TB9-11572

RAD File / Dossier de la SAR : TB9-11572 TB9-11573 / TB9-11574 / TB9-11575 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision January 8, 2020 Date de la décision Panel Michel Colin Tribunal Counsel for the persons who are the subject of the appeal Michael F Loebach Conseil des personnes en cause Designated representative

XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] The Appellants, Mr. XXXX XXXX XXXX XXXX (Principal Appellant), a citizen of Jordan, his spouse, XXXX XXXX (Adult Associate Appellant), a citizen of Syria, as well as the children of the Principal Appellant, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (Minor Associate Appellants), citizens of Jordan and Ukraine, appealed a decision of the Refugee Protection Division (RPD), dated April 9, 2019, rejecting their claims for refugee protection. [2] The Appellants fear the cousin of the Adult Associate Appellant, who has threatened to kill them, because she did not marry him, as promised by her family when she was a child. [3] The RPD found the Adult Associate Appellant is excluded from international protection under article 1E of the Convention, that the Appellants failed to establish a forward-looking fear and that they have a viable Internal Flight Alternative (IFA) in Al-Aqaba, Jordan. [4] The Appellants submit that the RPD erred when it determined the Appellants are not Convention Refugees nor Persons in Need of Protection, that it failed to consider or misconstrued relevant evidence, and erred in the evaluation of the risk they face. [5] Based on my independent review of the record, and applying the correctness standard, I reject the appeal and confirm the RPD decision which is correct. The reasons are as follows:

ANALYSIS [6] I find that the determinative issues are the exclusion under article 1E of the Convention of the Adult Associate Appellant and IFA with regard to all of the Appellants. [7] Regarding the exclusion of the Adult Associate Appellant, after reiterating the evidence and findings of the RPD in their memorandum, the Appellants state, "The Appellants continue to believe that they will face difficulties with re-entry for the female Appellant and continue to believe that their risk in Jordan is well-founded." [8] It is not clear whether the said difficulty with re-entry is legal in nature or if it is meant to refer to the fear of persecution. In any case, I find that the RPD correctly found based on the evidence on record that the Adult Associate Appellant can legally return to Jordan and that the risk that she alleges to have in that country is not "well-founded". I will give the reasons for these findings as I go through a fulsome analysis of the factors found in the Zeng1 and Shamlou2 cases, as required by the Federal court, when determining whether Article 1E should apply. Applicable tests according to case law [9] The Federal Court of Appeal in the Zeng case formulated the test to be applied to Article 1E determinations as follows: [28] 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. [29] It will be for the RPD to weigh the factors and arrive at a determination as to whether the exclusion will apply in the particular circumstances. [10] The Federal Court, in Shamlou, provided guidance as to the criteria that should be followed in the analysis of whether the rights are substantially similar to that of nationals, namely: * the right to return to the country of residence; * the right to work freely without restrictions; * the right to study and * full access to social services in the country of residence. [11] Regarding the question of exclusion, the RPD correctly found that the Adult Associate Appellant did not as a refugee in Jordan, have a status, substantially similar to that of its nationals prior to leaving

Jordan. [12] However, as it correctly noted, such a status was available to her, as evidenced by the testimony that her husband could sponsor her to obtain permanent resident status and ultimately citizenship in Jordan after three years of marriage; the fact that he had done so for his previous spouse; the fact that the sisters of the Adult Associate Appellant did so as well, and documentary evidence on record. I would add that the Adult Associate Appellant's sisters also got such a status by sponsorship. The Appellants chose not to pursue this avenue, renewing her refugee status in Jordan instead. This was not contested before the RPD or the RAD. Though this status was available, the Appellants conceded in their testimony that it was not obtained simply because they had satisfied themselves with the refugee status for the Adult Associate Appellant. [13] It went on to examine the Shamlou criteria. [14] Regarding the right of return, the RPD correctly considered that the Appellants failed to provide evidence that would establish that, "The restrictions on Syrian refugees entering the country would cause them difficulty, as she would instead be entering as the spouse of a Jordanian national, not as a refugee." [15] The Adult Associate Appellant herself conceded during testimony that she could return to Jordan if sponsored; however, her husband would have to go back there to do

so. [16] Their contention that her husband would have to enter Jordan to engage a sponsorship process is not corroborated by documentary evidence. In any case, I find this to be immaterial, since this would not constitute an impediment, if he were found not to have a well-founded fear of persecution, as later mentioned in the RPD decision. I will address the question of whether the Appellants have a well-founded fear in the following section pertaining to IFA. [17] I find that the RPD was correct when concluding that the Adult Associate Appellant "was residing in Jordan, and is likely to be able to continue to do so should she return to Jordan as the spouse of a national, resulting in permanent residency". [18] The Appellants have not contested the findings of the RPD pertaining to the right to work, to study, and to have access to social services3 for sponsored spouses, which I find to be correct. Indeed, I also find that based on the undisputed evidence on record, permanent residents have rights that are substantially similar to that of nationals. [19] I find it unnecessary to examine the risk facing the Adult Associate Appellant in Syria since the Federal Court has indicated in the Osazuwa4 case that it is not necessary to do so, despite this being an element of the third prong of the Zeng test, in a context similar to this one where she can return, reside and expect

protection in Jordan.The Appellants have not presented any submissions pertaining to Canada's international obligations or any other relevant facts before the RPD or the RAD, and I do not find there to be any such considerations apparent upon examination of the record. [20] I therefore find that the RPD decision is correct in concluding that the Adult Associate Appellant should be excluded from international protection under Article 1E of the Convention. Her fear in Jordan will be addressed in the following section pertaining to IFA. Independent analysis of IFA by the RAD [21] At the hearing, the RPD identified Al-Aqaba as a potential IFA. [22] The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal decision in the Rasaratnam5 case. [23] Both prongs must be satisfied in finding that the Appellants have an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with the Appellants to show that they do not have an IFA. First Prong [24] The Appellants do not identify in their memorandum any specific error made by the RPD in its analysis and conclusions made of the first prong of the IFA test. Nevertheless, they do state in other parts of their memorandum that there exists a risk of persecution throughout the country, as Jordan is a small country, that this cousin has likely entered it

through a porous border, that it has a large population of Syrians, including members of ISIS, all of whom may assist the cousin in finding them. Though I have not identified any error made by the RPD, I must nevertheless conduct an independent analysis. [25] I would first mention that the contention that Jordan is a small country is contradicted by the statement of the Appellants in their Basis of Claim (BOC) forms in answer to question 2(d) where they indicate that it is a large country. Regardless of this, what matters is whether the Appellants have established that their cousin has the capacity and the will to find them in the proposed IFA of Al-Aqaba, 350 km away from where the Appellants and their relatives resided. [26] As for the belief that this cousin was able to enter into Jordan and is in that country, the Appellants submit that the RPD failed to consider corroborating letters that support this as well as parts of the testimony. [27] I should first mention that throughout their memorandum, the Appellants enumerate multiple parts of the evidence, then refer to one or a few paragraphs of the RPD decision and finally submit that the RPD did not consider all of the evidence without more specificity. For this reason, I will only address whether the RPD considered all of the evidence clearly identifiable as pertaining to the legal test. [28] The corroborating letters

referred to provide a large range of opinions varying from the possibility that this cousin has entered Jordan, to likeliness that he has, right up to the certainty that this is the case. Many do not indicate why they believe that he is (or may be) in Jordan. None say that he has been seen in Jordan. Some indicate that it was his intention to go there and that he has not been seen in Syria since then. The mother of the Adult Associate Appellant, who is certain that this cousin is in Jordan, bases this on the words used during telephone threats. However, these words are not reported by her. There are insinuations that he must have been in Jordan to have so much information about the family, such as where they live and where the children attended school. [29] As for the testimony, when attempting to explain why this cousin who knows where they and their relatives live, never went to see them and never manifested himself in any way in the two years that followed their changing of the families' phone numbers, the Appellants stated that it is possible that he is in Jordan, but also acknowledged that it is possible that he postponed attempts to harm them because he went to join ISIS in Angola, or Libya, and that it is also possible that he died, though they believe that their maternal grandmother would have known this and told them, if that were the case. [30] I find no error in the

RPD's failure to address this evidence in its decision, as the fact remains that whether this person is in Jordan or not, no attempt was ever made to seek the Appellants at their home or at the homes of their relatives of which he knows the locations, and that he has not even communicated any threat in the two years that followed a change of phone numbers. This suggests that he is either unable or unwilling to seek them out, even more so hundreds of kilometres away, as correctly found by the RPD. [31] The contention that he could rely on the assistance members of the Syrian community to find them in Al-Aqaba is no more than mere speculation. [32] As correctly pointed out by the RPD, the Appellants gave no details as to how this would happen. There are over 2 million Syrians in Jordan. This is not a small homogenous group where everyone knows one another. [33] The contention that he could use contacts to locate the Appellants was often based on the assertion that this cousin is somehow associated with ISIS or other terrorist groups. According to the testimonial evidence, this belief is based on a neighbour's opinion that his beard is similar to those of ISIS members. I find this to be insufficient to establish that he is a member of ISIS or any such group. [34] Ultimately, if the cousin has contacts within the Syrian community in Jordan, including ISIS or other groups, the fact

still remains that the failure to ever approach the family residences over the years suggests that he is either unable or unwilling to seek them out. [35] For these reasons, I find that the Appellants have not established the ability of the agents of persecution to find them in Al-Aqaba and thus have not demonstrated that there exists for them, a serious possibility of persecution or, on a balance of probabilities, a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment in that city. The RPD conclusion is therefore correct. Second Prong [36] In the section of their memorandum pertaining to IFA, the Appellants, after enumerating various parts of the evidence and the RPD decision, make only one submission pertaining to the second prong of the IFA test, namely that the RPD failed to consider that they would be isolated from their relatives. With respect, I do not agree. I note that the RPD clearly considered this in its decision, and correctly stated that this is insufficient to make an IFA unreasonable. [37] Though I agree with the RPD's overall findings, I must nevertheless conduct an independent analysis. [38] At the hearing, the Principal Appellant also testified that it would be difficult for him to find employment. [39] I note that the RPD correctly considered the level of education and work history of the adult Appellants to determine

their likeliness to obtain gainful employment in Al-Aqaba. [40] Based on my review of the record, the Principal Appellant has a total of 20 years of education including eight years of university. He describes himself as a very successful XXXX with a very high income in response to question 2(h) of his BOC form. He was working in his field of study Jordan and Angola for 10 years with no significant interruption. [41] While this does not guarantee that he would find the same quality of employment in Al-Aqaba, it does establish, on a balance of probabilities, that the Appellants would not likely suffer and experience undue hardship because of difficulties in finding employment and providing for the fundamental needs of the family. [42] The Appellants never raised at the hearing nor in their Memorandum of Appeal any challenges that may cause undue hardship relating to transportation and travel, general criminality, accommodation, indigenship, the ability to practise their religion, education, the availability of medical and mental health care or cultural factors. The Appellants have not argued in their Memorandum of Appeal that these factors would contribute to undue hardship and I find nothing in the documentary evidence that would raise such concerns either. [43] The Appellants have the burden of proof. They must establish why their personal circumstances would likely lead to

undue hardship such that it would be objectively unreasonable for the claimant to seek refuge there, considering the conditions in the IFA and all the circumstances of the case, including those particular to the claimant. I find that they have not met this burden. [44] Having found that the Appellants have failed to establish both prongs of the IFA test, I conclude that there exists a viable IFA for them in Al-Aqaba. In such circumstances, the asylum claim cannot be granted.

CONCLUSION [45] The RAD dismisses the appeal and confirms the decision of the RPD that XXXX XXXX is excluded from international protection under article 1E of the Convention, and also confirms the decision that XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (s) Michel Colin Michel Colin January 8, 2020 Date MC/lp 1 M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118. 2 Shamlou, Pasha v. M.C.I. (F.C.T.D, no. IMM-4967-94), Teitelbaum, November 15, 1995. Reported: Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.). 3 Within the context of sponsorship by her husband, though she did not have these rights as a refugee. 4 Osazuwa v. Canada (MCI) 2016 FC 155, par.11. 5 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration) (1992), 1 F.C. 706 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-11572 TB9-11573 / TB9-11574 / TB9-11575 RAD.25.02 (April 04, 2019) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français