MB7-20799

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 / Dossier de la SAR : MB7-20799 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision February 21, 2019 Date de la décision Panel D. Lewis Tribunal Counsel for the person(s) who is(are) the subject of the appeal Mary Jane Campigotto Conseil(s) (de la/des) personne(s) 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 XXXX (the Appellant), a citizen of Syria, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. He alleges that he will be detained and tortured if he returns to Syria because he has not fulfilled his mandatory military service. He also fears persecution in Syria as part of the ongoing civil conflict because he is a Sunni Muslim. [2] For the reasons that follow, I find that the RPD erred by failing to consider the country conditions in Syria, mischaracterizing the evidence, and focusing on peripheral issues. I find that the Appellant's allegations are credible on a balance of probabilities. Accordingly, I allow the appeal and find that the Appellant is a Convention refugee. BACKGROUND [3] From 2007-2013, the Appellant had temporary residency status in Qatar. In 2013, he traveled to the United States (US). He stayed in the US past the expiration of his visa and married an American in 2014. They intended for her to sponsor him to become a US citizen. However, they discovered she had insufficient means to do so after the Appellant had been in the US for more than a year and was no longer eligible to apply for asylum. Therefore, in 2017, the Appellant decided to come to Canada to make a refugee claim. [4] The RPD rejected the Appellant's claim finding that he lacked credibility because of his delay in seeking asylum, inconsistencies regarding the date of his marriage, and the omission of a return trip to Qatar from the US from his Basis of Claim (BOC) narrative. The Appellant submits that the RPD erred by failing to reference country conditions in Syria and by basing its decision on an unreasonable analysis of the Appellant's testimony and evidence regarding the US process for sponsorship. DETERMINATION [5] 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 Appellant is a Convention refugee. ANALYSIS Role of the RAD [6] The RAD reviews RPD decisions on a standard of correctness. In limited circumstances the RPD may have a meaningful advantage over the RAD in assessing evidence that was before the RPD. In those cases the RAD will show deference to the RPD. In this appeal I have applied the correctness standard unless stated otherwise. Admissibility of New Evidence [7] The Appellant submits new evidence in the form of an affidavit from the Appellant dated October 19, 2017, in which he makes statements concerning his Sunni faith, his fear of persecution in Syria, and his delay in claiming asylum. The Appellant has included the following documents originating from the Immigration and Refugee Board as supporting exhibits to his affidavit: - The Expedited Policy - Designation of New Country which states that claims from Syria have been designated eligible for processing under this policy.1 - Chairperson Guideline 1: Civilian Non-Combatants Fearing Persecution in Civil War Situations (the Civil War Guideline).2 - National Documentation Package (NDP) for Syria versions 31 March 2017 and 29 September 2017.3 [8] Counsel argues that the affidavit and exhibits meet the new evidence criteria because they contain information responding to speculative RPD findings, which could not reasonably have been expected in the circumstances prior to the RPD determination. I find that information in the affidavit relating to the Appellant's family and military history cannot be admitted as new evidence because it was submitted to the RPD and therefore already part of the record. However, I agree that the portions of the affidavit concerning additional information related to the Appellant's delay in claiming asylum could not reasonably have been submitted previously because they related to speculative RPD findings and therefore meet the criteria of s. 110(4) of the IRPA. [9] The Expedited Policy and Chairperson Guideline do not need to be admitted as evidence to be referenced and applied, and therefore are not admissible as new evidence. The 31 March 2017 NDP is already part of the record. However, the 29 September 2017 NDP is new and relevant and therefore meets the s. 110(4) criteria. I find that the new portions of the Appellant's affidavit and the updated NDP package also meet the Raza/Singh4 factors because they are credible and relate to proving the central issues of subjective fear and risk of persecution in this claim. Therefore, they are admissible as new evidence. [10] The Appellant has requested an oral hearing if the RAD deems it necessary. I find that an oral hearing is not required in this appeal under s. 110(6) of the IRPA because the new evidence does not raise a serious issue about the Appellant's credibility, with regard to his central allegation of fear of persecution in Syria, given the objective national documentation for Syria, which should have been taken into consideration by the RPD. Accordingly, the Appellant's request for an oral hearing is denied. Merits of the Appeal Credibility and Delay in Claiming Asylum [11] The RPD found that the determinative issue in this case was the Appellant's behavior and that his behavior showed a lack of subjective fear and undermined the credibility of all of his allegations regarding the risks of returning to Syria.5 The Appellant alleges that this finding lacks objective support and was incorrect in light of the present conflict in Syria which has included the use of chemical weapons and allegations of crimes against humanity. I agree with the Appellant and find that the RPD erred when it made a determination regarding the credibility of the Appellant's allegations without applying the Civil War Guideline, considering the conditions in Syria, or analyzing the Appellant's risk of persecution. Trip to Qatar [12] When questioned by the RPD, the Appellant testified that he returned to Qatar in late 2013. The Appellant stated that he arrived in the US in April 2013 and travelled back to Qatar several months later to look for a job. However, his previous sponsor refused to renew his status in Qatar so, after approximately 15 days in Qatar, he found himself obliged to go back to the US before his US visa expired.6 The Appellant claims that he made the trip to Qatar because he had a valid US visitor visa, could legally enter Qatar at the time, and that he did not leave the US after his visitor visa expired on April 3, 2014.7 [13] The RPD found that the Appellant should have disclosed all of his travel earlier and mentioned this trip to Qatar in his initial refugee claimant interview with the Canada Border Services Agency.8 The Appellant claimed that he did not mention this trip in his interview because he thought he had been asked if he had left the US since coming back to the US for the last time.9 Whether or not he understood the interviewer's travel questions, a claimant cannot be faulted for not claiming asylum while in status. Therefore, I find that the RPD erred when it made a negative credibility inference because the Appellant did not claim asylum in the US while in the US under a valid visitor visa. Marriage and US spousal sponsorship process [14] I find that the RPD erred when it found that the Appellant's delay in claiming asylum from 2014-2017 showed a lack of subjective fear and also undermined his credibility. [15] With regard to when the Appellant met and married his wife, he claims that any inconsistencies were the result of typographical errors which were repeated in the text that had been copied. He testified and stated in his affidavit that the couple met around December 2013, not December 2014, and married in October 2014. I find that this explanation is credible on a balance of probabilities as the Appellant's BOC form10 and certificate of marriage11 both reflect a wedding date of October 17, 2014. In addition, any inconsistencies in the evidence concerning the date of the Appellant's marriage are peripheral to the Appellant's central allegations of fear of persecution in Syria. [16] The courts have held that it is reasonable to expect people fleeing persecution to claim refugee protection at the first possible opportunity and that, in certain circumstances, delay may justify rejecting a refugee protection claim. However, I find that this was not such a case. The Appellant has provided explanations and corroborating evidence for his delay in claiming asylum and seeking permanent status in the US, which I find to be probable on a balance of probabilities. Furthermore, delay alone cannot undermine the credibility of the Appellant's subjective fear given the ongoing civil war and humanitarian crisis in Syria, which are recognized in the national documentation and should have been assessed by the RPD in its reasons.12 [17] The Appellant has only a high school education. In his affidavit he states that he initially thought he could obtain temporary residency in the US if he was sponsored by an employer, but that his employer did not tell him about the US laws and took no steps to sponsor him. The Appellant claims that he was not able to understand the refugee and immigration system in the US, or afford to access the system, until important deadlines had passed. The Appellant testified that in 2014-2016, he was working illegally in the US and being paid less than minimum wage. It took him until early 2015 to save enough money for an immigration lawyer. He testified that his lawyer told them he needed a sponsor but that his wife, who had a young child from a previous relationship, could not sponsor him because she was not working at the time and she did not have the means to sponsor him under the US poverty test guidelines.13 In addition, the Appellant and his wife did not have the estimated USD$2600 his lawyer said the paperwork would cost. [18] The Appellant testified that given their situation, he continued to work illegally in the US and sometime later, a new employer said that he would be a financial guarantor so his wife could sponsor him. The Appellant submitted the medical examination he completed to start the process as corroborating evidence.14 He claims that, at the time, he was earning approximately USD$300/month and the fee for the medical examination was USD$330, which was over a month's salary. He also testified that when he returned to see the immigration lawyer, this time he was told that the paperwork would cost USD$3500. The Appellant claims that this all occurred two or three months before Donald Trump became the US President and amid the rising anti-Muslim sentiment in the US, his sponsor changed his mind and decided not to help him. The Appellant stated that after this, he was desperate and he and his wife looked for a legal means for him to stay in the US. When questioned about his attempts to obtain status in the US by the RPD, the Appellant testified that he did not seek temporary protected status in the US because after President Trump came to power, they were listening to his rhetoric concerning the Syrian people and comparing it to what Prime Minister Trudeau was saying about Syrian refugees; so he decided to come to Canada and make a refugee claim.15 Risk of harm in Syria [19] The Civil War Guideline states that the definition of Convention refugee may be applied to claimants fearing return to situations of civil war where the harm feared constitutes persecution.16 The Guideline also states that when determining whether persecution is based on a convention ground, the applicant can show that the fear he had results not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed, or likely to be committed, against members of a group to which he belongs.17 [20] The Appellant submits that he faces substantial risks of harm in Syria, which are not general consequences of the civil war in Syria, and for which there is no internal flight alternative because the risk is throughout the country and the state is the main agent of persecution, which are all considerations under the Guideline. He alleges that he fears return to Syria because he has not paid the military service exemption fee and therefore would be detained as a deserter upon arrival in Syria. He objects to paying the substantial fee because the money would go to supporting the current Syrian regime which is killing civilians. Furthermore, he claims that there is no guarantee that paying the fee would protect him from having to serve in the military because of the ongoing need for soldiers. Finally, the Appellant alleges that he fears persecution in Syria by extremist forces and Assad forces because he is a Sunni Muslim. [21] The Appellant has submitted an affidavit dated May 24, 2017 from XXXX XXXX, an Arabic interpreter and translator. Attached to the affidavit as exhibits are a copy of the Appellant's Syrian Military Book in Arabic and an English translation of the book.18 The document contains a record of postponements the Appellant received for his military service while he was in secondary school, during his brother's service, and while he was a resident in Qatar. [22] The national documentation indicates that Syrian nationals who try to evade military service face imprisonment or forced conscription, and may be seen as treasonous and against the regime and subjected to torture.19 The UNHCR has noted intensified efforts by the Syrian government to recruit reservists and conscripts including a rise in the targeting of certain groups, such as religious minorities, and the revocation of service exemptions.20 Based on the Appellant's testimony, documentary evidence, and the objective national documentation, I find that, on a balance of probabilities, the Appellant belongs to the particular social group of young men who have been conscripted into the Syrian army. As such, he faces a serious possibility of being persecuted in the form of imprisonment or torture by the state for evading military service. Accordingly, I find that the Appellant is a Convention refugee under s. 96 of the IRPA. CONCLUSION [23] The appeal is allowed. The RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) D. Lewis Member February 21, 2019 Date 1 Appellant's Record, Expedited Policy - Designation of New Country, at page 16. 2 Ibid. at page 17, Chairperson Guideline 1 - Civilian Non-Combatants Fearing Persecution in Civil War Situations (the Civil War Guideline) IRB, March 1996. 3 Ibid. at page 36. 4 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 and Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 RPD-1, RPD Record, RPD Reasons at paragraph 12. 6 Transcript of RPD hearing at page 17. 7 Ibid., US Visa at page 94. 8 Ibid. Refugee Claimant Interview Notes at page 72. 9 RPD hearing transcript at page 21. 10 RPD-1, RPD Record, Exhibit 2, BOC. 11 Ibid. License and Certificate of Marriage at page 103. 12 RPD-1, RPD Record, Exhibit 3, Syria National Documentation Package, version 30 September 2016, documents 1.6 "Operational Guidance Note: Syria" source: United Kingdom, Date of document: 21 February 2014; document 1.8 "Armed Conflict in Syria: Overvivew and US Response," source: US Congressional Research Service, date of document: 9 October 2015; and document 1.9 "Syria: Numbers and Locations of Refugees and IDPs," Source: United States Department of State Humanitarian Information Unit, date of document: 27 August 2015. 13 RPD-1, RPD Record, Affidavit of Support, U.S. Citizenship and Immigration Services at pages 176-177. 14 Ibid. Affidavit of Belinda Martinez, Exhibit G at pages 197-198. 15 RPD Transcript at pages 33-35. 16 Ibid. note 4 at section II. Determining Whether Persecution is Based on a Convention Ground. 17 Ibid. 18 RPD-1, RPD Record, Affidavit of Nazer Marar at page 147-172. 19 RPD-1, RPD Record, Exhibit 3, Syria National Documentation Package, version 29 September 2017, document 8.1, Compulsory military service, including age of recruitments, length of service... Source: IRB Response to Information Request, date of document: 13 August 2014. See also, document 8.6, Syria. Recruitment Practices in Government-controlled Areas and in Areas under Opposition Control, Involvement of Public Servants and Civilians in the Armed Conflict and Issues Related to Exiting Syria. Source: Danish Refugee Council, Date of document: August 2017 and document 8.3, Syria: Update on Military Service, Mandatory Self-Defence Duty and Recruitment to the YPG, Source: Danish Refugee Council, Date of document: September 2015. 20 Ibid., document 8.2, Changes to legal exemptions from compulsory military service, including implementation (January - July 2017), Source: IRB Response to Information Request, date of document: 18 September 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-20799 RAD.25.02 (September 18, 2018) Disponible en français 9 RAD.25.02 (September 18, 2018) Disponible en français