TB8-32110

RAD File / Dossier de la SAR : TB8-32110 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 6, 2020 Date de la décision Panel Joseph W. Richards II Tribunal Counsel for the person who is the subject of the appeal Ashley Erin Fisch Barrister and Solicitor 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] I allow this appeal. [2] XXXX XXXX XXXX (the Appellant) is a citizen of the Kingdom of Saudi Arabia (KSA). [3] The Appellant is a young Shia Muslim man from Qatif, Saudi Arabia, who fears persecution or a risk to life at the hands of the Saudi government. During the Arab Spring, he participated in political demonstrations. Though the police broke up several of these demonstrations, the Appellant and his friends always managed to escape detection. He visited his brother in Canada from XXXX 2013 to XXXX 2013, before returning to Saudi Arabia. In February 2014, three of his classmates attended a demonstration without him. These friends were arrested, and a trial was scheduled for August 2016. After finishing high school in May 2014, the Appellant obtained a Canadian student visa and initially arrived in Canada on XXXX XXXX XXXX 2014. In February 2016, the authorities detained the Appellant's father for several hours and questioned him about the Appellant's activities and his relationship with the three boys who were arrested. The Appellant finished his studies in May 2016. His mother visited him in Canada in XXXX 2016, and she told him about his father being detained. His father visited in early XXXX 2016 and gave the Appellant more details about the detention. After considering his options during the month of August, the Appellant initiated a refugee protection claim on September 2, 2016. [4] The Refugee Protection Division (RPD) found that the Appellant lacked credibility due to the delay in making a refugee claim, his five-day return to the KSA in September 2014, and the lack of credible supporting documentation. [5] The Appellant contends that the RPD erred in its plausibility finding regarding when the Appellant was told about his father's detention. The Appellant challenges the RPD's determinations that he delayed in claiming or that he re-availed in 2014 because he did not know the authorities were interested in him until 2016. The Appellant is requesting to admit new evidence pertaining to the status of his three friends in Saudi Arabia. [6] The determinative issue in this appeal is credibility. After reviewing the evidentiary record, I find that there is a serious possibility that the Appellant will be persecuted if returned to the KSA. The applicable nexus is intersectional: religion and political opinion. The RPD made erroneous credibility findings, and the presumption of truthfulness has not been rebutted. DECISION [7] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. NEW EVIDENCE The evidence presented by the Appellant is accepted [8] According to the law,1 I can only accept evidence that: (i) arose after the RPD's decision; or (ii) was not reasonably available at the time of the decision; or (iii) the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [9] If none of these criteria are satisfied, the inquiry ends there; the evidence cannot be admitted. If the evidence meets one or more of these requirements, I must then decide if the evidence is credible, relevant, and new.2 The evidence will not be considered if it lacks credibility as to its source and the circumstances in which it came into existence or if it is incapable of proving or disproving a relevant fact to the refugee claim.3 The evidence will also be excluded if it fails to prove a new fact, event, or circumstance arising after, or unknown at the time of, the RPD hearing. [10] The Appellants have requested that the following documents be admitted as new evidence: (a) a news article from Shafaqna Iraq, "Saudi authorities consented to the execution of 36 citizens...", July 24, 2017;4 and (b) a report from Amnesty International, "Saudi Arabia: 14 protesters facing execution after unfair trials", June 6, 2017.5 [11] The Appellant bears the responsibility of making full and detailed submissions about how the proposed new evidence meets the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and how that evidence relates to the claim.6 [12] The news article arose after the RPD's decision. Shafaqna is a recognized Shia news association, and the article is readily accessed via the internet using the provided URL. The article is relevant to the Appellant's claim in that it refers to harsh sentences (e.g. death penalty) being imposed in the KSA for Shiites expressing their political opinions. Moreover, the names of the friends that the Appellant refers to in his Basis of Claim (BOC) narrative are also named in the article.7 The article is also new because it provides an update on the cases of these detainees. The Shafaqna article is therefore admissible. [13] As for the report from Amnesty International, I find that it too is admissible. The events described in the article arose after the RPD's decision, as it discusses a Saudi Court of Appeal decision issued in May 2017 that upheld the death sentences of Shiite political dissidents. Amnesty International is a well-known and credible international human rights organization. The document elaborates on the plight of Shiites whose political protests led to terrorism charges. The report therefore highlights the cost of political expression in the KSA and is relevant to the assessment of the Appellant's forward-facing fear. An oral hearing is not permitted [14] The new evidence that I have admitted does not raise a serious credibility issue, and therefore a hearing is not permitted, pursuant to subsection 110(6) of the IRPA. ANALYSIS The role of the Refugee Appeal Division (RAD) [15] The RAD reviews the RPD's decision and comes to an independent assessment of the refugee claim.8 In providing a final determination, the RAD will intervene if it finds that the RPD erred, unless the RPD's decision can be confirmed on another basis.9 The standard of correctness applies.10 If the RPD has a meaningful advantage in assessing the credibility of oral testimony, then the RPD's finding may be accorded deference.11 [16] In this case, the RPD did not have a meaningful advantage. Accordingly, I have conducted an independent assessment of the oral and documentary evidence using the correctness standard. The RPD erred in assessing the Appellant's credibility [17] I essentially agree with the Appellant's submissions: the RPD erred in all of its credibility findings. Delay in claiming [18] The Appellant's alleged fear did not crystallize when he left the KSA. This explains why the Appellant remained in the KSA between XXXX 2014 (when his friends were arrested) to XXXX 2014 (when he left for Canada). Rather, it was only after his parents informed him in person about the KSA's interest that the Appellant made a claim for refugee protection. While the Panel was correct in surmising that the Appellant possessed a fear as of June 2014, that fear was not of the same magnitude as the fear that developed in the summer of 2016.12 Given that determining refugee protection claims is a forward-looking exercise, I find that the RPD erred by failing to allow for the progressive development of the Appellant's fear. [19] Contrary to the RPD's findings, the Appellant's credibility should not have been impugned because his father did not advise him sooner about the February 2016 police interrogation. The circumstances would be different if the Appellant had actively talked with his parents about returning to the KSA between XXXX and XXXX 2016 or if the Appellant had returned to the KSA during that period. In that case, it would be reasonable to expect a vigorous warning from the parents. No such evidence can be gleaned from the facts in this appeal. [20] Once the Appellant recognized the degree of jeopardy that he was in, he filed for refugee protection in a timely fashion. Accordingly, the RPD erred by making an unwarranted negative credibility finding. Re-availment [21] The Appellant returned to the KSA for five days in XXXX 2014. This trip may be indicative of a lack of subjective fear, but the Appellant testified that he had to return in order to attend a meeting for students seeking to study abroad.13 For the reasons set out above, I find that, in September 2014, the Appellant's fear had yet to crystallize. Therefore, the RPD erred in making an adverse inference. Lack of supporting documentation [22] The RPD found that the Appellant failed to provide trustworthy documentary evidence to corroborate his testimony. For instance, the Appellant did not submit any documentation attesting to his participation in political demonstrations in Saudi Arabia. [23] However, the RPD erred because the law does not necessarily require that a claimant's testimony be corroborated. The RPD's analysis focussed solely on supporting letters provided by two different human rights organizations, the European Saudi Organization for Human Rights and the Americans for Democracy and Human Rights in Bahrain.14 Per the Appellant, these letters were authored by friends of his father who have no independent knowledge of the Appellant's allegations. I therefore agree with the RPD's conclusion that these letters should be afforded low weight. Nevertheless, this determination, on its own, is not sufficient to displace the presumption of truthfulness or to otherwise impugn the Appellant's credibility. Accordingly, the RPD erred. The Appellant is a Convention refugee The presumption of truthfulness continues to apply [24] As I have found that the RPD's credibility determinations were erroneous, the Appellant continues to benefit from the presumption of truthfulness. I further find that his testimony was trustworthy, in that it was sufficient and reliable. He testified forthrightly about his participation in approximately thirty demonstrations as a teenager in Qatif, seeking redress from the government for its systemic discrimination of Shias, the minority Muslim sect in the KSA. The protests were secretly organized, intended to be peaceful, and drew crowds of 3000 to 4000 people. The Appellant stated that the protests could turn violent when the government employed harsh means to disperse the crowd (e.g. tear gas).15 Accordingly, the grounds of persecution in this case are intersectional: religion and political opinion. [25] The new evidence provided in this appeal provides an insightful update on the status of the three friends mentioned in the Appellant's BOC narrative and the nature of the risk that the Appellant faces if returned. First, I will note that the Shafaqna news article was published almost a full year after the BOC narrative was signed, which enhances the credibility of the Appellant's allegations. The article states that the death sentences of the Appellants' friends have been upheld by the KSA's court of appeal. In addition to the interrogation of the Appellant's father, these facts are sufficient to establish a well-founded fear of persecution. Despite the length of time since the Appellant has lived in the KSA, the continued persecution of his friends means that his own risk of persecution has not abated. There are good grounds to believe that, if returned, the government would discover the Appellant's affiliation with the Qatif protests and subject the Appellant to indefinite detention, an unfair trial, torture, coercion, and/or the death penalty. Though not referenced in Counsel's submissions, I am mindful that this type of persecution would have a disproportionate impact on the Appellant, as a person with a disability: on November 21, 2017, the Appellant suffered a severe mutilating hand injury on the right dominant side, resulting in a thumb amputation and post-traumatic stress disorder.16 [26] The objective country documentation further supports the Appellant's allegations. Political and social activism in the country are monitored and tightly limited by security forces, and relations between the historically marginalized Shia minority and the government remain tense. There is a pattern of systematic repression in the Eastern Province, where most of the Shia population resides. Any activity that advocates for, or is sympathetic to, political change is construed as a threat to national security, and so anyone associated with such activity is liable to face severe punishment at the hands of the government.17 No adequate state protection and no viable internal flight alternative [27] As the agent of harm in this case is the government of the KSA, I find that state protection would not be reasonably available to the Appellant. Furthermore, the risk of harm extends throughout the KSA as the government's security forces exert control over the entire country. The lack of safe and reasonable areas to seek safety is further highlighted by the Appellant's status as a member of a marginalized religious minority. As a result, I find that no viable internal flight alternative exists. CONCLUSION [28] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) Joseph W. Richards II Joseph W. Richards II October 6, 2020 Date 1 Subsection 110(4) of the IRPA. 2 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 64; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, at para. 13. 4 Exhibit P-2, Appellant's Record, at p. 11. 5 Ibid., at pp. 14 - 16. 6 Refugee Appeal Division Rules, section 3(3)(g)(iii). 7 Cf. Exhibit RPD-1, RPD Record at p. 13 to Exhibit P-2, Appellant's Record, at p. 11. 8 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, November 7, 2014, 2014 FC 799, at paras. 54-55; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93 at para. 103. 9 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93 at paras. 78, 103. See IRPA, s. 111. 10 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 78, 103. 11 Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145, at para. 105; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 70. 12 Exhibit RPD-1, RPD Record, Reasons and Decision, at para. 9. 13 Audio Recording of the RPD Hearing, at 00:05:30 - 00:08:25. 14 See Exhibit RPD-1, RPD Record, at pp. 189, 192. 15 Audio Recording of the RPD Hearing, at 00:37:20 - 00:43:05. 16 Exhibit P-3, Application for an extension of time to file and perfect an appeal, December 3, 2018, at pp. 10, 17-18. 17 NDP for Saudi Arabia (March 31, 2020), item 1.4, US Congressional Research Service, "Saudi Arabia: Background and U.S. Relations", February 18, 2020, at p. 15. See also pp. 18-19, 22-23; item 12.1, US Department of State, "International Religious Freedom Report for 2018", June 21, 2019, at p. 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-32110 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