Docket: IMM-2919-15
Citation:
2016 FC 152
Toronto, Ontario, February 8, 2016
PRESENT: The
Honourable Mr. Justice Diner
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Docket: IMM-2919-15
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BETWEEN:
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GJON RROTAJ
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ELVANA RROTAJ
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SAMUELE RROTAJ
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JOANA RROTAJ
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
BACKGROUND
[1]
The Applicants bring this application under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] to judicially review a June 4, 2015 decision [Decision] of
the Refugee Protection Division of the Immigration and Refugee Board [the
Board]. In its Decision, the Board found the Applicants to be excluded under
Article 1E of the Convention Relating to the Status of Refugees, 28 July
1951, Can TS 1969 No 6 [the Refugee Convention], as referenced in sections 2
and 98 of IRPA. The Applicants were therefore precluded from status as
Convention refugees under section 96 of IRPA or persons in need of
protection under section 97. The Applicants seek an order declaring that they
are Convention refugees or persons in need of protection, or, in the
alternative, an order remitting the matter to the Board for redetermination.
[2]
Gjon Rrotaj, the Principal Applicant, and his
spouse, Elvana Rrotaj, were born in and are citizens of Albania. Prior to their
arrival in Canada, they resided in Italy as permanent residents, a status they
held since 2001. Their two children, Samuele and Joana, were born in Italy in
2004 and 2009 respectively and have held permanent resident status in Italy
since their birth. The Applicants claim protection from an Albanian gang. While
the gang is not based in Italy, the Applicants assert that its reach extends
there as a result of the liberalization of visas for Albanians to enter the
European Union’s Schengen Area.
[3]
The Board found the Applicants credible with
respect to the incidents that took place in Albania. However, they were
excluded from protection under Article 1E of the Refugee Convention because the
Board determined that the Applicants possessed valid permesso di soggiorno
illimitata cards [PSI Cards] – the equivalent of a European Commission
Residence Permit for Long-term Residents – which confer all the rights and
social benefits of permanent residence in Italy (Certified Tribunal Record
[CTR], p 9). The Board noted that this status could be revoked on grounds of
serious criminality, or for being outside the European Union for more than 12
consecutive months, but that the Applicants did not submit any documentary
evidence to suggest their status had actually been revoked: to their knowledge,
neither the European Union nor Italy had voided their PSI Cards.
[4]
The Board concluded that their PSI Cards
conferred a right of return to Italy, preferring more recent evidence on this
point to an older opinion:
One source, namely an official from the
Canadian Embassy in Italy, did state in March 2012, that the holder of such a
status “will lose his or her permanent resident status, “regardless of the
validity indicated on the Carta di Soggiorno”.” However, more recent
information from the Immigration and Refugee Board, dating from 2013 and 2015,
obtained following consultations with sources who represent directly the
Italian authorities, either in their capacity as consular officials or the
police, state that individuals can return to Italy and that their status may
be revoked. It seems from the most recent evidence adduced that the decision to
revoke the status is discretionary, not automatic (Emphasis in original; CTR,
pp 9-10).
[5]
While the Board acknowledged that the
Applicants’ PSI Cards could be voided, it nonetheless concluded that the
Applicants could likely return to Italy and thus they were excluded from
protection.
[6]
Finally, with respect to their fear of
persecution and future risk in Italy, the Board found that adequate state
protection was available. Applicants’ counsel did not challenge this conclusion
on judicial review on the basis that he characterized it technically as obiter
in light of the exclusion finding.
[7]
The Applicants contend that the Board has
unreasonably excluded them in that they lacked certain rights available to
Italian citizens including, most importantly, the right to enter Italy. Entry
is a prerequisite to an exclusion finding. For rights equivalent to those of
citizens, the Applicants refer to the Handbook on Procedures and Criteria
for Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees of the United Nations High Commission for
Refugees, HCP/IP/4/Eng/REV.1, January 1992, at para 144 [the UNHCR
Handbook], which states that the individual “must, like
a national, be fully protected against deportation or expulsion”. The
Applicants also submit that since their status is subject to revocation on
grounds of serious criminality, they are not fully protected and thus it was
wrong to exclude them under Article 1E.
[8]
The Respondent counters that the Decision was
reasonable because the Applicants failed to discharge their burden to
demonstrate that they are not excluded under Article 1E. Specifically, the
Applicants failed to establish they have no right of return to Italy, a right
which the evidence suggests they indeed have. Furthermore, any possible status
revocation is discretionary, not automatic, and nothing suggests such a
revocation occurred. Finally, the Respondent submits that Article 1E does not
require blanket protection against deportation.
II.
ANALYSIS
[9]
The issues to be determined by this Court are
whether the Board erred in excluding the Applicants on the basis of a right of
return to Italy and/or whether it erred in finding that they had substantially
similar status to Italian nationals (including “unlimited”
protection against deportation).
[10]
The Board’s selection of the Article 1E legal
test should be reviewed on a standard of correctness. If the test set out was
correct, then the Board’s assessment of the facts under the said test should be
subject to a reasonableness review (Canada (Citizenship and Immigration) v
Zeng, 2010 FCA 118 [Zeng] at para 11). A reasonableness review
assesses whether a decision is transparent, justified, intelligible, and
defensible in respect of the facts and the law (Dunsmuir v New Brunswick,
2008 SCC 9 [Dunsmuir] at para 47).
[11]
Before examining the merits of the Board’s
Decision, a review of the law and jurisprudence is helpful. Article 1E of the
Refugee Convention, incorporated into the law through section 98 of IRPA,
states that “[t]his Convention shall not apply to a
person who is recognized by the competent authorities of the country in which
he has taken residence as having the rights and obligations which are attached
to the possession of the nationality of that country”.
[12]
A leading case on the interpretation and
application of Article 1E is the Federal Court of Appeal’s decision in Zeng,
where Justice Layden-Stevenson, at para 28, identified the test for exclusion:
Considering all relevant factors to the date
of the hearing, does the claimant have status, substantially similar to that of
its nationals, in the third country? If the answer is yes, the claimant is
excluded. If the answer is no, the next question is whether the claimant
previously had such status and lost it, or had access to such status and failed
to acquire it. If the answer is no, the claimant is not excluded under Article
1E. If the answer is yes, the RPD must consider and balance various factors.
These include, but are not limited to, the reason for the loss of status
(voluntary or involuntary), whether the claimant could return to the third
country, the risk the claimant would face in the home country, Canada’s
international obligations, and any other relevant facts.
[13]
The FCA also noted that the purpose of Article
1E is to exclude persons who do not need protection and thus it “precludes 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”
(Zeng at para 1). In so doing, Article 1E protects the integrity of the
refugee system from so-called “asylum shopping”,
where an individual seeks protection in Canada, despite being entitled to
status in a safe third country.
[14]
In Zeng, the claimants were Chinese
citizens entitled to permanent resident status in Chile. The claimants argued
there was a risk their permanent resident status would expire, as they had been
outside Chile for more than one year and had not applied to have their status
extended. The RPD had rejected this argument, finding that the claimants held
permanent residence status in Chile at the time of the hearing and if that
status could have been lost because the claimants were outside of Chile for
more than a year without applying to extend it, that failure to extend could
not avail to their benefit. The Court found that it owed deference to the RPD’s
finding on this point.
[15]
One important component of the Article 1E
assessment is where the legal burden lies. In Murcia Romero v Canada
(Minister of Citizenship and Immigration), 2006 FC 506, Justice Snider
found that the Minister must first raise a prima facie case that there
is a right of return to a country where claimants enjoy substantially the same
rights as its nationals. The onus then shifts to the claimants to establish
they do not have such status in the third country. A key question in the exclusion
equation is therefore whether the applicant possesses the basic rights
associated with nationality.
[16]
The test for determining whether an individual
has substantially the same rights to a national was addressed in Shamlou v
Canada (Minister of Citizenship and Immigration) (1995), 103 FTR 241 (FCTD)
[Shamlou], which has been followed in several cases and was cited,
albeit in a different context, by Justice Bastarache in his concurring reasons
in R v Cook, [1998] 2 S.C.R. 597 [Cook] at para 140:
[140] Indeed, “nationality” is not
defined in the Citizenship Act, R.S.C., 1985, c. C-29. However, the term has
been interpreted by courts of this country in interpreting the Canadian
definition of “national” used in the Schedule E of the Immigration Act […]
Lorne Waldman, in his work Immigration Law
and Practice (1992 (loose-leaf)), vol. 1, at § 8.217.4, identifies four factors
relevant to Canadian law:
(a) the right to return to the
country of residence;
(b) the right to work freely without
restrictions;
(c) the right to study; and
(d) full access to social services in
the country of residence.
These criteria were adopted in Shamlou v.
Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 241,
per Teitelbaum J., at para. 36, where it was said:
I accept the criteria outlined by Mr.
Waldman as an accurate statement of the law. The issue with respect to the
Board’s application then really turns on whether or not it was reasonably open
for the Board, on the facts before it, to conclude that the applicant was a
person recognized by the competent authorities in Mexico as having most of the
rights and obligations which are attached to a person of that nationality.
[17]
In Shamlou, at paras 29 and 35, Justice
Teitelbaum also quoted the following two passages by Mr. Waldman:
… [A] person should be excluded from the
Convention based upon Art. 1E only in circumstances where it is clear that the
person has obtained all of the most fundamental basic rights associated with
nationality of a country. Although it is not possible to make an exhaustive
list of all the rights, these would include, at minimum, the right to
return, the right to reside for an unlimited period of time, the right
to study, the right to work, and access to basic social services.
…If the applicant has some sort of temporary
status which must be renewed, and which could be cancelled, or if the applicant
does not have the right to return to the country of residence, clearly the
applicant should not be excluded under Art. 1E. (Emphasis added)
[18]
Justice Teitelbaum thus refers to a fifth
criterion to the four enumerated above. This fifth criterion –the right of
return to the third country of residence for an unlimited period of time
– has been applied in several cases. In Kanesharan v Canada (Citizenship and
Immigration), [1996] FCJ No 1278 (FC) [Kanesharan], for example,
Article 1E was found not apply because the UK Home Office could, at its
discretion, remove individuals to their country of nationality. Along similar
lines, Article 1E did not apply in Choezom v Canada (Minister of Citizenship
and Immigration), 2004 FC 1329 [Choezom], where the claimant’s
status was subject to the sufferance of the third country. And in Hurt v
Minister of Manpower & Immigration, [1978] 2 FC 340 (FCA), the claimant
was not excluded because his status in the third country at issue was only
temporary.
[19]
Regarding the criterion of “the right of return”, in Mahdi v Canada
(Citizenship and Immigration), [1994] FCJ No 1691 (FC) [Mahdi],
this Court found the Board erred in excluding a claimant when the evidence
suggested there was no right of return, a decision that was upheld on appeal (Mahdi
v Canada (Minister of Citizenship and Immigration), [1995] FCJ No 1623).
[20]
In each of the cases of this Court cited above,
Article 1E exclusion did not apply because the claimant’s status was
vulnerable, conditional, or temporary: none enjoyed durable permanent status.
[21]
In light of all the above, I find that the Board
applied the correct test, as articulated by the FCA in Zeng and
previously by this Court in Shamlou. This includes the interpretation
that the protection against deportation need not be absolute, for I do not
agree with the Applicants that such an extension of the principles enunciated
in the Zeng and Shamlou tests would be correct. Certain conditions
may properly limit the Applicants’ unlimited status, including failing to abide
by the conditions of permanent residency. Only where there is an inherent
vulnerability or transience to their status will exclusion not apply, such as
occurred to the claimants in Choezom, Hurt, Kanesharan and
Mahdi.
[22]
The UNHCR Handbook that the Applicants rely on,
while a useful interpretative tool, is not determinative of Canadian refugee
law (see, for instance, Pushpanathan v Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982 at para 53-54; Chan v Canada (Minister
of Employment and Immigration), [1995] 3 S.C.R. 593 at para 46). In my view,
the plain text of the provision indicates that individuals will not be excluded
if their status in the third country confers something less than the basic
rights afforded to nationals, and I would not go so far as to state that
Canadian law interprets ‘nationality’ in Article
1E as citizenship. Article 1E does not state that excluded claimants must
become nationals in the true legal sense: rather, they need only have rights
and obligations “attached to nationality”.
Considering all of the commentary above, this should be read to mean “analogous to” the rights and obligations of
nationals, which translates, generally, to permanent residency, the status that
has been recognized by the jurisprudence as satisfying Article 1E. If the
drafters of the Refugee Convention intended to say that the claimant obtained
actual nationality or citizenship in the third country, they would have said so
in plain language.
[23]
Given that I find no error in the Board’s
characterization of the exclusion test, I now turn to its application to the
factual underpinning of this case. I find the Board’s conclusions in light of
the evidence to be reasonable.
[24]
The Applicants did not provide any evidence to
meet their burden to demonstrate that they had lost status in Italy. The fact
that they have been outside the European Union for far more than 12 months (and
had been at the time of the hearing) does not mean that they have lost their
status. The Board addressed this issue, acknowledging the inconsistency in the
documentary evidence between the Canadian Embassy’s March 2012 opinion, and the
more recent (2013 and 2015) evidence confirming that revocation is discretionary,
not automatic – information which was obtained from Italian police and consular
officials. It is not my role to reweigh the evidence, and I find that this
outcome was open to the Board.
[25]
On the question of whether the Board erred in
finding that the Applicants’ status in Italy was substantially similar to that
of nationals, the law does not require parity between citizens and permanent
residents. As discussed above, the exclusion article referenced in IRPA
does not necessitate that claimants must have absolute protection from
deportation from the third country. Indeed, not even Canadian permanent
residents benefit from such an elevated level of protection.
[26]
Instead, the evidence in this case showed the
Applicants held the equivalent of European Commission long-term resident status
and therefore met the key Shamlou criteria:
The State Police website indicates that
individuals holding an EC Long-Term Residence Permit are entitled to enter
Italy without a visa, to work, to have access to social benefits and services
provided by the Italian government, and to “participate in local public life”
(Italy 29 Mar. 2010). The Ministry of Interior’s Staying in Italy Legally
indicates that foreign nationals with a valid residence permit are granted the
same education rights as Italian citizens (ibid. n.d., 21). The same source
indicates that foreign nationals with a “regular residence permit” are required
to register with the National Health Service (Servizio Nazionale, SSN), and are
entitled by law to receive health care and have “equal treatment as Italian
citizens regarding compulsory contributions, health care given in Italy by the
SSN and its time limit” (CTR, p 17).
[27]
According to these findings, under their Italian
status, the Applicants held the right to work without restrictions, to study,
to fully access social services, and to return to the country. Indeed, the
Principal Applicant conceded during the hearing that he had all the formal
rights of an Italian citizen except the right to vote and the right to a passport
(CTR, pp 8, 714). In short, the Applicants possess the four basic Shamlou
rights and the right to reside for an unlimited period of time; unlike in Mahdi,
the evidence does not disclose a serious possibility, let alone a probability,
that the Applicants have no right of return.
[28]
Furthermore, there is neither evidence to
suggest that the Applicants would face deportation nor are the conditions
attached to the Applicants’ permits (to avoid committing a serious crime and to
avoid leaving the European Union for more than a year) due to any inherent
vulnerability of their status. It remained within the control of the Applicants
to abide by the conditions of their status. The test is not whether the person
has exactly the same rights as a citizen of the country, but whether their
status is substantially similar to that of a national (see Zeng
at para 28). Here, the Applicants had status substantially similar to that of
Italian nationals and it was therefore open for the Board to arrive at its
conclusion.
[29]
I would also note that two recent cases decided
by this Court are supportive of this conclusion within the context of the same
status as these Applicants (hold PSI Cards issued by Italy). First, in Omorogie
v Canada (Citizenship and Immigration), 2015 FC 1255, Justice O’Keefe
upheld a decision where the claimants unsuccessfully argued that they lost
their permanent status in Italy. This Court found, in light of the inconsistent
evidence as to whether the applicants would automatically lose their permanent
residence after one year outside of Italy, that it was reasonable for the RPD
to prefer the evidence that revocation is not automatic.
[30]
Second, in Tota v Canada (Citizenship and
Immigration), 2015 FC 890, Justice Boswell upheld a decision where the
claimant argued that the Refugee Appeal Division [RAD] had failed to consider
that his status would be subject to revocation if he no longer met the
permanent residency requirement, and also failed to consider that he had no
right to social assistance or to study in Italy. Justice Boswell found that the
RAD reasonably determined the claimant had the requisite status in Italy, and
that there was no evidence before the RAD to indicate that such status could
not be renewed or that the claimant’s current status had been lost.
[31]
In this case, it was equally incumbent on the
Applicants to bring evidence that they could not renew their status in Italy,
and/or had lost their right of return. They brought neither. The Board’s
determination on this point was reasonable, and again, per Dunsmuir, it
is not my role to reweigh the evidence to arrive at a different conclusion.
[32]
Finally, I find that the Board’s protection
findings vis-à-vis Italy were reasonable as well, even though Applicants’
counsel referred to them as obiter.
III.
CONCLUSION
[33]
For the reasons above, the application for
judicial review is dismissed.
IV.
QUESTION FOR CERTIFICATION
[34]
The Applicants asked that the following question
be certified:
Given that Article 1E is exceptional in
nature, and Shamlou has held that it includes the ability to return to
the country in question, must the ability to return be absolute, or is it
satisfactory for it to be discretionary?
[35]
I do not find this proposed question meets the
criteria for certification because the right to return is necessarily included
in the Zeng test, as well as the various authorities which have adopted
the Shamlou criteria.
[36]
Rather, what is key to this decision ─ and
many other Article 1E decisions ─ is the nature of the rights
attached to nationality of the third country. Therefore, the more relevant
question is the following:
Does Article 1E of the Refugee Convention,
as incorporated into IRPA, apply if a claimant’s third country residency
status (including the right to return) is subject to revocation at the
discretion of that country’s authorities?
[37]
I agree to certify this question, as it (i) is dispositive of the appeal and (ii) transcends
the interests of the immediate parties to the litigation, and contemplates
issues of broad significance or general importance (Zhang v Canada
(Citizenship and Immigration), 2013 FCA 168 at para 9).
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