TB4-06848

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 File No. / N° de dossier de la SAR : TB4-06848 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 24, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Razgar Hasan Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX XXXX), a citizen of Iraq, is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA). [2] The Appellant did not submit new documents for consideration pursuant to RPD Rule 110(4), and is not requesting a hearing before the Refugee Appeal Division (RAD). [3] The Appellant requests that the RAD allow the appeal and find the Appellant to be a Convention refugee, or in the alternative remit the matter for redetermination by a differently constituted panel "giving directions with respect to the consideration of the exclusion issue". DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1)(a) of IRPA, the RAD confirms the determination of the RPD. This appeal is dismissed. BACKGROUND [5] The Appellant, a citizen of Iraq, left Iraq in 2000 with her husband due to a risk to their lives. She resided in Jordan from 2000 and obtained legal status (residency permit) in Jordan in 2010. Her husband is an engineer; he works in XXXX. Her son attacked the Appellant on XXXX XXXX, 2013, and his girlfriend threatened to have her residency permit in Jordan cancelled. She left her apartment and stayed with a friend until her departure to Canada. She arrived on XXXX XXXX, 2014. The claimant made a claim for refugee protection a few days later. [6] Her claim was heard on May 13, 2014 and the RPD, in its written decision dated June 27, 2014, found that the Appellant was excluded pursuant to Article 1E of the Convention and that she is not credible, and thus she is neither a Convention refugee nor a person in need of protection. [7] Since there are no new documents, this appeal therefore will be considered based on the record as well as the Appellant's brief memorandum. Grounds for Appeal: [8] The Appellant raised the following issue, "Was the panel's finding that the appellant was excluded from refugee protection based on Article 1E of the Refugee Convention reasonable?" The Appellant did not raise an issue with the RPD's credibility assessment in his memorandum. Role of the RAD: [9] Huruglica1 provides guidance to the Refugee Appeal Division regarding its role, where the court stated the following: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error.2 Merits of Claim [10] Guided by Huruglica, I will recognise and respect the RPD's credibility findings where it enjoyed particular advantage of having seen the Appellant and taken direct testimony from her, and the Appellant did not challenge the RPD's credibility findings. [11] The Appellant's claim for refugee protection was dismissed as the RPD found that the Appellant is excluded pursuant to Article 1E of the Convention; and that she has not established a risk to her life or a risk of harm if she were to return to Jordan, and that she was not credible. [12] The Appellant's issue, in her words, is as follows: "Was the panel's finding that the Appellant was excluded from refugee protection based on Article 1E of the Refugee Convention reasonable? I will rephrase the issue as, "did the RPD err in its finding that the Appellant is an excluded person pursuant to Article 1E of the Convention". [13] The Appellant submits that she does not have the basic rights similar to those enjoyed by the Jordanian citizens, in particular that she does not have the right to work, and that she may not have rights to social services. Both of these comments are based on consultation notes3 provided by a lawyer in Jordan which were attached to the post-hearing submissions made by the counsel for the Appellant at the RPD hearing. The Appellant submits, in paragraph 13, of his Memorandum: The letter from the Jordanian lawyer set out that individuals with residence in Jordan, such as the Appellant, had the following rights: a) Has the right to work in a specific business as needed, provided that he has the efficiency of scientific or professional that is not available in the Kingdom, and has to provide the approvals of professional actors, and security approvals. Appellant's Record, page 50 [14] The Jordanian lawyer's consultation notes make reference to and are based on "Jordan: Law No. 24 of 1973 on Residence and Foreigners' Affairs" without providing a copy of the actual law number 24. If the Jordanian lawyer is depending on some other laws of Jordan, he does not provide any reference to those. [15] The document "Jordan: Law No. 24 of 1973 on Residence and Foreigners' Affairs" however is contained in the National Documentation Package (NDP)4 and was accepted by the RPD as evidence on page 84 of the RPD record, item 3.1. This is a nine-page document. I prefer the original law over the comments provided by the Jordanian lawyer in the following reasons. First, the lawyer's consultation notes had been crossed at two places and therefore I find that it is a redacted document. The reference to right to work in the paragraph above, in my opinion, is misread and a misrepresentation of Article 26 of the Jordan law, number 24, which states the following: Article 26 A residence permit shall be granted to a foreigner if the competent authorities are satisfied as to the reasons justifying his residence, provided that the applicant is: (a) A person holding an employment contract with a company or registered business or with an employer established in the Kingdom, provided that his activities are not in competition with those of Jordanians and that a certificate to that effect is issued by the Ministry of Labour and Social Affairs or by another competent authority; (b) A person who, throughout his residence, has a secure and lawful source of income, either domestic or from abroad, which shall be established by means of a certified official document; (c) A person who has come to the Kingdom to invest capital in commercial or industrial ventures approved by the Ministry for the National Economy; (d) A person possessing scientific or vocational skills to which there is no equivalent in the Kingdom, provided that such skills are established by means of written official certificates issued by recognized authorities, subject to the approval of the competent Jordanian authorities; (e) An official or employee of a diplomatic or consular mission in the Kingdom, subject to reciprocity; (f) A disabled person or a minor child whose only provider resides in the Kingdom; or, (g) A student admitted to a Jordanian educational establishment. [16] A read of this Article 26, subsections "a to g", makes it clear that the resident status is provided to persons who meet one of the conditions in subsections "a to g". The Appellant received her status in Jordan by meeting conditions in Article 26(b) of the Jordanian law. As I've read the law, I find, on a balance of probabilities, that a person applying for her resident permit in Jordan is required to meet one of those seven conditions stated in Article 26 of the law, not all of those conditions. Based on this, I find that the Appellant has the right to work. The fact that she does not work may be based on her own choice and/or on the fact that it is very hard to find a job. Thus, I am not persuaded by the Appellant's submission in paragraph 14 of the memorandum "...that the appellant did not have the right to work freely without restrictions." [17] The Appellant also submits that, "there was no information from the Jordanian lawyer that the appellant had any right to social services in Jordan". Absence of this information may also indicate that residents have rights to social services since they are not specifically denied in the law. The Appellant testified at the RPD hearing that she had access to all four "basic rights" attached to the possession of nationality in Jordan as set out in Shamlou.5 These rights in Shamlou are: the right to return to the country of residence, the right to work freely without restrictions, the right to study and the full access to social services in the country of residence. [18] The Appellant also submits that one of the conditions for residency "was maintaining a certain balance in the Appellant's bank account", and that there may be factors beyond her control that she may be unable to maintain such funds including ill health or her husband losing his "employment in Yemen." I find that these arguments are speculative and thus I am not persuaded that the condition for maintaining a bank account means that she did not enjoy her status on the day of the hearing. Based on the foregoing, I find that the Appellant is an excluded person pursuant to section 98 of the Act and Article 1 E of the Convention. [19] The Appellant did not raise any issue regarding the credibility related concerns expressed by the RPD in finding that the Appellant is not credible. I have reviewed the reasons and recognize and respect the credibility findings of the RPD due to the particular advantage enjoyed by the RPD. Thus, I will not disturb the RPD findings as I find these are supportable. [20] Guided by Huruglica above, I considered the totality of the evidence before me and I noted that the RPD reasons have two minor misstatements of facts. First, the RPD wrote, in his paragraph 2, "The claimant made a claim for refugee protection a few months later." However, I note that the claim was made within a few days after her arrival in Canada. Second, in the same paragraph, the RPD wrote: "In XXXX 2013, the claimant's son attacked her." In fact, the Appellant's narrative states that she was attacked by her son on November 20, 2013. However, based on a thorough review of the reasons, I find that these errors do not impact the RPD's determination. [21] I also note that the RPD did not conduct a risk analysis for her return to Iraq. However, it is not an error since the Appellant had residency in Jordan where she could return safely and was excluded. There is no legal obligation for the RPD to assess inclusion when a person has been found to be excluded. [22] Based on the foregoing, I find that the Appellant is an excluded person and is neither a Convention refugee nor a person in need of protection. Thus, this appeal is dismissed. CONCLUSION [23] Pursuant to ss. 111(a) of the Act, the RAD finds that the Appellant is neither a Convention refugee nor a person in need of Canada's protection and confirms the determination of the Refugee Protection Division. [24] This appeal is therefore dismissed. (signed) 'Atam Uppal' Atam Uppal November 24, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799, paras. 54-55. 3 Appellant's record, pages 49 to 52. 4 RPD-1, National Documentation Package, Iraq, item 3.1 5 Shamlou v. Canada (M.C.I.), 1995, paragraph 35, F.C.J. 1537 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06848