TB8-19726

RAD File / Dossier de la SAR : TB8-19726 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) (a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 21, 2019 Date de la décision Panel M. Lee Tribunal Counsel for the person who is the subject of the appeal Penny Yektaeian Guetter 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 XXXX (Appellant), citizen of Lebanon, appealed a decision of the Refugee Protection Division (RPD), dated July 17, 2018, rejecting his claim for refugee protection. DETERMINATION [2] In accordance with paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),1 the Refugee Appeal Division (RAD) dismisses the appeal. BACKGROUND [3] The Appellant is a stateless Palestinian born in the United Arab Emirates (UAE), and alleges that he fears persecution in Lebanon. The Appellant also alleges that he cannot return to the UAE, as his work permit has expired. The Appellant alleges that both Lebanon and the UAE are countries of former habitual residence. [4] The Appellant traveled to the United States on XXXX XXXX, 2016. He crossed into the Canadian border on November 12, 2017 and made his refugee claim for protection. [5] The RPD heard the Appellant's refugee claim on June 22, 2017. The RPD denied the Appellant's claim for protection on July 17, 2018, alleging that Lebanon is not a country of former habitual residence (CFHR), and that the Appellant did not face any risk of persecution in the UAE.2 [6] The Appellant alleges that the RPD erred in its assessment of the Appellant's CFHR, and in finding that the Appellant did not face any risk of persecution in the UAE. [7] The RAD carefully considered the merits of the Appellant's appeal in its decision. Role of the RAD [8] According to the Federal Court of Appeal's ruling in Huruglica,3 the RAD will review decisions of the RPD on a standard of correctness after conducting an independent analysis of the evidence. [9] The RAD will defer to certain findings of the RPD where the RPD enjoys a meaningful advantage in assessing the oral evidence at the hearing. ANALYSIS No new evidence application or oral hearing request [10] The Appellant is not making an application under section 110(4) of the IRPA for new evidence. The Appellant is also not requesting an oral hearing under section 110(6) of the IRPA.4 Denial of a right to return is not persecutory for the Appellant [11] The RAD finds that the RPD did not err in its assessment that the Appellant would not face detention or deportation if he returned to the UAE. The RPD found that denial of a right to return did not amount to persecution in the Appellant's case.5 The RPD cites an instance when the Appellant remained in the UAE on an expired work permit as a migrant worker and had to pay a fine.6 The RPD also found that the Appellant's challenges as a migrant worker in the UAE did not amount to persecution.7 [12] The Appellant submits that the RPD relied on speculative reasoning in finding that it is possible that he can return to the UAE without being detained.8 The Appellant submits that the RPD also ignored the Appellant's testimony about the possibility of detention.9 [13] After carefully considering all the evidence, the RAD does not find that the Appellant would face detention or deportation due to his inability to acquire valid documentation to enter the UAE, on a balance of probabilities. The RAD conducted its own independent analysis by considering the documentary evidence regarding stateless Palestinians living in the UAE, as well as the Appellant's submissions on the possibility of deportation and detention if he were to be denied the right of return. [14] The RAD notes that denial of a right to return to a country does not in and of itself constitute persecution. It is the Appellant's burden of proof to demonstrate that denial of a right to return would result in persecutory treatment. [15] The RAD considered the documentary evidence cited by the Appellant regarding other Palestinians who were deported or expelled when they overstayed their visas. 10 The Appellant also cites documentary evidence that Palestinian refugees risk detention by local authorities, and potentially deportation in the UAE.11 [16] The RAD considered the UAE Executive Regulations of the Federal Law No.(6) of 1973 on entry and Residence of Foreigners cited in the documentary evidence, and does not find that detention and deportation is imminent for foreigners who reside in the UAE on an expired visa or entry permit. [17] Also, there is no mention of imprisonment due to residing in the UAE on expired documents, and therefore, the RAD finds that there is no objective basis for the Appellant's fear of imprisonment if he was denied re-entry into the UAE. [18] The Appellant testified that he had to pay a monetary fine for overstaying his visa by one month. This is consistent with Article 77 of the above cited law; indicating that daily fines are to be paid by foreign residents who overstay in the UAE.12 Article 78 provides a calculation for increasing fines that foreigners must pay after residing in the UAE after the expiry of their entry permit or visa, for up to a year.13 The RAD notes that in the Appellant's case, he was able to pay the full fine he owed before he left the UAE, and did not experience any trouble exiting the country. Therefore, the RAD does not find that in the Appellant's case, monetary fines associated with overstaying in the UAE on an expired visa amounts to persecution, on a balance of probabilities. [19] The RAD also considered Articles 79-80, which describe instances where foreigners would be expelled from the UAE. Within those provisions, the RAD notes that Article 79 indicates that foreigners could be expelled for not holding a residence permit, or if their entry permit or visa has expired and no attempts were made to renew it.14 The RAD finds that these provisions do not explain in detail what is defined as attempts to renew the visa. For example, if a foreigner provided evidence of ongoing efforts to find a work-related sponsor; whether this would provide the foreigner from being expelled, or whether he would have to pay a fine instead. Taking into account Articles 77-80 in their totality, the RAD accepts that there are some circumstances where deportation or detention of foreigners occur. However, the RAD also finds that monetary fines, deportation and expulsion in the UAE could only occur if the Appellant was unable to reside in the country with legal documentation. [20] Previously, the Appellant had been legally living in the UAE with either a work permit or a student visa, continuously from XXXX 2005 until XXXX 2016.15 The Appellant was sponsored as a dependent by his father until 2005, and then he had to apply for his own documentation to remain in the country. The RAD finds that the Appellant was able to find a way to remain in the UAE on legal documentation for over 10 years. The RAD notes that the Appellant experienced two months of unemployment after his work permit expired, prompting him to leave the UAE.16 The Appellant explained that his employer was unable to sponsor him since the company had shut down.17 At the hearing, the Appellant testified that it was possible for him to apply for jobs outside the UAE and obtain a new work permit so he could legally enter the country.18 After considering the Appellant's evidence provided at the oral hearing, the RAD does not find that the Appellant has demonstrated on a balance of probabilities, that he would be unable to acquire legal documentation in order to legally enter the UAE. [21] At present, the Appellant is not barred from continuing to apply for work and a new sponsor while he is abroad. Also, there is no evidence to indicate that he could not enter the country on a valid visitor visa, as his parents and his siblings remain in the UAE. Therefore, on a balance of probabilities, the RAD finds that the Appellant has not demonstrated that he would have to enter the country illegally, and this would result in a risk of deportation or of detention. Appellant will not face persecution as a migrant worker [22] The RAD disagrees with the Appellant, and does not find that the Appellant would face a serious possibility of persecution due to his profile as a migrant worker. The Appellant further submits that the RPD failed to consider that migrant workers who voice work-related grievances risk deportation, and those who leave their sponsors face punishment such as fines, prison and deportation.19 [23] Cumulatively, acts of discrimination may amount to persecution, and particularly where there is a denial of access to a means of existence. Denial of employment or access to employment may form the basis of link to persecution in some circumstances. [24] In this case, the Appellant himself did not voice work-related grievances that would risk his deportation. Nor did the Appellant attempt to leave his previous sponsors in the past. The Appellant did not testify that he feared persecution based on future interactions with potential sponsors. [25] The RAD also notes that the Appellant has family members who are also stateless Palestinians living in the UAE on temporary work permits, who continue to be employed. The RAD finds that this is evidence that stateless Palestinians such as the Appellant, are capable of maintaining employment and residency in the UAE, amidst any discriminatory workplace practices that may exist, on a balance of probabilities. [26] Therefore, the RAD finds that any acts of discrimination endured by the Appellant because of his Palestinian ethnicity do not amount to persecution, as the Panel finds there is not a denial of access to a means of existence. RPD did not err in determining that Lebanon is not a CFHR [27] The RAD finds that the RPD did not err in determining that Lebanon was not a CFHR for the Appellant. The RPD found that the Appellant was born in the UAE and spent his life in the UAE.20 The Appellant never resided in Lebanon and only returned for brief visits. The longest visit was for a period of one month. The RPD found that this did not constitute de facto residence.21 Therefore, the RPD did not assess the Appellant's refugee claim against Lebanon. [28] The Appellant submits that the IRPA allows for the Minister to select any country that will authorize entry within a reasonable time, and shall remove the foreign national to that country.22 The Appellant further submits that he is returnable to Lebanon, based on his Palestinian Authority travel document which was issued to him by the Lebanese government.23 The Appellant cites the Federal Court decision of Al-Khateeb v. M.C.I24, where Justice Simpson ruled that neither Ministerial discretion, a Pre-removal risk assessment (PPRA) nor a humanitarian and compassionate grounds (H&C) application can be a substitute for the Board's refugee claim risk assessment.25 [29] The RAD has carefully considered the decision of Al-Khateeb and finds that the Appellant's claim can be distinguished. The applicant in Al-Khateeb was born in Gaza and moved to a different country while he was six months old, and had not resided in Gaza since that time. However, the Federal Court found that the applicant's birth gave him a special relationship with Gaza, as he had the right of return. In contrast, the Appellant was not born in Lebanon, and his parents being born in Lebanon does not give the Appellant any special rights of return to the country. [30] The RAD considers that the Appellant has only ever held a Lebanese travel document.26 However, travel documents in and of themselves are not conclusive evidence of habitual residence.27 [31] The RAD considers that the Appellant was born in the UAE, completed all of his education in the UAE, and has only worked in the UAE. The RAD also considers that the Appellant has a university degree from Lebanon, which he completed online while in the UAE. While he has relatives in Lebanon, his parents, his siblings, and his siblings' spouses and children all reside in the UAE. [32] In the Federal Court decision of Maarouf,28 the Court indicates that "[t]he claimant must have established a significant period of de facto residence in the country in question." According to those terms, a claimant must have been admitted to a given country and have the intention of settling there for a certain period: ...a "country of former habitual residence" should not be limited to the country where the claimant initially feared persecution. Finally, the claimant does not have to be legally able to return to a country of former habitual residence as denial of a right of return may in itself constitute an act of persecution by the state. The claimant must, however, have established a significant period of de facto residence in the country in question. [33] The RAD finds that the Appellant has not established de facto residence in Lebanon, as he has only made very brief and infrequent visits there. The RAD finds that these visits to relatives and to a wedding does not demonstrate an intention of settling in Lebanon for a certain period. There is no evidence that the Appellant made an attempt to work or to build a livelihood in Lebanon. [34] While there is not a minimum period of residence required to be considered a country of former habitual residence, the RAD finds that the Appellant's time in Lebanon and the ties that he has to that country does not amount to a significant period of de facto residence. Also, the RAD does not find that the Appellant has a special relationship with Lebanon that is analogous with what is described in the applicant's case in Al-Khateeb. In light of the RAD's independent analysis, the RAD finds that the RPD was correct, in finding that the UAE is the only CFHR for the Appellant. [35] The RAD is also guided by the Federal Court decision of Marchoud, Bilal v. M.C.I., where the applicant argued that the panel erred by only assessing the claim against the UAE, and failing to consider that Lebanon was also a CFHR.29 The Federal Court upheld the panel's decision, finding that the panel was entitled to find that Lebanon was not a CFHR, given that the applicant spent the majority of his life outside of Lebanon and had only returned there once for one week, using a Lebanese travel document.30 The RAD applies the same reasoning to the Appellant's case in this appeal. [36] Given that the RAD finds that Lebanon is not a CFHR, the RAD is not obligated to consider the possibility that the Appellant could be returned to Lebanon on a later date. The RAD can only assess the risk on the day of the hearing, not whether such a refoulement might later take place.31 Furthermore, it is not within the RAD's statutory duty to analyze removals or the Pre-Removal Risk Assessment (PRRA) officers' decisions. [37] Therefore, for the above reasons, the RAD finds that the RPD did not err by assessing the Appellant's refugee claim against the UAE and not Lebanon. The RAD finds that the Appellant would not face a serious possibility of persecution if he were to return to the UAE; and he would also not face a risk to life, of torture, or of cruel and unusual punishment. CONCLUSION [38] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "M. Lee" M. Lee August 21, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on December 12, 2017. 2 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 4-11. 3 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, paragraph 78. 4 Exhibit P-2, Appellant Record, Written Statement, at page 1. 5 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 7, paragraphs 20-21. 6 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 7-8, paragraph 23. 7 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 7-8, paragraphs 23-24. 8 Exhibit P-2, Appellant Record, Appellant's Memorandum, at pages 28-29, paragraphs 21-23. 9 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 30, paragraph 26. 10 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentary Package (NDP) for the United Arab Emirates (30 April 2018), item 14.2, Response to Information Request, ZZZ106014.E, 24 November 2017. 11 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for the United Arab Emirates (30 April 2018), item 2.1, United States Department of State, United Arab Emirates. Country Reports on Human Rights Practices for 2017. 12 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for the United Arab Emirates (30 April 2018), item 14.1, ARE105443.E, 14 April 2016. 13 Ibid. 14 Ibid. 15 Exhibit RPD-1, RPD Record, Exhibit 4, at pages 129-130. 16 Ibid. 17 RPD Hearing Recording, June 22, 2018, at 20:41. 18 RPD Hearing Recording, June 22, 2018, at 23:45. 19 Exhibit P-2, Appellant Record, Appellant's Memorandum, at pages 30-31, paragraphs 30-32. 20 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 5, paragraph 11. 21 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 5, paragraph 12. 22 Exhibit P-2, Appellant Record, Appellant's Memorandum, at pages 31-32, paragraphs 34-35. 23 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 32, paragraph 36. 24 Al-Khateeb v. Canada (Citizenship and Immigration), 2017 FC 31. 25 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 33, paragraphs 37-38. 26 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 32, paragraph 36. 27 Kadoura, Mahmoud v. M.C.I. (F.C., no. IMM-4835-02), Martineau, September 10, 2003, 2003 FC 1057. 28 Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.); (1993), 23 Imm. L.R. (2d) 163 (F.C.T.D.). 29 Marchoud, Bilal v. M.C.I. (F.C. no. IMM-10120-03), Tremblay-Lamer, October 22, 2004, 2004 FC 1471. 30 Ibid. 31 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-19726 RAD.25.02 (April 04, 2019) Disponible en français 9 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