MB7-03939

RAD File / Dossier de la SAR : MB7-03939 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision April 24, 2019 Date de la décision Panel Ayanna Roberts Tribunal Counsel for the person(s) who is(are) the subject of the appeal Perla Abou-Jaoudé Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX is a stateless Palestinian minor who is appealing a decision of the Refugee Protection Division (RPD) dated March 22, 2017, rejecting his claim for refugee protection. The Appellant is the youngest of four children. His parents are Palestinian refugees. While he was born in Saudi Arabia, his father was born in Syria, therefore, he holds a Syrian travel document. His parents and his three older sisters are Canadian permanent residents. The Appellant left Saudi Arabia with his parents on XXXX XXXX XXXX 2016 because they feared being returned to Syria after the Saudi government announced an employment policy that would favour Saudi citizens over non-citizens and foreign workers. The Appellant's father owns a company that helps non-citizens in Saudi Arabia apply to foreign universities. The family's residency permits in Saudi Arabia are tied to his father's employment. As a small business owner, his sponsor is the Saudi government. Having learned of the new policy, the Appellant's father anticipated that the family would lose their residency permits and started the procedures to close his business. As the Appellant is the only family member without a residency permit in a country other than Saudi Arabia, he and his wife pre-emptively removed him to Canada. He arrived in Canada on XXXX XXXX XXXX 2018 and his mother requested asylum on his behalf. His father returned to Saudi Arabia a few days later. [2] The RPD eliminated Syria and the Palestinian Territories as countries of reference for the Appellant but retained Saudi Arabia. The RPD found that though there are differences in the treatment of Saudi citizens and non-citizens, the discrimination that he faced did not amount to persecution. It found that his father made a good living in Saudi Arabia and was able to pay the necessary fees related to the family's non-citizenship. It also found that he was able to return to Saudi Arabia on the date of the hearing. For these reasons, it rejected his claim. [3] On appeal, the Appellant argues that the RPD erred in concluding that: * Saudi Arabia is a country of reference in his case; * His status in Saudi Arabia is essentially similar to that of a citizen; * He could return to Saudi Arabia on a valid visa. [4] He also argues that the discrimination that he would suffer as a non-citizen in Saudi Arabia amounts to persecution. [5] Finally, he alleges that the RPD breached its procedural fairness obligations because: a. It did not have all of the documents that he entered into evidence in its file at the start of the hearing; b. The tribunal did not indicate that it was dissatisfied with his designated representative's responses and he alleges that had she understood that the tribunal was dissatisfied, she would have dissipated any doubts. [6] The determinative issues in this appeal are whether Saudi Arabia is a country of former habitual residence and whether the Appellant has a well-founded fear of persecution or a risk of harm in one or more of his countries of reference. [7] The appeal is denied. The RPD did not err in determining that his country of former habitual residence is Saudi Arabia. The Appellant was born in Saudi Arabia and has lived in no other country prior to his arrival in Canada. The Appellant left Saudi Arabia due to his father's decision to close his company in order to pre-empt Saudi employment policy favouring Saudi citizens that may be disadvantageous to non-citizens. The Appellant's right of return to Saudi Arabia has been affected by the decision not to return within the prescribed limits of his re-entry visa. NEW EVIDENCE The request to include new evidence is denied [8] The Appellant has requested that the Refugee Appeal Division (RAD) accept new evidence in the form of his Saudi Arabian electronic exit re-entry visa.1 The visa shows that his residence permit (iqama) expires on XXXX XXXX XXXX 2018 and that he must exit before XXXX XXXX, 2016. In order to accept this document into evidence, it must satisfy the provisions of Section 110(4) of the Immigration and Refugee Protection Act (IRPA), which states that: "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." [9] The Appellant has not explained why this evidence was not presented to the RPD nor why it was available to them only on appeal. This residency permit has been available to the Appellant since at least XXXX 2016 at the latest and likely prior to his exit from Saudi Arabia in XXXX 2016. It was available to them prior to the RPD hearing on February 15, 2017. It should have been reasonably available and expected to be presented to the RPD prior to its decision, which was issued on March 22, 2017. For these reasons, this new evidence does not meet the threshold necessary for it to be accepted into evidence on appeal. ANALYSIS [10] Because he is stateless, in order to establish that the Appellant is a Convention refugee or a person in need of protection, I must establish: a. His country or countries of former habitual residence; b. That he has a well-founded fear of persecution or that he is at risk of harm in one of his countries of former habitual residence; c. That he is unable to return to any other of his countries of former habitual residence by reason of a well-founded fear of persecution or because of a risk of harm. Country of Former Habitual Residence (CFHR) The RPD did not err when determining that Saudi Arabia is the Appellant's only country of former habitual residence [11] The RPD rejected the Palestinian Territories as a CFHR because though he possesses a passport issued by the Palestinian authorities, he cannot return to Palestine. The RPD rejected Syria as a CFHR because even though he has a travel document issued by Syrian authorities, he was not born in Syria and has never resided there. The RPD retained Saudi Arabia as a CFHR because he was born there and resided there before coming to Canada. [12] The Appellant agrees that he cannot return to the Palestinian Territories. He alleges that the RPD erred by concluding that Saudi Arabia is a country of former habitual residence. The RPD concluded that a country of former habitual residence is established if a relationship comparable to that of a citizen and his country of citizenship can be established.2 He alleges that he has no such relationship with Saudi Arabia. Citing Tab 3.1 of the Saudi Arabia National Documentation Package (NDP), he argues that non-citizens do not enjoy the same rights as citizens. [13] In Maarouf3, Justice Cullen of the Federal Court outlined the factors that define the term "former habitual residence": "In my view the concept of "former habitual residence" seeks to establish a relationship to a state which is broadly comparable to that between a citizen and his or her country of nationality. Thus the term implied a situation where a stateless person was admitted to a given country with a view to continuing residence of some duration, without necessitating a minimum period of residence." [14] Based on this jurisprudence, I agree with the RPD that Saudi Arabia is the Appellant's only country of former habitual residence, but for slightly different reasons. I agree with the Appellant that the RPD should not have used the criteria requiring that his status be comparable to that of a citizen in order to establish a country of former habitual residence. However, in its decision, the RPD did retain Saudi Arabia and eliminate Syria based on where he has resided and the quality of the time spent there. I agree with this part of the RPD's analysis. In this case, the Appellant's country of birth and only country of residence prior to coming to Canada was Saudi Arabia. He is not a citizen of any other country, including Syria, and has not spent any significant period of time in any country other than Saudi Arabia prior to arriving in Canada on XXXX XXXX XXXX 2016. [15] The Appellant also alleges that the RPD erred in determining that he could return to Saudi Arabia because his entry/exit visa was still valid on the date of the hearing. He argues that the RPD should have taken into account the delay necessary to accommodate the RPD's administrative procedures, resulting in the loss of his right of return by the time a deportation would be executed. The RPD did not need to take into account his right to return to Saudi Arabia when determining his country of former habitual reference. His right to return could be considered when analyzing whether or not he has been persecuted in that country, but it does not impact the establishment of Saudi Arabia as a country of reference. Moreover, respectfully, I disagree with the Appellant that the RPD should have accounted for administrative delays related to a decision on his deportation. Deportation procedures are not within the Board's mandate and the RPD has no jurisdiction in this area of the IRPA. No error was committed here. [16] The Appellant argues that Syria should be considered a country of former habitual residence and that his fear of persecution there should be considered. However, though he holds a travel document issued by the Syrian authorities, he has never resided there. The travel document that he holds confers no right of citizenship upon him. For these reasons, I cannot find that Syria is a country of former habitual residence and will not go on to analyse his fear of persecution there. [17] As I have confirmed that Saudi Arabia is the country of former habitual residence in this case, I will go on to evaluate whether the Appellant has a well-founded fear of persecution in Saudi Arabia. Fear of Persecution or Risk of Harm in Saudi Arabia The RPD did not err when determining that the Appellant is not at risk of persecution in Saudi Arabia [18] Is the Appellant, a stateless Palestinian born in Saudi Arabia, outside Saudi Arabia due to a well-founded fear of persecution for one or more grounds cited in the Convention (in the case of a Convention refugee) or at risk of harm (in the case of a person in need of protection)? [19] In order to live and work in Saudi Arabia, the Appellant's parents (or the Appellant when he reaches the age of majority) must be sponsored by an employer in Saudi Arabia. The Appellant's father runs a XXXX XXXX XXXX XXXX XXXX XXXX in Saudi Arabia XXXX XXXX XXXX XXXX since they cannot pursue a post-secondary education in Saudi Arabia. As a business owner, his sponsor is the Saudi Arabian government. [20] The Appellant's mother testified that they left Saudi Arabia on XXXX XXXX, 2016 because the Saudi Arabian government intends to implement policy that will restrict employment opportunities for non-citizens in Saudi Arabia. She testified that they feared being expelled and returned to Syria. She has entered into evidence a press clipping that confirms that the Saudi Minister of the Employment will end the "transfert services d'une entreprise à une autre et ce dans le but d'exproprier les emplois aux jeunes saoudiens et de mettre terme au chômage dans le marché d'emploi saoudien. "4 Essentially, with a view towards increasing employment opportunities for its citizens, the Saudi government will not allow employers to transfer its services to another employer with a view towards maintaining the employment of a foreign worker. In reaction to this announcement, her husband, the Appellant's father, has decided to formally close his business before coming to Canada as he, like his wife, is a permanent resident. [21] It is not persecutory for Saudi Arabia to implement policy designed to increase employment opportunities for its citizens. The evidence before me suggests that the reason that the Appellant's parents have removed their son from Saudi Arabia is not due to persecution based on a convention ground, but because they are proactively preparing for a change in policy that may impact their future employment. No evidence before me suggests that, in the over two years since their departure from Saudi Arabia, the Saudi government has required his father to close his business and has expulsed him from Saudi Arabia. I expect that because the Saudi government is his father's sponsor, he would immediately have been made aware of their intentions to close his business and end his residency. While I can understand the fear that the Appellant's parents have for their future employment prospects, the evidence before me does not indicate that those employment prospects will be unduly limited. Therefore, the Appellant has not established that he has a well-founded fear of persecution based on a Convention ground or that he is at risk of harm pursuant to section 97 of the IRPA due to this new policy. [22] The Appellant alleges that the discrimination that he faces as a non-citizen in Saudi Arabia amounts to persecution because though he is born in Saudi Arabia, he cannot access citizenship and must pay a fee to access social services such as healthcare and education. The Appellant's mother testified that as a non-citizen resident of Saudi Arabia, she has had to pay for her other children's education. [23] The Convention seeks to ensure that "human beings...enjoy fundamental human rights without discrimination."5 However, the question of what constitutes persecution has not been established in an objective manner. It has been noted that discrimination does not amount to persecution. However, if that discrimination is sustained and repetitive, it may constitute persecution. [24] Children born to expatriates in Saudi Arabia are not considered to be citizens of Saudi Arabia.6 The documentary evidence indicates that non-citizens born in Saudi Arabia do not have the same rights as citizens pertaining to access to education, health care, employment and social services. Non-citizens have residency rights if they remain in good standing. They can be employed in the private sector. They have access to free education until high school though some sources report that they have to pay a fee, even in elementary school. Non-citizens cannot attend university in Saudi Arabia, they must leave the country do to so. The evidence also shows that non-citizens born to non-citizen Saudi parents, such as the Appellant, have the right to live with their parents in Saudi Arabia.7 [25] I do not find that in this case, the discrimination that the Appellant faces in Saudi Arabia amounts to persecution. Though it comes with a fee, the Appellant maintains an access to education, health care and has a right to employment (even if it is restricted). Moreover, it is clear that in this case, the reason that he has left Saudi Arabia is not the limits on his access to these services, but the closure of his father's business that has not been imposed upon them by the Saudi government. Residency in Saudi Arabia The RPD did not err when determining that the Appellant could return to Saudi Arabia on the date of the hearing [26] The Appellant has argued that he has no right of return in Saudi Arabia and that this is persecutory. The RPD found that he had a right of return in Saudi Arabia on the date of the hearing. The RPD did not err in determining that he could return to Saudi Arabia at that time because the six month period allotted to him for re-entry had not yet expired. On appeal, it is clear that he has now lost that right. Therefore, I will go on to analyze whether his inability to return to Saudi Arabia amounts to persecution. [27] The documentary evidence indicates that the residency permit for male Foreign Workers includes residence permits for his wife and children. As stated, the reason for which the Appellant will not be able to return to Saudi Arabia is largely due to the family's decision and not due to active intervention by the Saudi government. Moreover, the reason that he has lost the right of return is due to his parents' decision not to return him to Saudi Arabia for the reasons already discussed in this decision. But, the actions of his parents do not nullify the fact that both his re-entry visa and iqama have expired and that the right to return is denied for those who do not leave Saudi Arabia according to official procedures.8 The denial of a right of return in and of itself may be persecutory.9 In the case of the Appellant, the evidence before me suggests that he would not be denied a right to return because he is a stateless Palestinian, or even a non-citizen born to expatriate parents, but because he did not follow the proper exit procedures when leaving Saudi Arabia. In this case, I find that the right of return does not amount to persecution. Procedural fairness The RPD did not breach the Appellant's right to procedural fairness [28] The Appellant alleges that the RPD breached its duty to procedural fairness because it did not have all of the evidence that he had submitted in its file at the start of the hearing. It also did not have a copy of the National Documentation Package on hand. He alleges that he had to offer the RPD member his own copies of these documents. He also alleges that during the hearing, the tribunal gave no indication that it was dissatisfied with the responses offered by his designated representative. He argues that had they known of the tribunal's dissatisfaction, they would have dissipated its doubts during the hearing. For these reasons, he believes that his case received neither the tribunal's full attention nor was it up to the standard of a fair hearing. [29] At the start of the hearing, RPD members regularly go through the exhibit list to ensure that both they and the claimant have all of the documents entered into evidence. That is what the RPD member did in this case. Her actions allowed both her and the Appellant to note that she did not have Exhibits C1-C5 on file. Counsel entered two extra pieces into evidence at the start of the hearing, C6 and C7. The RPD accepted those additional documents into evidence. The RPD took a few moments at the start of the hearing to look at the exhibits. All of those documents are contained in the RPD Record before me on appeal. [30] Having listened to the hearing, I note nothing that indicates anything other than an openness to hearing the Appellant's story for the purposes of determining whether he is a Convention refugee or a person in need of protection. The member never indicated that she would make a positive or negative decision during the hearing. She made it clear that she needed to look at the Appellant's situation in Saudi Arabia in order to complete her analysis. She openly stated that she did not think that she had the necessary evidence on file to conclude that the Appellant could not return to Saudi Arabia. The Appellant's designated representative responded to that concern during the hearing.10 The Appellant's counsel made extensive submissions on his situation in Saudi Arabia. What appears in her analysis is a consideration of the evidence before it before coming to a decision. The RPD did not communicate an oral decision during the hearing and issued its decision over a month later. It had ample opportunity to review all of the evidence on file, including the evidence that it received from the Appellant at the start of the hearing. There is no reason for me to doubt that the Appellant received a full and fair proceeding. The RPD committed no error here. CONCLUSION [31] I have found that the Appellant has not established a serious possibility of persecution due to a Convention ground. Based on the same analysis, I also find that he is not a person in need of protection pursuant to Section 97 of the IRPA. [32] The Refugee Appeal Division (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 section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) Ayanna Roberts Ayanna Roberts April 24, 2019 Date AR/dd 1 Appellant's Record, page 17. 2 Dossier de l'appelant. Motifs de la décision, page 6, paragraphe 13. 3 Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.). 4 RPD Record, page 122. 5 Convention and protocol relating to the status of refugees. Preamble. 6 National Documentation Package (NDP), Saudi Arabia, 28 February 2019, tab 3.4: Saudi Arabian Citizenship System. Saudi Arabia. 1954. 7 National Documentation Package (NDP), Saudi Arabia, 30 April 2018, tab 3.1: Rights of non-citizens born in Saudi Arabia to non-citizen Saudi-born parents, including residency, employment, education and access to social services; whether a non-citizen can return to Saudi Arabia after the "Return Before" date on their ... Immigration and Refugee Board of Canada. 19 May 2015. SAU105183.E. 8 NDP, Saudi Arabia, 30 April 2018, tab 14.1: Exit procedures and documents required for resident foreigners who leave the country; exit visas and their appearance; whether the Iqama is cancelled when a resident leaves the country; whether someone holding a valid Iqama can return to the country after leaving; whether foreign workers who are forced to retire can remain in the country. Immigration and Refugee Board of Canada. 15 January 2016. SAU105398.E. 9 Thabet v. Canada (Minister of Citizenship and Immigration), [1998] 4 FC 21, 1998 CanLII 9063 (FCA), at para 32. 10 Hearing recording. 21:10 to 25:55 minutes. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-03939 RAD.25.02 (September 18, 2018) Disponible en français 11 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 (September 18, 2018) Disponible en français