TB8-07355

RAD File / Dossier de la SAR : TB8-07355 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 8, 2019 Date de la décision Panel M. Oh Tribunal Counsel for the person(s) who is(are) the subject of the appeal Bahar Karbakhsh-Ravari 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX ("the Appellant") appeals a decision of the Refugee Protection Division ("RPD"), rejecting his claim for refugee protection. The Appellant, who is a citizen of Iran and a permanent resident of Hungary, argues that the RPD erred in determining that he is excluded from refugee protection due to his status in Hungary. The Appellant also argues that the RPD failed to properly consider the risks to him in both Hungary and Iran. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"),1 the appeal is dismissed. After conducting an independent assessment of the evidence, I agree with the RPD's decision and reasons. The Appellant is excluded from refugee protection as a result of Article 1E of the Refugee Convention. BACKGROUND [3] The Appellant describes that he left Iran because of problems he had with Iranian authorities over the years. Apart from being a student activist, the Appellant claims that he was also targeted because he wore Western-style clothing and discussed other religions while he was a teacher. He later also faced problems because he opened a XXXX XXXX where men and women gathered and secretly brought alcohol. In 2005, the Appellant left Iran and went to Hungary to study at a university. After spending less than one year there, he returned to Iran. Later, in 2010, the Appellant traveled back to Hungary, where he married a Hungarian woman, converted to Christianity, and had a child with his wife. The Appellant subsequently obtained permanent resident status in Hungary. [4] In 2012, the Appellant returned to Iran, where he was arrested after attending a party. Upon being released from detention, the Appellant returned to Hungary. He discovered, however, that during the party, a video was taken of him which depicted him mocking a prominent imam. The video was later posted to YouTube. [5] In XXXX 2016, the Appellant decided to leave Hungary due to a number of instances of xenophobia there. He claims that people assumed that he was Roma, and that he also faced discrimination because he was a foreigner. He was rejected from employment, had difficulty renting an apartment, and on one occasion in 2016, was attacked. The Appellant obtained a fraudulent passport and traveled to Canada, where he initiated a refugee claim. [6] The Minister of Citizenship and Immigration ("the Minister") intervened in the Appellant's refugee claim on the basis of Article 1E exclusion. The RPD agreed with the Minister's submissions and found that the Appellant was excluded from refugee protection. Role of the Refugee Appeal Division [7] The jurisprudence establishes that the Refugee Appeal Division ("RAD") is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.2 [8] In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at my own independent findings based on the evidence before me. Admissibility of New Evidence [9] As new evidence, the Appellant has submitted a letter from his wife, dated XXXX XXXX, 2018, in which she describes that she began to receive threatening letters in XXXX 2016 while she and the Appellant were living in Hungary.3 [10] The IRPA limits the ability of appellants to present new evidence on appeal to the RAD. Subsection 110(4) of the IRPA 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 claim's rejection. If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider factors around the credibility, relevance, and newness of the evidence.4 [11] I find that this new evidence is admissible. As the Appellant's wife explains in her letter, she only recently disclosed the information about the letters to the Appellant. The Appellant's own affidavit indicates that this information was only disclosed to him after his claim was rejected by the RPD. I consider that, as the Appellant was unaware of this information, he could not reasonably have been expected in the circumstances to have presented a letter from his wife regarding the threat letters, since he himself was unaware of this information at the time the RPD rejected his claim. I am also satisfied that the wife's letter passes the thresholds for newness, relevance, and credibility. [12] I have considered whether the admission of the new evidence should warrant holding an oral hearing. The Appellant's memorandum is rather equivocal about whether one should be held. An oral hearing would serve no clear purpose. I am capable of considering and weighing the wife's letter without holding an oral hearing. In addition, the credibility of the evidence hinges on the Appellant's wife, who claims to be the one who received the threat letters. The Appellant's wife was not called as a witness during the RPD hearing, and there is no indication in either her letter or the Appellant's memorandum that she would be called as a witness in the event of an oral hearing. As such, an oral hearing will not be held. Request for Extension of Time to File Additional New Evidence [13] However, in addition to this letter, the Appellant asks that the adjudication of his appeal be postponed until further evidence is submitted. This request was made in the cover letter to the Appellant's record, which was filed on April 16, 2018. The Appellant indicates that he is seeking confirmation from Hungarian authorities regarding his immigration status, and that he also seeks to disclose the original copies of the four threatening letters that are referred to in his wife's letter. [14] The Appellant's request is denied. [15] I have considered the Refugee Appeal Division Rules5 in this regard, but they do not specifically contemplate the type of request that the Appellant has made. Rule 6(1) addresses applications for an extension of time to file or perfect an appeal, and rule 29 addresses applications for the use of documents that were not previously provided. The Appellant's request fits into neither of these categories. [16] Instead, the Immigration and Refugee Protection Regulations6 set out time limits for RAD decisions. Subsection 159.92(1) states that except when a hearing is held, the time limit for the RAD to make a decision on an appeal is 90 days after the day on which the appeal is perfected. According to subsection 159.92(2), if it is not possible for the RAD to make a decision within the time limit, the decision must be made as soon as feasible after that time limit. [17] In this case, we are well past the 90-day time limit for a decision. The appeal was perfected on April 16, 2018, nearly one year ago. The Appellant did not request any specific date for his extension of time. To date, no additional evidence has been submitted, nor has the RAD received any further correspondence in relation to the new evidence that he seeks to disclose. There has already been a significant delay, and it would not be reasonable to further postpone the determination of this appeal. A further delay has not been justified. An indefinite extension of time for documents that may or may not eventually be disclosed is unwarranted, under the circumstances. MERITS OF THE APPEAL [18] The Appellant's arguments are difficult to follow: some appear in the Appellant's memorandum, while others are presented in the Appellant's personal affidavit, in which the Appellant shares his opinions about the RPD hearings and decision. The structure of the argument does not comply with rule 3(3)(g) of the Refugee Appeal Division Rules. However, the arguments set out in the affidavit have been considered alongside the memorandum. I have characterized the issues as follows: i) Whether the RPD breached its duty of procedural fairness by not giving the Appellant the chance to speak during the hearings; ii) Whether the RPD erred in its assessment of the Appellant's credibility and treatment of his supporting evidence; iii) Whether the RPD failed to consider the Appellant's residual risk as an ethnic minority in Hungary in a marriage with a half-Jewish woman; iv) Whether the RPD erred in its application of Article 1E; and v) Whether the RPD erred by failing to consider the Appellant's risk of persecution in Iran. [19] The Appellant's arguments are addressed in detail below. i) Whether the RPD breached its duty of procedural fairness by not giving the Appellant the chance to speak during the hearings [20] The Appellant argues that there were occasions during his hearings when the RPD Member interrupted him and prevented him from speaking. Although neither he nor his counsel characterize this specifically as a breach of procedural fairness, this is essentially what is argued, as he claims that he was not allowed an opportunity to provide clarifications. I am not persuaded, however, that a breach of procedural fairness occurred or that the RPD otherwise erred. [21] The Appellant states in his affidavit there were many times when he wanted to explain himself more fully but that the RPD told him that it was not his turn to speak and that he should wait for his chance. He explains that he was told to focus on the question being asked, and that by the time they had moved on to another question, he was not able to respond to previous comments. A number of excerpts from the RPD hearings have been presented in support of this argument. [22] The excerpts do not establish that the RPD breached its duty of procedural fairness. The RPD has a mandate to make well-reasoned decisions in a manner that is efficient, fair, and in accordance with the law. In this particular case, the RPD had the challenge of determining multiple complex issues relating to identity, credibility, and Article 1E exclusion; and all this in the face of a number of postponement requests that caused the RPD to schedule four different sittings. At one point, the Appellant's counsel withdrew, which resulted in the Appellant being self-represented for a portion of the proceedings. In this context, the RPD had to carefully explain the issues to the Appellant and also manage the hearing time efficiently. [23] In the excerpts from the October 2017 hearing, it is clear that the RPD was attempting to explain to the Appellant the meaning of Article 1E exclusion. The panel in fact tells the Appellant to ask questions if he does not understand. The Appellant was allowed to speak and ask questions when requested. At other times, however, the Appellant's testimony was not responsive to the questions asked by the RPD, and the RPD understandably directed him to focus on the question being asked. The RPD also conferenced with the Minister's Counsel in order to narrow down the issues. Though the Appellant may have felt excluded from these conversations with the Minister's Counsel, he was represented by counsel during that hearing and there was no objection that such conversations were somehow procedurally unfair. [24] The Appellant was not represented during the December 2017 hearing, and he was asked about his efforts to retain new counsel. He was allowed to speak at length on this issue, and the Minister's Counsel even conceded to a postponement. When the RPD attempted to explain why the Minister's Counsel was present and to explain the Article 1E issue, the Appellant interrupted the RPD Member, who was forced to ask the Appellant to wait so that he could explain the issue to him. Given that the hearing was going to be postponed, the RPD chose to make use of some of the hearing time to conference with the Minister's Counsel in order to clarify and narrow down the Article 1E issue. However, the Appellant insisted on explaining why he does not have rights similar to Hungarian nationals, despite the fact that he was unrepresented and his hearing was being postponed. Still, the RPD allowed him to speak at length. The Appellant proceeded to discuss matters entirely irrelevant to the Article 1E issue, including his attendance at XXXX competitions in Germany, and how he is unable to visit his wife and child in the United States due to President Trump's immigration policies. There was nothing procedurally unfair about the RPD's conduct during this hearing. [25] The Appellant was again unrepresented during his January 2018 hearing, however he agreed to proceed with the hearing. The excerpts provided by the Appellant of this hearing do not demonstrate any breach of procedural fairness. In these excerpts, the only instance where he was interrupted by the RPD Member was when he had answered a question before allowing the interpreter to finish interpreting the question. The RPD was attempting to ensure that the Appellant understood the questions being asked. During this hearing, the RPD again attempted to explain the determinative issue to the Appellant, assisted him in identifying the important matters in his testimony, and even allowed him to disclose additional evidence that had not been previously disclosed to the Minister. Under the circumstances, the Appellant was given a fair opportunity to participate meaningfully in the proceedings. I am not satisfied that he was denied the opportunity to present his evidence and clarifications to the issues. [26] The Appellant has not demonstrated a breach of procedural fairness in any of the hearings, nor did the RPD otherwise err in its conduct. The argument is without merit. ii) Whether the RPD erred in its assessment of the Appellant's credibility and treatment of his supporting evidence [27] If, as the Appellant alleged, there was a situation of persecution facing him in Hungary, then Hungary could no longer be considered as a putative Article 1E country. Therefore, although Article 1E was the determinative issue in this case, the RPD was required to assess the credibility of the Appellant's allegations regarding the treatment he had experienced in Hungary. The RPD did not find these allegations to be credible, and I agree with those findings. [28] The Appellant argues that there were a number of errors in the credibility assessment. Each of these will be addressed in turn. The Appellant's argument regarding the use of his Iranian passport will not be addressed in detail. In the RAD's independent assessment, this finding is not relevant to the credibility of the Appellant's allegations regarding the risk he faces in Hungary. Port of entry interview notes [29] The most significant of the credibility issues was in relation to the Appellant's inconsistent statements during his port of entry interview. [30] During the first of two interviews, the Appellant was asked why he was coming to Canada. He indicated that he was making a refugee claim in Canada because Hungary was overloaded and that they were ignoring them. He complained that there was difficulty finding employment especially for non-Hungarians and "gypsies". When asked whether he was being persecuted in any country, he responded in the negative. When asked whether his life is in danger in any part of the world, he responded that his life is not in danger in Hungary, but that he could not live in Iran.7 At no point in either of his interviews did the Appellant mention anything about having faced xenophobic violence in Hungary. As there was no valid explanation for this inconsistency, the RPD drew a negative inference. [31] The Appellant complains in his affidavit that the RPD failed to consider his state of mind during those interviews. He explains that he was exhausted, anxious, and nervous. He also explains in his affidavit that when he stated in his interview that his life was not in danger in Hungary, what he meant to say was that he fears for his life in Hungary but not in the same way that he is in danger in Iran. He clarifies that he meant that the Hungarian government is not pursuing him. [32] I do not accept this explanation and I too find that the inconsistency is damaging to the Appellant's credibility regarding the violence he supposedly experienced there. [33] I have considered the Federal Court jurisprudence that cautions decision-makers against overreliance on port of entry interview statements. The jurisprudence indicates that while a small divergence between the port of entry notes and the Basis of Claim Form should not be fatal to an assessment of credibility, discrepancies between the documents may be considered in assessing a claimant's credibility. The Board is entitled to draw negative inferences from significant omissions from port of entry statements.8 [34] In my view, the omissions from the port of entry interview are not minor. If in fact the Appellant had been beaten due to his ethnicity and threatened on another occasion, and if it was because of these incidents that he fled from Hungary, it is difficult to understand why the Appellant cited employment discrimination as his reason for coming to Canada. It is more likely than not that the Appellant's answers in the interview were reflective of his true motivation for coming to Canada, and that his allegations of xenophobic violence were only invented later in an effort to bolster his claim. I am unpersuaded by the Appellant's explanation. Inconsistent employment history [35] I also agree with the RPD where it found that the Appellant was not credible about his employment history. [36] In his Canadian study permit application, the Appellant claimed that he was self-employed from 2011-2016 in Budapest, XXXX XXXX XXXX.9 In addition, he claimed the same work activity in his United States visa applications, which were submitted in 2011, 2013, and 2015.10 By contrast, the Appellant testified at his hearing that he had been working in this company for less than one year. When questioned about this inconsistency, the Appellant explained that the company was only in operation for nine months due to economic sanctions against Iran. He testified that in fact he only mentioned this business on his study permit application so that it would look good for the application, and that he had no role or function in the company afterwards. [37] The RPD was not satisfied with the Appellant's explanation and drew a negative credibility inference. The Appellant argues in his affidavit that his explanation was entirely reasonable; that he had described that his company was only economically viable for about one year, but that it continues to be in existence and that his name still appears on the paperwork as the founder even though he personally only worked there for one year. He argues that it was technically correct that he was self-employed with the company even in 2016. [38] I too am unpersuaded by the Appellant's explanation. Rather important is the Appellant's testimony that he had no role or function in the company after nine months and that the business, ostensibly an XXXX business, could not XXXX anything or produce money due to the economic sanctions. He described that they could not do anything in the company, and that it was not an active business. Under the circumstances, if the company was no longer active after nine months, it would not have been reasonable for the Appellant to continue to claim that he was self-employed with that same company over the course of several years. [39] The inconsistency casts doubt on the Appellant's employment history. This is relevant, as the Appellant claims that he had great difficulty finding employment. His Basis of Claim Form describes that each time he applied for employment, he was rejected because of his physical characteristics.11 He explains in his affidavit that he would have taken the opportunity to work even in a supermarket if given the chance, but that he did not enjoy the right to work. However, if one relies on the Appellant's various visa applications, as well as his Schedule A form,12 it would appear that the Appellant was engaged in a number of employment activities, such as the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Each of these activities were claimed as employment in the Appellant's various visa applications, and even in the United States visa applications that preceded the Appellant's allegations of persecution in Hungary. It is difficult to accept the Appellant's characterization of his desperate work circumstances given the discrepancies in his employment history. Inadequate examination of attacks in Hungary [40] Counsel argues that the RPD barely spoke of the allegations about the Appellant's persecution in Hungary, and that there were not enough questions about the attacks that the Appellant claims to have suffered there. I do not agree that the RPD erred. [41] In its reasons, the RPD clearly considered the Appellant's claims about the persecution he experienced in Hungary, but simply did not find him to be credible. The attacks against the Appellant in Hungary were canvassed during the January 2018 hearing. Minister's Counsel questioned the Appellant about these events, but the Appellant's answers were vague and he appeared to have a poor recollection of the events. For instance, when asked how many times he was attacked in Hungary, the Appellant responded that it was one and a half, or two times. Also, though his narrative describes that the first incident took place at a bar in XXXX 2015 and that the second incident took place in early 2016, the Appellant testified that the first incident took place in early 2016 and that the incident at the bar was the second incident. He could not recall the month(s) in which these attacks occurred. [42] Under the circumstances, it was not an error for the RPD to assess the credibility of these events without asking the Appellant to recount the events in greater detail, especially where detailed allegations had already been set out in the Basis of Claim Form. RPD's treatment of documentary evidence [43] Counsel also argues that the RPD failed to actually engage with the Appellant's documentary evidence, and that this should lead to the conclusion that they were not considered. Included in the documentary evidence were a letter from the Appellant's wife, a letter from the Appellant's father-in-law, along with a rejection letter regarding the Appellant's application for Hungarian citizenship. [44] It is true that none of this evidence is explicitly mentioned by the RPD in its decision. In my view, the father-in-law's letter and the rejection of the Appellant's Hungarian citizenship application have little probative value in establishing the Appellant's allegations of persecution in Hungary. The letter from the father-in-law speaks solely to the citizenship application, and his belief that the rejection was based on xenophobia and discrimination.13 The rejection of the Appellant's application for citizenship does not constitute persecution. Given the letter's low probative value in establishing persecution, it was not an error for the RPD to fail to specifically address this evidence. [45] The letter from the Appellant's wife, however, does mention one incident in 2016 when she and the Appellant were attacked.14 The contents were not sworn in an affidavit, and the Appellant's wife was not called as a witness. As the incident is only mentioned in passing, and as the evidence remains untested, I would not assign it any weight on my own independent assessment. The letter does not overcome the credibility issues outlined by the RPD. New evidence from Appellant's wife [46] The RPD made valid credibility findings, and the Appellant's supporting documents were not sufficient to overcome those findings. [47] On appeal, the Appellant has submitted new evidence from his wife, which has been admitted.15 Although I have found that the letter meets the low credibility threshold for admissibility as new evidence, I give it no weight. If viewed in complete isolation, the letter might be said to be somewhat probative, however the weight of evidence is defined as the persuasiveness of some evidence in comparison with other evidence; it is what counts in the ultimate balancing of the evidence that tends to prove or disprove a relevant fact.16 In this case, when the credibility issues are considered, I am not satisfied that the wife's letter is credible in the face of the other credibility problems. The wife's letter is not a sworn affidavit, and it lacks detail. There is no information about how or where the wife received the threat letters, nor is there any information about who was making the threats. Although the Appellant indicated that he would disclose the original threat letters, to date they have not been received. As mentioned, it has been nearly one year since the Appellant's record was filed. In the face of the credibility issues in this case, after considering the evidence, I do not believe the contents of this unsupported letter, and give it no weight. iii) Whether the RPD failed to consider the Appellant's residual risk as an ethnic minority in Hungary in a marriage with a half-Jewish woman [48] Regardless of the RPD's credibility findings, there was evidence of discrimination against ethnic minorities in Hungary as well as undisputed evidence that the Appellant's wife is Jewish on her father's side. The Appellant argues that the RPD ought to have considered all of the evidence in regard to the Appellant's risk in Hungary. In my view, however, the evidence does not establish that the Appellant would face a serious possibility of persecution in Hungary. [49] In his affidavit, the Appellant points out that after 2015, more than one million migrants entered Hungary, sparking a wave of xenophobic activity. He argues that there were many articles submitted by his lawyer in regard to the treatment of foreigners in Hungary, and the general violence against ethnic minorities, which were ignored. Among the documents were articles about public opinion on anti-Semitism and xenophobia in Hungary, as well as government rhetoric against migrants.17 I note that several items in the National Documentation Package (NDP) for Hungary address similar themes, although much of the evidence on the treatment of migrants refers to the treatment of asylum-seekers by state agents, especially at border crossings.18 [50] I am not satisfied, however, that the evidence establishes that the Appellant would face a serious possibility of persecution in Hungary. After finding the Appellant to be lacking in credibility, the only relevant facts that I am willing to accept are that he is married to a woman with Jewish ancestry; that his application for Hungarian citizenship was denied; and that he may have experienced some discrimination as a result of his ethnicity. [51] In order for treatment to amount to persecution, it must be serious, repetitive, or systematic. The panel should analyze the quality of incidents in terms of whether they constitute a fundamental violation of human dignity. Neither the RPD nor the RAD have accepted that the Appellant was personally subjected to physical violence or threats due to his ethnicity. There is insufficient evidence to establish that the Appellant's citizenship application was denied as an instance of racial discrimination, nor is the denial of the citizenship application necessarily persecutory. Most of the documentary evidence relied upon by the Appellant speaks to public opinion and government rhetoric around immigration and religious minorities. It does not establish that the treatment of migrants has reached a point where it can be said that there are serious, repetitive, or systematic violations of human rights for migrants generally. [52] Moreover, despite his claims of discrimination in employment and housing, according to the Appellant's Schedule A form, he maintained the same residential address from 2010 to 2016, and he was engaged in various employment and business activities.19 He described in testimony that he worked for a XXXX XXXX XXXX for three years, started his own company along with his wife and his wife's family, worked as a XXXX XXXX, and even attended XXXX competitions. He attended university in Hungary, and only cited financial considerations as his reason for stopping his studies. He makes no allegations about discrimination in the healthcare system, in his interactions with police, or other public institutions, apart from his speculation that his citizenship application was denied due to his ethnicity. [53] At most, I would accept that there is a degree of discrimination in Hungarian society against migrants as well as religious minorities such as Jews and Muslims. However, the documentary evidence does not establish that a person of the Appellant's particular profile would face a serious possibility of persecution. iv) Whether the RPD erred in its application of Article 1E [54] Having found that the Appellant's allegations of persecution in Hungary were not credible, the RPD considered whether the Appellant should be excluded from refugee protection due to his possession of Hungarian permanent residence. The RPD concluded that the Appellant possessed Hungarian permanent resident status at the time of his last hearing, and also concluded that this status was substantially similar to that of Hungarian nationals. The Appellant challenges the RPD's application of Article 1E exclusion. For the reasons that follow, however, I agree with the RPD's analysis. [55] To summarize, the Appellant argues that the RPD failed to engage with the relevant evidence on Article 1E, that the RPD erred in finding that he has status substantially similar to that of Hungarian nationals, and that the RPD misapprehended the evidence in relation to how he obtained permanent resident status. These arguments will be addressed in turn below. Whether the RPD ignored relevant evidence [56] The Appellant submits that even as a permanent resident of Hungary, he does not have status substantially similar to that of Hungarian nationals. His counsel argues that the RPD failed to actually engage with the evidence in this respect. [57] Article 1E exclusion applies only in circumstances where it is clear that the claimant has obtained all of the most fundamental basic rights associated with nationality of the putative Article 1E country. However, these rights need not be identical to those enjoyed by nationals of the country. As the RPD correctly pointed out, there are four basic criteria ("the Shamlou factors") to consider in determining whether a claimant enjoys most of the fundamental basic rights associated with nationality. Those include the right to return, the right to work freely without restrictions, the right to study, and full access to social services.20 [58] Contrary to the Appellant's argument, the RPD did engage with the relevant documentary evidence. The RPD determined that the Appellant was in possession of a Hungarian Permanent Residence Card, and found that the Appellant had obtained long-term resident status, given that he had resided continuously in Hungary for five years. Citing a European Union ("EU") directive on the status of non-EU nationals who are long-term residents, the RPD determined that those with long-term resident status enjoy equal treatment with nationals as regards numerous different rights, including the Shamlou factors: access to paid and unpaid employment; conditions of employment and working conditions; educational and vocational training; welfare benefits and sickness insurance; social assistance; social benefits, tax relief and access to goods and services; freedom of association and union membership as well as freedom to represent a union or association; and free access to the entire territory of Hungary.21 [59] Given this documentary evidence and the fact that the Appellant's Permanent Residence Card is still valid, the RPD correctly determined that the Appellant has status substantially similar to that of Hungarian nationals. The EU directive was directly relevant to the Shamlou factors in the Appellant's circumstances. [60] It is important to understand why this is. The Appellant's status in Hungary changed between his arrival in 2010 and when he finally obtained a Permanent Residence Card in 2016. According to the Appellant's testimony and evidence, he entered Hungary in 2010 and married his wife that same year. He explained that after marrying his wife, he obtained residence status in Hungary. Indeed, he later disclosed one of his Residence Permits, a document that was issued to him on the basis of his family relationship to a Hungarian citizen, his wife.22 The disclosed Residence Permit was issued in XXXX 2014 and was valid until XXXX 2015. [61] However, the Appellant's status in Hungary later changed. He testified that in 2015, he applied for a Permanent Residence Card, which was issued in 2016. This was the same Permanent Residence Card that the Appellant had submitted in his Canadian study permit application. The Permanent Residence Card was issued in 2016 with a 10-year period of validity.23 The Appellant believed that the card would be automatically void if he left Hungary for more than two years, but this is not supported by any objective evidence. [62] The Minister's evidence included a document from the Hungarian Immigration and Asylum Office, which described the Permanent Residence Card. The document discusses the eligibility of individuals for a Permanent Residence Card, the validity of the card, as well as the rights and obligations of holders of the card. Spouses of Hungarian citizens are among those eligible for the card. The document explains that a permanent residence card issued to a third-country citizen family member is renewed every ten years without examining the conditions. There are no conditions described around revocation of status in the event of the holder's absence from Hungary.24 [63] Given that the Appellant had residence in Hungary for more than five years, and was in possession of a Permanent Residence Card, the RPD considered that he is a long-term resident as defined in the EU directive disclosed by the Minister, and therefore enjoyed the rights set out in the directive. [64] The documents submitted by the Appellant, however, did not pertain to holders of the Permanent Residence Card. As the RPD correctly pointed out, the Appellant or his counsel had conflated the National Permanent Residence Permit with the Permanent Residence Card. The Hungarian Immigration and Asylum Office's information on the National Permanent Residence Permit described far more restrictive conditions for the holder of this document. For instance, it is possible for the government to revoke status in the event of the holder's absence from the country for more than six months without giving notice. It also appears that regardless of notice, the permit may be revoked after an absence of two years.25 However, it is clear that the National Permanent Residence Permit is distinct from the Appellant's Permanent Residence Card, as they each have different eligibility criteria, different periods of validity, as well as different rights and obligations attached to them. In addition, the FAQ section of the Hungarian government website disclosed by the Appellant's counsel also describes the Permanent Residence Card as a distinct document, clarifying that EEA (European Economic Area) nationals cannot apply for a National Permanent Residence Permit, and that they may instead receive a registration certificate and/or a Permanent Residence Card instead.26 [65] The documents disclosed by the Appellant all pertained to this National Permanent Residence Permit, rather than the Permanent Residence Card.27 As these were irrelevant to the Appellant's situation, the RPD did not err in failing to rely on them. Whether the Appellant has status substantially similar to that of Hungarian nationals [66] The Appellant advances a number of arguments about why the RPD erred in finding that he has status substantially similar to that of Hungarian nationals. [67] First, counsel submits that neither the RPD nor Minister's Counsel were "definite" about whether the Appellant enjoyed the rights that form the basic Shamlou factors. Counsel points to an excerpt from the hearing, when Minister's Counsel indicated that he would not question the Appellant on his ability to access social services because he did not have information about the Appellant's access to these rights. I disagree. Even if it can be said that the Minister's Counsel was equivocal on this point, the RPD's decision is clear. The RPD was correct in its reliance on the EU directive to find that the Appellant has access to social services. [68] The Appellant also argues that even if he had a legal right to work in Hungary, he could not enjoy such rights because he faced discrimination. This argument is without merit. The Appellant's evidence about his employment history was not credible, and by his own account, he was engaged in both business activities and employment over the course of several years in Hungary. I am not satisfied that the situation of discrimination in Hungary is such that it effectively extinguishes the Appellant's right to work. [69] Finally, the Appellant argues that his inability to work in other EU countries, his inability to vote, and his inability to obtain Hungarian citizenship are indicative that he does not enjoy status substantially similar to that of Hungarian nationals. I am not persuaded by this argument. In order for Article 1E to apply, the Appellant need not enjoy rights identical to that of Hungarian citizens. The RPD correctly considered the Shamlou factors, as well as other rights described in the EU directive, and found that the factors were met. The Appellant's inability to vote, his inability to access citizenship, and his inability to work in other EU countries are not sufficient to establish that Article 1E should not apply. Misapprehension of how the Appellant obtained his permanent resident status in Hungary [70] The Appellant argues that the RPD misapprehended how he had obtained his permanent resident status in Hungary, and that this was a major factual and legal issue in this case. I do not agree with this argument. [71] According to the Appellant, he obtained permanent resident status in Hungary first through sponsorship by his wife, and also because he had to reside in Hungary for a period of five years after she sponsored him. However, the RPD stated in its reasons that the Appellant's permanent residence rights were based on his having lived for five years in Hungary, rather than due to his relationship with his wife. [72] The argument, however, is entirely irrelevant to the outcome of the Article 1E analysis. The RPD only mentioned how the Appellant obtained his permanent resident status in response to the Appellant's written submissions, which discussed how holders of the National Permanent Residence Permit could lose their residency if their family sponsor leaves Hungary. In my view, the RPD's overall point remains sound. The Appellant's written submissions relied upon documentary evidence relating to National Permanent Residence Permit holders. As a Permanent Residence Card holder, the same conditions did not exist for the Appellant and there was no evidence to indicate that his status as a Permanent Residence Card holder would be dependent on his wife's residence in Hungary. Therefore I am not satisfied that the argument demonstrates an error in the RPD's conclusion on Article 1E exclusion. v) Whether the RPD erred by failing to consider the Appellant's risk of persecution in Iran [73] The Appellant and his counsel argue that the RPD erred by failing to consider the risk of persecution to the Appellant in Iran. I disagree. [74] The RPD correctly applied the test for Article 1E as set out in the Federal Court of Appeal decision in Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118 ("Zeng"). The first step of the test reads as follows: Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded.28 [75] In this instance, the RPD found that the Appellant still possessed permanent resident status in Hungary by the last hearing date. The RPD considered that such status was substantially similar to that of Hungarian nationals. The first step of the Zeng test was met. It was therefore unnecessary for the RPD to proceed any further. [76] Had the RPD determined that the Appellant had lost his permanent resident status in Hungary, it would have needed to proceed further and balance various factors, including the risk to the Appellant in Iran. However, that was not the case here. The Appellant's argument on this issue is therefore without merit. CONCLUSION [77] The Appellant has not demonstrated any error in the RPD's reasons. On an independent assessment, I agree that the Appellant was not credible in relation to the persecution he claims to have experienced in Hungary, and his new evidence does not overcome the credibility problems. The Appellant's profile as an ethnic minority and migrant married to a woman with Jewish ancestry do not establish that he faces a serious possibility of persecution in Hungary. The RPD correctly determined that the Appellant holds status substantially similar to that of Hungarian nationals and that he continued to hold that status by the date of his last hearing. I agree that Article 1E applies under these circumstances. [78] I therefore confirm the RPD's decision and determine that the Appellant is excluded from refugee protection on the basis of Article 1E of the Refugee Convention. [79] The appeal is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "M. Oh" M. Oh April 8, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; see also Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018; 2018 FC 1145. 3 Exhibit P-2, Appellant's Record, at pp. 40-41. 4 Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96. 5 Refugee Appeal Division Rules, SOR/2012-257. 6 Immigration and Refugee Protection Regulations, SOR/2002-227. 7 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 62-63. 8 Seenivasan v. Canada (Citizenship and Immigration), 2015 FC 1410, at paras 20-26. 9 Exhibit RPD-1, RPD Record, Exhibit 10, at pp. 145-150. 10 Exhibit RPD-1, RPD Record, Exhibit 15, at pp. 237-288. 11 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 25. 12 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 47-50. 13 Exhibit RPD-1, RPD Record, Exhibit 14, at pp. 219-226. 14 Exhibit RPD-1, RPD Record, Exhibit 11, at pp. 202-203. 15 Exhibit P-2, Appellant's Record, at pp. 40-41. 16 Magonza v. Canada (Citizenship and Immigration), 2019 FC 14, at para 27. 17 Exhibit RPD-1, RPD Record, Exhibit 8, at pp. 104-109; Exhibit 16, at pp. 293-307. 18 Exhibit RPD-1, RPD Record, Exhibit 4, NDP for Hungary (31 August 2017). 19 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 47-50. 20 Shamlou v. Canada (Minister of Citizenship and Immigration), 103 F.T.R. 241; see also Rrotaj v. Canada (Citizenship and Immigration), [2016] 3 FCR 409, 2016 FC 152, at paras 16-19. 21 Exhibit RPD-1, RPD Record, Exhibit 10, at pp. 165-166. 22 Exhibit RPD-1, RPD Record, Exhibit 20, at pp. 375-377. 23 Exhibit RPD-1, RPD Record, Exhibit 10, at pp. 155-156. 24 Exhibit RPD-1, RPD Record, Exhibit 10, at pp. 195-199. 25 Exhibit RPD-1, RPD Record, Exhibit 22, at pp. 385-391. 26 Exhibit RPD-1, RPD Record, Exhibit 22, at p. 394. 27 Exhibit RPD-1, RPD Record, Exhibit 22, at pp. 385-402; Exhibit 23, at pp. 407-410. 28 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118, at para 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-07355 RAD.25.02 (September 18, 2018) Disponible en français 19 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