VB9-00135

RAD File / Dossier de la SAR : VB9-00135 Private Proceeding / Huis clos Redetermination of Appeal ? Nouvel examen de l'appel Reasons and decision ? Motifs et decision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision March 4, 2020 Date de la décision Panel Maryanne Kingma Tribunal Counsel for the person(s) who is(are) the subject of the appeal Nico G Breed Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (Appellant) is a citizen of Egypt, a doctor by profession and a Sunni Muslim. The Appellant fears harm from his family in Egypt for refusing their demands that his daughter undergo Female Genital Mutilation (FGM) and because he is married to a Shia woman. BACKGROUND [2] The Appellant's wife was born in Lebanon. The couple met and married in the United Arab Emirates (UAE). Their daughter was born in the UAE in 2012 and has Egyptian citizenship. The family lived in the UAE until XXXX 2014, resided in Lebanon until XXXX 2015 and then moved to Egypt in XXXX 2015. In XXXX 2017 they travelled to the USA as visitors and then to Canada on XXXX XXXX, 2018, where they made refugee claims on XXXX XXXX, 2018. [3] The Refugee Protection Division (RPD) found that the Appellant's wife and minor daughter were Convention1 refugees. The RPD accepted that the daughter would likely be subjected to FGM in Egypt and that his wife faced a serious possibility of persecution in Lebanon at the hands of Hezbollah because she is perceived as politically oposed to them. [4] The RPD rejected the Appellant's claim. The RPD found the Appellant does not face a serious possibility of persecution in Egypt because he did not raise any specific concern for himself and, in the course of answering questions at the RPD hearing, he expressed fear of crime in Egypt. The RPD found that he did not establish that he faces section 97 risk if he returns to Egypt. [5] The RAD dismissed the Appellant's appeal on September 6, 2019, but that decision was quashed by the Federal Court on consent and returned to the RAD for re-determination. This is the RAD's re-determination of the appeal against the December 14, 2018 decision of the RPD. The claim [6] The Appellant alleged that he faces persecution in Egypt because he refuses FGM for his daughter and because he is married to a Shia Muslim woman in Egypt where the minority Shias suffer persecution under a Sunni majority. [7] In the UAE, the Appellant operated an XXXX business but he and his family relocated to Lebanon after his XXXX XXXX forced him out. In Lebanon, the Appellant could not obtain a work permit so he volunteered to provide XXXX services to Syrian refugees. His wife's family, which is closely connected to Hezbollah, threatened to kill him if he continued in that work and a fellow volunteer XXXX warned the Appellant to leave Lebanon for their safety. They left for Egypt and after their departure from Lebanon, that XXXX who warned them was assassinated. The family settled in the Appellant's home town in Egypt where most of his family lives. [8] The Appellant's oldest brother and head of the family forced Appellant's daughter to attend weekly religious classes and pressured to have her undergo FGM, which the Appellant and his wife refused. The older brother attempted to take the daughter by force but fled when neighbours intervened. After this confrontation, the Appellant moved to Cairo where his brother found them and tried again to forcefully take the daughter but the Appellant and his wife were able to prevent it. The incident was reported to the police who advised that they would not intervene in a family dispute. Shortly after, the wife and daughter were called in and detained at Cairo's security headquarters and threatened by a director who has ties to the older brother. The Appellant's wife was forced to sign a document that gave the older brother authority over their daughter. Following this, the family travelled to the USA and later to Canada to make refugee claims. The RPD decision [9] All three claimants were considered credible. [10] The Appellants wife and daughter were found to be Convention refugees. There was a nexus of social group in relation to the Appellant's daughter in Egypt and of political opinion regarding his wife in Lebanon. His daughter was at risk of FGM and his wife of persecution based on Hezbollah's perception, because of her husband's volunteer work on behalf of Syrian refugees, that she is politically opposed to an ally of Hezbollah. There were no Internal Flight Alternatives available to each of them. [11] The RPD rejected the Appellant's claim against Egypt. The RPD found that he does not face a serious possibility of persecution in Egypt, or a risk of torture, or a risk to his life or a risk of cruel and unusual treatment or punishment in Egypt, and so is not a person in need of protection under section 97(1) of the Immigration and Refugee Protection Act (IRPA).2 [12] The RPD found that the Appellant's testimony focused on concern for the well-being of the daughter and the mother and that he did not express concern for his own safety until he was directly questioned at length about fears for his personal safety. The Appellant told the RPD Member that he fears being the victim of violent crime in Egypt because such crime is widespread, not because he is at any increased risk of being targeted by criminals. The Appellant did not provide any evidence of harm he faced personally as a result of being a father who opposed FGM for his daughter or for being married to a Shia woman. When directly asked by the RPD, the Appellant did not know of anyone harmed because they had married a Shia person. Instead, he spoke about the harm his wife faced as a Shia in Egypt, and that claim was suported with extensive documentation about violence against Shias in Egypt. The RPD pointed out that those documents do not mention any instance of violence against a Sunni person who sympathizes or is believed to sympathize with Shia people. The RPD specifically asked the Appellant if he had been threatened because of his marriage and he suggested being cautioned not to return to Egypt because his brother was planning something. The RPD found that vague threat was not particular to the father's marriage and seemed to relate more to the Appellant's resistance to the FGM demand for his daughter. The RPD Member noted that the brother and the other family members have belittled and threatened the Appellant's wife but did not abuse or threaten the Appellant. [13] The RPD appreciated that the result of accepting claims of the wife and daughter but not the Appellant appeared to be a harsh result that could result in the family's separation. The RPD correctly pointed out that, even though heard jointly, each claim for protection has to be considered individually. The RPD indicated that family unity is not a concept incorporated into the definition of Convention refugee, and that the law does not recognize any fundamental right for refugee claimants to live together. DISCUSSION New evidence [14] For the first RAD appeal, the Appellant did not submit new evidence although he told his Counsel about an XXXX XXXX, 2018 attack that he heard about after the November 5, 2019 RPD hearing. His former Counsel did not submit that evidence to the RPD or offer it to the RAD as new evidence for the appeal. [15] The new evidence being submitted to the RAD for this appeal is the following: 1. Translated Statement by XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX; 2. Judgment in the name of the people, Case NO. XXXX, dated XXXX XXXX, 2018. Translated Endorsement by victim's father, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [16] It is generally anticipated that the RAD will make decisions based on the evidence that was presented to the RPD3 and not admit new evidence. Exceptions allowed by section 110(4) of IRPA4 are for evidence that arose after, was not reasonably available, or could not reasonably have been expected to have been presented at the time the claim was rejected. The RAD is not bound by legal or technical rules of evidence and may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.5 In keeping with the exceptional nature of section 110(4) evidence, the jurisprudence has endorsed additional considerations of credibility, relevance and newness for assessing whether to admit new evidence.6 [17] The Appellant asks that this evidence be admitted because it was not reasonably available at the date of the November 5, 2019 RPD hearing and not provided by his Counsel to the RPD or the RAD. [18] I agree that the evidence is admissible, for the reasons given. Referral back to the RPD for re-determination [19] The role of the RAD is to conduct a substantive appeal on the merits and decide if the RPD decided a claim for refugee protection correctly.7 The RAD has these options: to confirm the RPD determination; to set aside the RPD determination and substitute its own, or the RAD may refer the matter back to the RPD for re-determination if it cannot make a new decision without hearing evidence that was presented to the RPD.8 [20] I find that the matter should be referred back to the RPD for re-determination because I cannot make a decision on the merits without hearing evidence that was presented to the RPD. The evidence admitted here as new may affect how the testimony and evidence at the RPD was evaluated. A fair and complete adjudication of the claim with this evidence may include or require reassessing the credibility of all evidence. There may be a need to review presented evidence in light of the new information. I cannot fairly address the appeal without hearing some or all of the evidence that was presented to the RPD. CONCLUSION [21] The appeal is allowed. I send this matter back to the RPD to be re-determined. [22] The RPD is instructed to consider the claim anew and without restrictions. "Maryanne Kingma" (signed) Maryanne Kingma March 4, 2020 Date 11951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 3 110(3) Procedure - Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division 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 and, in the case of a matter that is conducted before a Panel of three Members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. 4 Section 110(4) of IRPA. 110(4) Evidence that may be presented - 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 rejection. 5 171. Proceedings - In the case of a proceeding of the Refugee Appeal Division, (a.2) the Division is not bound by any legal or technical rules of evidence; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; ... 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 7 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93 Huruglica et al 8 IRPA, section 111. --------------- ------------------------------------------------------------ ------------------------------------------------------------ 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.28.07 (September 18, 2018) Disponible en français RAD File / Dossier de la SAR : VB9-00135 RAD.28.07 (September 18, 2018) Disponible en français