TB7-13876

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 : TB7-13876 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 23, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lily Luwam Tekle 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 N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the "Appellant"), a stateless male whose former habitual residence is Lebanon, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of this appeal. The Appellant is requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The Appellant is a married, stateless, XXXX XXXX XXXX XXXX XXXX male born in Lebanon and lived his entire life in Lebanon other than when leaving for work in the United Arab Emirates and India. His home is in the XXXX XXXX XXXX XXXX camp for Palestinians, in Lebanon. The Appellant fears the security situation in the camp and specifically fears a militant group known as Jund Al-Sham, within the camp. [3] Full details of the Appellant's story and allegations may be found in his basis of claim (BOC)1 form and the attached narrative. RPD's Reasons [4] In its reasons, the RPD found that the Minister's intervention on the basis of a lack of credibility was in regard to two minor issues which were explained by the Appellant to the satisfaction of the panel. The RPD also found that, although the life in a refugee camp is problematic and difficult, the Appellant has lived there for decades without issue other than the one event of limited harassment by members of the militant group over the place where the Appellant parked his car. The RPD found that the Appellant was able to exit and enter the camp without incident at least sixteen times since 2002. The RPD found that, given the incident over the parking of his car was the only incident in decades and that the Appellant was and is able to come and go as he pleases from and to the camp, what has occurred, although scary, does not amount to persecution. The RPD noted that the Appellant had returned to the refugee camp on at least sixteen different occasions including at least three times after the incident over parking. The RPD excused two of those returns as being reasonable; however, it also found it unreasonable that the Appellant waited ten months after receiving his visitor's visa before leaving the camp for Canada. [5] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Appellant's Issues [6] The Appellant raises two issues at the RAD: a. Did the RPD err in assessing the Appellant's subjective fear ad his credibility? b. Did the RPD err when it failed to properly assess the Appellant's risk under both sections 96 and 97 of the IRPA? ANALYSIS Standard of Review [7] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.2 Admissibility of New Evidence [8] The Appellant has submitted Federal Court documents to illustrate that the appeal was launched in the Federal Court, in error. These documents are not evidence for the appeal but are evidence for the Appellant's request for an extension of time in which to file an appeal at RAD. Therefore, these documents will not be admitted as new evidence in this actual appeal as they have no relevance to the appeal itself. [9] As no new evidence has been accepted, the request for an oral hearing is hereby dismissed. Arguments [10] Counsel argues that the panel made a major error when the panel found that the Appellant's re-availments undermine the Appellant's credibility regarding the overall allegations, without giving the Appellant an opportunity to address the panel's concerns. Counsel argues that it is problematic that the panel did not adequately canvas or address the particular and significant issue of re-availment with the Appellant at his refugee hearing. Counsel argues that this failure by the panel is troubling as the panel should have explicitly raised its concerns regarding the Appellant's numerous trips to Lebanon. The Appellant contends that he should have been afforded an opportunity to directly address these concerns with his testimony prior to a decision being rendered on the basis of his subjective fear. [11] The panel spoke at the beginning of the hearing on the issues to be canvassed. The issues mentioned were credibility, identity (as not an issue) and subjective fear. The panel did not mention that re-availment was an issue. Further, during the hearing, the panel did not actually mention re-availment directly. At line 93 of the transcript of the hearing,3 the panel first mentions the Appellant's work in Abu Dhabi which began in 2002. The panel stated that the Appellant worked in Abu Dhabi from five to eight months per year. The Appellant concurred. The panel then asked, "And when would you usually return to Lebanon?" The Appellant testified that that would depend on the work. The panel confirmed with the Appellant that the Appellant would return to Lebanon every year and confirmed that the last time that the Appellant returned from Abu Dhabi was in 2016. The panel did not question the Appellant at all as to why the Appellant would return to the camp where the Appellant said he feared for his life. At no time did the panel put the Appellant on notice that there was an issue with re-availment; however, the panel made a major negative inference, resulting in an overall credibility issue based on re-availment. In the decision at paragraph 17, the panel wrote, "I also note from a count of his many trips for work purposes he exited and returned to this camp from the UAE and India at least 16 times. He was not prevented from leaving or barred from entering the camp. The claimant entered and exited the camp so many times since 2002 that I find this undermines the well-foundedness and credibility of his overall allegations of persecution within Lebanon and the refugee camp." [12] Counsel argues that the panel appeared to have accepted the Appellant's responses and did not indicate at any point that the panel had any particular issue or concern with the fact that the Appellant had to return to Lebanon each year after his work contract expired. Moreover, counsel argues that the Appellant's returns to Lebanon were not voluntary and the Appellant never had an intention to permanently reside in Lebanon. The Appellant argues that he was forced to return to Lebanon at the end of his work contracts in the UAE and India. The Appellant had no option of remaining in the UAE or India. The Appellant also provided documentary evidence to the panel outlining the stringent rules regarding work authorization in the UAE and the reliance on one's employer to ensure one has the ability to work in the UAE. Counsel argues that the panel failed to mention any of this relevant evidence in the decision. [13] Counsel argues that before a person can be said to have re-availed himself of his country's protection, three requirements must be met. They are: 1) the refugee must act voluntarily, 2) he must have the intention to re-avail himself of his country's protection, and 3) he must be able to actually receive such protection. The Appellant acknowledges that he did voluntarily return to Lebanon, as he had no options; however, he had no intention of availing himself of the protection of Lebanon as he was fearful of the Lebanese security forces and was unable to approach them for protection or assistance in the past. [14] According to the Handbook,4 "re-establishment" and "re-availment" both require an element of intent on the part of the claimant before physical presence in a country will negate refugee status. [15] The Handbook states at page 134 that a temporary visit by a refugee to the country where persecution was feared without an intention to permanently reside there should not result in the loss of refugee status. Counsel argues that this idea is supported by Prof. James C. Hathaway in "The Law of Refugee Status" at page 197 as well as in Federal Court jurisprudence.5 [16] Further, counsel argues that the panel never made a non-credibility finding in the case at hand so consequently, the Appellant's testimony is presumed to be truthful and the panel must be taken to have accepted the Appellant's evidence as truthful. Counsel argues that the Appellant has testified that he has not lost his subjective fear of persecution and even though he returned several times, he clearly adduced evidence that his work contract in the UAE forced him to return to Lebanon until his employer contracted him again. [17] After a fulsome analysis of this issue, a reading of the Handbook and after both listening to the audio recording of the hearing and reading the transcript of the same, I have come to the conclusion that the panel made a grievous error in making a negative inference on the overall credibility of this Appellant based almost entirely on the issue of re-availment, which was not properly or fully canvassed during the hearing. Consequently, I find that the re-establishment to Lebanon after each contracted work period outside of Lebanon does not constitute re-availment as intended by the Handbook. [18] As a direct result of my finding above, the negative credibility inferences of the panel are negated. [19] This leaves only one issue to analyze and that is the issue of the Appellant's persecution within Lebanon and his risk of ongoing persecution should he return. [20] Counsel argues that the documentary evidence adduced at the hearing shows clearly that Palestinians in Lebanon are routinely deprived of their basic human rights. [21] According to the Universal Declaration of Human Rights, the following principles apply to all. I have included only those articles I believe to be relevant in this particular case: Article I All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. Article 3 Everyone has the right to life, liberty and security of person. Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 9 No one shall be subjected to arbitrary arrest, detention or exile. Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 15 1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 17 1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property. Article 23 1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to equal pay for equal work. 3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 4. Everyone has the right to form and to join trade unions for the protection of his interests. Article 25 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Article 26 1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. 3. Parents have a prior right to choose the kind of education that shall be given to their children. [22] In this particular case, the Appellant has been deprived of the fundamental human rights listed above. On a balance of probabilities, the Appellant would continue to be deprived of these same basic human rights, and perhaps others, should he return to Lebanon. [23] The documentary evidence6 adduced at the hearing clearly states that the above rights are commonly ignored by the Lebanese authorities when dealing with the Palestinian refugees. [24] The UNHCR Handbook speaks about persecution as follows: 51. There is no universally accepted definition of "persecution", and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights - for the same reasons - would also constitute persecution. [25] It is clear to me that the Lebanese authorities are inflicting serious violations of human rights upon the occupants of the refugee camps and are doing so for reasons of those occupants' membership in a particular social group, namely Palestinian refugees. [26] Within the camp, militant factions also contribute to the denial of basic human rights of the occupants of the camps in the same manner as the Lebanese authorities do. However, these factions go beyond the Lebanese authorities by putting the camp occupants' lives at stake through the violence perpetrated by these factions against each other. [27] As counsel argues, the evidence shows that Palestinian refugees live in a precarious situation inside the camps and that has an adverse impact on their economic situation, their ability to seek gainful employment, their sanitary conditions and their available medical services. In this particular case, the Appellant is also denied his basic human rights of a citizen of the country in which he was born due entirely to his ethnicity as a Palestinian. [28] Counsel argues that the Appellant has met the burden of proof of establishing that upon his return to Lebanon, he would face more than a mere possibility of persecution based on his membership in a particular social group as described above. [29] I concur with counsel and as I have found there to be no credibility issues with this Appellant, I find that he is a Convention refugee in accordance to section 96 of the IRPA. Disposition [30] The RAD has found that the RPD decision will not stand. CONCLUSION [31] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe May 23, 2018 Date 1 Exhibit RPD-1, RPD's Record, Basis of Claim (BOC) form, at pp. 10-27. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit P-2, Appellant's Record, at pp. 65-86. 4 UNHCR Handbook on Procedures and Criteria for determining Refugee Status (Geneva 1988). 5 M.B.K. v. Canada (MCI), (1997) F.C.J. No. 374 (T.D.) (QL), and Shanmugarajah v. Canada (MEI), (1992) F.C.J. No. 583 (C.A.) (QL). 6 Exhibit RPD-1, RPD's Record, at pp. 113-179. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-13876