TB9-06670

RAD File / Dossier de la SAR : TB9-06670 TB9-06671 / TB9-06672 Private Proceeding / Huis clos Reasons and Decision ? Motifs et Décision Persons who are the subject of the appeal XXXX XXXX XXXX (a.k.a XXXX XXXX) XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision January 8, 2020 Date de la décision Panel Maryanne Kingma Tribunal Counsel for the persons who are the subject of the appeal Howard P Eisenberg Barrister and Solicitor Conseil de la|des personne|s en cause Designated representative XXXX XXXX XXXX (a.k.a XXXX XXXX) for XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Mr. XXXX), his spouse XXXX XXXX (Ms. XXXX) and their minor child XXXX XXXX, (collectively the Appellants), are citizens of Syria who applied for refugee protection in Canada. [2] The Refugee Protection Division (RPD) denied their claims on February 19, 2019 and they appealed to the Refugee Appeal Division (RAD). [3] The appeal is allowed based on the profile of the Appellants as moderate Sunni Muslims who are likely to encounter persecution or harm in Syria from Islamist extremists because of religion, perceived political opinion, or gender and to encounter forced conscription into a military that is perceived to engage in criminal activity or violation of human rights. BACKGROUND [4] Mr. XXXX was born in 1991 in Syria but has lived in Saudi Arabia most of his life, since 1997. Ms. XXXX was born in 1990 in Syria and lived in Saudi Arabia since 2007. Both have a university education from the XXXX XXXX XXXX XXXX XXXX. The couple married in 2014 and their daughter was born in 2015. Mr. XXXX worked in Riyadh from 2011 to XXXX 2017 according to his Schedule A Background Declaration.1 [5] In his Basis of Claim (BOC) narrative for the family, Mr. XXXX indicates that they are a moderate Sunni Muslim family who last visited Syria in 2009. He describes how his town of Hama was besieged by the Syrian Arab army in 1982 and that opponents suffered, including his grandfather who disappeared and is still missing. Mr. XXXX describes the 2011 revolution and ongoing sectarian war between radical Islamists and Alawites represented by the Syrian army. For example, he recounts massacres and atrocities in 2013 and 2016 and knows of relatives who were killed and of a cousin who was forced into the military in 2017 despite being a student. [6] Mr. XXXX claims that on XXXX XXXX, 2017 he was notified by his employer in Saudi Arabia that he would be terminated on XXXX XXXX, 2017 because of the "Saudization" policy designed to replace foreign workers with Saudi citizens. He says he was given 90 days to find another job or leave the country. Without employment, he has no status in Saudi Arabia and fears having to return to Syria. He is concerned about persecution of his spouse who does not wear a hijab and fears he will be forced into military service. [7] ANALYSIS [8] The family alleged that they will suffer persecution or harm if they have to return to Syria and the RPD Member did not disagree. The RPD found no issue regarding identity and confirmed that the Appellants are citizens of Syria. The RPD decision should have ended there. The law [9] A Claimant seeking refugee protection in Canada needs to establish that they have a well-founded fear of persecution because of a nexus ground (pursuant to Section 96 of the Immigration and Refugee Protection Act - IRPA)2 or that there is a specific risk to life or risk of cruel and unusual treatment or punishment (pursuant to Section 97 of the IRPA), in the country or countries of citizenship or former habitual residence. For Convention3 refugee status, their burden is to show that there is a serious possibility or reasonable chance of the alleged persecution if they return to their country. To show that they are persons in need of protection they must establish that there is a likelihood of the alleged risk on a balance of probabilities. If a Section 96 persecution or Section 97 risk is established, claimants have to show that the state cannot provide adequate protection and that there is no reasonably safe alternative place to live in the country. Errors in the RPD decision [10] The RPD Member did not adjudicate that claim according to the legislative requirements. The RPD Member did not ask any questions about the reason for fearing a return to Syria, which is the relevant basis for the claims. The RPD Member acknowledged that this was not in dispute. Indeed, at the hearing the RPD Member specifically advised Counsel for the Appellants that no submissions were required about what the Appellants fear in Syria. [11] Rather than adjudicate the claims pursuant to Sections 96 and 97 in relation to Syria, the RPD Member engaged in an examination and assessment of irrelevant matters. Throughout the hearing and in the written decision, the RPD Member was concerned about credibility and subjective fear but did not connect those concerns to relevant claim issues. For example, the RPD Member expressed disbelief that the Principal Appellant's employment was terminated in 2017 due to the Saudization policy because that policy was in place since 2011. The RPD Member also found that there was a lack of subjective fear evidenced by not making claims in the United States of America (USA). I have discussed each of those two concerns in more detail for clarity, because they formed the basis of the RPD's refusal. Failure to claim in the USA [12] The family obtained visas for the USA in 2015. Visa applications to Canada in 2016 were denied. The family travelled to the USA in 2016 and again in XXXX XXXX XXXX 2017, when they went to Canada at an unauthorized crossing. They were detained by the RCMP and then made refugee claims. [13] The RPD rejected Mr. XXXX explanation of fearing Trump's anti-Muslim rhetoric as the reason for not claiming refugee protection in the USA, pointing out that the family obtained visitor visas for the USA under the previous administration, had been rejected for visitor visas to Canada in contrast, and had not explored whether they would have difficulty making refugee claims in the USA. [14] The RPD Member understood that the claims had to be assessed in relation to Syria and that the bilateral agreement between Canada and the USA does not apply to these Appellants because they entered Canada at an irregular crossing rather than a port of entry. Despite that expressed knowledge, the RPD gathered evidence about credibility and subjective fear to support his conclusions that the Appellants were "asylum shopping" and to pronounce that a desire to reach Canada is not a basis to ignore the safe third country agreement between Canada and the USA. I do not disagree that the evidence shows the Appellants preferred to claim refugee protection in Canada rather than in the USA. However, the RPD Member did not explain or justify how the concept of asylum shopping and the bilateral agreement form a basis to reject the claims given that the bilateral agreement does not apply. The RPD Member erred by doing indirectly what cannot be done directly. Concerns about the termination of employment [15] I agree that there is reason to doubt some of the evidence about the alleged termination of Mr. XXXX employment. However, notwithstanding a lengthy period of residence in Saudi Arabia, the Appellants have no status there apart from employment, which renders the RPD Member's concerns largely irrelevant to claims against Syria. I have addressed apparent concerns in the documentary evidence for clarity and to provide a foundation for the discussion about new evidence. [16] In support of visa applications to Canada in 2016 is a XXXX XXXX 2016 letter to the Canadian Consulate alleging to be from Mr XXXX Saudi employer.4 The employment letter states that Mr. XXXX has been employed as an XXXX XXXX XXXX since 2012. There is letterhead for XXXX XXXX XXXX XXXX. and below the header is an extremely small font reference line 'XXXX XXXX XXXX XXXX XXXX XXXX XXXX. I do not know who wrote the XXXX XXXX 2016 letter from XXXX XXXX XXXX XXXX. because there is no person or position identified and the signature is illegible. The visa application shows employment with XXXX XXXX XXXX XXXX XXXX XXXX. from 2009 to 2017/XXXX. The XXXX XXXX 2016 employment letter for the XXXX XXXX XXXX 2016 visa application5 does not align with the Schedule A background information for this refugee claim, where Mr. XXXX identifies employment from XXXX 2011 to XXXX 2017 as a XXXX XXXX with a company called XXXX. There is no mention of XXXX XXXX XXXX XXXX. I do not know why the name XXXX XXXX XXXX appears in the visa application and not in the refugee claim Background documents or why the employment dates are different. It is not self-evident and the RPD Member did not ask about it. [17] Mr. XXXX provided an undated screenshot of an inquiry to the Ministry of Interior, Kingdom of Saudi Arabia Query Iqama Expiry Service for Iqama XXXX XXXX that shows an expiry date of XXXX XXXX 2018.6 That is not proof of employment termination because, according to Mr. XXXX, he had to renew his residency every year. The Iqama enquiry is consistent with an annual expiry date and has no probative value for the matter of whether Mr. XXXX was, indeed, terminated from his employment in XXXX XXXX, 2017. [18] Mr. XXXX did not provide what would be the most obvious reasonable evidence of termination: the termination letter of XXXX XXXX, 2017. For reasons below and because it is not relevant to the final adjudication of these claims, I declined to admit a copy of the termination letter into evidence for this appeal. I note, however, that the letter was purportedly obtained by way of a XXXX XXXX XXXX 2018 email to XXXX XXXX asking for a copy of the letter of termination from XXXX7 with a response on XXXX XXXX, 2018 from Mr. XXXX that he will request same from Human Resources (HR). It is not self-evident why that request could not have been made in advance of the RPD hearing rather than post-hearing. NEW EVIDENCE [19] The Appellants submitted the following as new evidence to the RAD: a. Item #1: an electronic query response of XXXX XXXX, 2019 indicating Iqama XXXX XXXX for the Associate Appellant, expiry on XXXX XXXX, 2018. b. Item #2: a XXXX XXXX, 2017 termination letter from Mr. XXXX Saudi Arabia employer. Item #1 is admissible because it should have been part of the RPD Record [20] I will deal first with item #1, the screenshot to the Kingdom of Saudi Arabia Ministry of Interior regarding the Iqama Number XXXX, identified in the claim documents as belonging to Ms. XXXX. It confirms that her Iqama is valid until XXXX XXXX, 2018. In his Affidavit for the appeal, Mr. XXXX explains that he sent this information to the RPD along with his own screenshot Iqama enquiry showing it was valid until XXXX XXXX, 2018. His Iqama enquiry is on the RPD file and he does not know why his wife and daughter's information is not in the RPD Record. He attached the Canada Post tracking and shipping information showing delivery of Xpresspost to the RPD on September 28, 2018 that he says contained his own Iqama expiry information as well as that of his wife and child. [21] In the circumstances, the Iqama screenshot evidence is admissible because is should have been part of the RPD Record. It appears to have been presented to the RPD but was not in the RPD Record for unknown administrative reasons that are resolved in favour of the appellants. It would have been beneficial for the appellants' counsel to point out this omission at the RPD hearing when exhibits were being identified. Item #2, the XXXX XXXX, 2017 termination letter from Mr. XXXX Saudi Arabia employer, is not admissible [22] 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.8 However, it is generally anticipated that the RAD will make decisions based on the evidence that was presented to the RPD9 and will not admit new evidence. Exceptions are allowed by subsection 110(4) of IRPA10 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. In keeping with the exceptional nature of subsection 110(4) allowances, the jurisprudence has endorsed additional considerations of credibility, relevance and newness for assessing whether to admit new evidence.11 [23] The appeal arguments do not clearly articulate how the termination letter meets the test of subsection 110(4). Rather, the Appellants' Counsel submits that this letter is irrelevant because there was other evidence showing that the Appellants' residency status in Saudi Arabia expired by XXXX XXXX XXXX 2018. Counsel argues that the Iqama was clear evidence before the RPD Member that Mr. XXXX had been terminated despite not having that termination letter. I disagree because the expiration of the Iqama is not definitive given it was renewed annually based on the continued employment. [24] A central discussion in the claims was about Mr. XXXX termination of employment in Saudi Arabia because Mr. XXXX emphasized that in his BOC and the RPD Member focused on it. Notwithstanding my finding that the RPD Member's concern with credibility is not determinative of the claims, it would have been reasonable to provide the termination letter to the RPD because Mr. XXXX was aware that his employment and related residence status in Saudi Arabia were, according to his own BOC, considerations for the refugee claim. Indeed, he offered evidence purportedly to show that his residency in Saudi Arabia would end on XXXX XXXX, 2018. [25] Mr. XXXX told the RPD Member that he got notified by email in XXXX 2017 about his termination but did not keep a copy of the letter that was attached to the email and that his former employer has since deleted his email account. Attached to written submissions that followed the December 17, 2018 RPD hearing is the XXXX XXXX, 2018 email request to XXXX XXXX asking for a copy of Mr. XXXX release letter from when he was employed by XXXX. Mr. XXXX tells XXXX XXXX in the email "...as you know XXXX deleted my email account and I wasn't be [sic] able to take a copy from this document..." and asks Mr. XXXX to send a hard copy to his address in Canada.12 The XXXX XXXX, 2018 response has a very large XXXX above XXXX XXXX name and identifies Mr. XXXX as XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (XXXX in Saudi Arabia)". Mr. XXXX responds by saying that he will request the release letter from HR. Presumably, the XXXX XXXX, 2017 letter submitted with this appeal is the result of that request. According to Mr. XXXX, he received the XXXX XXXX, 2017 letter by courier on XXXX XXXX, 2019. [26] It was not reasonably explained why the request for the termination letter sent to Mr. XXXX in XXXX 2018 would not have been obtained in advance of the RPD hearing. The alleged termination letter is dated XXXX XXXX, 2017, long before the RPD hearing. There was more than one year between making refugee claims in Canada and the RPD hearing. Also, not self-evident is why the XXXX XXXX, 2017 letter is from XXXX XXXX XXXX XXXX XXXX XXXX, a company name that does not appear in the other employment related documents. [27] In the circumstances, the termination letter does not meet the requirements of subsection 110(4) and is therefore not admissible. The claims against Syria are allowed [28] The Appellants are moderate Sunni Muslims who are likely to encounter persecution or harm in Syria from Islamist extremists because of religion, perceived political opinion, or gender and to encounter forced conscription into a military that is perceived to engage in criminal activity or violation of human rights. There is, in the circumstances, a serious possibility or reasonable chance that they will encounter persecution in Syria and will not enjoy adequate protection of that state or find a safe place to live given the current turmoil in Syria. [29] As previously explained, the fact of termination or not from Mr. XXXX Saudi Arabian employment has limited relevance to the claims because, despite a long period of residence, the Appellants have no status in Saudi Arabia except temporarily through employment. There are serious reasons to doubt Mr. XXXX credibility on his employment status but the relevant fact is that he presents as a citizen of Syria who has no other country of residence. Leaving Saudi Arabia either by choice or need, does not change the reality that he and his family are claiming refuge from Syria, not Saudi Arabia. It is also not detrimental to the claims that they could have but chose not to make refugee claims in the USA, because the bilateral agreement does not apply in this case. CONCLUSION [30] For the reasons set out above, the appeals are allowed and the determination of the RPD is set aside. I find that the Appellants are Convention refugees. (signed) "Maryanne Kingma" Maryanne Kingma January 8, 2020 Date 1 Exhibit RPD-1, RPD Record at p. 63. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 3 1951 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. 4 Exhibit RPD-1, RPD Record at p. 454. 5 Exhibit RPD-1, RPD Record at p. 451. 6 Exhibit RPD-1, RPD Record at p. 486. 7 Exhibit RPD-1, RPD Record at p. 492. 8 Section 171 of IRPA: 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. 9 Section 110(3) of IRPA: 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. 10 Section 110(4) of IRPA. 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. 11 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 12 Exhibit RPD-1, RPD Record at p. 492. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-06670 TB9-06671 / TB9-06672 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français