\nThis approach has recently been questioned by a Justice of the Federal Court in Abel.Footnote 6 Despite certifying a question to the Court of Appeal on the issue, the Justice in Abel found that the Court of Appeal decision in Majebi is clear and it is binding on the Federal Court and the RAD. Therefore, the date that the RAD must use to evaluate the permanent resident status of an appellant is the date of the RPD hearing. Unless or until the Federal Court of Appeal clarifies or alters the decision in Majebi regarding the appropriate date for the evaluation of an appellant’s status, the RAD is bound by that decision. This finding is sufficient to dispose of Mr. XXXX argument with respect to his loss of permanent resident status in Brazil following the RPD hearing.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-8", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 18–19", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "That said, I will note that I share the same concerns that were expressed by the Justice in Abel. In Majebi, the Federal Court of Appeal based its decision on the fact that an appeal before the RAD is not a true de novo proceeding and the RAD’s role is to intervene when the RPD’s decision is wrong.Footnote 7 Based on this, the Court of Appeal reasoned that the RAD is required to consider an appellant’s status on the same day used by the RPD or else it would be deciding a different question than the one addressed by the RPD.Footnote 8\n\nEven if a RAD appeal is not a de novo proceeding, the RAD does regularly admit new evidence of changed circumstances if the evidence satisfies the admissibility requirements set out in the IRPA and applicable case law.Footnote 9 The RAD may also consider new issues, such as new sur place claims, that arise from new evidence admitted on appeal. It does not appear that any argument based on the RAD’s power to admit new evidence was made to the Court of Appeal in Majebi.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-9", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 20–21", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "It does seem difficult to justify that the RAD must simply ignore or not take into account evidence that the appellant has lost the status that gave rise to their exclusion under Article 1E by the time of their appeal before the RAD. For example, in this case, it seems difficult to justify that I would have to simply ignore the fact that Mr. XXXX lost his permanent resident status in Brazil over two years ago. If the RAD did have the power to consider this evidence and it was satisfied that the claimant lost the status that led the RPD to find them excluded from protection, it would not necessarily lead to rejection of the RPD’s exclusion finding. Instead, the RAD would have to carry out the analysis set out by the Court of Appeal in Zeng which applies when a claimant previously had, but subsequently lost, status in their country of residence.Footnote 10\n\nDespite the above obiter comments, the reality remains that the RAD is bound by the Federal Court of Appeal’s decision in Majebi as to the appropriate date for the evaluation of an appellant’s status in their country of residence. Therefore, I find that the appropriate date for the evaluation of Mr. XXXX status in this case is the date of the RPD hearing. It was not disputed that Mr. XXXX had permanent resident status in Brazil on that date and that this status conferred on him substantially all of the rights and obligations of Brazilian nationals.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-10", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 22–23", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The second issue that arises in this case is whether the RPD and the RAD must take into account the risk raised by a claimant in respect of their country of residence before excluding them from protection by the combined effect of Article 1E and s. 98 of the IRPA in cases such as the present. As I detail below, there are two currents of opinion at the Federal Court on this issue. Having reviewed both lines of Federal Court case law, I prefer the traditional approach which requires the RPD and the RAD to take into account the risk raised by a claimant prior to finding that they are excluded from refugee protection.\n\nI note that the following analysis applies only to cases such as the present in which, at the time of the RPD hearing, the claimant continued to hold a status in their country of residence that conferred on them substantially the same rights and obligations as nationals in that country. When I refer to “cases such as the present” in this decision, it is to these types of cases that I am referring.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-11", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "para 24", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Until relatively recently, the Federal Court, the RAD, and the RPD had consistently accepted, albeit without any detailed analysis, that in cases such as the present the RPD and the RAD must assess whether the claimant’s country of residence offers safe surrogate protection for them before finding that they are excluded from protection due to their status in that country. In other words, the Federal Court, the RAD, and the RPD accepted that the RPD and the RAD are required take into account the risk raised by a claimant in respect of their country of residence before finding that they are excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA.Footnote 11 Admittedly, the RPD and the RAD have not always been consistent as to whether they have analyzed the claimant’s risk before making a finding on the exclusion issue or after making such a finding. However, the RPD and the RAD have consistently taken into account the risk raised by claimants in respect of their country of residence as part of the overall Article 1E analysis.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-12", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 25–26", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Federal Court Justice who rendered the judicial review decision in this case raised questions about the power of the RPD and RAD to consider the risk raised by a claimant in respect of their country of residence after they had found the claimant excluded from refugee protection. In a subsequent case, Saint Paul,Footnote 12 she agreed with another Justice of the Federal Court who, in Célestin,Footnote 13 went further to hold that the RPD and the RAD must not take into account the risk raised by a claimant in respect of their country of residence as part of their analysis of whether the claimant is excluded from refugee protection in cases such as the present. Similar questions also had been raised by the Justice in a third case, Constant.Footnote 14\n\nAccording to the Célestin/Saint Paul approach, the only factor for the RPD and RAD to consider in cases such as the present is whether the claimant held a status in their country of residence that conferred on them substantially the same rights and benefits as nationals of that country. If so, the RPD and the RAD must exclude the claimant from protection without taking into account any risk they have raised in respect of their country of residence. Under theCélestin/Saint Paul approach, the analysis of a claimant’s risk in respect of their country of residence must occur solely at the Pre-Removal Risk Assessment (PRRA) stage.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-13", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 27–30", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In decisions rendered subsequent to Célestin, Saint Paul, and Constant, some Justices of the Federal Court have continued to implicitly accept that it is reasonable for the RAD and RPD to take into account the risk alleged by a claimant in respect of their country of residence before excluding them from refugee protection.Footnote 15 Other Justices have explicitly declined to address the Célestin and Saint Paul decisions on the basis that these decisions had no impact on the conclusion in the case before them.Footnote 16 The Justices in two cases found that, even if the RAD may not be required to take into account the risk raised by a claimant in their country of residence, it is not unreasonable to do so.Footnote 17 Lastly, in a recent case, a Justice has expressly disagreed with the approach taken in Célestin and Saint Paul to find that the RAD is required to take into account any risk raised by the claimant in respect of their country of residence before finding them excluded from protection.Footnote 18\n\nIn the sections that follow, I explain why I prefer the approach that has been consistently followed by the Federal Court, the RAD, and the RPD except by the Justices who decided Célestin, Saint Paul and Constant. In my view, this approach is consistent with a purposive interpretation of Article 1E which Parliament implemented into Canadian law by way of s. 98 of the IRPA. It is also consistent with the approach recommended by the United Nations High Commissioner for Refugees (UNHCR) as well as respected scholars in the field of international refugee law.\n\nArticle 1E provides:\n\nSection 98 of the IRPA provides:", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-14", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 31–32", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Supreme Court and the Federal Court of Appeal have both found that s. 98 incorporates Articles 1E and 1F into Canadian law.Footnote 19This incorporation means that Parliament accepts the international obligations flowing from Article 1E of the Convention. Therefore, decision-makers must adopt an interpretation of Article 1E that is consistent with Canada’s obligations under that provision and the Convention in general.Footnote 20\n\nThe Supreme Court has made clear that the interpretation of an international treaty that has been directly incorporated into Canadian law is governed by Article 31 and 32 of the Vienna Convention on the Law of Treaties.Footnote 21 Article 31(1) of the Vienna Convention provides that treaty provisions must be interpreted by having regard to the following factors: (1) the ordinary meaning of the terms of the treaty; (2) their context; and (3) the object and purpose of the treaty and the provision at issue. Decision makers may have recourse to supplementary means of interpretation, including the preparatory work of the treaty (Travaux Préparatoires), in order to confirm an interpretation arrived at under Article 31. Alternatively, a decision maker may use supplementary means of interpretation to determine the meaning of a provision when the application of the Article 31 interpretative factors leaves them with an ambiguous result, or leads to a result that is manifestly absurd or unreasonable.Footnote 22", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-15", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 33–35", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The point of departure for interpreting Article 1E is to examine the plain meaning of the text of the provision. The ordinary meaning of the words used in Article 1E is that the Convention does not apply to persons who have been accorded, by competent authorities of their country of residence, a status which permits them to enjoy the same rights and obligations as persons who are in possession of nationality in that country.\n\nThe Article does not expressly refer to any consideration of whether the country of residence provides safe surrogate protection for the claimant. It could be argued that a consideration of whether a claimant enjoys substantially the same rights and obligations as nationals in their country of residence requires considering whether that country provides them with protection against persecution and serious harm. According to this approach, a person whose country of residence does not provide them with protection against persecution and serious harm in that country cannot be said to enjoy substantially the same rights and obligations as nationals of the country.\n\nThe RPD and the RAD have not tended to follow this approach as, instead, they have applied the factors set out in the ShamlouFootnote 23 decision to determine whether a claimant enjoys the same rights and obligations as nationals of their country of residence. The RPD and the RAD have considered the risk raised by claimants in respect of their country of residence as a separate step of the Article 1E analysis. While such a separate step is not specifically called for by the ordinary meaning of the words used in Article 1E, it is consistent with the context and purposes of the provision.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-16", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 36–37", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Article 1E is an exclusion clause. The exclusion clauses in Article 1E and 1F apply to persons who either do not need protection (Article 1E)Footnote 24 or do not deserve it (Article 1F).Footnote 25 The consequences of finding that a claimant is a person referred to in Article 1E or Article 1F is that they are excluded from refugee protection. These consequences are serious. It means that the claimant is excluded from protection without any consideration of whether they are at risk of persecution or otherwise in need of protection in relation to their country of nationality. This context would militate in favour of an assessment of whether a claimant does in fact enjoy a form of safe surrogate protection in their country of residence before finding them excluded from refugee protection based on their status in that country.\n\nUnderlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination.Footnote 26 The objectives of the Convention include the international community’s “profound concern for refugees” and its commitment “to assure refugees the widest possible exercise of… fundamental rights and freedoms.”Footnote 27 These humanitarian objectives are echoed in the objectives section of the IRPA.Footnote 28", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-17", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 38–39", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In Zeng, the Federal Court of Appeal found that the purpose of Article 1E is to “preclude the conferral of refugee protection if an individual has surrogate protection in a country where the individual enjoys substantially the same rights and obligations as nationals of that country.”Footnote 29 According to the Court of Appeal, the purpose of Article 1E is to exclude from refugee protection persons who do not need protection because they have a form of surrogate protection, in another “safe” country.Footnote 30 This purpose appears to have been expressly accepted in Célestin and Constant.Footnote 31\n\nThe exclusion of individuals from refugee protection without any consideration of the risk they raised in respect of their country of residence is inconsistent with, and contrary to, the purposes of Article 1E and Canada’s international legal obligations under the Convention. Concretely, the application of the Célestin/Saint Paul approach in this case would mean that the RPD would have been required to find that Mr. XXXX was excluded from refugee protection for the sole reason that he had permanent resident status in Brazil at the time of the RPD hearing. By finding Mr. XXXX excluded from refugee protection under Article 1E, the RPD would implicitly be finding that Mr. XXXX did not require protection because he had a form of surrogate protection in Brazil without assessing whether this was in fact the case in the sense of Brazil being a safe country for him.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-18", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 40–41", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "As described above, the purpose of Article 1E is to exclude from protection individuals who do not require protection because they enjoy a form of surrogate protection in another safe country where they enjoy substantially the same rights and obligation as nationals of that country. People who face persecution or serious harm in their country of residence cannot be said to enjoy surrogate protection in that country. That country cannot be said to be “safe” for them such that they do not need international refugee protection. Therefore, the object and purposes of the Convention and Article 1E require decision makers like the RPD and the RAD to consider any risk raised by a claimant in their country of residence before excluding them from refugee protection under Article 1E of the Convention.\n\nIn my view, it is inconsistent with the purposes of Article 1E of the Convention to restrict to the PRRA stage any consideration of the risk raised by a claimant in respect of their country of residence. By the time that a claimant such as Mr. XXXX finally gets to the PRRA stage, he may well have had two decision makers (the RPD and the RAD) find that he is excluded from refugee protection, and a court confirm those decisions, without any of these decision makers having taken into account his allegation that Brazil is not safe for him due to the persecution or serious harm he alleges in that country. This is inconsistent with Article 1E’s purpose of excluding only those individuals who do not require international refugee protection because they enjoy a form of surrogate protection in their country of residence.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-19", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 42–43", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "It also seems anomalous that a claimant who has citizenship in two countries, for example Haiti and Brazil, would have their risk assessed by the RPD in relation to both countries. However, on the Célestin interpretation, a person with a less durable form of status than citizenship in one of those countries would face the consequence of having no assessment of their risk whatsoever until the PRRA stage. This is especially anomalous because, as noted by the Justice in the recent Mwano decision, a PRRA is not equivalent to the consideration of a refugee protection claim by the RPD. Even if a decision to allow a PRRA application may have the effect of conferring refugee protection,Footnote 32 the purpose of a PRRA is simply to ensure that Canada does not remove foreign nationals who would be in danger or at risk upon removal.Footnote 33 It is largely a written process in which claimants have only a limited right to an oral hearing before a person delegated by the Minister.Footnote 34\n\nBased on the factors set out above, Article 1E excludes from refugee protection individuals who do not require protection because they enjoy a form of surrogate protection in another safe country where they enjoy substantially the same rights and obligation as nationals of that country. Therefore, Article 1E not only permits, but requires, the RPD and the RAD to consider the risk raised by a claimant in respect of their country of residence before finding that they are excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. It is only by doing so that the RPD and the RAD can determine whether, in fact, the claimant does not the require the refugee protection to which they may be entitled under the Convention and the IRPA.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-20", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 44–45", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The conclusion I have arrived at above is consistent with the approach to Article 1E taken by the UNHCR as well as scholars Hathaway and Foster. In the UNHCR Handbook, the UNHCR states that Article 1E deals with persons who are not considered to be in need of international protection.Footnote 35 In its Note on the Interpretation of Article 1E, the UNHCR states that the object and purpose of Article 1E are to exclude from refugee protection those persons who do not require protection because they already enjoy a status which corresponds to that of nationals of their country of residence.Footnote 36\n\nIn its interpretive note, the UNHCR makes important observations about two different situations in which Article 1E may be applied. The first, and perhaps most common, situation in which Article 1E is applied is when an individual’s country of residence finds that they are excluded from refugee protection because they hold a status in that country that confers on them substantially the same rights and obligations as nationals. Article 1E may have been applied, for example, if Mr. XXXX had applied for asylum in Brazil. In such a situation, a claimant would not be raising any risks in respect of their country of residence and therefore a decision maker would not be called upon to take into account such risks. The second type of situation in which Article 1E is applied is when an individual seeks refugee protection in a third country. It is this scenario that arises in this case. The UNHCR notes that individuals may have a well-founded fear of being persecuted in their country of residence and to apply Article 1E to such an individual would undermine the object and purpose of the Convention.Footnote 37", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-21", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 46–51", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Similarly, Hathaway and Foster state that Article 1E affords state parties a lawful basis to exclude from refugee protection, individuals who have resided in a safe country who may reasonably be understood to be “de facto nationals” of that country.Footnote 38 They argue that a state in which there is a risk of being persecuted would fall below this standard.Footnote 39\n\nThe UNHCR and Hathaway and Foster do not argue that a risk raised by a claimant in respect of their country of residence can simply be considered before “ordering a claimant’s removal from Canada,” as stated in Célestin.Footnote 40 While it is true that the UNHCR Note refers to the principle of non-refoulement,Footnote 41 the Note specifically addresses the need to analyze any risk raised by a claimant in respect of their country of residence before finding that they are excluded from refugee protection under Article 1E.\n\nIn the Note, the UNHCR states as follows:\n\nIt also states:\n\nLikewise, Hathaway and Foster state that there is a duty to ensure that a person does not face a risk of persecution before finding them excluded from protection under Article 1E.Footnote 44\n\nIn this way, the UNHCR Note on the Interpretation of Article 1E and the scholarship of Hathaway and Foster are consistent with the interpretation to Article 1E arrived at above in which the RPD and the RAD are required to take into account the risk raised by a claimant in respect of their country of residence before excluding them from protection under Article 1E.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-22", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 52–54", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In my view, the application of the interpretative factors set out in Article 31 of the Vienna Convention do not lead to an ambiguous, manifestly absurd, or unreasonable result. Therefore, it is unnecessary to have recourse to the supplementary means of interpretation, such as travaux préparatoires, addressed in Article 32 of the Vienna Convention.\n\nIn this section, I address the four main reasons provided in Célestin and Saint Paul to support the conclusion that the RPD and RAD must not take into account any risk raised by claimants in respect of their country of residence in cases such as the present. The four arguments I address below are: (1) the fact that the Court of Appeal in Zeng did not mention any requirement to carry out an analysis of the risk raised by claimants in respect of their country of residence in cases such as the present; (2) the fact that ss. 96 and 97 of the IRPA provide protection only in respect of a claimant’s country of nationality, not their country of residence; (3) the relevance, if any, of the amendment that Parliament made to the IRPA’s PRRA provisions in 2012; and (4) concerns about administrative efficiency and the streamlining of the refugee determination process.\n\nTo begin, I address the argument that the approach that was consistently followed prior to the Célestin/Saint Paul/Constant decisions amounts to a modification of the criteria set out by the Federal Court of Appeal in Zeng. As noted in Célestin, Saint Paul, and Constant, the Federal Court of Appeal in Zeng did not mention the need to take into account the risk raised by a claimant in respect of their country of residence in cases such as the present.Footnote 45 However, in my view, three points must be taken into consideration when reading the Zeng decision.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-23", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 55–56", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "First, the main question certified for consideration by the Court of Appeal in Zeng dealt with the analysis to be applied when a claimant did not take steps to prevent a loss of status in their country of residence. The Court of Appeal in Zeng was not dealing with the kind of situation that arises in cases such as the present where the claimant continued to have permanent resident status at the time of the RPD hearing. Second, the claimants in Zeng had raised no risk in respect of their country of residence. Therefore, the Court of Appeal was not required to turn its mind to that issue. Third, the Court of Appeal’s overriding concern in Zeng was with asylum shopping which is not a concern in this case.\n\nTaking these three factors into account, in my view, the Federal Court of Appeal in Zeng did not necessarily intend to preclude the RPD and the RAD from considering the risk raised by claimants in respect of their country of residence before finding that they are excluded from protection in cases such as the present. Indeed, it is only by considering any risk raised by a claimant in respect of their country of residence that the RPD and the RAD may give effect to the purposes of Article 1E discussed in Zeng—that is, to exclude from protection those who benefit from a form of surrogate protection in a safe country of residence.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-24", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 57–58", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "A second argument made in support of the position that the RPD and RAD do not have the power to take into account the risk raised by claimants in respect of their country of residence is based on sections 95–97 of the IRPA. As noted in Saint Paul, section 95 of the IRPA sets out the categories of persons on whom refugee protection may be conferred. Sections 96 and 97 of the IRPA set out protections for Convention refugees and persons in need of protection. Both apply only in respect of a claimant’s country(ies) of nationality or their country of former habitual residence if they have no country of nationality. Therefore, according to the Justice in Saint Paul, ss. 96 and 97 of the IRPA should not be referred to in considering a claimant’s risk in respect to their country of residence. Otherwise, this would involve “reading into the text of the Act a category of refugee protection claimants that is not provided for in the Act.”Footnote 46\n\nI agree that the Convention and the IRPA provide no basis for the RPD and the RAD to find that a claimant is a Convention refugee or person in need of protection in relation to their country of residence. However, that is not what is occurring when the RPD and the RAD assess the risk raised by claimants in respect of their country of residence. When the RPD and RAD take into account this risk, they are not considering whether a claimant should be granted refugee protection in relation to their country of residence. Instead, they are considering whether a claimant’s country of residence provides a form of surrogate protection for them such that they may be excluded from protection under Article 1E because they do not require international refugee protection.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-25", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 59–61", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "For example, if the RPD had concluded that Mr. XXXX had established a serious possibility of persecution in Brazil, it would not have granted him refugee protection in relation to Brazil. Instead, it would have found that he was not excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. It then would have moved on to examine the risk that Mr. XXXX raised in respect of his country of nationality, Haiti.\n\nWhen the RPD and the RAD apply the analysis that has been developed under ss. 96 and 97 of the IRPA when evaluating the risk raised by a claimant in respect of their country of residence, they are not—or should not be—directly applying those sections. Instead, they are using the analysis that has been developed under those sections to gauge whether a claimant’s country of residence provides a form of surrogate protection for them such that they do not need refugee protection and are thus excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA.\n\nI note that the Justice in Célestin found that the use of an analysis which focuses on risks similar in nature to those set out in ss. 96 and 97 would be appropriate if, contrary to his opinion, the RAD and RPD have the power to consider the risks faced by a claimant in their country of residence in cases such as the present.Footnote 47 Likewise, the Minister applies the same factors when determining whether to exercise its power to exempt an individual from the one-year bar on seeking a PRRA after their claim has been rejected.Footnote 48", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-26", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 62–63", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Third, I address the reasoning set out in Célestin and adopted in Saint Paul that is based on an amendment to the IRPA’s PRRA provisions enacted by Parliament in 2012.Footnote 49 As noted below, my reading of the history and content of this legislative amendment differs from the analysis set out in Célestin. Specifically, I do not agree that the 2012 amendments to the IRPA provide evidence of Parliament’s intent to restrict to the PRRA stage any assessment of the risk raised by claimants in respect of their country of residence.\n\nThe legislative amendments discussed in Célestin were contained in Protecting Canada’s Immigration System Act (Bill C-31)Footnote 50 which received royal assent on June 28, 2012. Bill C-31 was an omnibus bill that made a great many amendments to the IRPA. Among other things, Bill C-31 enacted previously unproclaimed provisions creating the RAD.Footnote 51 It also amended provisions contained in the Balanced Refugee Reform Act (Bill C-11)Footnote 52 that were passed in 2010 but that had never been proclaimed into force.Footnote 53", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-27", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 64–65", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Justice in Célestin stated that the Federal Court of Appeal discussed certain shortcomings of the PRRA process in Zeng and that two years later, in 2012, Parliament intervened to resolve these shortcomings by amending s. 112 of the IRPA to add subpara. 112(2)(b.1)(i). The Justice states that this provision “expressly provides that the prohibition on making a PRRA application does not apply when a claim for refugee protection has been rejected by operation of Articles 1E and 1F of the Convention.”Footnote 54 He stated “[a]s a result of the [2012] amendment, Article 1E refugee protection claimants who appear before the RPD now have access to the PRRA mechanism.”Footnote 55 He inferred from this amendment that Parliament intended that any risk raised by claimants in respect of their countries of residence must solely be taken into account at the PRRA stage. With the greatest of respect, I have a different reading of the legislative history and content of this amendment.\n\nSection 112 of the IRPA governs applications for protection before removal (“PRRA applications”). Subsection 112(2) sets out situations in which a person is not permitted to make a PRRA application. Bill C-31 added to this subsection subpara. 112(2)(b.1)(i) which is the main provision discussed in Célestin.Footnote 56 When considered in its proper legislative context, it is difficult to see how the addition of subpara. 112(2)(b.1)(i) to the IRPA evinces an intention by Parliament that any risk raised by claimants in respect of their countries of residence must only be taken into account at the PRRA stage.Footnote 57", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-28", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 66–67", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "First, the legislative history of the provision would suggest that its introduction was not connected to any remarks the Court of Appeal made about Article 1E or the PRRA process in Zeng. Subparagraph 112(2)(b.1)(i) was one of the unproclaimed provisions from Bill C-11 that was included in Bill C-31 in 2012.Footnote 58 Bill C-11 was first introduced by the government in March 2010 and received royal assent in June 2010. The Zeng decision was rendered in May 2010. This timing makes it unlikely that Parliament adopted this legislative amendment in response to the Zeng decision, as the decision was rendered two months after the provision was first introduced and a month before it was enacted.\n\nSecond, subpara. 112(2)(b.1)(i) does not prohibit any group from making PRRA applications and it does not for the first time provide Article 1E claimants with access to the PRRA mechanism (as suggested in Célestin).Footnote 59 Instead, the provision enacts a one-year statutory bar on the making of PRRA applications following the rejection of a refugee claim. Three groups are excluded from this one-year bar: claimants who were excluded from protection under Article 1E; claimants who were excluded from protection under Article 1F; and claimants whose claims were deemed to be rejected because they were vacated by the RPD because of a misrepresentation. These groups continue to be permitted to make PRRA applications as before, including within the year following the rejection of their claims.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-29", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 68–69", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "When one considers the legislative history and content of the 2012 amendments, it appears that Parliament’s intention in enacting subpara. 112(2)(b.1)(i) was two-fold. First, it was to enact a one-year bar on the making of PRRA applications which would apply to most claimants. Second, it was to exempt from this one-year bar, claimants whose risk in their country of nationality had never been considered (claimants excluded under Article 1E and 1F) or had never been properly considered (in the case of those whose claims were vacated because they had made misrepresentations to the RPD).Footnote 60\n\nOverall, if it had been Parliament’s intention in enacting subpara. 112(2)(b.1)(i) in 2012 that only those delegated to make decisions on PRRAs would have the power to take into account the risk raised by claimants in respect of their country of residence, one would have expected a clearer statement of that intention. This is especially the case given the UNHCR’s position that the risk raised by claimants in respect of their country of residence must be assessed before they are found to be excluded from protection under Article 1E. It is also especially the case given that Parliament would in effect be removing from the RPD and the RAD a power that they had consistently been exercising for many years up to that point.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-30", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 70–71", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The decision in Célestin discusses how the approach taken in that case would streamline the refugee determination process and make it more efficient. In my view, this is debatable as one of the practical effects of the Célestin/Saint Paul approach would be that, unlike in the past, persons delegated to make decisions on PRRAs would have to hold oral hearings in respect of all (or almost all) PRRA applications in cases such as the present. Oral hearings in PRRA applications would be required because allegations of risk raised by claimants almost always raise credibility issues and such credibility issues generally must be addressed in an oral hearing in order to comply with natural justice.Footnote 61 Since most of these allegations of risk are based on events that predated the claimant’s departure from their country of residence, the Célestin/Saint Paul approach would require that a second hearing be conducted in a great many cases to address allegations that could simply have been considered during a claimant’s first hearing before the RPD. It is difficult to see how this streamlines the refugee determination process or makes the process more efficient. In any event, concerns about administrative efficiency fall within the powers and responsibility of Parliament, not courts or administrative tribunals who are tasked with legal interpretation.\n\nFor all the above reasons, the arguments put forward in Célestin and Saint Paul do not alter my conclusion that the RPD and RAD must take into account the risk raised by claimants in respect of their country of residence before finding them excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA in cases such as the present.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-31", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 72–75", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In light of the above, I find that the RPD had both the power and obligation to take into account the risk raised by Mr. XXXX in respect of Brazil before finding that he was excluded from protection by the combined effect of Article 1E and s. 98 of the IRPA. However, I find that the RPD erred in evaluating this risk after it had already found that he was excluded from protection under Article 1E. It should have assessed the risk alleged by Mr. XXXX before making a finding on the exclusion issue.\n\nIn my view, the RPD did not err in using the same kind of analysis that would otherwise be used under sections 96 and 97 of the IRPA in its consideration of the risk raised by Mr. XXXX in respect of Brazil. In doing so, the RPD was not applying those sections to Mr. XXXX. Instead, it was using the general analysis applied under those sections as a means of assessing whether Brazil provided Mr. XXXX the kind of surrogate protection that would give rise to his exclusion from refugee protection under Article 1E.\n\nAs described below, the RPD did not err in concluding that Mr. XXXX had failed to credibly establish that he would face a serious possibility of persecution if he returned to Brazil. It also did not err in finding that he failed to credibly establish that he likely would be subjected to a danger of torture, a risk to his life, or the risk of cruel and unusual treatment or punishment in Brazil.\n\nI do not agree with Mr. XXXX counsel that the RPD failed to take into account the cruel and unusual punishment that Mr. XXXX faced in Brazil. The RPD did take into account Mr. XXXX allegations of mistreatment in Brazil, but it did not find them credible due to a contradiction and an omission in his evidence about this mistreatment.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-32", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 76–77", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "I agree with the RPD that the credibility of Mr. XXXX account of the incident in which he was hit by a car was adversely affected by the contradiction in his evidence as to whether he was riding a bicycle or driving a motorcycle at the time. In his Basis of Claim form, Mr. XXXX stated that he was riding a bicycle (“vélo”) during the incident whereas he testified that he was driving his motorcycle (“moto”) when he was hit by the car.Footnote 62 When the RPD asked Mr. XXXX about the contradiction, he replied that he had told his counsel that he was driving a motorcycle but his counsel wrote that it was a bicycle in his narrative. He then said that he had watched French movies and thought that the words bicycle and motorcycle meant the same thing.Footnote 63\n\nI do not agree with Mr. XXXX counsel that this was a satisfactory explanation for the contradiction. While Counsel argues that Mr. XXXX does not understand French properly, Mr. XXXX in fact signed Declaration A on his Basis of Claim form in which he declared that he read French and that he was able to read and understand the contents of the form and all documents attached to the form. He also declared that the contents of the form were complete, true, and correct at the outset of the hearing. In addition, he testified that he understood French well enough to testify in French throughout the first hearing day.Footnote 64 In these circumstances, I find that the RPD was correct to find that Mr. XXXX had failed to satisfactorily explain the contradiction in his evidence regarding the incident and that this adversely affected the credibility of his account of the incident.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-33", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 78–79", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "I agree with the case law cited by Mr. XXXX counsel in the appeal memorandum to the effect that the RPD must base adverse credibility findings on real contradictions that are significant and not merely peripheral in nature.Footnote 65 However, in my view, the contradiction as to the vehicle Mr. XXXX was riding or driving at the time he was run over is not simply a peripheral detail. It is a significant element of the incident alleged by Mr. XXXX and the contradiction in his evidence raises concerns as to the credibility of his allegations about the incident.\n\nCounsel does not specifically address in the appeal memorandum the omission in Mr. XXXX evidence that led the RPD to draw a further negative inference as to Mr. XXXX credibility. As noted by the RPD, Mr. XXXX testified that, when he was at work, people wanted to assault him or fight with him.Footnote 66 When the RPD followed up to ask Mr. XXXX how frequently this occurred, he replied that it did not occur often but when it did he told his supervisor about it and his supervisor just told him to remain calm. When asked why he had not mentioned, in his written narrative, that people at work wanted to assault him or fight with him, Mr. XXXX replied that he did not think the events that occurred in Brazil would make a difference as he thought his claim would be based on events in Haiti.Footnote 67", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-34", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 80–81", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "I agree with the RPD that this explanation was not satisfactory as Mr. XXXX indicated in his Basis of Claim form that he was at risk of serious harm in Brazil.Footnote 68 Also, in his written narrative, he had included allegations regarding the risk that Haitians in general face in Brazil. In addition, he included the alleged incident in which the car hit him and added that people often insulted him in Brazil. He also submitted into evidence news articles about the treatment of Haitians by Brazilians. Based on this, Mr. XXXX clearly understood that his experiences in Brazil were relevant to his claim. I also note that he was represented by counsel at the time that he completed his Basis of Claim form. Nevertheless, he omitted any mention of people wanting to assault him or fight with him at work. Taking these factors into account, I agree with the RPD that it was not a satisfactory explanation for the omission for Mr. XXXX to claim that he did not think it was important to address the harm he faced in Brazil.\n\nI agree with the RPD that the omission adversely affected Mr. XXXX credibility regarding his account of events that he personally experienced in Brazil. Once again, I do not find that this omission simply relates to peripheral information. Instead, it relates specifically to the core of the allegations of persecution and serious harm raised by Mr. XXXX in relation to Brazil. Therefore, the RPD was correct to find that the contradiction and omission discussed above undermined the credibility of Mr. XXXX evidence regarding events in Brazil. They were sufficient to rebut the presumption of truthfulness that attaches to Mr. XXXX testimony in this case.Footnote 69", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-35", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 82–83", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In any event, as detailed in the next section, even if I were to accept Mr. XXXX account of events in Brazil to be credible, these events are insufficient to establish that he faces a forward- looking risk of persecution or serious harm in Brazil such that he should not be excluded from refugee protection.\n\nWhen the RPD asked Mr. XXXX what he feared in Brazil, Mr. XXXX testified that he feared that he would suffer the same treatment he experienced when he lived in Brazil. He testified that Brazilians do not want to see Haitians anymore. He said that Haitians have been discriminated against everywhere since the end of 2014, as Brazilians accused Haitians of stealing their jobs and persecuted, attacked, and hassled them. In terms of his own personal experiences of mistreatment, Mr. XXXX raised the bicycle incident, the incidents where people wanted to assault him or fight with him at work, and various other incidents in which he was insulted and in which others were served before him in line-ups.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-36", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 84–85", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Even when the incidents described by Mr. XXXX are considered cumulatively and against the backdrop of the National Documentation Packages (“NDPs”) for Brazil and Haiti, they are insufficient to establish that he would face a serious possibility of persecution due to his race or Haitian nationality if he returned to Brazil. As acknowledged by the RPD, Mr. XXXX had filed news articles reporting on discrimination and on certain attacks faced by Haitians in Brazil. The NDPs for Haiti and Brazil similarly include evidence of the discrimination that Haitians face in Brazil as well as incidents of violence that have occurred to members of the Haitian community in Brazil.Footnote 70 There is also evidence in the NDP for Brazil that the human rights situation in the country has worsened in the past couple of years.Footnote 71\n\nAs concerning as this situation may be, I find that it does not establish that Mr. XXXX would face a serious possibility of persecution if he returned to Brazil. While all discrimination is unacceptable, not all discrimination amounts to persecution. For discrimination against a person to amount to persecution, it must be serious and occur with repetition, and it must have consequences of a prejudicial nature for the person, such as the denial of a core human right, such as the right to practice religion or to earn a livelihood.Footnote 72 Expressed differently, persecution refers to a “sustained or systematic violation of basic human rights demonstrative of a failure of state protection.”Footnote 73", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-37", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "para 86", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "There exist laws in Brazil prohibiting racial discrimination and incitement of racial discrimination. These laws are generally enforced by state authorities. While the evidence in the NDP for Brazil and the news articles submitted by Mr. XXXX speak to incidents of discrimination and violence towards Haitians and Afro-Brazilians in Brazil, I do not find that the discrimination and violence described in this evidence is sufficiently sustained or systemic to rise to the level of persecution. Likewise, Mr. XXXX general statement that Haitians are blamed for taking jobs away from Brazilians and his allegations of discrimination fall short of the sustained or systemic discrimination required to establish persecution. I note that Mr. XXXX was employed for much of the time he spent in Brazil except for the last year or so that he was there. Even when considered cumulatively and against the backdrop of the NDP for Brazil, this period of unemployment and the incidents of discrimination he alleged are not sufficient to establish a serious possibility that he would be persecuted because of his race or nationality if he returned to Brazil. They also do not establish a likelihood that he would be subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment in Brazil.", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-MB8-00025-38", + "doc_type": "caselaw", + "act_code": "MB8-00025", + "act_short": "MB8-00025", + "act_name": "IRB Jurisprudential Guide MB8-00025", + "section": "", + "citation": "IRB Jurisprudential Guide MB8-00025", + "marginal_note": "paras 87–88", + "heading": "Exclusion from refugee protection under Article 1E where the claimant has protected status in a third country (Haiti / Brazil)", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In sum, I find that the RPD did not err in finding that Mr. XXXX failed to establish a forward-looking serious possibility of persecution on a Convention ground if he returns to Brazil. It also did not err in finding that he failed to establish a likelihood that he would be personally subjected to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment in Brazil. Therefore, the RPD correctly found that Mr. XXXX is excluded from refugee protection as he had the benefit of a form of safe surrogate protection in Brazil where his permanent resident status gave him access to substantially the same rights and obligations as nationals of that country.\n\nFor the above reasons, I dismiss the appeal and confirm the RPD’s decision that XXXX XXXX XXXX is excluded from refugee protection by the combined effect of Article 1E of the Convention and s. 98 of the IRPA. Signed: Jo-Anne Pickel Date of amended decision: December 8, 2020 Date of original decision: November 9, 2020", + "current_to": "2020-11-09", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/mb8-00025.aspx" + }, + { + "id": "irb-TB7-01837-1", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 1–4", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "XXXX XXXX (the Appellant), a citizen of Pakistan, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either find her to be a Convention refugee or refer the matter back to the RPD for redetermination.\n\nPursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed.\n\nThe Appellant alleged before the RPD that she is a devout member of the Ahmadi religious minority in Pakistan, and that she fears persecution in her country of origin because of her faith.\n\nThe Appellant’s application for refugee protection was heard on November 3, 2016. By a decision of December 20, 2016, the RPD rejected the claim. The panel accepted the Appellant’s national identity as a citizen of Pakistan and her religious identity as an Ahmadi. However, it cited a number of credibility concerns, found that the Appellant had no particular profile as an Ahmadi, and concluded that she also lacks subjective fear. The RPD acknowledged the existence of laws targeting the Ahmadi minority but found that “this does not necessarily give good grounds for fearing persecution. If that were the case every Ahmadi would be a refugee.”Footnote 1", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-2", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 5–8", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Appellant submits that the RPD erred in finding that she can freely practice her religion in Pakistan, in making unsustainable credibility findings, in concluding that she lacks subjective fear or an objective basis for such fear, and in failing to conduct an analysis under section 97 of the IRPA. She also points out that the same RPD member has previously rendered very similar decisions which were overturned by the RAD in strongly-worded decisions.\n\nWhile the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal.\n\nThe Appellant makes no specific submissions on the standard of review to be applied here.\n\nThe RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.Footnote 2 Such an appeal (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD’s decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.Footnote 3", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-3", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 9–12", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "According to the Federal Court of Appeal, the RAD is to carefully consider the RPD’s decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD’s decision or setting it aside and substituting the RAD’s own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.Footnote 4\n\nThe RAD will review the RPD’s decision on a standard of correctness, showing deference only where the RPD had a meaningful advantage in making a finding. Even where the RAD is to show deference to findings of the RPD, those findings must still be the result of a comprehensible reasoning process. The RAD must be able to read the RPD’s decision and understand how the RPD’s conclusions were reached.\n\nThe Appellant argues that the RPD made various errors in rejecting her claim.\n\nThe RPD found credibility to be a key issue, and considered the Appellant’s evidence about being harassed at school when she was a child. The RPD member questioned the Appellant at some length about the proportion of Ahmadis and non-Ahmadis in her elementary classes or those of her children. The RPD cited objective evidence that non-Ahmadi children were not allowed in area schools while the Appellant was in school, and concluded that the Appellant’s evidence was not trustworthy. The RPD also found that it “stretches the imagination that in every class for each of her children’s school years that all classes were half non-Ahmadi who harassed each of her children in each of their respective school years.”Footnote 5", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-4", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 13–14", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Appellant submits on appeal that she never said half her classmates were non-Ahmadi; rather, she testified that in 1974, the Ahmadi-majority city of XXXX was declared open to non-Ahmadis, many of whom subsequently moved into the city. She argues that the only reference she made about the number of non-Ahmadi students was with respect to her son’s class during his last year of school.\n\nWhile the RPD has a meaningful advantage over the RAD in assessing the credibility of oral testimony, the RPD’s findings must nevertheless be based on the evidence. The RAD has reviewed the audio recording of the RPD hearing as well as the transcript provided by the Appellant. There is nothing in the evidence to indicate that the Appellant testified about half of her classmates being non-Ahmadi; when pressed by the RPD member, she estimated that about half of her son’s classmates were non-Ahmadi in his last year of school.Footnote 6 The RPD’s credibility finding here is not supported by the evidence and is therefore wrong.", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-5", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 15–17", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RPD also considered the Appellant’s testimony about one of her sons, a XXXX and XXXX, and found it “not credible that [he]… would be able to restrict his movements to seldom going out and only at night.”Footnote 7 With respect, this is not a matter of credibility but rather a finding of implausibility, to which the RAD owes no deference. In any event, this finding too is based on misconstrued evidence. In fact, the Appellant testified that her son did not go out at night, though the transcript indicates that the RPD member may have misunderstood this: Appellant: The situation in XXXX is pretty bad because the mullahs they take out processions against Ahmadis. They come and chant slogans against Ahmadis. The situation is not very safe in XXXX. So therefore, my son avoids going during the night. RPD Member: Going out during the night? Appellant: Yes. RPD Member: How can he go out during the night when he is XXXX? Appellant: He XXXX during the day but the danger is people coming from outside XXXX, so he avoids going out when it is dark.Footnote 8\n\nThe RPD’s implausibility finding here is based on a misapprehension of the evidence and is therefore wrong.\n\nThe Appellant alleged in her Basis of Claim (BOC) narrative that she feared being charged under Pakistan’s blasphemy laws. The RPD found, however, that “at no point during the hearing did the claimant volunteer such fear.”Footnote 9 In fact, the Appellant was asked by her counsel, “What could happen if the wrong person were to find out that you are Ahmadi?” The Appellant replied, “Anything could happen if such person would come to know about it and they can falsely put allegations of blasphemy on us.”Footnote 10 The RPD’s analysis here is again not based on the evidence.", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-6", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 18–19", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RPD identified credibility as a “key issue in this claim,” and “found much of the claimant’s testimony to be implausible, giving rise to enough reason to rebut the presumption of truthfulness on her part.”Footnote 11 However, the credibility findings are simply wrong, and the RPD has not provided any explanation of why it found much of the testimony to be implausible.\n\nThe RPD noted that the Appellant left Pakistan on more than one occasion to live with relatives in India, which is not a signatory to the refugee Convention. The RPD faulted the Appellant for failing to make inquiries about remaining in India. Further, she did not attempt to come to Canada until after two of her sons had arrived and been granted refugee status. The RPD found the Appellant to be lacking in subjective fear: she did not attempt to stay in India, she repeatedly returned to Pakistan, and when she arrived in Canada, she delayed in making a refugee claim for some months. Her explanation for the delay was that she did not want to jeopardize the visa application of her daughter-in-law’s mother, who also sought to flee Pakistan. The RPD considered this an attempt to “manipulate the system” in Canada,Footnote 12 and further concluded that the Appellant was engaged in a “blatant abuse of the refugee protection system and must be dealt with under immigration law and not refugee law.”Footnote 13", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-7", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "para 20", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Appellant submits that delay in departure is not usually determinative of a claim for refugee protection. Where that claim is based on a number of persecutory acts that take place over a long period of time, delay in departure is not a reasonable basis to doubt subjective fear. The Appellant explained to the RPD that she does not have status in India, nor does she have rights to status through her parents; in addition, her husband and children were in Pakistan. After her husband died in 1988, she struggled to raise four sons alone, and had no choice but to wait for them to establish themselves abroad so that they could bring her to safety. Her five visa applications illustrate her determination to leave Pakistan, and her delay in claiming in Canada was reasonable as she did not want to jeopardize the ability of her daughter-in-law’s mother to flee Pakistan.", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-8", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 21–22", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In the RAD’s view, the RPD was required to consider the cumulative and escalating nature of the feared persecution when assessing the Appellant’s subjective fear. The Appellant experienced discriminatory and persecutory incidents throughout her life in Pakistan; she notes in her BOC narrative that the situation deteriorated over the years, especially after large-scale attacks on Ahmadis in 2010. One son left in 2008, and another in 2012. The Appellant applied for visas in XXXX 2013, XXXX 2014, XXXX 2014, and XXXX 2015, before finally receiving a visa in XXXX of 2016.Footnote 14 In Ibrahimov, the Federal Court wrote, …when a claim is based on a number of discriminatory or harassing incidents which culminate in an event which forces a person to leave his country, then the issue of delay cannot be used as a significant factor to doubt that person's subjective fear of persecution. Cumulative acts which may amount to persecution will take time to occur. If a person's claim is actually based on several incidents which occur over time, the cumulative effects of which may amount to persecution, then looking to the beginning of such discriminatory or harassing treatment and comparing that to the date on which a person leaves the country to justify rejection of the claim on the basis of delay, undermines the very idea of cumulative persecution.Footnote 15\n\nIt was therefore an error for the RPD to fault the Appellant for failing to remain in India – where she has no status, has no right to status, and which is not signatory to the refugee Convention – or for returning to Pakistan, or for failing to leave Pakistan at an earlier date.", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-9", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 23–25", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RPD also erred in rejecting the Appellant’s explanation for her delay in claiming. The Appellant had considerable difficulty in obtaining a Canadian visa; she was concerned that, if she immediately made a refugee claim, this would prevent another family member from obtaining a visa. While the RPD clearly disapproved of what it viewed as a manipulation of Canada’s asylum system, this does not change the fact that the Appellant was in status in Canada and that there was no risk to her in waiting a few months to claim. Conversely, she believed that there was a risk to another Ahmadi woman if the Appellant were to promptly file a refugee claim. While the RPD may have disapproved of the Appellant’s motives, her actions here simply do not indicate a lack of subjective fear.\n\nThe RPD erred when it found the Appellant to be lacking in subjective fear.\n\nIn the RAD’s view, the key issue in the Appellant’s refugee claim was her risk of persecution as an Ahmadi. The RPD’s analysis of this issue is puzzling and problematic.", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-10", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "para 26", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RPD noted the Appellant’s testimony that “she would like to discuss openly or preach her Ahmadi religion but only discussed her religion with people she trusts, otherwise she hides her religion.” The panel correctly observed that “any person wishing to manifest their faith openly should be able to do so,” but then inexplicably concluded that “there is nothing in this claimant’s evidence that would persuade this panel that the claimant had any desire to proselytise or hold religious conversations with non-Ahmadis.”Footnote 16 The RAD simply cannot understand this analysis, which appears to be internally inconsistent: if the Appellant testified that she would like to openly preach her religion, how could the RPD find no evidence of any desire to proselytise or hold religious conversations?", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-11", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 27–28", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RPD considered the Appellant’s evidence that she stopped attending the main mosque in 2010 after two violent attacks on Ahmadi places of worship. It noted that her prayers were interfered with by abusive anti-Ahmadi messages broadcast over loudspeakers from the Sunni mosque. As discussed above, it was aware of her testimony that she wished to openly discuss her faith but could not. The RPD referred to objective evidence that religious minorities in Pakistan, including minorities, are “subject to societal abuses, discrimination and/or persecution at the hands of extremists and/or the authorities.” It also observed that “Ahmadi Muslims continue to be victimized, with the May 2014 murder of a Canadian-American Ahmadi conducting humanitarian work and the recent mob attack on an Ahmadi home serving as a graphic reminder of their vulnerability….”Footnote 17 Despite all of this evidence, it somehow concluded that there is not a serious possibility that the Appellant will be persecuted for a Convention ground.\n\nThe UNHCR Handbook states, with respect to religion, that: 71. The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right includes the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance. 72. Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.Footnote 18", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-12", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 29–31", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Handbook also speaks to the difference between discrimination and persecution: It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.Footnote 19\n\nIn Rajudeen, the Federal Court of Appeal adopted this definition of religious persecution: “To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship.”Footnote 20\n\nHaving accepted that the Appellant is Ahmadi, the RPD was obligated to consider whether the treatment of Ahmadis in Pakistan, including the Appellant, constitutes persecution on the basis of religion.", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-13", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 32–33", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "There is important evidence in the record with respect to Ahmadis which was not discussed by the RPD. The constitution of Pakistan was amended in 1974 to declare Ahmadis as “non-Muslim;” ten years later, the criminal code was amended to make it a crime for Ahmadis to refer to themselves as Muslims or to practice or propagate their faith as Muslims. When applying for an identification card or passport, all Pakistanis must sign an oath rejecting the founder of the Ahmadi religion and declaring that Ahmadis are non-Muslims. Ahmadis have faced prosecution under Pakistan’s blasphemy laws, and the mere accusation of blasphemy leads to mob attacks and lynchings. Ahmadis have been arrested for reading the Quran and for using Quranic verses on rings and wedding cards. Ahmadis face severe societal discrimination, and societal attitudes have become increasingly hostile in the past decade. Some anti-Ahmadi groups have organized rallies where they described the killing of Ahmadis as a religious obligation. There have been numerous acts of violence against Ahmadis and the police have a poor track record of providing protection.\n\nAhmadis are marginalized and excluded from the political system because, in order to register as a voter, they are required to sign a declaration about the finality of the prophet Muhammad, with which they cannot agree. Students applying for university must, if identifying themselves as Muslim, sign a similar declaration, which excludes Ahmadis. University teachers have called for the killing of Ahmadis, and students who objected to this were expelled. The Pakistani government proactively victimizes Ahmadis socially, economically, and educationally, to the point where livelihoods become difficult.Footnote 21", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-14", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 34–36", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In this case, as in previous decisions, the RPD wrongly applied a too-narrow definition of persecution. The RPD focused on physical violence, and appeared to conclude that the Appellant will not be harmed or killed because of her religion. However, the RPD did not undertake a serious analysis of whether the restrictions faced by Ahmadis, including the Appellant, amount to a denial of the fundamental right to freedom of religion.\n\nFreedom of religion includes the right to manifest one’s religion in practice, including in public, a freedom not enjoyed by Ahmadis in Pakistan. They face measures which lead to consequences of a substantially prejudicial nature, including the prohibition against describing themselves as Muslims, difficulty in applying for documents and for entrance to educational institutions, interference in mosque attendance and prayer, and a prohibition on proselytizing. Even if Ahmadis faced no threat of physical harm – and the evidence indicates that there is indeed such danger – there is considerable evidence to support the argument that they experience religious persecution.\n\nThe RAD finds that the Appellant faces serious restrictions on the practice of her religion. She need not establish that she will be physically harmed. The evidence shows that she may not describe herself a Muslim; that she must deny her faith – choosing to either be Muslim or Ahmadi, but not both - to obtain documents or gain admission to government institutions; that she wishes to speak publicly of her faith, but is prohibited from doing so; that her prayers are deliberately interfered with by hate-spewing loudspeakers; that she could not attend a particular mosque because of the threat of violence; and that she risks prosecution under the blasphemy laws.", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB7-01837-15", + "doc_type": "caselaw", + "act_code": "TB7-01837", + "act_short": "TB7-01837", + "act_name": "IRB Jurisprudential Guide TB7-01837", + "section": "", + "citation": "IRB Jurisprudential Guide TB7-01837", + "marginal_note": "paras 37–40", + "heading": "Persecution of Ahmadis in Pakistan; state protection and the availability of an internal flight alternative", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RPD stated that “the mere existence of laws targeting a specific religious group in this case Ahmadi does not necessarily give good grounds for fearing persecution. If that were the case every Ahmadi would be a refugee.”Footnote 22 While the mere existence of persecutory laws may not be enough to establish a refugee claim, the RPD is required to look beyond the existence of those laws and to consider whether and how they are implemented, and what other measures and practices may impact on a refugee claimant’s freedom of religion.\n\nIt is not for the RPD, or the RAD, to determine whether “every Ahmadi would be a refugee,” though it is not uncommon for an entire group to be considered at risk of persecution in a particular country due to their profile, whether that be for reasons of sexual orientation, ethnicity, or religion. However, in considering claims such as that of the Appellant, the RPD is obligated to correctly apply the definition of religious persecution to the evidence, and to avoid restricting that definition to physical harm.\n\nHaving considered the evidence, the RAD finds that the Appellant faces a serious possibility of persecution on account of her Ahmadi religion. As the state is one of the leading agents of persecution, the Appellant cannot expect adequate state protection. As the persecutory laws, measures, and practices exist in all areas of Pakistan, the Appellant cannot avail herself of a viable internal flight alternative.\n\nPursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed. Signed: Edward Bosveld Date: May 8, 2017", + "current_to": "2017-05-08", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB7-01837.aspx" + }, + { + "id": "irb-TB4-05778-1", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 1–4", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "XXXX XXXX (the Appellant), a citizen of the Democratic People’s Republic of Korea (North Korea), appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to either find her to be a Convention refugee or refer the matter back to the RPD for redetermination.\n\nThe Appellant is a minor. The RPD appointed a designated representative to protect the interests of the Appellant and to explain the process to her; that designation continues to apply for the purposes of this appeal.Footnote 1 The RAD is also cognisant of the Chairperson’s Guideline with respect to child refugee claimants.Footnote 2\n\nThis appeal is based on what the Appellant characterizes as “the narrow issue that needs to be decided… whether South Korea should also be a country of reference in the appeal and whether the Appellant would have an automatic right to South Korean citizenship.”Footnote 3 Having reviewed the RPD’s record, the RPD’s decision, and the appeal record, the RAD agrees that this is the determinative issue, though it will simplify the question to ask whether the Appellant is, or could choose to become, a citizen of South Korea.\n\nFor reasons set out below, the RAD finds that the Appellant is indeed a citizen of South Korea, and therefore does not require Canada’s protection. Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (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 dismissed.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-2", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 5–7", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Appellant was born in XXXX in North Korea. She is XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant arrived in Canada from China in February of 2013, and claimed refugee protection the following month.\n\nThe Minister of Citizenship and Immigration Canada (the Minister) intervened in the Appellant’s claim before the RPD,Footnote 4 taking the position that the Appellant had not established her identity, and that if the Appellant was born in North Korea, she is automatically a citizen of the Republic of Korea (South Korea.) The Minister submitted that the Appellant had not established a well-founded fear of persecution in South Korea, and further argued that she had not rebutted the presumption of adequate state protection in that country. Finally, the Minister also submitted that the Appellant’s evidence suffered from a variety of credibility problems.\n\nThe Appellant's application for refugee protection was heard on May 21, August 14, September 6, October 29, and November 26 of 2013. By a decision of May 29, 2014, the RPD found that the Appellant is neither a Convention refugee nor a person in need of protection. The panel accepted the Appellant’s identity as a national of North Korea, and found her to be “a very credible witness.”Footnote 5 However, the RPD also concluded that the Appellant is deemed to be a citizen of South Korea, and found that she had not rebutted the presumption of adequate state protection in that country. It also determined that the harm she fears in South Korea amounts to discrimination and is not persecutory.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-3", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 8–10", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Appellant appealed to the RAD on June 23, 2014. In a decision dated December 21, 2014 (the first RAD decision), the RAD confirmed the RPD’s finding that the Appellant is a citizen of South Korea. The RAD then concluded it had no jurisdiction to determine the appeal, as section 110(2)(d.1) of the IRPA did not allow appeals to the RAD by citizens of countries designated under subsection 109.1(1), of which South Korea was one.\n\nThe Appellant sought leave of the Federal Court to commence an application for judicial review of the first RAD decision; leave was granted on June 10, 2015. On September 4, 2015 the Court, on consent of both parties to the application, granted the judicial review and quashed the first RAD decision. While the Court did not provide reasons for its order, the RAD notes that on July 23, 2015 the Court held in another matter that “paragraph 110(2)(d.1) of the IRPA is inconsistent with subsection 15(1) of the Charter and has no force and effect….”Footnote 6\n\nThe matter was returned to the RAD. By a decision of November 12, 2015 (the second RAD decision), a differently constituted panel of the RAD confirmed the RPD’s findings that the Appellant is deemed a citizen of South Korea, that she faces discrimination but not persecution there, and that she had not rebutted the presumption of adequate state protection in that country.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-4", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 11–13", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "On November 30, 2016, the Appellant made an application to re-open her RAD appeal. She argued that she had intended to submit further evidence, and make additional submissions to the RAD, but that the second RAD decision was rendered before she could do so. In a decision of February 3, 2016 (the third RAD decision), the RAD allowed the application and re-opened the appeal. The Appellant was given an opportunity to “file an application for any new evidence and submissions in regard to this matter,”Footnote 7 which was then assigned to the present RAD panel for determination.\n\nOn March 17, 2016, the Appellant made an application under Rule 29 and Rule 37 of the RAD Rules, asking the RAD to accept various supporting documents as well as a new Memorandum of Fact and Law.Footnote 8 The Minister has not responded to this Application.\n\nRule 29(4) requires the RAD to consider “any relevant factors,” and sets out some specific factors to be considered: the relevance and probative value of the documents, whether they bring new evidence to the appeal, and whether the documents could reasonably have been provided earlier, as required by the Rules.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-5", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 14–17", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RAD finds that the proposed new evidence and submissions are relevant to the determinative issues here. Further, this file has a lengthy history, including one RPD decision, three RAD decisions, and one Federal Court decision. The Appellant’s circumstances are extraordinary: she is a minor XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, is assisted by a Designated Representative, and has been represented by a number of different counsel. She did in fact ask the RAD to allow her to adduce this evidence prior to the second RAD decision. For these reasons, the RAD grants the Appellant’s Rule 29 application and accepts the late submission of the Appellant’s new Memorandum and her proposed new evidence, which will be considered for admissibility pursuant to section 110(4) of the IRPA.\n\nThe Appellant submits that the RPD made incorrect findings about whether South Korean citizenship is automatic for North Koreans, and failed to adhere to the principle of stare decisis in refusing to follow case law that found such citizenship is not automatic.Footnote 9\n\nSection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expectedFootnote 10 in the circumstances to have presented, at the time of the rejection.\n\nIt is for the Appellant to make full and detailed submissions in her Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.Footnote 11", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-6", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 18–20", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Section 110(4) establishes a disjunctive test.Footnote 12 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in her circumstances, to have presented the evidence to the RPD prior to the rejection of her claim. If she could not have been expected to do so, the evidence meets the requirements of the section.\n\nIf the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.Footnote 13\n\nAs the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD – either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-7", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 21–23", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD’s view, a document’s “newness” cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.Footnote 14 Old evidence remains old evidence, even if it is placed in a new document with a recent date.\n\nWhere a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document’s “newness,” these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4).\n\nIn Singh,Footnote 15the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in RazaFootnote 16 to the assessment of new evidence. While Raza predates the introduction of section 110(4) of the IRPA, it is based on the nearly identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.Footnote 17 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).Footnote 18", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-8", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 24–26", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered “credible or trustworthy in the circumstances.” This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence.\n\nRelevance is a basic condition for the admissibility of any piece of evidence.Footnote 19 RAD Rule (3)(3)(g)(iii) requires the Appellant’s Memorandum to include full and detailed submissions about how any proposed new evidence “relates to the Appellant.” It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to “deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.”\n\nIn addition to credibility and relevance, the factors in Raza include “newness” and “materiality.” Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section110 (6) of the IRPA, which describes when the RAD may hold an oral hearing.Footnote 20", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-9", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 27–29", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "For these reasons, the RAD will apply the following factors to considering the Appellant’s proposed new evidence. It will first consider whether the evidence passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible.\n\nThe Appellant asks the RAD to admit the following evidence in this appeal:\n\nThe RAD will consider each piece of evidence below. First, however, it must address the Appellant’s argument in support of many of the proposed new documents. She submits that: [W]here there is uncertainty in the evidence at the RPD level on a determinative issue in the appeal, and where the new evidences [sic] resolves the contradiction, the RAD should allow a claimant to respond to these evidentiary deficiencies on appeal.Footnote 28", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-10", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "para 30", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "With respect, this suggested approach is supported by neither statute nor jurisprudence. As discussed above, section 110(4) sets out a clear test for the admissibility of new evidence. The Court has held that the RAD does not have discretion to admit evidence that does not pass this test. The Appellant appears to be splitting her case. She presented some evidence to the RPD; after finding that this did not lead to the acceptance of her refugee claim, she obtained further evidence and now seeks to rely upon it. It is a well-established judicial principle that evidence and issues must be introduced exhaustively and dealt with at first instance.Footnote 29 The Federal Court of Appeal has held that section 110(4) does not provide an opportunity for the Appellant to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.Footnote 30 For this reason, the RAD cannot accept the Appellant’s argument that the RAD must allow her to respond to “evidentiary deficiencies” upon appeal.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-11", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "para 31", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Document (a) is an affidavit from the Appellant’s XXXX worker, in which the affiant sets out the history of the Appellant’s refugee claim and appeals. Although it is dated after the rejection of the Appellant’s refugee claim, the evidence therein is not new at all. While the recounting of the Appellant’s refugee claim proceedings is helpful background, this information is already contained in the record. The affiant does state that “the Appellant does not have any desire to live in South Korea,” and the Appellant argues that this “gives the current mindset of the Appellant.”Footnote 31 The RPD was aware of the Appellant’s reluctance to live in Korea;Footnote 32 there is no evidence before the RAD to show that this mindset has changed. The information in document (a) did not arise after the rejection of the Appellant’s refugee claim; in fact, it is already in the record and it cannot be considered as new evidence in this appeal.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-12", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "para 32", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Document (b) is an article which was apparently published in either 2012 or 2013.Footnote 33 The Appellant submits that the article is relevant and probative, and serves to clarify confusion about the laws of South Korea. However, the RAD finds that the document does not meet the test in section 110(4). It did not arise after the rejection of the Appellant’s refugee claim in May of 2014. The Appellant has not established that it was not reasonably available to her prior to that rejection. If indeed there was confusion during the RPD hearing on the subject of citizenship, as the Appellant argues,Footnote 34 then she could reasonably have been expected to have presented this document to the RPD.Footnote 35 The RAD notes that the Appellant’s refugee hearing began in May of 2013; the last sitting took place in November of that year, and a decision was rendered by the RPD in May of 2014. The Appellant had between six months and a year to provide this article to the RPD to dispel the confusion which she claims was apparent during her hearings. Even if this document is relevant and probative, as the Appellant claims, it must meet the test in section 110(4). Document (b) does not meet that test and the RAD has no discretion to admit it.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-13", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 33–34", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Document (c) is a copy of the North Korean Refugees Protection and Settlement Support Act. Although there is no date on the document, it appears that it was last amended on January 21, 2014, well before the rejection of the Appellant’s refugee claim. The Appellant makes no submissions on how this document meets the test in section 110(4), and does not argue that it was not available for submission to the RPD. In fact, the RAD notes that an earlier version of this legislation appears in the RPD’s record.Footnote 36 This document is not admissible as new evidence. It did not arise after the rejection of the Appellant’s refugee claim, the Appellant has not established that it was not reasonably available to her, and as this Act was at issue during the refugee hearing, the Appellant could reasonably have been expected, in her circumstances, to provide this to the RPD.\n\nDocument (d) is an undated article from the Yonsei Law Journal, entitled “The Law and Politics of Citizenship in Divided Korea.” A footnote indicates that the article was presented at a conference in February of 2015. The Appellant’s Rule 29 application does not refer to this document, and her Memorandum lists other proposed new evidence but does not include this document or make any submissions on it.Footnote 37 The Appellant has not provided full and detailed submissions, as required by the Rules, about how this document meets the requirements of section 110(4) and how it relates to her, and for this reason document (d) cannot be admitted as new evidence.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-14", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 35–36", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Even if this document could pass the test in section 110(4), the Appellant has not explained its relevance, or otherwise relied upon it in her submissions. The RAD has reviewed the article, and has some difficulty in understanding how it supports the Appellant’s position. For example, the author writes: In short, that North Koreans are deemed nationals of the Republic of Korea alone does not preclude the recognition of North Korean escapees as refugees. However, what if a North Korean does not want to be treated as a national of the Republic of Korea? Can we impose the nationality of the Republic of Korea upon that person against his/her wishes and despite his/her lack of actual links with South Korea? Unfortunately, North Koreans face increasing difficulty with asylum applications in other countries because they have a country that recognizes them as its citizens even if they do not want to be treated as such…. North Korean asylum seekers are often seen as opportunistic migrants who can, but do not try to, settle in the Republic of Korea, where they are entitled to citizenship.”Footnote 38\n\nWithout the benefit of submissions from the Appellant, the RAD cannot ascertain how this document meets the requirements of section 110(4) or how it relates to the Appellant. However, even if it would admit this document, the RAD would find that it supports the conclusion that North Koreans are in fact deemed nationals of South Korea – whether they desire this or not.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-15", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "para 37", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Document (e) is a letter, dated March 11, 2016, from a South Korean professor and former bureaucrat “who dealt with processing procedures for North Korean refugees coming to South Korea.” This document is dated after the rejection of the Appellant’s refugee claim; however, its contents are not new at all. The author appears to be writing of his historical experience as a South Korean official of some sort; he provides no time frame and it is not clear whether this experience was recent or in the distant past. The RAD finds that the Appellant has not established that this evidence arose after the rejection of her refugee claim. Was this evidence reasonably available for presentation to the RPD? In her Application, the Appellant submits that: [G]iven the confusion in the evidence before RPD, which was acknowledged by the Member, the Appellant sought a new opinion on citizenship acquisition procedures in South Korea for North Koreans. This expert was found after the Appellant’s RPD decision and gives clarification to the confusion in the evidence at the RPD level.Footnote 39 This opinion is relevant and probative for the issues under appeal since the procedures for granting citizenship are the determinative issue in the appeal.Footnote 40", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-16", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 38–39", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "If indeed there was confusion at the RPD on this central issue, the Appellant could reasonably have been expected to present this evidence to the RPD to bring clarity. The Appellant has provided no explanation for the fact that this letter was produced in March of 2016, when the RPD hearing took place in 2013 and the decision was rendered in mid-2014. The Appellant has not indicated when she sought this opinion, or explained why it was not obtained in 2013 or 2014. As the RAD has already discussed, section 110(4) does not provide an Appellant with the opportunity to correct a deficient record before the RPD.\n\nThe Appellant has not established that the evidence in document (e) arose after the rejection of her refugee claim, or that it was not reasonably available to her prior to that time, or that she could not have been reasonably expected to present this evidence to the RPD. This document is not admissible. Even if this document was admissible here, however, the RAD would give it little weight. The Appellant did not disclose the information provided to the author whose opinion was sought, or reveal the questions he was asked to answer. The author provides vague information about his work as a “bureaucrat with the Korean Republic,” and does not give a position, title, or department. It is significant that he also does not indicate when he filled such a position, or for how long, or why he left it. Even if this document would meet the test in section 110(4), it has little probative value.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-17", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "para 40", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The document in (f) is an affidavit from Ms. XXXX, sworn March 11, 2016. She explains how she visited the South Korean consulate on XXXX XXXX, 2016, and questioned an official there about “citizenship acquisition procedures.” The affidavit sets out Ms. XXXX’s summary of the official’s answer. The Appellant argues that this document is “relevant and probative for the issues under appeal;”Footnote 41 in her view, “this interview with the Consulate happened after the Appellant’s RPD claim and thus meets the requirements under section 110(4)(a).”Footnote 42", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-18", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "para 41", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RAD finds, however, that the evidence upon which the Appellant seeks to rely here is not that the Designated Representative visited the consulate, but rather the citizenship information provided by the consular official. This information is simply not new. The Appellant does not take the position that South Korean citizenship laws or procedures have changed since the rejection of her refugee claim; rather, she simply attempts to present old evidence with a new date. The RAD finds that the evidence in Ms. XXXX’s affidavit did not arise after the rejection of the Appellant’s refugee claim. The Appellant has not explained why this was not reasonably available at an earlier date. She was represented by the same Designated Representative through six sittings of her refugee hearing in 2013; her claim was not rejected until one year after the first sitting, and six months after the last sitting. Why did she not seek this information from consular officials before or during her RPD hearing? If the RPD panel displayed confusion on the issue of citizenship, as the Appellant argues on appeal, the Appellant could reasonably have been expected, in such circumstances, to obtain and present this evidence prior to the rejection of her refugee claim. Document (f) is not admissible as new evidence here.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-19", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 42–47", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Document (g) is a letter, dated January 25, 2016, from Ms. XXXX to Ms. XXXX. In the document, Ms. XXXX confirms the Appellant’s lack of North Korean identity documents. This is not new evidence. In fact, the RPD acknowledged the “absence of documents,” and noted the “difficulties in assessing documents from North Korea.”Footnote 43 The evidence in the January 25, 2016 letter did not arise after the rejection of the Appellant’s refugee claim, and in fact is already in the record. Document (g) is not admissible here.\n\nFor these reasons, none of the Appellant’s proposed new evidence is admissible in this appeal.\n\nWhile the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal.\n\nThe Appellant submits that the RAD should conduct its own independent assessment of the evidence in the case under appeal and arrive at its own opinion whether she is a Convention refugee or person in need of protection.\n\nIt is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.Footnote 44\n\nThe RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.Footnote 45 Such an appeal (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD’s decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.Footnote 46", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-20", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 48–50", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "According to the Federal Court of Appeal, the RAD is to carefully consider the RPD’s decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD’s decision or setting it aside and substituting the RAD’s own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.Footnote 47\n\nWith respect to findings of fact and of mixed fact and law, the RAD is to review the RPD’s decision applying a standard of correctness.Footnote 48 When applying that standard, the RAD will not show deference to the RPD’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to decide whether it agrees with the determination of the RPD; if not, the RAD will substitute its own view and provide the correct answer.Footnote 49\n\nThe RAD may show deference to findings of the RPD where the lower tribunal was in an advantageous position to reach such conclusions. Here the RAD will defer to the RPD’s finding that the Appellant was a very credible witness, as the RPD saw, heard, and questioned the Appellant and was therefore in a better position to make a credibility determination than is the RAD. However, no deference is warranted with respect to the findings which are challenged by the Appellant here. The issue in this appeal – whether the Appellant is or could choose to become a citizen of South Korea – must be determined on the basis of objective evidence. The RPD has no advantage over the RAD in considering that evidence.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-21", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 51–54", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RAD will apply a standard of correctness to its consideration of the RPD’s decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD’s finding is wrong.\n\nThe Appellant argues that the RPD erred in finding that she is, or could choose to become, a citizen of South Korea. While the RPD made other findings, such as with respect to state protection in South Korea, the Appellant does not challenge these on appeal.\n\nIn Williams, the Federal Court of Appeal set out the principles to be considered when a refugee claimant has more than one potential country of reference. The Court held that where citizenship is within the control of the claimant, and where acquisition of such citizenship is a mere formality, the claimant must show a well-founded fear of persecution against that country. If there is no room for the state in question to refuse status, then the claimant is expected to seek the protection of that state unless she can demonstrate a well-founded fear of persecution there.Footnote 50\n\nIn its recent TretsetsangFootnote 51decision, the Court of Appeal held that the control test set out in Williams remains applicable for determining a claimant’s country of nationality.Footnote 52 The Court held further that a refugee claimant who alleges an impediment to exercising her right of citizenship in a particular country must establish both the existence of a significant impediment and that she has made reasonable, but unsuccessful, efforts to overcome such an impediment.Footnote 53", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-22", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 55–56", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In the Appellant’s submission, discretion exists in the granting of South Korean citizenship. She reminds the RAD that the tribunal is to consider the level of control that the refugee claimant has over the citizenship application process: there must be a degree of certainty.Footnote 54 In her submission, objective evidence indicates that South Korean authorities have some discretion in the granting of citizenship to those born in North Korea. Given that South Korean officials will undertake an investigation into the identity and history of the Appellant, there is no certainty that she will be approved for citizenship.\n\nThe Appellant also argues that, in Kim,Footnote 55 the Federal Court found that South Korean citizenship is not automatic for nationals of North Korea. As she reads that decision, the Court concluded that citizenship in South Korea was by no means automatic, as North Koreans must establish “will and desire” to live in South Korea, and as persons who have lived in a third country for an extended period of time are not eligible for citizenship. In the Appellant’s submission, the Kim case continues to be the leading authority on the issue of Korean citizenship. She objects to the RPD’s departure from Kim, and challenges the RPD’s reliance on a RAD decision from July of 2013. She submits that the RPD erred in failing to follow the principle of stare decisis; the lower tribunal was bound by the Court, as is the RAD. Given that there is “considerable debate”Footnote 56 at the previous RPD and RAD proceedings on how to interpret the laws of South Korea, she argues that this appeal too must follow the decision of the Court.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-23", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 57–59", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RAD has considered the Appellant’s submissions on appeal, as well as all of the material in the RPD’s record. That record is voluminous, and contains numerous documents and thorough submissions from the Appellant’s representatives and from the Minister. While the RAD has carefully reviewed all of the evidence and submissions, it will not make specific reference to each document in the record.\n\nThere are three pieces of South Korean legislation which are relevant to this appeal. The Constitution of the Republic of Korea (the Constitution) is important because it defines the territory of South Korea as “the Korean peninsula and its adjacent islands,” thereby including all of North Korea in its scope. The Constitution also provides that “nationality in the Republic of Korea shall be prescribed by Act.”Footnote 57\n\nThe Nationality Act sets out “the requirements to become a national of the Republic of Korea.”Footnote 58 It provides that an individual is a national of South Korea if that person’s father or mother is a national of the Republic of Korea at the time of the person’s birth. It also holds that a person is a national if born in the Republic of Korea where both parents are unknown or have no nationality.Footnote 59", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-24", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "para 60", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Act on the Protection and Settlement Support of Residents Escaping from North Korea (the Protection Act) serves to provide protection and support to North Korean residents escaping from North Korea and “desiring protection from the Republic of Korea….” The purpose of the Protection Act is to assist such North Koreans “to adapt themselves to, and settle down in, all spheres of their lives, including political, economic, social and cultural spheres.”Footnote 60 The Protection Act does not discuss the granting or recognition of nationality; however, it does provide that certain individuals may be ineligible for protection: international criminal offenders, offenders of serious non-political crimes, “suspects of disguised escape”, and those who have for a “considerable period” earned their living in another country.Footnote 61 The Protection Act goes on to describe various forms of “protection,” including settlement support, recognition of academic qualifications, social adaptation training, employment assistance, financial support, medical care, and more. It also sets out circumstances in which protection may be suspended or terminated, such as when the person involved is sentenced to imprisonment, intentionally provides false information to the authorities, or attempts to return to North Korea.Footnote 62", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-25", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 61–62", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In June of 2008, the IRB’s Research Directorate published a Response to Information Request (the RIR) on the issue of South Korean citizenship for individuals born in North Korea.Footnote 63 The paper considered South Korean legislation and information gathered in an interview with an official at South Korea’s Ottawa Embassy. The RIR found that North Koreans “are not automatically accepted as South Korean citizens…. [they] must demonstrate that they possess the ‘will and desire’ to live in (South) Korea….” It also commented that some North Koreans are ineligible for South Korean citizenship, including international criminals and those who have lived in a third country for a long period of time.Footnote 64\n\nAccording to objective evidence relied upon by the Appellant before the RPD, this RIR “made a significant impact on positive decisions” for North Korean asylum seekers in Canada.Footnote 65 It also made an impact at the Federal Court. In the Kim decision of June 30, 2010, Justice Hughes relied heavily upon the RIR in concluding that it was unclear whether North Koreans would automatically be given South Korean citizenship.Footnote 66 The Court cited the “will and desire” phrase from the RIR and found that there was no certainty to the outcome of the citizenship application process in South Korea.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-26", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 63–64", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In October of 2010, the Refugee Review Tribunal of Australia also addressed this issue. It considered the South Korean legislation discussed above. It noted that authorities in the United States “interpret DPRK and ROK legislation to mean that DPRK citizens have the nationality of both countries.”Footnote 67 It reviewed the Canadian RIR, and various expert reports. The Tribunal ultimately concluded that “a North Korean has South Korean citizenship by operation of South Korean law.”Footnote 68 It found that the Canadian RIR “conflated 2 issues – citizenship/nationality on the one hand, and eligibility for the APSSR [Protection Act] assistance package (‘protection’) on the other.”Footnote 69\n\nIn KK and ors, the Upper Tribunal of the United Kingdom’s Immigration and Asylum Chamber considered the appeals of three individuals from North Korea, each of whom had been denied refugee protection in the U.K. because they were found to have citizenship in South Korea.Footnote 70 The Tribunal also considered the conclusion contained in the Canadian RIR: “that North Koreans are not automatically accepted as South Korean citizens: they must demonstrate that they possess the ‘will and desire’ to live in South Korea.”Footnote 71 It did not accept this position, instead concluding that a citizen of North Korea, born in that country, has also been a citizen of South Korea since birth. It nevertheless allowed the appeals, as the Appellants had been outside of the Koreas for more than ten years, and under South Korean law were thus presumed to have obtained citizenship elsewhere.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-27", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 65–67", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In a decision of July 31, 2013, this panel of the RAD considered an appeal by the Minister against a decision of the RPD which granted refugee protection to two nationals of North Korea.Footnote 72 The Minister submitted new evidence from South Korean officials, who confirmed that North Korean-born individuals are deemed nationals of South Korea.Footnote 73 The RAD considered the Kim decision of the Federal Court, as well as the British and Australian tribunal decisions. It concluded that the RIR erroneously linked protection under the Protection Act with citizenship under the Nationality Act. Having considered the evidence, including the recent evidence from South Korean officials, the RAD concluded that the Appellants were citizens of South Korea.\n\nThe RIR in question was subsequently removed from the IRB’s National Documentation Package. A later RIR reported that “citizens of North Korea are recognized as citizens of the Republic of Korea in the Constitution” and that if the individual is not a North Korean infiltrator or agent, “it is certain that ROK citizenship will be granted.”Footnote 74\n\nIn support of his intervention at the RPD, the Minister submitted an expert report addressing the subject of South Korean nationality law. The report, dated in December of 2013, was written by Professor Andrew Wolman, Associate Professor at the Graduate School of International Area Studies at Hankuk University of Foreign Studies. The author’s research has focused on the role of national human rights institutions in Asia and on refugee and migration law issues in the Korean peninsula. In order to answer questions posed to him by Citizenship and Immigration Canada, he consulted a number of sources, including government officials, lawyers, and professors.Footnote 75", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-28", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 68–70", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Professor Wolman gave the opinion that North Korean nationals are, from birth, automatically citizens of South Korea.Footnote 76 He stated that: The conclusion that DPRK nationals are automatically ROK citizens is accepted by ROK government officials and the vast majority of both foreign and domestic legal scholars. I would consider it now to be settled law within the ROK. The professor explained three exceptions: naturalized North Koreans of a non-Korean ethnicity, North Korean nationals who have voluntarily taken on the nationality of a third country, and North Korean nationals who can trace their Korean lineage only through maternal descent prior to June 14, 1998.\n\nThe RAD notes that the Appellant has not argued that she falls into any of these exceptional categories.\n\nThe Appellant argues on appeal that both the RPD and the RAD continue to be bound by the decision of the Federal Court in Kim. In her submission, the Court found that South Korean citizenship is not automatic for nationals of North Korea. As there has been no change in the jurisprudence, the IRB is bound by that finding. The RPD erred, in her submission, by failing to follow the principle of stare decisis, which requires the tribunal to adhere to decisions from a higher-level court. She argues that there was “considerable debate” in the previous RPD and RAD proceedings about how to interpret the laws of Korea and whether or not South Korean officials have discretion to grant citizenship. In view of this uncertainty, she submits, the RAD must follow the decision of the Federal Court in order to provide consistency and predictability in law.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-29", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 71–73", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RAD cannot accept the Appellant’s argument that there has been considerable debate or inconsistency with respect to this issue. In 2013, the RAD found the RIR to be flawed, and concluded that North Korean nationals are deemed citizens of South Korea. In 2014, the RPD followed this reasoning and found the Appellant to be a citizen of South Korea. The first RAD decision in this appeal confirmed this finding, as did the second. The debate occurred because the Appellant, as is her right, vigorously challenged this consistent position. There is little basis for the Appellant’s argument that the RAD must follow Kim in order to provide consistency. In fact, following Kim would do the opposite and create an inconsistency.\n\nThe difficulty here, of course, is that the RPD and the RAD have been consistent in not following Kim, at least since the accuracy of the RIR was impugned. The RAD finds that it is not bound by the decision of the Court in Kim because the RAD now has updated and more accurate information on the issue of nationality. Further, the RAD is a specialized tribunal, and the interpretation of the IRB’s Response to Information Requests is certainly part of its expertise.\n\nThe Kim decision relied heavily upon the RIR, discussed above.Footnote 77 That document reported that citizenship in South Korea is not automatic for North Koreans, and that South Korean officials have the discretion to refuse citizenship if the applicant is found to lack the “will and desire” to live in South Korea. In its 2013 decision on this subject, the RAD found that the RIR incorrectly linked protection under the Protection Act to citizenship under the Nationality Act.Footnote 78 For the following reasons, the RAD again reaches that determination.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-30", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 74–75", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "A plain reading of South Korean legislation leads the RAD to conclude the following. First, South Korea’s constitution defines that country’s territory as including the entire Korean peninsula. Second, South Korean’s Nationality Act provides that an individual is a national of South Korea if that person’s father or mother is a national of the Republic of Korea at the time of the person’s birth. Read together, these provisions make it clear that an individual born in North Korea to a national of North Korean is deemed a citizen of South Korea as well. Third, the Protection Act does not grant or deny citizenship; it clearly considers “protection” as settlement assistance.\n\nThe RIR reported that a North Korean must have the “will and desire” to live in South Korea and that the granting of citizenship is therefore discretionary. This interpretation is simply not supported by the legislation. The RAD notes that the Protection Act applies to those “desiring protection”;Footnote 79 there is no equivalent language in the Nationality Act, or anything to suggest that “will and desire” can influence the recognition of citizenship. A plain reading of the legislation leads the RAD to conclude that someone without “will and desire” might indeed be denied the benefits bestowed by the Protection Act – but not that such a person would be denied citizenship. The RAD notes here that the “exclusions” from citizenship considered in the RIR are in fact exclusions from protection, set out in the Protection Act.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-31", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 76–78", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "This view is supported by information provided by the South Korean government itself. In correspondence of May 22, 2013, the First Secretary of the Embassy of the Republic of Korea in Ottawa provided a paper which “represents the position of the government of the Republic of Korea.”Footnote 80 That document states that: According to the Constitution and other domestic laws of the Republic of Korea, North Korean-born persons are deemed nationals of the Republic of Korea. Therefore, there is no separate procedure needed for Korean-born persons to obtain the nationality of Republic of Korea after entering the Republic of Korea…. In other words, if it is confirmed that he/she is a North Korean defector, no separate process is needed to endow the person with South Korean nationality.Footnote 81\n\nThe South Korean government’s response also makes a distinction between nationality and protection. The document refers to North Koreans who have made an application for asylum overseas: [T]here are no issues with entering South Korea. However, benefits (settlement support fund; rental housing; support for education, medical services, etc.) that assist North Korean defectors under the “Act on the Protection and Settlement Support of Residents Escaping from North Korea” could be suspended.Footnote 82\n\nHaving considered this evidence, the RAD again finds that the RIR was factually incorrect when it linked “will and desire” to citizenship. The RAD reaches the same conclusion as did the Australian tribunal: the RIR conflated the issue of protection, which in this case refers to settlement assistance, with the concept of citizenship. This mistake led to a further error – the conclusion that South Korean officials have discretion to refuse citizenship to North Koreans.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-32", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 79–81", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Appellant insisted before the RPD that protection and citizenship were linked, and she maintains that position on appeal: The Protection Act is the Korean legislation that forms the legal authority for the granting of status to North Korean detractors (sic). The Protection Act sets out a list of groups that the Korean government will refuse to grant citizenship to in Article 9(1)….Footnote 83 With the greatest of respect, this argument is simply not supported by the Protection Act, which deals with assistance and protection but not citizenship, or by the official position of the South Korean government.\n\nIt is not possible for the RAD to determine how the Court’s decision would have been different had the RIR not been in evidence, or had the Court known that the RIR was flawed. However, it is clear that the Court relied heavily upon the RIR and the “will and desire” test cited therein. Beyond that, the Court’s only reference to objective evidence relates to a 2007 article in a law journal and to a UNHCR report.\n\nThe law article stated that “the possibility of obtaining ROK citizenship under the South Korean Constitution and the Nationality Act (ROK) should not preclude DPRK defectors from protection under international refugee law.”Footnote 84 This opinion does not, of course, establish that North Koreans are not considered to be South Korean nationals.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-33", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 82–85", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The Court suggested that the UNHCR “expressed doubts as to whether all North Koreans, particularly those who have transited through China… would automatically receive South Korean citizenship….” However, nothing in the quote that follows indicates that citizenship is discretionary; in fact, the UNHCR is quoted as saying that “the clause excludes most North Koreans from international protection because South Korea extends citizenship to all North Koreans, in effect giving them dual nationality.”Footnote 85\n\nAs the Kim decision is based in large part on evidence that has, in retrospect, been found to be flawed, it would be inappropriate for the RAD or the RPD to follow that decision with respect to the factual issue of citizenship in South Korea for nationals of North Korea.\n\nThe RPD believed the Appellant when she claimed to be a national of North Korea, born to parents who were nationals of North Korea. The RAD defers to these findings, as the lower tribunal had an advantage in assessing the Appellant’s credibility.\n\nThe Appellant is deemed by South Korean law to be a citizen of South Korea, as she was born in the Korean peninsula to nationals of North Korea. The South Korean government has provided its official position with respect to the issue of citizenship: “North Korean-born persons are deemed nationals of the Republic of Korea.”Footnote 86 An expert in matters of refugee and migration law matters in the Korean peninsula has provided his opinion that North Korean nationals are, from birth, automatically citizens of South Korea and that this position is settled law, accepted by government officials and the vast majority of both foreign and domestic legal scholars.Footnote 87", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-34", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 86–87", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RAD acknowledges that the Appellant has provided numerous documents and opinions which suggest that the granting of citizenship is discretionary. The RAD finds, however, that such opinion evidence cannot overcome the provisions of South Korean legislation, the official written position of the government which is charged with implementing those provisions, and the opinion of a qualified expert that this position is generally accepted.\n\nThere remain two issues raised by the Appellant. First, she reminds the RAD that she will be subjected by South Korean officials to an investigation and screening process. She points to the official statement of the South Korean government, which explains that “in the case of North Korean defectors, given that they are confirmed to be North Korean defectors after going through the investigation of the authorities concerned, they become citizens of the Republic of Korea without further procedures.”Footnote 88 This, she argues, indicates that there no certainty that she will be approved for citizenship.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-35", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 88–89", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "In the unique geopolitical circumstances of the Korean peninsula, it is not surprising that the South Korean authorities desire to thoroughly screen each individual coming from North Korea. There have been cases of North Korean agents claiming to be defectors and refugees, and of agents posing as defectors in order to assassinate a true defector. Situations such as these have increased the pressure on South Korean authorities to ensure that the intentions of North Koreans seeking to access citizenship are bona fide. There are also concerns that defectors and refugees may actually be ethnic Koreans from outside the Korean peninsula.Footnote 89 The fact that the Appellant will be subject to investigation and screening does not make the granting of citizenship discretionary. If she is found to be a North Korean national, she is deemed to be a citizen of South Korea.\n\nThe RAD recognizes that the Appellant is a minor and has few or no identity documents. However, she was able to credibly establish her identity before the RPD, and the RAD sees no reason why she should have difficulty in doing this before South Korean officials, who are undoubtedly more expert in assessing North Korean identity than is the IRB.Footnote 90 The fact that South Korean officials will investigate the Appellant’s nationality does not mean that they have discretion to deny her citizenship: if she is found to be a North Korean, she is deemed a citizen, according to South Korean legislation and the government’s interpretation and application of that legislation.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-36", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "para 90", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "Second, the RAD notes the Appellant’s clear evidence that she does not want to live in South Korea. She argues that South Korean nationality laws require that she express a will and desire to live in that country prior to granting citizenship.Footnote 91 The RAD disagrees. There is no such condition in the Nationality Act, and it appears that the Appellant’s will and desire is relevant only to whether she qualifies for assistance under the Protection Act. However, even if the Appellant’s lack of will and desire is a relevant consideration for South Korean officials, the RAD cannot accept that this places citizenship outside of the Appellant’s control. If the only reason that she cannot have her citizenship endowed is that she simply does not want it, then the granting of citizenship remains within her control and not at the discretion of the South Korean authorities. The “control” test set out in Williams acknowledges that the unwillingness of a refugee claimant to take steps required to gain state protection is fatal to her claim, unless that unwillingness results from the very fear of persecution itself.Footnote 92 While she has argued that the Protection Act creates impediments to citizenship, the RAD has found that this is not the case, and concludes that the Appellant has not established that there are significant impediments to her exercise of citizenship, as considered in Tretsetsang.", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" + }, + { + "id": "irb-TB4-05778-37", + "doc_type": "caselaw", + "act_code": "TB4-05778", + "act_short": "TB4-05778", + "act_name": "IRB Jurisprudential Guide TB4-05778", + "section": "", + "citation": "IRB Jurisprudential Guide TB4-05778", + "marginal_note": "paras 91–94", + "heading": "Whether a North Korean refugee claimant has deemed citizenship of South Korea and protection available there", + "part": "Immigration and Refugee Board — Refugee Appeal Division", + "division": "", + "text": "The RAD finds that the Appellant is deemed to be a national of South Korea by that country’s legislation and government. She does not need to apply for that citizenship, though South Korean officials will verify her country of origin before recognizing her nationality. The evidence before the RAD establishes that once she has been determined to be a national of North Korea, she will automatically be deemed a citizen of South Korea.\n\nThe Appellant does not challenge the RPD’s finding that she lacks a well-founded fear of persecution in South Korea or that adequate state protection is available to her there. The RAD is guided by the UNHCR Handbook: [A]n applicant’s well-founded fear of persecution must be in relation to the country of his nationality. As long as he has no fear in relation to the country of his nationality, he can be expected to avail himself of that country’s protection. He is not in need of international protection and is therefore not a refugee.Footnote 93\n\nThe RAD is sympathetic to the situation of the Appellant – a minor XXXX XXXX XXXX XXXX XXXX XXXX XXXX, who has found some stability and happiness in Canada. However, the RAD has no jurisdiction to determine this appeal on humanitarian and compassionate grounds. As the Appellant has not established that she has a well-founded fear of persecution in South Korea, she is not entitled to Canada’s surrogate protection.\n\nPursuant to section 111(1)(a) of the 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 dismissed. Signed: Edward BosveldDate: June 27, 2016", + "current_to": "2016-06-27", + "last_amended": "", + "history": "", + "source_url": "https://www.irb-cisr.gc.ca/en/decisions/Pages/TB4-05778.aspx" } ] \ No newline at end of file