TB9-10238

RAD File / Dossier de la SAR : TB9-10238 TB9-10239 / TB9-10240 / TB9-10241 TB9-10242 / TB9-10243 / TB9-10244 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX) XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX) XXXX XXXX XXXX (a.k.a. XXXX XXXX) XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX) XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX) XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision December 19, 2019 Date de la décision Panel Ayanna Roberts Tribunal Counsel for the persons who are the subject of the appeal Thaer Abuelhaija Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Principal Appellant), his wife XXXX XXXX XXXX XXXX (co-Appellant) and their children, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX (minor Appellants) have appealed a decision of the Refugee Protection Division (RPD) dated April 1, 2019, rejecting their claims for refugee protection. [2] The Principal Appellant is a stateless Palestinian who was born in Jordan though he has lived his whole life in Saudi Arabia. The co-Appellant is a stateless Palestinian who was born in Saudi Arabia. XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (the American Appellants) are citizens of the United States. The other minor Appellants are stateless Palestinians born in Saudi Arabia [3] The Principal Appellant and his family are alleging that he lost his job because he is a stateless Palestinian. The Appellants also allege that they have lived with daily racism and discrimination as Palestinians in Saudi Arabia. The co-Appellant alleges being subject to serious restrictions on her daily life as a woman in Saudi Arabia. [4] The RPD rejected the American Appellants' claims because they had not advanced any fear against the United States, their country of citizenship. The Appellants have not challenged the RPD's decision on appeal. [5] The RPD rejected the other Appellants' claims because the discrimination they face in Saudi Arabia does not cumulatively amount to persecution. The Appellants argue that the RPD erred in its analysis leading to that conclusion. They also argue that the RPD did not correctly evaluate whether the co-Appellant faced persecution in Saudi Arabia based on her gender. [6] The appeal is allowed for the female Appellants, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX. The discrimination they face as women in Saudi Arabia cumulatively amounts to a serious possibility of persecution. The documentary evidence establishes that they will be subject to serious restrictions on their daily lives as women in Saudi Arabia who wish to defy cultural norms, such as failing to wear an abaya. [7] The appeal is denied for the American Appellants, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX. They have not advanced any fear of persecution against the United States, their country of citizenship. [8] The appeal is denied for XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX. Though they are subject to restrictions as noncitizens or stateless individuals in Saudi Arabia, they have access to social services, employment and housing in a way that allows them to live their daily lives in a manner that is not persecutory. Should they be denied the right to return to Saudi Arabia, it will be because they have allowed their residency permits to expire in a manner that is not consistent with Saudi rules and regulations, which is not persecutory. NEW EVIDENCE AND ORAL HEARING The request to admit new documents into evidence is denied [9] The Appellants have submitted new evidence to the RAD pursuant to Section 110(4) of the Immigration and Refugee Protection Act (IRPA). The new evidence consists of: * An article dated April 18, 2019 entitled "Escalating Arrests of Palestinians Expressing Opinions in Saudi Arabia" describing that dozens of Palestinians are arrested for using social media to criticize the 2014 Israeli war on the Gaza strip. The article expresses that the Palestinians have been detained in a manner that is contrary to international law. * An article dated April 19, 2019 entitled "Academic: Saudi arrest campaign against Palestinians" describing an arrest campaign against Palestinians who have sympathized with the resistance in Palestine or supporting Hamas. The article indicates that Saudis who sponsored or employed Palestinians have also been arrested. [10] The Appellants argue that these two articles are relevant to the matter and situation of Palestinians in Saudi Arabia and that they are new and were issued after the date of the hearing. Though the articles were published after the RPD rendered its decision, the situation of Saudi Arabia engaging in the arrest and detention (arbitrary or otherwise) of people expressing opinions contrary to its policies is not new and is well addressed in the country's National Documentation Package (NDP). The arrest and detention of human rights activists for their use of social media is also well documented. Moreover, though the Appellants submitted these articles as new evidence, they have not advanced any arguments using this new evidence in their memorandum on appeal. Even if the articles were to be admitted into evidence based solely on the date of the articles, the information does not prove or disprove any fact relevant to the claim nor does it add new information about the situation of Palestinian dissidents in Saudi Arabia. For these reasons, the request to admit these articles into evidence before the Refugee Appeal Division (RAD) is denied. The request to hold a hearing is denied [11] The Appellants have requested a hearing pursuant to Section 110(6) of the IRPA. I can only hold a hearing if new evidence is raised under Section 110(4) of IRPA. Since I have not allowed the Appellant's request to include new evidence in the record, the request for a hearing is denied. ANALYSIS Findings and Arguments [12] The RPD correctly found that the country of former habitual reference for the Appellants, with the exception of the American Appellants, is Saudi Arabia. [13] After analysing their claims, it found that the Appellants had not met their burden in establishing that the residency, citizenship and employment laws enacted by Saudi Arabia are persecutory to them as stateless Palestinians. It arrived at that conclusion for the following reasons: * The laws in Saudi Arabia are laws of general application. Palestinians in Saudi Arabia do not receive treatment different from other foreigners. * Though public social benefits are restricted for all foreigners, the Appellants received an education at the primary and secondary levels and private healthcare in Saudi Arabia. * Though the Principal Appellant lost his job because he was not a Saudi citizen, he had been working contrary to Saudi labour laws that restrict human resources work to citizens only. It found that there was nothing inherently persecutory about Saudi labour law benefiting its citizens. * Though the Principal and co-Appellants experienced incidents of racial discrimination while living in Saudi Arabia, and though there are significant restrictions on the ability of women to move freely within the country, the co-Appellant's experiences did not constitute persecution. [14] The Appellants argue that the RPD erred in its analysis in the following ways: * It did not determine if the Appellants can return to KSA; * It did not consider that KSA is not a signatory to the 1951 Refugee Convention; * It did not consider that the nature of the cumulative harassment they faced amounts to persecution; * It did not consider that the denial of return in and of itself may constitute persecution; * It did not apply the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution in its analysis. Discrimination amounting to persecution The RPD did not err in finding that the discrimination the male Appellants faced in Saudi Arabia amounts to persecution [15] The determinative issue is whether the discrimination that the Appellants suffered in Saudi Arabia cumulatively amounts to persecution. The RPD correctly found that the male Appellants' experiences in Saudi Arabia did not cumulatively amount to persecution. [16] It is true that the RPD did not determine if the Appellants can return to Saudi Arabia, did not consider whether Saudi Arabia is a signatory to the 1951 Refugee Convention, and did not consider that the denial of return may constitute persecution in and of itself. However, I do not find that the RPD erred in doing so. [17] Whether or not Saudi Arabia is a signatory to the Convention has no bearing on whether or not the Appellants were persecuted in Saudi Arabia. A country that is a signatory to the Convention could be seen to persecute its citizens while a country who is not a signatory may not engage in persecutory behavior. [18] The Appellants' residency permits have expired.1 Though the Appellants do not have the right to return to Saudi Arabia, they must still establish a well-founded fear of persecution in that country since the RPD correctly identified it to be the country of former habitual residence for the stateless Appellants. Whether or not the RPD erred by not considering whether the right to return is persecutory will be addressed in the analysis of whether the discrimination that the Appellants face in Saudi Arabia amounts to persecution. [19] The RPD required the Appellants to establish a well-founded fear of persecution in Saudi Arabia. The Appellants claimed that they were subject to persecution in Saudi Arabia as a result of the discrimination that they faced. [20] The United Nations has recognized that discrimination does not necessarily amount to persecution. 54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. 55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.2 [21] The Federal Court has found that a systemic denial of human rights can constitute persecution and that the cumulative effects of discrimination and harassment may meet the definition of persecution.3 [22] The Principal Appellant explained that he lost his job after representing his company at a job fair open only to Saudi nationals. At that fair, a representative of the Ministry of Labour identified him as non-Saudi, declared that a person performing his job should be a Saudi national, and threatened his company with a fine and him with deportation. Following that incident, his company replaced him with a Saudi national. His termination letter confirms that he was terminated due to the "localization of the profession of human resources manager" despite his good conduct.4 The RPD correctly found that the Principal Appellant had, in fact, occupied his employment in a manner that was contrary to local labour laws and those labour laws favouring Saudis are not inherently persecutory. While the Principal Appellant did not have access to his preferred employment streams, he did not establish that he could not find other employment even in a difficult economy before leaving Saudi Arabia. [23] He also testified to being subject to discrimination on a daily basis as a stateless Palestinian living in Saudi Arabia. This discrimination includes having to wear a Saudi outfit while attending public school as a child and being stopped by a policeman at a yellow traffic light. The policeman appeared to only stop those not wearing the proper head covering. [24] The co-Appellant testified that she was called a foreigner by students at school, and that even though she should have been able to attend school for free, as a foreigner, the school prevented her from registering until she paid a fee under the table. She had to be completely covered in public at the request of religious authorities. She testified that she was pushed by a Saudi person at a mall who called her a foreigner. She was turned away from a government hospital while in labour. Finally, she was not able to study at university because she was a Saudi national. [25] The RPD found the Appellants' testimony about incidents of discrimination to be credible and reflective of the objective documentary evidence. However, it did not consider that they were so serious as to amount to persecution. I find that the RPD arrived at this conclusion correctly for the male Appellants but that its conclusion is incorrect for the female Appellants. [26] The Principal Appellant testified that he did not fear returning to Saudi Arabia but clarified that he could not settle in Saudi Arabia as he does not have the right to return. He testified that though he did not have access to public healthcare and schooling, he still received primary and secondary educations, and medical treatment in private hospitals. He was able to obtain employment and has not demonstrated that alternative employment was not available to him once he lost his job in human resources. He acknowledged that he had travelled to the US several times without requesting asylum but that he returned to Saudi Arabia because the pressure that he was living was still manageable. He testified that when he had a third child, the cost of his children's educations coupled with the cost of their residency permits had become too much. He explained that the pressure that he faced together with the threat of being deported due to illegally occupying a human resources job had encouraged him to leave. [27] Discrimination in any society is deplorable. However, discrimination in and of itself is not grounds for protection. I find that the cumulative effect of the Principal Appellant's experiences with discrimination and restricted access to services does not place restrictions upon him that are so serious as to constitute persecution. [28] While the RPD did not consider whether the Appellants have the right to return to Saudi Arabia, the right to return does not exclude a country from being designated a country of former habitual reference. However, the denial of the right to return may be considered an act of persecution in itself.5 In this case, the Principal Appellant's reasons for leaving Saudi Arabia were clearly enunciated. Though he faced a scare when a Ministry of Labour representative sanctioned him for illegally working in human resources, ultimately, he was sanctioned in a manner that does not indicate that government action was taken to deport him for that reason.6 If the Principal Appellant and his dependents are refused entry to Saudi Arabia, it will be because they voluntarily let their residency permits lapse.7 Here, the denial of the right to return is not persecutory. [29] I find that the RPD did not err in finding that the Principal Appellant has not established that he will be subject to a serious possibility of persecution in Saudi Arabia. I arrive at the same conclusion for his son XXXX appeal since it is based on that of the Principal Appellant. However, I find that the RPD erred in its analysis for the female Appellants whose claims must consider not only the impacts of life as stateless Palestinians in Saudi Arabia but also the impacts of life as women in that country. Well-founded fear for the female Appellants The RPD erred when it considered that the co-Appellant's experiences as a woman and stateless Palestinian in Saudi Arabia did not cumulatively amount to persecution. [30] The co-Appellant clearly testified that she feared persecution in Saudi Arabia because she is a woman and therefore cannot access her full human rights. She testified that at school and generally, she is required not only to wear the hijab head covering but also the abaya, which covers her face. She testified to being uncomfortable with wearing the abaya and related an incident where she got into the wrong car because she could not see. She related that religious people confronted her in the shopping mall for not covering her face and also the face of her daughter. She testified that though women in Saudi Arabia are now allowed to drive, as a foreigner, she still faces barriers to driving. She testified that she was without health insurance and attempted to give birth at a public hospital but was told that as a noncitizen, they would not offer her service. She transferred to a private hospital with her baby's head already protruding from her body, making the transfer difficult. She stated that her health and that of her child had been put at risk. She testified that she did not work, did not attend university and that as a woman, she had no say without a sponsor such as a husband, father or brother. Her residency permit indicates that since she is dependent upon the Principal Appellant for residency, she is not allowed to work.8 [31] The RPD erred when it concluded that though the co-Appellant experienced gender-based discrimination, her personal experiences in this regard did not constitute persecution. It incorrectly found that her experiences were not persecutory because "foreigners and citizens alike are expected to follow prevailing cultural norms in Saudi Arabia"9 and that the co-Appellant had not been mistreated by religious authorities who requested that she wear the proper covering. [32] The prevailing cultural norms in Saudi Arabia place serious restrictions on women who choose to defy those norms. The co-Appellant's testimony indicates that she expressed behaviours which did not conform to the cultural norms expected of women in Saudi Arabia, including not wearing the appropriate religious coverings in public. She expressed discomfort at being expected to dress in a certain way. She testified that she was spoken to by religious authorities when she did not comply. Her experiences indicate that she is and will be required to conform to local norms against her will. [33] The objective documentary evidence on Saudi Arabia speaks to women being subject to severe restrictions in public. Specifically, Saudi Arabia's guardianship system is particularly restrictive though the Kingdom has taken steps to modernize and relax its rules.10 In law, there have been a number of reforms allowing women greater access to employment and freedom of movement independent of their male guardians; in practice, women are still denied driver's licences and public and private institutions still require a male guardian's consent in order for a woman to access its services though that guardian's consent is not required by law.11 Women were attacked for using their recently accorded permission to drive.12 Only divorced, widowed or Saudi women married to foreign-born men can obtain their own identity cards; most Saudi women must register with the government via their male guardians.13 Though Saudi women are highly educated, they account for only 13 percent of the positions occupied by Saudi nationals.14 Women must comply with a compulsory dress-code and wear an abaya in public.15 The United Nations has expressed concern about this dress code and has implored Saudi Arabia to "[e]nsure women's right to choose their dress, including by taking effective measures to protect them from violence, threats or coercion by the religious police and male guardians."16 Women's rights activists were detained without charge and tortured by Saudi government officials in June 2018.17 [34] I consider that it is dangerous for women in Saudi Arabia to express themselves outside of culturally-accepted norms despite the recent legal reforms. The documentary evidence indicates that the reforms have not significantly changed the situation for nonconforming women in Saudi Arabia and that general societal attitudes have not significantly changed following those reforms. [35] While it is not necessarily true that all women in Saudi Arabia are persecuted, the co-Appellant's testimony that she does not wish to conform to Saudi Arabia's gender-based norms and has been required to do so indicates that her fundamental human rights are being unduly restricted in a manner which constitutes persecution. The co-Appellant testified that she fears her daughters will be subject to the same restrictions on their rights in Saudi Arabia and I agree. [36] I find that the restrictions that the Kingdom of Saudi Arabia has placed upon the co-Appellant and her stateless daughters XXXX and XXXX amount to persecution, and also when considered cumulatively with the restrictions they face as stateless persons. I find that since that persecution comes at the hands of the state and is pervasive throughout the Kingdom, they cannot access state protection or an internal flight alternative. For these reasons, I find them to be Convention refugees as women who defy culturally accepted norms in Saudi Arabia. CONCLUSION [37] The RAD dismisses the appeal and confirms the decision of the RPD that XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). [38] For XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, the appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refugees. (signed) Ayanna Roberts Ayanna Roberts December 19, 2019 Date AR/dd 1 RPD Record. Electronic Exit Re-Entry Visas. Pages 338-344. 2 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979. 3 Liang v. Canada (Citizenship and Immigration), 2008 FC 450 (CanLII), <http://canlii.ca/t/1whzt>, retrieved on 2019-12-05. 4 RPD Record. Letter from Gulf Medival Co. Ltd. Pages 346-347. 5 Maarouf v. Canada ( Minister of Employment and Immigration ), 1993 CanLII 3021 (FCA), [1994] 1 FC 723, <http://canlii.ca/t/4nlw>, retrieved on 2019-12-06. 6 RPD Record. Violation report. Pages 362-363. 7 National Documentation Package (NDP), Saudi Arabia, 29 March 2019, 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. NDP, Saudi Arabia, 29 March 2019, 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 RPD Record. xxxx xxxx residency permit. Pages 350-351. 9 RPD Record. Reasons for Decision. Page 13. Paragraph 34. 10 NDP, Saudi Arabia, 29 March 2019, tab 5.2: Boxed In: Women and Saudi Arabia's Male Guardianship System. Human Rights Watch. 16 July 2016. NDP, Saudi Arabia, 29 March 2019, tab 5.5: Hollow Words, Empty Reforms: Saudi Arabia's Effective Refusal to Reform Women's Rights. Americans for Democracy & Human Rights in Bahrain; Bahrain Institute for Rights and Democracy. 8 June 2017. 11 Idem. 12 NDP, Saudi Arabia, 29 March 2019, tab 2.1: Saudi Arabia. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019. 13 Supra, at note 2. 14 Supra, at note 2. 15 NDP, Saudi Arabia, 29 March 2019, tab 2.1: Saudi Arabia. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019. 16 NDP, Saudi Arabia, 29 March 2019, tab 5.3: Concluding observations on the combined third and fourth periodic reports of Saudi Arabia. United Nations. Committee on the Elimination of Discrimination against Women. 14 March 2018. CEDAW/C/SAU/CO/3-4. 17 NDP, Saudi Arabia, 29 March 2019, tab 2.5: Saudi Arabia. World Report 2019: Events of 2018. Human Rights Watch. January 2019. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-10238 TB9-10239 / TB9-10240 / TB9-10241 TB9-10242 / TB9-10243 / TB9-10244 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