MB5-04628

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 : MB5-04628 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montreal, Quebec Appel instruit à Date of decision July 25, 2016 Date de la décision Panel Me Diane Sokolyk Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX a citizen of Yemen, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Tribunal has read the Appellant's Record, reviewed all documentary evidence submitted before the RPD and the Refugee Appeal Division (RAD) and has listened to the recording of the RPD hearing. New evidence was presented to the RAD but no hearing was requested on the merits. DETERMINATION OF THE APPEAL Confirms RPD determination [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (the "Act"), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention Refugee" pursuant to s. 96 of the Act nor is he a person in need of protection pursuant to s. 97 of the Act. NEW EVIDENCE [3] The Appellant has submitted three documents of new evidence to be considered by the RAD: 1. An article entitled XXXX XXXX XXXX XXXX XXXX XXXX XXXX from the www.arabnews.com website which is undated; 2. An article entitled Les quartiers de XXXX that appears to be dated 1999; 3. An article entitled Dependent over 25 can't be sponsored by father dated November 16, 2015. Counsel argues that these articles were not filed at the hearing before the RPD as the Appellant had not expected the tribunal to doubt his membership in the XXXX XXXX XXXX group. [4] Section 110(4) of the Act applies to the admission of new documents on appeal. Section 110(4) states as follows: "(4) 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." [5] The RAD must also be conscious of the directions of the Federal Court of Appeal in Singh and CARL1, which states that new evidence is only admissible before the RAD if it meets the criteria in section 110(4). In Singh, at paragraph 35, Justice de Montigny, writing for the Court, states, in reference to the conditions set out in section 110(4): "These conditions appear to me to be inescapable and would leave no room for discretion on the part of the RAD." According to the Court in paragraph 51, the conditions must be interpreted restrictively, as the legislative framework reflects Parliament's clear wish to narrowly define the introduction of any new evidence. The Court refines this thought in paragraph 54 where, after considering the newly reduced timeframes before the RPD, it states: "However, these considerations do not suffice to set aside the clear legislative intention to not authorize any new evidence on appeal other than in very specific and carefully defined circumstances. The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected." [6] The RPD hearing in this case was heard on May 25, 2015 and the decision rendered on October 5, 2015. The Appellant was represented by the same counsel before the RPD as before the RAD. The RAD will review each document in turn to determine if it meets the criteria for acceptance in section 110(4) and Singh. The RAD will first consider the criteria set out in section 110(4) with respect to the dates of the new documents submitted. 1. An article entitled XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX from the www.arabnews.com website which is undated; The RAD does not accept this document as there is no date and no suggestions that it was written following the decision of the RPD. The RAD notes that multiple articles with similar content were filed at the RPD under Exhibit P-10 and were considered by the RPD in the written decision. 2. An article entitled "Les quartiers de XXXX" that appears to be dated 1999; The RAD does not accept this document as it was written 16 years prior to the decision of the RPD. The RAD notes that multiple articles with similar content were filed at the RPD under Exhibit P-10 and were considered by the RPD in the written decision. 3. An article entitled "Dependent over 25 can't be sponsored by father" dated November 16, 2015; The RAD will accept this document as it is dated after the written reasons of the RPD and as it addresses the issue of dependents over 25 in Saudi Arabia which is an argument made by the Appellant. BACKGROUND Basis of the claim [7] The Appellant is a young man of 24 years old. His parents and all of his siblings were born and lived their entire lives in Saudi Arabia. His citizenship to Yemen is derived from his grandfather who was born in the town of XXXX in Yemen and who moved to Saudi Arabia as a young man. The Appellant alleges that his grandfather was part of the ethnic group known as "XXXX XXXX", a term which implies a low social standing associated with slavery. Neither the Appellant nor any member of his immediate family has ever been to Yemen. [8] On XXXX XXXX, 2014, upon completion of his high school studies, the Appellant went to the United States to study English at a language school in XXXX, Louisiana, for eight months. His tuition was paid by his father. Although his study visa was valid until XXXX XXXX, 2014, the Appellant was obliged to stop studying in XXXX, 2014, when he alleges his father was forced into early retirement and lost his job. The Appellant received a letter from the office of Homeland Security in the United States in early XXXX 2015, at which time he took a bus to Buffalo, New York, and then a taxi to Hemmingford, Quebec. He was arrested for illegal entry on XXXX XXXX, 2015, by the Royal Canadian Mounted Police and was taken to the border in Lacolle, Quebec. He was interviewed twice by officers of the Canada Border Services Agency (CBSA), which interviews are on file. He completed his Basis of Claim (BOC) form with the assistance of legal counsel and filed for refugee status on April 8, 2015. ROLE OF THE RAD [9] In the case of Huruglica2, the Federal Court of Appeal has directed that with respect to findings of fact and mixed fact and law which raise no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard of review. In the words of the Court at paragraph 103 of the decision: "after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD, the matter can be referred back to the RPD for redetermination." The RAD will follow the recommendations of the Federal Court of Appeal in Huruglica with respect to errors of fact, errors of law or errors of mixed fact and law. [10] With respect to findings of fact and mixed fact and law which raise an issue of credibility of oral evidence, the Federal Court of Appeal states that the RAD may defer to the RPD's appreciation of the testimony. The Federal Court of Appeal suggests that the degree of deference to be given to the RPD in any particular case shall depend on the advantage the RAD finds that the RPD has in a particular case. ANALYSIS OF THE MERITS OF THE APPEAL The RPD hearing and decision [11] The Appellant was represented by counsel at the hearing. The RPD decision of thirty-one paragraphs is based on a finding of a lack of credibility with respect to both subjective fear of persecution and objective fear based on his alleged ethnic background. As will be discussed below, the RPD decision provides detailed explanations for why the tribunal reached each of its conclusions based on the documents and testimony. The Appellant alleged that his fear for persecution in Yemen only began XXXX XXXX, 2014, when his father advised him that he would no longer be able to finance his studies in the United States. The RPD began by reviewing the immigration documents on file to explore the timing of the Appellant's stay in the United States. The Appellant stopped studying in XXXX 2014.The RPD found that the Appellant's visa to study in the United States expired on XXXX 2014. The Appellant testified that his permanent residence visa and re-entry visa to Saudi Arabia was renewed around XXXX or XXXX of 2014 and was valid until XXXX XXXX, 2015. The Appellant, however, did not return to Saudi Arabia and did not study in Louisiana. He remained in Louisiana for approximately four and a half months until early XXXX 2015, when he received a letter from United States Department of Homeland Security, which prompted him to take a bus and taxi, and cross illegally into Canada. The RPD found that the timing of the visa renewals was the first issue that reduced his credibility about his alleged subjective fear of having to return to Yemen (RPD decision, paragraphs 11, 12). [12] The RPD also examined the allegation that the Appellant's father had lost his employment. The Appellant submitted a letter from his father's employer stating that he had been retired early, on XXXX XXXX, 2014. However, the evidence also showed that a person who did not have citizenship in Saudi Arabia was obliged to have a job or "sponsorship" in order to retain residence. The documents on the file established that the Appellant's father's residence was renewed until XXXX 2015. The RPD also noted that the Appellant's father's residence card showed him as being employed by the same employer who is alleged to have insisted on his early retirement. The RPD confronted the Appellant on this issue who replied that his father's former company had allowed him to claim that he still worked for them although he did not. The RPD pursued questioning on this issue, asking why no evidence had been provided to establish this point. The RPD did not find the Appellant's explanations credible and did not believe that the Appellant's father had lost his employment (RPD decision, paragraphs 13, 14, 15). [13] The RPD also considered it important that the Appellant did not make any attempt to claim asylum in the United States although he was in the United States from XXXX 2014 until XXXX 2015. The Appellant testified that once he stopped his program of studies in XXXX 2014, he was illegally in the United States. He testified that "Arab people" told him he would be deported if he stopped studying. The RPD noted that the Appellant did not make any effort to consult with any counsel or government authority on the matter of his status (RPD decision, paragraphs 17, 18). [14] The RPD also considered the Appellant's delay in coming to Canada to seek refugee protection. The Appellant testified that he was afraid to seek protection in the United States and stated that he did not come to Canada earlier than XXXX 2015 because "he didn't know many things." The receipt of the letter from the United States Department of Homeland Security in XXXX 2015 was the impetus for his trip to Canada. The RPD found that this timing further undermined his allegation that his subjective fear of returning to Yemen began XXXX XXXX, 2014 (RPD decision, paragraphs 19-21). [15] With respect to his objective fear of returning to Yemen, the Appellant alleged in his BOC that he would be treated like a slave in Yemen as his grandfather was "XXXX XXXX XXXX", which means "slave". At the hearing, the RPD found that the Appellant was unable to articulate what he actually feared in Yemen, the basis of this fear, and the ethnic group to which he allegedly belonged. He stated that he only learned about the problems in Yemen once he was in the United States. The RPD noted that it was only upon prompting by his counsel that he himself used the word XXXX XXXX XXXX as referring to himself. He used vague descriptions such as he feared "the people in Yemen and the way they will treat me" and when asked to elaborate on why, he explained that there are "ethnic groups that treat people with discrimination and racism." The RPD did not believe that he was a member of the group known as XXXX XXXX XXXX (RPD decision, paragraphs 22-26). [16] The RPD reviewed the documentary evidence submitted at exhibit P-10 with respect to XXXX XXXX XXXX in paragraphs 27-29 of the decision. The RPD commented in paragraph 28 of the decision, that in the opinion of the tribunal, the difference between the Appellant's skin colour and physical characteristics and those of the XXXX XXXX XXXX persons described in the documentary evidence were "immediate and evident." [17] The RPD concluded at paragraph 30 of the decision that the Appellant had not met the burden of proof of establishing either a subjective or an objective fear of returning to Yemen. The Appellant's Memorandum of Argument [18] The Appellant argues that the RPD erred in its assessment of the Appellant's credibility. The appeal is based on two main issues: 1. Counsel alleges that the Appellant demonstrated a credible subjective fear and that the delay in claiming in the United States or Canada was an issue secondary to his claim; and 2. The Appellant's objective fear in returning to Yemen is justified. [19] Firstly, counsel for the Appellant alleges that it was reasonable for the Appellant to not be in fear as his student visa expired in XXXX 2014, and that he felt he could not claim in the United States once the visa had expired. Counsel relies on the cases of Valencia Pena3 and Brown4, which cases state that the failure to claim in the first safe country should not be determinative of a claim and that the RPD should consider the explanations of the claimant (Appellant's memorandum, pages 18 and 19). [20] Counsel argues that in this case, the Appellant is now 25 years old and cannot return to Saudi Arabia as he now cannot be considered as a dependent of his father, and would therefore need a new sponsor. Counsel suggests that his return to Saudi Arabia would now be precarious based on the father's situation of employment (Appellant's memorandum, pages 19 and 20). [21] With respect to the Appellant's objective fear of returning to Yemen, counsel argues that the RPD erred by finding the Appellant to be not credible on the grounds that his testimony on this issue was vague. Counsel notes that as the Appellant has never been to Yemen, his testimony on this point was as clear as it could have been. Counsel makes the argument that although the Appellant's father had alleged that the Appellant was a member of the XXXX tribe, research demonstrated that there was no such tribe in Yemen and that XXXX was the town where the Appellant's grandfather was born. The documentary evidence submitted by the Appellant's counsel suggests that many persons who are considered members of XXXX XXXX XXXX come from the town of XXXX. Counsel alleges that the RPD made an error by doubting the testimony of the Appellant who stated that he did not belong to a tribe, while his father's letter suggested that he did belong to a tribe which was, in fact, non-existent. Counsel also argues that as there is an ethnic war going on in Yemen, the Appellant would be particularly vulnerable as he has no knowledge of the country. Lastly, counsel objects to the fact that the RPD drew a conclusion about the Appellant's ethnicity based on his appearance and by comparing the faces and features of persons known as XXXX XXXX XXXX in the documentary evidence without expertise in this matter. On this point, counsel relies on Pluhar5, which cautions the RPD not to base their decision uniquely on the person's appearance (Appellant's memorandum, pages 20, 21, 22). The RAD Analysis [22] For all of the reasons listed below, the RAD finds that there was no reviewable error in the procedure of this hearing, in the evaluation of testimony or documentary evidence, or in the reasoning and conclusions of the RPD. [23] The RAD will first consider the issue of counsel's argument that as the Appellant is now 25 years old, he is unable to return to Saudi Arabia as a dependent of his father. Counsel submitted a new document on this point which suggests that at age 25, a resident of Saudi Arabia must find a sponsor, other than a parent, establishing that they have employment. The RAD notes that according to the passport copy submitted to the RPD and the BOC, the Appellant was born on XXXX XXXX, 1992, which would make him 24 years old as of this past XXXX and not 25 years old as argued by his counsel. Furthermore, as noted by the RPD, the documents submitted by the Appellant suggest that the Appellant's father is still employed, which would suggest that the Appellant could remain under his sponsorship without problem. The RAD does not find any merit in the argument that he cannot return to Saudi Arabia as a dependent of his father for two reasons: 1. He is 24 years old; 2. The evidence suggests that his father is employed. [24] The second argument of counsel is that the RPD's conclusions with respect to the Appellant's subjective fear should not have been based on the Appellant's delay in claiming refugee status in the United States or Canada. The RAD finds that the RPD analysis is more broadly based than is alleged by counsel. The RAD notes that the RPD analysis on this point begins with the fact that the Appellant testified that his fear of returning to Yemen began on XXXX XXXX, 2014, as soon as he learned that his father could not support his studies. However, he did not take any steps to address his allegedly precarious status in the United States until he received the e-mail from the Department of Homeland Security in XXXX 2015. The RAD finds that the Appellant's behavior does not support the argument that actual fear of returning to Yemen arose in XXXX 2014, because he only took action on moving out of the United States in XXXX 2015. He appears to have been motivated to come to Canada to avoid the contact with the United States Department of Homeland Security. The RPD analysis is thorough and considers the date of each of the immigration documents relied on by the Appellant as well as all information supplied by CBSA and email received by the Appellant from the Department of Homeland Security. In reviewing all of this documentation, the RAD notes that on XXXX XXXX, 2015, the Appellant stated to the CBSA: "A lot of people told me that I should come to Canada as it was safer than the USA. They told me that lots of people had their refugee claim refused in the USA and the American officials deported the people back to Yemen." This is similar to his testimony before the RPD where he stated that persons from his "community" counseled him to go to Canada. The RAD listened to the testimony of the Appellant and agrees with the RPD that he had a great deal of difficulty articulating the reason for not leaving the United States when his studies ended. The burden of proof lies with the claimant or Appellant and in this case the RAD finds that the concrete evidence with the documentary evidence coupled with the evasive and vague testimony of the Appellant does not lead to the conclusion that the Appellant feared returning to Yemen either as of XXXX 2014 or as a result of his membership in an ethnic group. [25] With respect to the Appellant's objective fear, counsel argues that the Appellant has never been to Yemen and thus it is to be expected that his testimony would be vague. Counsel also cites caselaw in which the Federal Court cautions the RPD from relying solely on the appearance of a claimant to determine whether or not he is part of a certain ethnic group. Lastly, counsel suggests that as Yemen is in the midst of an ethnic war, the Appellant would be at a disadvantage as he is unaware of the customs and traditions of the country. [26] The RAD finds that the written reasons of the RPD demonstrate that all of the documentary evidence on persons who are XXXX XXXX XXXX filed as Exhibit P-10 were read and considered. The Appellant was questioned on his ethnic origins and the RAD also found that his testimony on his ethnicity and the ensuing fear was vague and unsubstantiated. The letter from the Appellant's father states categorically that the Appellant is a member of a tribe from Yemen - however the Appellant's counsel suggests that the tribe named by the father does not exist. The Appellant is thus basing his allegations on the fact that one of his grandparents came from a town in Yemen known for persons who belong to a disadvantaged ethnic group. The RAD notes that no one in the Appellant's immediate family has ever lived in Yemen or has ever visited Yemen. The documents suggest that the Appellant's father is employed in Saudi Arabia and the Appellant is 24 years old. The objective fear in this case is based on speculation about every element of the file. The RAD finds, as did the RPD, that the Appellant has not met the burden of proving that as a person with ethnic origins of XXXX XXXX XXXX would be persecuted in Yemen. With respect to counsel's argument about the RPD conclusion on facial features, the RAD notes that the caselaw submitted by counsel cautions the RPD on uniquely basing its conclusions on appearance. The RPD did not do so. The RPD did refer to the facial features and skin colour of the Appellant, and compared his features to the photos in the documentary evidence submitted. This was one element of a nine paragraph discussion which led to a conclusion about the Appellant's objective fear that the RPD had erred on this point. Even if the RAD were to find that the RPD had erred on this assumption, and to strike RPD conclusion on skin colour and facial features from the record, it would not invalidate the balance of the written reasons which describe in detail why the RPD did not find the Appellant credible about his membership in this ethnic group. [27] In conclusion, for the reasons explained above, the RAD finds that the Appellant was not credible in his allegations and the RAD comes to the same conclusions as the RPD on this file in terms of the lack of credibility of the Appellant's subjective and objective fear. REMEDIES [28] For all these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" pursuant to s. 96 of the Act nor a "person in need of protection" pursuant to s. 97 of the Act. CONCLUSION [29] The appeal is dismissed. Diane Sokolyk Me Diane Sokolyk July 25, 2016 Date /cos 1 M.C.I. v. Singh and CARL 2016 FCA 96. 2 M.C.I. v. Huruglica 2016 FCA 93. 3 Valencia Pena c. Canada 2011 CF 326. 4 Brown c. Canada 2011 CF 585. 5 Pluhar c. Canada 1999 CanLii 8544 (CF). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB5-04628 12 RAD.25.02 (2014.09.11) Disponible en français