MC1-11866

RAD File No. / No de dossier de la SAR : MC1-11866 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of decision April 28, 2022 Date de la décision Panel Marie-Lyne Thibault Tribunal Counsel for the person who is the subject of the appeal Simon Cossette-Lachance Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX, is a citizen of Lebanon. [2] Should he return to Lebanon, he fears for his life at the hands of the XXXX family to whom he rented the apartment that he owns in XXXX. The XXXX family is a crime family in Lebanon. The appellant initially refused to rent the apartment to them. However, because he fears them, he eventually agreed. Since then, the XXXXfamily has not paid rent and refuses to vacate the apartment. Furthermore, the XXXXfamily wants to seek revenge against the appellant because they were humiliated when the appellant was reluctant to rent the apartment to them. [3] The appellant is appealing the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. He submits that the RPD erred in its assessment of his credibility and in its analysis of the prospective risk. [4] For the reasons set out below, despite certain errors made by the RPD, the Refugee Appeal Division (RAD) concludes that the RPD's final determination is correct. The appellant did not demonstrate that there is a prospective risk. [5] The appeal is dismissed. ANALYSIS [6] The RAD conducted an independent assessment of the evidence, including listening to the recording of the hearing. The RAD applied the standard of correctness.1 No nexus to the Convention [7] The appellant submits that the RPD erred in relying on Kang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1128, to analyze whether his claim for refugee protection has a nexus to one of the five Convention grounds. However, he does not dispute the RPD's conclusion that his claim for refugee protection has no nexus to one of the five Convention grounds and that it should instead be analyzed under paragraph 97(1)(b) of the Immigration and Refugee Protection Act (IRPA). [8] Considering that the appellant fears a personal vendetta that is unrelated to race, nationality, religion, political opinion or membership in a particular social group, the RAD sees no error and agrees with the RPD's conclusion that the claim for refugee protection has no nexus to one of the five Convention grounds. [9] The appeal will therefore be analyzed under paragraph 97(1)(b) of the IRPA. Appellant's credibility The Refugee Protection Division erred in failing to consider the appellant's explanations [10] The RAD concludes that the RPD erred in failing to consider the reasons why the appellant did not claim asylum in Turkey, the country where his wife and children are living. However, as set out below, the RAD is of the opinion that the appellant's explanations regarding the reasons why he did not claim asylum in Turkey are satisfactory. Consequently, as well as for the reasons set out below, the RAD concludes that the RPD erred in finding that there was a lack of subjective fear based on the appellant's failure to make an asylum claim in Turkey. [11] As the appellant claimed at the RPD hearing, he explained that his wife and children attempted to make an asylum claim in Turkey, but their claim was refused because they are Lebanese.2 This explanation is corroborated by the objective documentary evidence cited by the appellant, namely a document concerning, in particular, the treatment of asylum seekers in Turkey.3 This document is part of the National Documentation Package on Turkey. Consequently, it is part of the RAD's specialized knowledge. Since it is the appellant who is submitting this document as evidence, pursuant to the Refugee Appeal Division Rules, the RAD does not have to provide a notice regarding the RAD's specialized knowledge. It states in the document referred to by the appellant that even though Turkey is a signatory to the 1951 Convention, the country limits protection offered to asylum seekers to only those from European countries.4 This is what the appellant explained at the hearing. Considering that the appellant, his wife and their children are not European, the appellant spent only a few days in Turkey before proceeding to the United States, a country for which he had a visa. [12] The RAD considers that the appellant provided a satisfactory explanation as to why he himself did not claim asylum in Turkey, a country in which he spent ten (10) days. The RAD is therefore of the opinion that his credibility is not undermined by the fact that he did not claim asylum in Turkey. The Refugee Protection Division erred in concluding a lack of subjective fear [13] It is important to note that the RPD analyzed the appellant's refugee protection claim under paragraph 97(1)(b) of the IRPA. However, while the failure to claim asylum in a third country could have an impact on a refugee claimant's credibility in an analysis under paragraph 97(1)(b) of the IRPA, subsection 97(1) of the IRPA has no subjective element. As such, the RPD erred in concluding a lack of subjective fear. [14] That said, the RAD is of the opinion that the RPD, despite its comments that this would be a determinative factor according to the case law, did not reject the refugee protection claim based on a lack of subjective fear. As set out below, the RPD concluded that the appellant failed to demonstrate that there is a prospective risk in Lebanon. [15] That said, the RAD focused on the appellant's failure to seek asylum in the United States, a country in which he spent approximately nine (9) days. The RAD is of the opinion that his explanations that a Lebanese person whom he met in the United States told him that the asylum process was more difficult than in Canada5 are not satisfactory. In the RAD's view, considering that the appellant fears for his life in Lebanon, the RAD would have expected the appellant to seek asylum in the United States or, at the very least, get information regarding his avenues of recourse from a lawyer rather than relying on advice from a third party. Although the appellant spent little time in the United States, his failure to seek asylum there casts doubt on his allegations of a risk to his life in Lebanon. [16] As for the RPD's conclusion regarding a coincidence between the time that the appellant obtained a US visa and the time that his wife and their children fled Lebanon for Turkey, even though the appellant did not demonstrate that he applied for a US visa to join a friend in the United States, the RAD is of the opinion that this would not undermine his credibility regarding the allegations central to the refugee protection claim. The appellant failed to demonstrate the existence of a prospective risk [17] The RAD is of the opinion that the RPD did not err in its analysis of the prospective risk. In the RAD's view, the appellant did not establish a serious possibility of persecution or show, on a balance of probabilities, that he would be personally subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment under subsection 97(1) of the IRPA if he returned to Lebanon. [18] The appellant submits that the RPD's analysis is inconsistent since the RPD found credible his allegations that the XXXXfamily is a notorious crime family in Lebanon and that, when his wife attempted to reclaim the apartment at the end of the lease, the XXXXfamily made threats against him. He argues that, in the circumstances, the RPD erred in concluding that the XXXXfamily would not have the interest or motivation to go after him should he return to Lebanon. He adds that the prevailing instability in Lebanon increases the chances of the XXXXfamily following through on their threats. [19] The RAD considered the evidence presented by the appellant. According to his testimony, his brother XXXX represented him in Lebanon with the XXXXfamily when signing the lease and his sister XXXX took care of collecting the rent.6 The appellant, his wife and their children had at that point been living for many years in Saudi Arabia. According to a copy of the lease signed by XXXX XXXX XXXX XXXX, the lease agreement ended on XXXX XXXX, 2019.7 At the RPD hearing, the appellant stated that his wife and children left Saudi Arabia on XXXX XXXX, 2019, to return to settle in Lebanon. The appellant's brother and sister advised the XXXXfamily that the appellant wanted to reclaim his apartment at the end of the lease. However, they refused to surrender the apartment.8 The appellant stated that they made it clear to his wife, through his brother XXXX, that if she wanted to live in peace, she had better give up attempting to reclaim the apartment.9 She therefore left Lebanon for Turkey on XXXX XXXX, 2019.10 Mr. XXXXalso allegedly told XXXX that he would deal with the appellant when he returned to Lebanon.11 Considering that the XXXXfamily is a crime family and that they XXXX XXXX XXXX XXXX, the appellant took the threat seriously. Although the appellant did not attempt to reclaim his apartment after XXXX 2019, he fears that the XXXXfamily wants to kill him because they were humiliated in 2018 when the appellant initially refused to rent the apartment to them.12 He explained that XXXX and XXXX are free of this threat since they did not show reluctance to rent the apartment.13 When asked by the RPD to explain the motivation of the XXXXfamily to track him down if he was abandoning the apartment, the appellant testified that they would still want to seek revenge because they had been humiliated.14 [20] Contrary to what the appellant appears to argue, this is not about the capacity of the XXXXfamily to find the appellant in Lebanon. In the RAD's view, the appellant has not established that the XXXXfamily would have the interest and motivation to go after him should he return to Lebanon. The onus is on the appellant to establish that the XXXXfamily would have the interest and motivation to look for him should he return to Lebanon.15 [21] According to his brother XXXX's affidavit, despite a formal notice in XXXX 2019,16 the XXXXfamily did not answer their calls and the appellant's family has not heard from them since.17 More than two years have passed since the appellant and his family last heard from the XXXXfamily. At the RPD hearing, the appellant was asked to explain their motivation for going after him if he returned to Lebanon. The appellant explained that he initially refused to rent his apartment to the XXXXfamily. They submitted a new rental application under a false identity. The appellant explained that he had stated then that he had previously refused to rent to the XXXXfamily because they have a bad reputation and are criminals. I. E. XXXXthen revealed his true identity and stated that he was there to rent the apartment. The appellant considered his remark as a threat.18 When the appellant and his family attempted to reclaim the apartment in XXXX 2019, I. E. XXXXstated that he would take care of the appellant when he returned to Lebanon.19 Even though he gave up his apartment, the appellant fears that I.E. XXXXwill track him down to seek vengeance because he was humiliated in 2018.20 [22] The RAD accepts that members of I. E. XXXXfamily are criminals who have acted with impunity in Lebanon. However, the indirect threats toward the appellant were uttered over two years ago. Since that time, the appellant has had no contact with I. E XXXX. XXXX and XXXX, who still live in Lebanon, have also had no contact with the XXXXfamily since 2019. According to the affidavit from XXXX, the family does not know what condition the apartment is in.21 The RAD notes that the appellant is not able to demonstrate that the XXXXfamily is still occupying XXXXapartment. Furthermore, based on the appellant's testimony, the threats made against him were uttered indirectly only when he attempted to reclaim his apartment. Even if the appellant is under the impression that I. E XXXXwas insulted by his remarks in 2018, he does not allege receiving threats during the period between the lease signing and the moment when his wife attempted to reclaim the dwelling in XXXX 2019. [23] Consequently, the RAD is of the view that the appellant did not demonstrate that I.E. XXXXwould be searching for him or that he would still be occupying the apartment. Furthermore, if he is still occupying the apartment, the RAD is of the opinion that the existence of threats in the past is intrinsically linked to the fact that the appellant, through his wife, attempted to reclaim his apartment. [24] In Sanchez v. Canada (Citizenship and Immigration), 2007 FCA 99, the Federal Court examined the issue of a present or prospective risk in the context of a claim made under section 97 and stated that, "claimants who are able to make reasonable choices and thereby free themselves of a risk of harm must be expected to pursue those options." [25] The RAD takes into consideration that abandoning the apartment and the amounts due from the XXXXfamily entail financial losses for the appellant. However, the appellant had been living and working in Saudi Arabia since 1984. It was not until 2018 that he asked a neighbour to find a tenant to live in the apartment. The evidence shows that, ultimately, the XXXXfamily did not pay the rent. In this case, the appellant has not established that surrendering this apartment would amount to being deprived of a personal residence and that this would be a violation of any fundamental rights or human dignity. The appellant's wife and children have been able to find housing in Turkey. The appellant has been able to work and find housing in Saudi Arabia. The appellant's brother XXXX and sister XXXX are in Lebanon and he is still in contact with them. [26] In view of the foregoing, the RAD concludes that the appellant has failed to establish the existence of prospective risk at the hands of the XXXXfamily should he return to Lebanon. Security situation in Lebanon [27] As for a risk due to the prevailing security situation in Lebanon, the RAD is of the view that the RPD's conclusion is correct that it is a risk faced generally by other individuals in Lebanon. [28] The appellant argues that his counsel cannot be blamed for not having raised the prevailing security situation in Lebanon in his submissions. [29] From reading the RPD's reasons, the RAD is of the opinion that the RPD did not blame counsel for not raising the precarious security situation in Lebanon in his submissions. Instead, the RPD explains the context, that is, that the situation was not raised by the counsel but was taken into account. The RAD sees no error in this way of doing things. [30] Furthermore, contrary to what the appellant appears to argue, the RPD did not conclude that the risk he alleges from the XXXXfamily would not be personalized. The RPD's conclusion with respect to the risk due to the precarious situation in Lebanon is a different conclusion from that concerning the risk from the XXXXfamily. In other words, the RPD considered, even if the appellant did not demonstrate a risk from the XXXXfamily, whether there would be other risks he might face in Lebanon due to the current security situation. The RPD concluded that the appellant's allegations regarding drug trafficking and crime in Lebanon is a risk that is faced by the general population. Disregarding his allegations of threats from the XXXXfamily, the appellant therefore did not demonstrate that he would be personally subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment in Lebanon, and that this risk is not faced generally by other individuals in that country. The RAD sees no error and agrees with this conclusion. [31] In light of the foregoing, the RAD concludes that the RPD's final determination is correct. The appellant did not establish a serious possibility of persecution on one of the five Convention grounds or show, on a balance of probabilities, that he would be personally subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment under subsection 97(1) of the IRPA if he returned to Lebanon. DECISION [32] The RAD dismisses the appeal. It confirms the RPD's determination that XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Marie-Lyne Thibault Marie-Lyne Thibault April 28, 2022 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Recording of the Refugee Protection Division (RPD) hearing held on November 12, 2021, first part, at approximately 01:32:15. 3 National Documentation Package on Turkey, December 17, 2021, Tab 14.4: ?Country Report. Immigration Detention in Turkey: A Serial Human Rights Abuser and Europe's Refugee Gatekeeper. Global Detention Project. October 2019. 4 Ibid, Tab 14.4, p. 13/44. 5 Recording of the RPD hearing held on November 12, 2021, at approximately 01:28:30. 6 Recording of the RPD hearing held on November 12, 2021, first part, at approximately 01:43:00. 7 SPR-1, RPD record, Excerpt from the lease agreement, p. 124. 8 Recording of the RPD hearing held on November 12, 2021, first part, at approximately 00:47:00. 9 Recording of the RPD hearing held on November 12, 2021, first part, at approximately 01:02:45. 10 Recording of the RPD hearing held on November 12, 2021, first part, at approximately 00:53:00. 11 Recording of the RPD hearing held on November 12, 2021, first part, at approximately 01:09:00. 12 Recording of the RPD hearing held on November 12, 2021, first part, at approximately 01:18:15. 13 Recording of the RPD hearing held on November 12, 2021, second part, at approximately 00:09:30. 14 Recording of the RPD hearing held on November 12, 2021, first part, at approximately 01:18:15. 15 Gutierrez Molina v. Canada (Citizenship and Immigration), 2021 FC 1404, at para. 34. 16 SPR-1, RPD record, Formal notice, p. 121. 17 SPR-1, RPD record, Statement of XXXX XXXX, June 26, 2021, p. 119. 18 Recording of the RPD hearing held on November 12, 2021, first part, at approximately 02:14:15. 19 Recording of the RPD hearing held on November 12, 2021, second part, at approximately 00:20:00. 20 Recording of the RPD hearing held on November 12, 2021, first part, at approximately 01:18:15. 21 SPR-1, RPD record, Statement of XXXX XXXX, June 26, 2021, p. 119. --------------- ------------------------------------------------------------ --------------- RAD File No. / No de dossier de la SAR : MC1-11866 RAD.25.02 (August 20, 2021) Disponible en français 3 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 (August 20, 2021) Disponible en français