TB5-01324

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 : TB5-01324 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) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 27, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Solomon Orjiwuru Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX, (a.k.a. XXXX XXXX XXXX XXXX), (the Appellant), a citizen of Mali, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] The Appellant submitted new documents to be considered as evidence pursuant to s.110(4) of the Immigration and Refugee Protection Act (the Act or IRPA); and has requested a hearing before the Refugee Appeal Division (RAD) pursuant to Section 110(6). [3] The Appellant requests that this appeal be allowed and the RAD find that the Appellant is a Convention Refugee. In the alternative, he requests that the matter be remitted to a differently constituted panel of the RPD for redetermination. DETERMINATION [4] Pursuant to subsection 111(1)(a) of the Act, the RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection, and thus confirms the decision of the RPD. [5] This appeal is dismissed. Background [6] The Appellant alleged before the RPD that he was born in Saudi Arabia (SA) of Malian parents. He had temporary status in SA until XXXX 2014. His father attended a meeting of Malian expatriates in SA in XXXX 2012. As a result, Malian authorities perceive him to be a supporter of the opposition groups operating in northern Mali. The Mali authorities refused to renew his father's passport thus causing the loss of status for his father and his relatives in Saudi Arabia. The Appellant declared that his own passport may have been revoked as his father was asked to return his family's valid passports for cancellation to the embassy. The Appellant attempted to obtain a visa to the United States in 2011 and again in 2012, however these applications were denied. He obtained a Canadian visitor's visa on January 23, 2014, and left for Canada on XXXX XXXX, 2014. He claimed for protection inland on XXXX XXXX, 2014. He fears a return to Mali due to his imputed political opinion as his father's son, and he cannot return to Saudi Arabia as he does not have a status there. [7] His claim was heard on November 28, 2014 and the RPD, by a decision dated January 14, 2015, rejected his claim. Application pursuant to Rule 29 and 37 regarding a document not previously submitted [8] The Appellant provided an affidavit from his mother dated XXXX XXXX, 2015 stating that her husband is missing and some other deportees from Saudi Arabia informed her that he is in a jail in Mali. The Appellant submitted an amendment on April 28, 2015 for page 15 of the Appellant's record;1 however the only page the Appellant sent as an amendment is in fact page 14 of the Appellant's record. Regardless, the RAD has noted the correction the Appellant seeks in his documents submitted pursuant to Rule 29 and 37. [9] Pursuant to Rule 29 and considering potential probative value of the document, the Application pursuant to Rules 29 and 37 is allowed. The RAD will consider whether this document meets the statutory conditions of the Act. Document Submitted Pursuant to Section 110(4) [10] On appeal, the Appellant submitted a sworn statement from her mother to be considered as new evidence. [11] Subsection 110(4) of the Act states: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The sworn statement from his mother2 relates to events that predate the rejection of the claim. The document mentions that her husband is missing since XXXX XXXX XXXX 2014 whereas the RPD rendered its decision almost XXXX XXXX after that on January 14, 2015. This document also mentions that the Appellant's mother knew, prior to rejection that her husband was in detention for deportation on XXXX XXXX, 2015. Moreover, the Appellant's father also knew of his impending departure from Saudi Arabia as stated by him in his undated letter (at page 24 and 25 of Exhibit P-2), and an amendment by email of XXXX XXXX XXXX 2014 (at page 33 of Exhibit P-2). [13] The Appellant's evidence shows that the Appellant's father's residency status in Saudi Arabia expired on XXXX XXXX, 2012,3 and the Appellant's father knew that he was without status and that Saudi Arabia is deporting people who do not have status.4 The Appellant's explanation for why the document submitted was not reasonably available was that he did not know when his father was to be deported. I do not consider this to be a reasonable explanation particularly in light of the affidavit of her mother (and this one statement of his father) that he was missing since XXXX XXXX, 2014 and a week later (thus around XXXX XXXX) she learnt that he was to be deported on XXXX XXXX XXXX 2015. [14] Documentary evidence shows that in Saudi Arabia, foreign workers have to be sponsored by their Saudi employer. Saudi Arabia had thousands of illegal foreign workers and the government gave them six-month's notice (some documents however suggest seven-month notice) to such workers and those who failed to normalize their sponsorship, were deported. The following extracts from the Saudi Arabia documentation package5 state: Employers or sponsors controlled the departure of foreign workers and residents from the country; employers/sponsors were responsible for processing residence permits and exit visas on their behalf. Sponsors frequently held their employees' passports against the desires of the employees, despite a law specifically prohibiting this practice. Typically, foreign workers provide sponsors with their residence permit (iqama) before traveling in exchange for their passport to ensure the worker's return to their employer after their travel.6 In November, after authorities announced the end of an amnesty period for illegal foreign workers to correct their status or depart the country, security forces resumed arrests of undocumented noncitizen workers.7 [T]he more than six million foreign workers in the country have virtually no legal protections. ...Saudi Arabia launched a campaign to deport expatriate workers who had allegedly overstayed their visas or were no longer employed by their original hosts.8 On November 4, following a seven month "grace period" for foreign workers to correct their status and documentation, authorities raided businesses and set up checkpoints across the country to apprehend workers without required documentation or not working for their legal sponsors. Interior Minister Mohammed bin Nayef announced in late November that authorities had expelled over 60,000 foreign workers in the crackdown's first three weeks.9 [15] The Appellant's own evidence10 shows that, by November 2013, "Saudi Arabia drives out two million migrant workers." [16] If I were to accept the affidavit from the Appellant's mother, it states that her husband worked "illegally under the table." Thus, it would appear that he was deported for illegal work and thus creates a shadow of doubt about the reasons he might have been deported. Moreover, the information regarding her husband being detained in Mali is hearsay and cannot be verified. [17] Thus this document is not accepted as new evidence, and the RAD will consider the merits of the appeal based on the record and Appellant's memorandum. Request for a hearing before the RAD [18] According to Section 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in Section 110(3) that raises a serious issue with respect to the credibility of the Appellants that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [19] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, it is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [20] The RAD has not accepted new evidence, thus the RAD will proceed without a hearing. The Issues [21] The Appellant's issue is "Did the RPD err in its credibility findings?" [22] I will rephrase the Appellant's issues as "Is the Appellant a Convention refugee or a person in need of protection?" Role of the RAD [23] The Appellant did not make any submission on what is the appropriate role of the RAD or the standard of review. [24] One of the generally followed Federal Court decisions, Huruglica,11 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [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 or 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 an "overriding and palpable error." [25] Thus, I will be guided by the Huruglica decision, and arrive at my determination after a review of the totality of the evidence before me. Also following Huruglica, I will recognize and respect the RPD's credibility findings where it enjoys a particular advantage. In a number of recent decisions,12 the Federal Court also confirmed that the RAD may show a certain level of deference towards the RPD's finding when credibility issues are involved, and that the RAD must conduct an independent assessment of the evidence as a whole. [26] After considering totality of the evidence, I find that the RPD did not err in its overall determination, and I find that the Appellant is neither a Convention refugee nor a person in need of protection for the following reasons. Thereby, I confirm the RPD's determination. [27] The heart of the claim is that the Appellant's father allegedly attended a meeting in 2012 where he criticized the Mali government. According to the Appellant's narrative,13 "the Embassy demanded that all my family members that have valid Malian passport to return it for cancellation." Despite the fact that his father was told to return all passports for family members, the Appellant's passport was neither returned nor cancelled; moreover, the Appellant was able to have it renewed in XXXX 2013, almost a year after being recalled for cancellation. [28] The RPD found his explanation unreasonable and the Appellant changed his story that "they did not say to return it, but that they did refuse to renew his father's passport."14 The Appellant testified initially that his father's passport was refused but later on he found out that order was for all the members of the family.15 The Appellant further blamed the author of his narrative even though he affirmed that the information he provided was complete true and correct. [29] Counsel for the Appellant submits16 that "However, at the time his passport was issued in XXXX 2013, the Malian authorities could not make the connection between him and his father as they did later when upon denying his father's application for a passport demanded the return or cancellation of his family's passports as well." I find that the counsel, by his statement, is speculating that the Malian authorities could not connect father to son even though the son (the Appellant) was born in Saudi Arabia and obtained his passport through a connection to his father and mother. In addition, this statement seems to confirm that Malian authorities demanded return for cancellation of all family member passports as explained in the following analysis. [30] The RPD also noted a discrepancy between the Appellant's testimony about where his father was born, and the letter from his father as explained by the RPD in its reasons at para 13. [31] The RPD also found that the Appellant applied for a US visa twice as against his testimony that he applied for the US visa only once. This concern was not put to the Appellant due to timing issues and the RPD stated this information "does not impact in any way on the outcome of this decision." [32] Counsel argues that "RPD was microscopic in its analysis of the Appellant's evidence and clear evidence that the RPD Member failed to grasp the reality facing politically exposed persons like the Appellant," however does not state how and where the RPD's analysis was microscopic. The RAD Rule 3(g)(ii) requires that the Appellant to state: (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing[.] [33] Counsel also alleges that "The overall effect of the RPD's analysis is that anything that does not comply with its own speculative reasoning will not be found to be satisfactory, credible or plausible. It is submitted that such a finding is an error committed by the RPD," however this allegation is not supported by evidence or by stating where exactly the RPD speculated. [34] I also note that the Appellant's mother continues to stay in SA as of XXXX XXXX, 2015 and has access to the office of the Mayor of Makkah in SA where she signed the sworn affidavit. If his father's passport was cancelled and he was out of status in SA and sent to Mali, it is not clear how his wife was able to remain in SA. This was not put to the Appellant and this was not a factor in the negative credibility finding of the RPD or the RAD. [35] In my opinion, the RPD provided cogent and transparent reasons for its findings, and noted that his allegations are not supported by corroborative evidence. The RAD also finds that the Appellant is not credible. [36] Based on the foregoing and a thorough review of the Record, I find that the Appellant is neither a Convention refugee nor a person in need of protection. Therefore, this appeal fails. The RAD confirms the RPD's determination. CONCLUSION [37] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [38] The appeal is therefore dismissed. (signed) "Atam Uppal" Atam Uppal May 27, 2015 Date 1 Exhibit P-2, Appellant's Record. 2 Exhibit P-2, Appellant's Record, p. 1. 3 Exhibit P-2, Appellant's Record, at p. 26. 4 Ibid., at p. 33. 5 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Saudi Arabia (October 31, 2014), item 2.1. 6 Ibid. 7 Ibid. 8 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Saudi Arabia (October 31, 2014), item 2.4. 9 Ibid. 10 Exhibit P-2, Appellant's Record, at p. 43. 11 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 12 Youkap, Felicie Kouamo v. M.C.I. (F.C., no. IMM-5051-14), Shore, February 27, 2015, 2015 FC 249. 13 Exhibit RPD-1, RPD's Record, p. 14, at para 1. 14 Exhibit P-2, Appellant's Record, p. 7, at para 9. 15 Ibid. 16 Exhibit P-2, Appellant's Record, Memorandum, p. 51, at para 6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-01324