TB4-10006

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB4-10006 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 6, 2016 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A Kaminker Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Christine Houde Conseil du ministre REASONS FOR DECISION [1] This is the Minister's appeal. The Minister (the Appellant) appeals a decision of the Refugee Protection Division (RPD), accepting the refugee claim of XXXX XXXX XXXX (the Respondent), and determining him to be a Convention refugee. [2] The Appellant is relying on new evidence and is requesting an oral hearing pursuant to section 110(6) of the Immigration and Refugee Protection Act (the IRPA or the Act).1 DETERMINATION [3] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Respondent is a Convention refugee. The appeal is dismissed. GROUNDS FOR THE APPEAL [4] The Appellant submits that the RPD did not analyze the possibility of exclusion of the Respondent from refugee protection, under Article 1F(a) of the Convention, in reference to his active involvement in political organizations in Yemen that are known to have engaged in acts of terrorism. The Appellant submits that the RPD's decision focuses solely on the Respondent's experience as a political activist. [5] The Appellant submits that the RPD ought to have notified the Minister of potential Article 1F(a) exclusion issue in this case. The Appellant submits that the Minister ought to have been given notice of this potential issue based on the documentary evidence concerning the activities of the XXXX XXXX XXXX XXXX. [6] The documentary evidence shows that the XXXX XXXX XXXX XXXX is also spelled as XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX or XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and is also referred to as XXXX XXXX XXXX, XXXX XXXX XXXX, the XXXX XXXX XXXX or the XXXX XXXX XXXX, XXXX XXXX XXXX [also spelled as XXXX XXXX XXXX], or XXXX [also spelled XXXX]. It is noted that the name XXXX XXXX XXXX literally means mobilization.2 [7] The Appellant submits that the [Immigration and Refugee Board] "Board erred in law by disregarding its authority to render a decision on issues of exclusion, independent of the participation of the Minister."3 The Appellant submits that the failure of the Board to address an issue of exclusion, that should have been raised on the face of the record, and instead rendering a decision independent of the participation of the Minister is a breach of procedural fairness.4 [8] The Appellant asks the RAD to reassess the determination of the RPD and consider whether it is appropriate to substitute a determination that the Respondent is excluded from refugee protection under Article 1F(a) of the Refugee Convention. In the alternative, the Appellant asks the RAD to refer the matter back to the RPD for redetermination, with appropriate directions to the RPD to address exclusion issues and related public security concerns.5 [9] The Respondent submits that "There was no evidence that the claimant's political activities in Yemen where [sic] anything but peaceful."6 The Respondent submits that "the claimant's evidence as to his activities with the XXXX XXXX XXXX XXXX(XXXX XXXX XXXX XXXX and the objective evidence was such that the RPD did not need to notify the Minister of a potential Article 1F(a) issue because the evidence did not disclose such an issue."7 Therefore, the Respondent asks the RAD to confirm the decision of the RPD and dismiss the appeal.8 APPLICATION FOR AN ORAL HEARING [10] The Appellant requests that an oral hearing be held pursuant to section 110(6) of the IRPA. Section 110(3) of the IRPA requires that the RAD "must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal." Section 110(4) of the IRPA indicates that: "the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." Appellant's Evidence [11] The Appellant has submitted the following evidence at the RAD. 1) Critical Threats, XXXX XXXX XXXX XXXX, February 2013.9 2) Al-Monitor, XXXX XXXX XXXX XXXX XXXX XXXX, March 2013.10 3) Carnegie Endowment Middle East Program, Yemen: On the Brink: The Political Challenge of XXXX XXXX XXXX, March 2010.11 4) Office of the Special representative of the Secretary-General for Children and Armed Conflict, Report of the Secretary-general to the Security Council, May 2014.12 5) Global Terrorism database, Incident Summary, February 14, 2012.13 6) International Committee of the Red Cross, Yemen: Responding to growing needs amidst deteriorating security, April 9, 2014.14 7) Terrorism Monitor, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, March 6, 2014.15 8) Terrorism Monitor, Al-Qaeda in the Arabian Peninsula Looks to Benefit from a resumption of North-South Hostilities in Yemen, February 8, 2013.16 [12] The RAD accepts all of the Appellant's evidence submitted with the appeal. Oral Hearing Allowed [13] Sections 110(3), (4), and (6), when read together, establish that the RAD must not hold a hearing in an appeal unless the evidence raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. The Appellant's evidence raises a serious issue with respect to the credibility of the Respondent. [14] Section 110(6) of IRPA provides: The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3); a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; b) that is central to the decision with respect to the refugee protection claim; c) and, that, if accepted, would justify allowing or rejecting the refugee protection claim. [15] The evidence submitted with this appeal met the criteria of section 110(6), and a hearing was held at the RAD. ANALYSIS Role of the RAD [16] In assessing the appeal, the RAD is guided by the Canadian jurisprudence, including the Huruglica17 decision which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD's decision and come to an independent assessment of whether the Respondent is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD's determination that, in its opinion, should have been made as per subsection 111(1)(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [17] The RAD adopts and applies the Huruglica case law in this appeal. Issues at the RAD [18] The following issue was addressed at the RAD hearing. * Issue of Exclusion - Article 1F(a) of the Refugee Convention * Credibility of the Respondent relating to the issue of Article 1F(a) exclusion [19] In making the determination in this appeal, the RAD also considered whether the RPD erred by rendering a decision independent of the participation of the Minister, as the Appellant alleged, and thus committed a breach of procedural fairness. Respondent's profile [20] The RAD determines that the Respondent is a citizen of Yemen, and no other country. The Respondent is a XXXX. The Respondent testified that he joined XXXX XXXX XXXX XXXX in XXXX 2008. He testified that the situation had deteriorated drastically by 2008; there was more violence than before as he saw some of his friends and relatives being injured. Furthermore, the Respondent's father, uncle, and cousin convinced him to join the XXXX XXXX XXXX XXXX (hereinafter, XXXX XXXX XXXX or the XXXX). XXXX XXXX XXXX is perceived to have ties with Al-Qaeda. As a XXXX XXXX XXXX XXXX XXXX, the Respondent also helped set up an organization named XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [21] According to the documentary evidence, XXXX XXXX XXXX is described as a "broad movement," a "loose" coalition, and an "amorphous umbrella group." Sources also characterize the XXXX XXXX as a "XXXX XXXX," a political movement calling for self-determination for South Yemen," and "a factious group that wants autonomy."18 [22] The Respondent testified that at the rallies that he attended, there was no violence by the demonstrators; however, there was violence perpetrated by the authorities. The Respondent testified that they advocated peaceful ways in order to receive sympathy at the global level. The Respondent was a political activist, he was involved with the movement at various levels; i.e., he joined XXXX XXXX XXXX in XXXX 2008, was one of the founders of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX personally approached people to join the XXXX and participated in rallies held on behalf of XXXX XXXX XXXX, coordinated activities related to holding the rallies and XXXX XXXX XXXX for the XXXX at those rallies, and XXXX XXXX XXXX from others, help for the XXXX XXXX XXXX XXXX XXXX XXXX. Due to his political activities as a member and an activist on behalf of XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX XXXX, the Respondent was arrested and held in jail a couple of times (XXXX XXXX, 2012 and XXXX XXXX, 2012); and his car was shot at on one occasion (XXXX XXXX, 2013). Thereafter, the Respondent moved to the outskirts of Aden province. Respondent's flight from Yemen [23] Out of fear of serious harm, the Respondent fled Yemen with the help from his uncle; the Respondent's uncle helped the Respondent to acquire the visa to come to Canada, and thereafter helped him depart from the Yemen airport by paying a bribe to officials. The Respondent came to Canada accompanied by XXXX XXXX XXXX XXXX. The Respondent filed his claim for refugee protection at an inland office of the Citizenship and Immigration Canada. Respondent's testimony [24] The Appellant asked the Respondent a wide variety of questions relating to the political activities that the Respondent was personally engaged in while in Yemen. [25] The Respondent testified that in early 2008, he started to participate in peaceful demonstrations. The Respondent testified that there were government wrongdoings all the time; however, when he realized that he must take part, he became an activist. The Respondent became a member of XXXX XXXX XXXX in XXXX 2008. The Respondent testified that it is a movement for the people, by the people. [26] The Respondent testified that they started the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in 2011, and that he was one of the founding members; the XXXX was fully launched in XXXX 2012. The Respondent testified that the XXXX addressed the needs of the XXXX XXXX XXXX XXXX operating in South Yemen; offering them courses, and helping them XXXX XXXX XXXX. The Respondent testified that one of the political roles, they as members of the XXXX XXXX XXXX XXXX, included XXXX XXXX XXXX to people XXXX in peaceful rallies. He testified that the XXXX also provided XXXX XXXX XXXX XXXX to the XXXX XXXX XXXX XXXX XXXX XXXX. The Respondent testified that as a participant in the XXXX and the XXXX, he personally never met people who supported violence. [27] The RAD finds the Respondent was candid in providing his testimony. The Respondent testified that he attended rallies held on behalf of XXXX XXXX XXXX, distributed pamphlets, and carried placards. The Respondent testified that he personally contacted his colleagues to join the XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Respondent testified, however, that he worked as an organizer in the XXXX, not as a leader; the Respondent testified that he never had the status of a leader in the XXXX. [28] The Respondent, as a political activist, was jailed and targeted to be harmed. The RAD has no credibility concerns, relating to the respondent's alleged activities, his role in XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and his allegations of fear of harm upon return to Yemen. Submissions Appellant's submissions [29] The Appellant submits that there is not sufficient evidence adduced through the oral hearing showing that "the Respondent voluntarily made a significant and knowing contribution to XXXX XXXX XXXX criminal activities to render him excluded from protection as per Article 1F(a) of the Refugee Convention."19 [30] The Appellant, however, asks the RAD to reassess the determination of the RPD and consider whether it is appropriate to substitute a determination that the Respondent is excluded under section 1F(a) of the Refugee Convention.20 Respondent's submissions [31] The Respondent submits: That the Minister herself has conceded that she has not met her burden and as this is the Minister's appeal and if the Minister believes she has not met the burden to establish that the Respondent should be excluded under Article 1F(a) of the Refugee Convention then the appeal should be dismissed as the party that brought the appeal has conceded that she has not proven her case.21 [32] The RAD agrees with the Respondent in that the Appellant (the Minister) conceded that she "has not met the burden of showing that the Respondent voluntary made a significant and knowing contribution to XXXX XXXX XXXX criminal activity."22 Regardless, the RAD conducted its own independent analysis of the entirety of the evidence submitted/adduced at the RPD and at the RAD, including the Respondent's testimonies both at the RPD and at the RAD. [33] In making a determination regarding the issue of 1F(a), the RAD adopts a contextual framework. The RAD assesses the Respondent's political motivation, status in the organizations and his political activities within the framework adopted in Ezokola.23 It is established in law that "[T]o exclude a claimant from the definition of "refugee" by virtue of art. 1F(a), there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization's crime or criminal purpose."24 The Court in Ezokola makes reference to Ryivuze,25 and states that the following factors "help guard against a complicity analysis that would exclude individuals from refugee protection on the basis of mere membership or failure to dissociate from a multifaceted organization which is committing war crimes."26 The RAD considers the factors espoused in Ezokola: (i) the size and nature of the organization; (ii) the part of the organization with which the refugee claimant was most directly concerned; (iii) the refugee claimant's duties and activities within the organization; (iv) the refugee claimant's position or rank in the organization; (v) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group's crime or criminal purpose; and (vi) the method by which the refugee claimant was recruited and the refugee claimant's opportunity to leave the organization.27 [34] "When relying on these factors for guidance, the focus must always remain on the individual's contribution to the crime or criminal purpose."28 [35] In the context of the above framework, and in consideration of the Respondent's political motivation, status in the organizations, and the political activities in which he was involved, the RAD finds the totality of the evidence in this case does not show that the Respondent voluntarily made a significant and knowing contribution to XXXX XXXX XXXX criminal activities to render him excluded from refugee protection as per Article 1F(a) of the Refugee Convention. In this respect, the RAD concurs with the Appellant that there is not sufficient evidence adduced through the oral hearing showing that the Respondent voluntarily made a significant and knowing contribution to XXXX XXXX XXXX criminal activities to render him excluded from protection as per Article 1F(a) of the Refugee Convention. [36] The Respondent asks the RAD to confirm the decision of the RPD and dismiss the appeal. CONCLUSION [37] Based on the independent assessment of all of the evidence in this case, and in consideration of the Appellant's Record, the totality of the Respondent's testimony at the RAD, and the Appellant's submissions, the RAD finds the Appellant did not establish that there are serious reasons for considering that the Respondent has committed crimes against peace, war crimes, or crimes against humanity, in that he should be excluded from refugee protection as per Article 1F(a) of the Refugee Convention. [38] Therefore, the RAD finds the Respondent is not excludable from the Refugee Convention. DISPOSITION [39] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Respondent is a Convention refugee. [40] This appeal is dismissed. (signed) "S.S Kular" S.S. Kular January 6, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit RPD-1, RPD's Record, RPD Exhibit 3, National Documentation Package (NDP) for Yemen (March 14, 2014), item 4.3, Responses to information Requests (RIR), YEM104475.E. 3 Exhibit M-2, Appellant's Record, Memorandum, at para. 1, p. 66. 4 Exhibit M-2, Appellant's Record, Memorandum, at para. 2, pp. 66- 67 5 Exhibit M-2, Appellant's Record, Memorandum, at para. 20, p. 71. 6 Exhibit P-1, Respondent's Record, Memorandum of Argument, at para. 5, p. 6. 7 Exhibit P-1, Respondent's Record, Memorandum of Argument, at para. 9, p. 7. 8 Exhibit P-1, Respondent's Record, Memorandum of Argument, at para. 19, p. 9. 9 Exhibit M-2, Appellant's Record, at pp.10-11. 10 Ibid., at pp. 12-16. 11 Ibid., at pp. 17-42. 12 Ibid., at pp. 43-45. 13 Ibid., at pp. 46-47. 14 Ibid., at pp. 48-52. 15 Ibid., at pp. 55-56. 16 Ibid., at pp. 58-60. 17 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 18 Exhibit RPD-1, RPD's Record, RPD Exhibit 3, (NDP) for Yemen (March 14, 2014) item 4.3. 19 Exhibit M-2, Appellant's Submissions, dated August 19, 2015, at p. 1. 20 Exhibit M-2, Appellant's Submissions, dated August 19, 2015, at p. 1. 21 Exhibit P-1, Respondent's Submissions, dated September 9, 2015, p. 2, 22 Exhibit M-2, Appellant's Submissions, dated July 28, 2015, at para. 48, p. 10. 23 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678. 24Ibid., at para. 84. 25 Ryivuze v. Canada (Minister of Citizenship and Immigration), 2007 FC 134, 325 F.T.R. 30, at para. 38. 26 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, at para. 74. 27 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, at para.. 91. 28 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, at para. 92. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB4-10006