TC0-01283

RAD File / Dossier de la SAR : TC0-01283 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 1, 2021 Date de la décision Panel M. Oh Tribunal Counsel for the person who is the subject of the appeal Howard P. Eisenberg 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] XXXX XXXX ("the Appellant") is a stateless Palestinian who has formerly resided in the United Arab Emirates ("UAE") and Syria. She fears persecution in Syria because of her XXXX activities in the UAE, which included XXXX for displaced Syrian and Palestinian refugees. The Refugee Protection Division ("RPD") rejected the Appellant's claim, as it found her allegations lacked credibility. The Appellant disputes the RPD's analysis. She says that, as the UAE was one of her countries of former habitual residence ("CFHR"), the RPD had an obligation to assess her claim against that country. The Appellant also disputes the RPD's credibility findings. [2] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act ("IRPA"),1 the appeal is allowed. There is no error in the RPD's decision to focus on the claim against Syria. However, whatever credibility concerns the RPD had about the Appellant's alleged mistreatment in Syria, the RPD did not address the Appellant's risk as a woman. The country conditions evidence establishes that the Appellant would face a risk of gender-based violence in Syria. I determine that the Appellant has a well-founded fear of persecution on a Convention ground. The Refugee Appeal Division ("RAD") sets aside the RPD's negative decision and substitutes a positive determination. The Appellant is a Convention refugee. BACKGROUND [3] The Appellant was born in the UAE to stateless Palestinian parents. Under her father's sponsorship, the Appellant has spent most of her life in the UAE. The Appellant also lived for several years in Syria, where her mother was born and where many of her family members were living. The Appellant completed her undergraduate and graduate studies at XXXX University. She made regular visits to the country until 2012. [4] After the Appellant's father retired, the Appellant was able to transfer her sponsorship in the UAE under her brother, as she was unmarried. While living in the UAE, the Appellant claims she became involved in XXXX activities to support Syrian and Palestinian refugees. She claims that during a trip to Syria in XXXX 2012, she was detained and interrogated by Syrian intelligence. They questioned her about her XXXX activities and the identity of her donors. They allegedly asked her to work as a spy against people involved in similar charitable activities in the UAE. The Appellant's uncle was able to pay a bribe for the Appellant's release. The Appellant promptly left Syria, but she claims that authorities went to look for her and they have since blacklisted her. Some time after returning to the UAE, the Appellant resumed her XXXX activities. [5] In XXXX 2017, the Appellant married her husband, who is a Canadian citizen. He applied to sponsor her to immigrate to Canada, but he was found ineligible due to a previous criminal conviction for assaulting his first wife. A request for humanitarian and compassionate ("H&C") relief was eventually made, but also denied. However, as a married woman, the Appellant would no longer have been able to maintain her sponsorship in the UAE under her brother. She continued to list herself as single in the UAE. The Appellant applied for a U.S. visa in XXXX 2018 and used it to make her way to Canada. In October 2018, she arrived in Canada and made her claim for refugee protection. By February 2019, her residence in the UAE was cancelled. [6] The RPD heard the Appellant's claim on December 11, 2019, and the panel issued an oral decision at the conclusion of the hearing. The RPD considered the law as it relates to stateless refugee claimants who have multiple CFHR. The Appellant claimed she could not return to Syria because of her risk of persecution there, and she had no right of return to the UAE. The Appellant did not advance any claim against the UAE. Accordingly, the hearing focused on the Appellant's risk in Syria. [7] The RPD rejected the allegations of persecution in Syria, due to the Appellant's lack of credibility. The Appellant gave inconsistent evidence around the year in which she was interrogated in Syria. She claimed there was a spy in the UAE reporting her XXXX work to Syrian authorities, which the RPD considered was information that was unreasonably omitted from her Basis of Claim ("BOC") narrative. The RPD did not think the Appellant's account of her arrest was plausible. She explained that when the intelligence officers came to her home to apprehend her, she was allowed to fetch her identification and phone from inside, which created the opportunity for her to make a brief call to her uncle. The RPD also appears to have drawn adverse inferences from the Appellant's use of a cheat sheet during her hearing, inconsistent statements about the date on which her status expired in the UAE, and her unwillingness to admit that she had misrepresented her marital status in her U.S. visa application. Role of the Refugee Appeal Division [8] The jurisprudence establishes that the RAD is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.2 In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at independent findings based on the evidence before me. Admissibility of new evidence and request for an oral hearing [9] On appeal, the Appellant has provided a report from XXXX XXXX, a psychotherapist.3 This report is not admissible. [10] Subsection 110(4) of the IRPA states that, on appeal, 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 claim's rejection. If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider factors around the credibility, relevance, and newness of the evidence.4 [11] The Appellant explains that, after reading the RPD's reasons, she decided to see a psychotherapist in order to respond to the panel's comments about the absence of evidence to support her memory issues. On XXXX XXXX, 2020, the Appellant met with Ms. XXXX for an evaluation. Ms. XXXX report indicates that the Appellant is exhibiting symptoms consistent with post-traumatic stress, as well as symptoms consistent with generalized anxiety and major depression. It states that concentration and memory problems are very common among people who have been exposed to trauma and high levels of stress. The report states that it is possible that the Appellant's difficulties during her hearing were attributable to the disorganizing effects of traumatic stress. The Appellant argues that, at the time of her hearing, she was not aware that she would have to provide medical evidence. [12] I am not satisfied by this explanation. The Appellant could reasonably have sought evidence to support her claimed memory issues, as this was a problem she anticipated in advance of her hearing. The Appellant initiated her refugee claim in October 2018 and her hearing took place over a year later, on December 11, 2019. She was represented by counsel. During the hearing, the Appellant claimed she was confused, and she explained that she cannot remember dates very well. She stated that she had been experiencing this problem for quite a long time. It even influenced her decision to study XXXX in university. In fact, in anticipation that she would have difficulty recalling information, the Appellant decided to create a cheat sheet for herself to refer to during the hearing. The RPD asked if she had been receiving any kind of medical or psychological care. She replied in the negative. If the Appellant or her counsel noticed that she was having an unusual level of difficulty recalling information or concentrating, she ought to have presented evidence on this issue, or at least requested an opportunity to do this. She did not. Her counsel was content to proceed with the hearing and give submissions. Accordingly, the RPD rendered its decision. [13] As the jurisprudence has clarified, refugee claimants are required to put their best foot forward at the RPD stage. A RAD appeal is not a second chance to supplement the evidentiary record and answer weaknesses identified by the RPD.5 Appellants must provide a reasonable explanation as to why their evidence could not have been provided to the RPD.6 I am not satisfied that this evidence meets any of the criteria under subsection 110(4) of the IRPA. It will not be admitted. [14] As no new evidence has been admitted, the request for an oral hearing is denied. ANALYSIS [15] The issues in this appeal are the following: a) Whether the RPD erred by failing to assess the Appellant's claim against the UAE; and b) Whether the RPD erred in its determination in regard to the Appellant's claim against Syria. [16] These will be addressed in detail below. a) Whether the RPD erred by failing to assess the Appellant's claim against the UAE [17] The Appellant disputes the RPD's identification of her CFHR. She says that both Syria and the UAE were her CFHR, but the RPD found that she only had one CFHR, which was Syria. There is no error in the RPD's analysis of this issue. [18] According to the Appellant, the RPD determined that Syria was her only CFHR because she had no right of return to the UAE. She points out that a right of return is not needed for a country to be identified as a CFHR. As the Appellant lived in both the UAE and Syria for a significant length of time and has familial ties in both countries, she argues that both the UAE and Syria should have been identified as her CFHR. [19] The Appellant further argues that, by failing to consider the UAE as a CFHR, the RPD breached its duty of procedural fairness, as the RPD did not go on to examine her fear of persecution in the UAE. Though no allegations were made with respect to any persecutory treatment in the UAE, it is claimed that the RPD had a responsibility to ensure that this was canvassed. Absent a right of return to Syria, a valid claim against the UAE may have entitled the Appellant to refugee protection. [20] There is no merit to this argument. [21] At no point did the RPD find that the UAE was not a CFHR. It seems clear that both Syria and the UAE are CFHR in the Appellant's claim. The Appellant lived in the UAE for most of her life, and her immediate family members continue to reside there. The Appellant also spent several years in Syria, where her mother was born. She made frequent visits to the country to see relatives, and she had many familial ties there until her family members were displaced by the armed conflict. The Appellant possesses a Syrian travel document for Palestinian refugees, as well as a Syrian residence card for Palestinians.7 The documentary evidence indicates that Syrian travel documents are issued to Palestinian refugees who are registered in Syria.8 Palestinian refugees registered in Syria had many of the same entitlements as Syrian citizens. Considering that the concept of a CFHR seeks to establish a relationship to a state that is broadly comparable to that between a citizen and their country of nationality, the Appellant's enjoyment of rights similar to nationals in Syria strongly indicates that this is a CFHR for her, especially when added to her significant period of de facto residence in the country. [22] Though the RPD referred to the Appellant's inability to return to the UAE, I do not interpret this to mean that the RPD failed to recognize the UAE as a CFHR. It had to consider her inability to return to the UAE because this was part of the application of the test for stateless refugee claimants with multiple CFHR. In Thabet,9 the Federal Court of Appeal set out this test, which it called the "Any Country Plus the Ward Factor". The test does not require the Appellant to show that she would face persecution in every CFHR. Instead, she must only demonstrate that she faces a serious possibility of persecution on a Convention ground in at least one country, and that she is unable to return to any other CFHR. [23] By application of the Thabet test, the Appellant's claim against Syria was determinative. The Appellant possesses a Syrian travel document. This was issued on XXXX XXXX, 2017 and it continues to be valid until XXXX XXXX, 2023.10 Contrary to the Appellant's argument, this travel document entitles the Appellant to return to Syria. The documentary evidence indicates that Syrian travel documents issued to stateless Palestinians allow their holders to leave Syria and return without a visa.11 Therefore, even if there were a serious possibility of persecution in the UAE, the Appellant's ability to return to Syria meant the RPD was required to assess whether there was a valid claim against that country. [24] Like the RPD, I accept that the Appellant has no right of return to the UAE. As an unmarried daughter, she might have been able to maintain her residency under her father, and perhaps subsequently under her brother. However, since marrying her husband, the possibility of family sponsorship has been cut off. The Appellant's evidence confirms that her status has since been cancelled in the UAE.12 Therefore, if there is a serious possibility of persecution in Syria on a Convention ground, the Appellant will be entitled to refugee protection. b) Whether the RPD erred in its determination in regard to the Appellant's claim against Syria [25] I cannot agree with the RPD's determination about the Appellant's risk in Syria. Though I reach the same conclusions on the credibility of the Appellant's XXXX activities and her subsequent interrogation, the RPD did not assess the risk of gender-based persecution in Syria. On this ground, I set aside the RPD's decision and substitute a positive determination. Allegations about XXXX activities and subsequent persecution [26] I will only briefly address the credibility of the allegations about the Appellant's XXXX work and the persecution that followed it. The Appellant takes issue with many parts of the RPD's credibility assessment, and I agree with some of those arguments. [27] For instance, I would not have drawn adverse inferences from the Appellant's brief use of a cheat sheet containing a few dates. The Appellant did not attempt to obscure her use of these notes. In fact, it was she who brought her use of these notes to the RPD's attention. Her use of the cheat sheet is not indicative of an intent to mislead. In addition, although the Appellant refused to admit that she had misrepresented her marital status in her U.S. visa application, this and the inconsistency in the date of the expiry of her status in the UAE are rather peripheral to the merits of her claim against Syria. I also do not agree with the RPD's findings with respect to the Appellant's omission about her being spied upon in the UAE. Nor do I think it implausible that the Appellant was permitted to retrieve her identification and phone from her inside her home when Syrian intelligence officers went there to apprehend her. [28] However, there are other reasons to doubt the allegations about the Appellant's XXXX work and the subsequent persecution. The Appellant could not recall in which year she was interrogated in Syria. She could not recall whether this took place in 2012 or 2013. I find this concerning. The BOC narrative indicates that the interrogation took place in XXXX 2012, however the Appellant testified that this happened in 2013. Even when confronted with the information in her BOC form, the Appellant insisted the events took place in 2013. [29] These allegations might have been easier to accept had there been some corroborative evidence. However, the Appellant failed to disclose any documentary evidence in this regard. She provided no evidence of the various charitable activities she supposedly engaged in. She did not even provide any evidence to corroborate her presence in Syria in 2012 or 2013. One would think that her trip to Syria, her fundraising, and her sending various donations to Syria from the UAE would have been documented in some way. [30] I note as well that there was a significant omission in the Appellant's evidence. The Appellant had described that following her escape from Syria, authorities went searching for her and spoke to her family members and neighbours. During the hearing, the Appellant claimed that the same uncle who arranged her escape was tortured multiple times and killed. This allegation was entirely omitted from the BOC form. [31] In addition, the Minister of Citizenship and Immigration ("the Minister") intervened in the Appellant's claim. As pointed out in the Minister's submissions, none of the allegations about the Appellant's difficulties in Syria had been described in her request for H&C relief. In a letter she wrote for this application, the Appellant described that she could not go to Syria because of the "...well-known dangerous war situation there".13 She mentioned nothing of her previous interrogation, her XXXX activities, and how she believed she would be immediately arrested upon returning. The allegations about the Appellant's difficulties in Syria only arose after the sponsorship application and H&C request were refused. [32] For these reasons, I too reject the Appellant's allegations about her XXXX work in the UAE and her interrogation in 2012 or 2013. I do not believe authorities have gone searching for her in Syria, nor do I believe the Appellant is on a government blacklist. Risk of gender-based persecution Syria [33] The appeal is allowed because of the Appellant's risk of gender-based persecution in Syria. [34] Though the Appellant's BOC narrative and testimony focused on the allegations around her XXXX work and imputed political opinion, the narrative briefly mentioned her fear of persecution as a Sunni woman.14 In the hearing, the Appellant expressed her fears about the treatment of women in Syria. She described that there was a risk of sexual assault and kidnapping. This ground of risk seems to have been overlooked by the RPD. [35] Though the Appellant has not argued this issue on appeal, I find it necessary to address it in the course of my independent review. The RPD is required to examine every ground of risk that perceptibly emerges from the evidentiary record.15 In this case, given the country conditions in Syria, the risk of gender-based persecution could not be ignored. [36] I recognize that the Syrian conflict has evolved significantly in recent years. In accordance with the Immigration and Refugee Board of Canada's Policy on National Documentation Packages in Refugee Determination Proceedings, I have considered the most recent National Documentation Package for Syria. As of July 2020, the Syrian government had recaptured many areas formerly held by opposition forces, though roughly half of Syria's pre-war population remained internally displaced or registered as refugees in neighbouring states.16 The Islamic State of Iraq and Syria ("ISIS") had lost control of its territory in Syria, though it continued a low-level insurgency. Most of the armed conflict was limited to Idlib province, where armed opposition groups were still operating.17 Roughly a third of the country, in the north and northeast, was still outside of the Syrian government's control. That part of the country was administered by the Autonomous Administration of North and East Syria, which was not aligned with either the Syrian government or opposition forces.18 [37] In assessing the Appellant's risk, I have contemplated her return to Syria as an unaccompanied woman living in Damascus. It is unclear whether the Appellant's husband, as a Canadian citizen married to a stateless Palestinian registered in Syria, would have the ability to join the Appellant in Syria, nor is it clear that he would willingly relocate there. The Appellant previously resided in Damascus, and that is where it seems her remaining family connections in Syria - consisting of a few cousins - have gone. Since May 2018, Syrian authorities have been in full control of the governorate of Damascus.19 The economic situation had deteriorated. The Syrian currency rapidly declined in value, causing food and other costs to rise significantly. Many families had to rely on extended family and overseas networks to feed themselves. The conflict had also caused Damascus to become the principal area of refuge for rural populations, such that Damascus was experiencing a housing crisis.20 Returnees reported that corruption and extortion by the government and its militias permeated every aspect of life, such as the ability to carry out menial tasks, obtain documents, or transport goods to market. Corruption and bribes at checkpoints were a standard practice.21 [38] It is in this fragile context that I am considering the Appellant's vulnerabilities as an unaccompanied woman. Many of the most serious forms of sexual violence occurred during the height of the armed conflict, perpetrated mainly by Syrian government forces against women seen to be associated with opposition groups. Sexual violence was consistently identified as a primary reason for families fleeing the country.22 However, the risks of gender-based violence are not limited to situations of active armed conflict. The overall humanitarian situation had left many women disproportionately vulnerable to gender-based violence, not just by armed groups, but from family and community members. There were very few spaces where women felt safe, and the increasing levels of lawlessness in some parts of the country were resulting in the normalisation of gender-based violence.23 Recent documentary evidence indicates that sexual violence was endemic, underreported, and uncontrolled in Syria. Sexual harassment was also reportedly pervasive and uncontrolled. Many women feared sexual assault and harassment on a daily basis.24 The most common strategy for minimizing such risks was to limit the movement of women, such that they had to stay home or only leave during the day or with an escort. Unsurprisingly, the United Nations High Commissioner for Refugees (UNHCR) considered that divorced, separated, and widowed women were at particular risk of sexual violence, exploitation, and other forms of gender-based persecution.25 There also continued to be reports of sexual and gender-based abuses by Syrian government forces at checkpoints. Women were afraid to cross checkpoints without a male relative, as they feared harassment.26 I consider that the Appellant, as an unaccompanied Sunni woman, would be especially vulnerable to gender-based violence. I am satisfied that there is a serious possibility of persecution. [39] The documentary evidence indicates that authorities did not take reports of gender-based violence seriously, and often the perpetrators of this violence were state actors.27 I do not believe the situation for the Appellant would be significantly improved in any other part of the country. State protection is not available, nor is there a viable internal flight alternative. [40] As the Appellant has a well-founded fear of persecution on account of her gender in Syria, and as she is unable to return to the UAE, I determine that she is a Convention refugee. CONCLUSION [41] The RPD correctly found that the claim against Syria was determinative. I reach the same conclusions about the credibility of the Appellant's charitable work and the subsequent persecution from Syrian authorities. However, I have conducted an independent assessment and consider that there is a serious possibility of gender-based persecution in the Appellant's circumstances. I therefore set aside the RPD's negative decision and substitute a decision, finding that the Appellant is a Convention refugee. [42] The appeal is allowed, pursuant to paragraph 111(1)(b) of the IRPA. (signed) M. Oh M. Oh April 1, 2021 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 3 Exhibit P-2, Appellant's Record, at pp. 12-15. 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 5 Ibid., at para. 54. See also Eshetie v. Canada (Citizenship and Immigration), 2019 FC 1036 (CanLII) at paras. 33-34; Casilimas Murcia v. Canada (Citizenship and Immigration), 2019 FC 1182 at paras. 49-50. 6 Akanniolu v. Canada (Citizenship and Immigration), 2019 FC 311 at paras. 42-43. 7 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 66-67; Exhibit 4, at pp. 90-91. 8 Ibid., Exhibit 2, National Documentation Package ("NDP") for Syria (September 30, 2019), item 3.6., Response to Information Request (RIR), SYR104658.E, Immigration Refugee Board (IRB), November 22, 2013. 9 Thabet v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 9063 (FCA), [1998] 4 FC 21. 10 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 66-67. 11 Ibid., Exhibit 2, NDP for Syria (September 30, 2019), item 3.6., November 22, 2013. 12 Ibid., Exhibit 4, at pp. 92-93. 13 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 197. 14 Ibid., Exhibit 3, Basis of Claim form, at p. 10. 15 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689; Mmono v. Canada (Citizenship and Immigration), 2013 FC 219 at paras. 12-15; Mohajery v. Canada (Citizenship and Immigration), 2007 FC 185 at paras. 28-32; see also Gramshi v. Canada (Minister of Citizenship and Immigration), 2004 FC 878 at paras. 22-24. 16 NDP for Syria (December 18, 2020), item 1.8, United States Congressional Research Service, July 27, 2020. 17 Ibid. 18 Ibid. 19 Ibid., item 1.28, Denmark, Danish Immigration Service, October 2020. 20 Ibid., item 1.23, European Union, European Asylum Support Office, February 2020. 21 Ibid. 22 Ibid., item 2.1, United States. Department of State, March 11, 2020; see also item 5.3, United Nations Human Rights Council, March 8, 2018. 23 Ibid., item 5.12, European Union, European Asylum Support Office, February 2020. 24 Ibid., item 2.1, March 11, 2020; see also item 5.10, United Nations Population Fund, March 10, 2019; item 1.7, United Nations High Commissioner for Refugees; Protection Sector, November 2017. 25 Ibid., item 1.7, November 2017. 26 Ibid, item 2.1, March 11, 2020; see also item 5.2, London School of Economics, Centre for Women, Peace and Security, March 2017. 27 Ibid., item 2.1, March 11, 2020; see also item 5.8, Organisation for Economic Co-operation and Development, December 7, 2018. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-01283 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français