Docket: IMM-12713-23
Citation: 2024 FC 1964
Ottawa, Ontario, December 4, 2024
PRESENT: The Honourable Mr. Justice Lafrenière
BETWEEN: |
CHARNJIT SINGH, PARDEEP SINGH AND SATWINDER KAUR |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] At the conclusion of the hearing, I indicated that the Applicants’ application for judicial review would be dismissed, with brief reasons to follow. These are my reasons.
[2] The Principal Applicant, his wife, and their adult son [the Applicants] are Sikhs of Indian nationality. They claim to be at risk in India due to their religion.
[3] The Applicants relocated to Italy in 2004, where they obtained “permesso di soggiorno”
residency cards. They left Italy in 2019 and made a claim for protection in Canada, claiming that they were at risk in Italy due to mistreatment of the Principal Applicant by his employer, who is said to be connected to the mafia and to have threatened the Principal Applicant’s life.
[4] The Refugee Protection Division [RPD] refused the Applicants’ claim and found that, as permanent residents in Italy, they are excluded from refugee protection pursuant to s. 98 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and Article 1E of the United Nations Convention Relating to the Status of Refugees [Article 1E]. The RPD further found that the Applicants failed to rebut the presumption of state protection in Italy.
[5] On appeal to the Refugee Appeal Division [RAD], the Applicants argued that their status was lost in Italy, and they have no state protection there. Like the RPD, the RAD found that the Applicants failed to discharge their burden to show that they do not have an excludable status in Italy pursuant to Article 1E. The RAD also upheld the RPD’s determination that the Applicants did not rebut the presumption of state protection in Italy.
[6] The Applicants do not challenge the RAD’s state protection finding. They solely take issue with the RAD’s finding that they failed to discharge their burden to show that they have lost their status in Italy. The Applicants submit that the RAD’s decision, if viewed on a standard of correctness, was incorrect, and if viewed on a standard of reasonableness, was unreasonable. I disagree.
[7] First, the presumptive standard of reasonableness is the applicable standard of review for the RAD’s decision with respect to an applicant’s exclusion by the combined operation of Article 1E of the Convention and s. 98 of the IRPA.
[8] Second, s. 98 of the IRPA provides that a person described in Article 1E of the Convention, who is recognized by a country in which they have taken up residence as having the rights and obligations attached to the nationality of that country, is not a Convention refugee or a person in need of protection.
[9] Refugee claimants do not bear an initial evidentiary burden to show that they are not excluded from protection. Nevertheless, when there is evidence suggesting on the first impression that a claimant has status in a third country that would permit them to return there, Article 1E of the Convention is engaged and the onus shifts to the claimant to establish that they do not have such status.
[10] The Applicants submit that the RAD failed to recognize that they only had temporary status in Italy, which is not a “substantially similar”
status to Italian nationals: Zeng v Canada (Minister of Citizenship and Immigration), 2010 FCA 118 at para 28. This is the very same argument that was advanced below and was rejected with detailed reasons.
[11] The case law is clear that if a claimant has some sort of temporary status which must be renewed and which could be cancelled, or if the claimant does not have the right to return to the country of residence, clearly the claimant should not be excluded under Article 1E. However, as explained by the RAD, the Applicants do not fall within this category. I see no error in the RAD’s finding that a permesso di soggiorno is a long-term residence permit that does not expire. This is in fact confirmed by Item 3.7 in the National Document Package for Italy [NDP], which was before the RPD and RAD, as well as the permit card itself, which indicates that it confers “long-term”
residence to the permit holder.
[12] It is only on judicial review that the Applicants now assert that the Principal Applicant’s permesso di soggiorno is a temporary permit for a fixed amount of time. The Applicants’ new position is contradicted by the evidence and their own admission before the RAD.
[13] I am satisfied that it was open to the RAD on the record before it to find that there was a prima facie case that the Applicants have exclusionary status in Italy, and that they failed to meet their burden to show that they do not have such status: Milfort-Laguere v Canada (Citizenship and Immigration), 2019 FC 1361 at para 24.
[14] The Applicants submit that the RAD failed to account for the fact that their permesso di soggiornos are expired because they have spent more than one year outside of Italy. However, the RAD considered this very argument and rejected it based on the fact that revocation of status is a formal process which must be initiated by the government and there was no evidence of such a process having been initiated or completed against the Applicants.
[15] The Applicants maintain that the RAD should have done more to inquire into whether the Applicants have indeed lost their status in Italy. I disagree. It was not unreasonable for the RAD to find that, in the absence of evidence that the Applicants’ permesso di soggiornos had been revoked, they failed to rebut the prima facie case of exclusion.
[16] The Applicants argued before the RAD that they were unable to provide such evidence, because they were in Canada. The RAD rejected this argument, given the existence of technology, the available Italian consular services, and the fact that the Applicants were represented by counsel. The RAD’s finding is entitled to deference, and I see no error in its assessment of the Applicants’ evidence, or lack thereof.
[17] Finally, the Applicants raised the issue of procedural fairness as a ground of review in their notice of application; however, they did not pursue the matter before me. It is therefore not necessary to address the issue.
[18] The Applicants have failed to demonstrate a reviewable error by the RAD. Its decision is intelligible, justifiable and rational. Accordingly, this application for judicial review is dismissed.
[19] No questions for certification were raised and none arise from the facts of this case.
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