MB4-02291

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 : MB4-02291 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 / heard at Montréal, Quebec Appel instruit à Date of decision November 18, 2014 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal Me Julie Taub Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] The Appellant is Mr. XXXX XXXX XXXX XXXX XXXX XXXX who is a 50 year old resident of Kuwait (Bidoon) and is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant has presented new evidence and has requested an oral hearing. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(a) of Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that Mr. XXXX XXXX. XXXX XXXX XXXX is not a "Convention Refugee" pursuant to s. 96 of the IRPA and/or a "person in need of protection" pursuant to s. 97 of the IRPA. BACKGROUND [3] The Appellant alleges that he is at risk of treatment that amounts to persecution if he returns to Kuwait. The Appellant alleges that he is now a de facto undocumented Bidoon and as a result he has been arrested on several occasions and assaulted. The Appellant argues that cumulatively this treatment meets the threshold to be granted protection from Canada either as a convention refugee or under Section 97 of IRPP because of his treatment at the hands of the police is severe. [4] The Appellant alleges that he was not allowed to renew his 'green card' beginning in 2008. This is the case even though he was previously 'registered' and is married to a Kuwaiti. The Appellant alleges that he has travelled with his wife to aid her in her treatment for an XXXX XXXX and on his return from his latest travel in 2012, he alleges that he was arrested for working illegally. The Appellant alleges that he was assaulted and refused medical care. The Appellant alleges that he has been detained by police for lengthy periods and treated by authorities such that he should be recognized as a convention refugee. [5] The Appellant secured a visa and arrived in Canada in XXXX 2014. The Appellant submitted a protection claim in February 2014 and the RPD heard the Appellant's refugee claim and in a decision dated May 27, 2014, denied the claim. The Appellant appealed this decision by submitting a Notice of Appeal, which was received by the RAD on June 17, 2014. SUBMISSIONS [6] The Appellant submits that the RPD erred in its adverse credibility conclusion because the RPD "failed to consider the claimant's testimony". The Appellant is arguing that the RPD erred by not granting the testimonial evidence of the Appellant any weight and that the Appellant gave reasonable explanations for key problems identified by the RPD and by 'ignoring' or 'failing to consider' this evidence, the RPD 'erred in law'. [7] The Appellant also argues that elements of the RPD decision exhibit a lack of understanding of the Appellant's allegations because the RPD is concluding that the Appellant does not face persecution when in fact the Appellant testified that he did face persecution level treatment and that this treatment is consistent with the documentation. The Appellant argues that this treatment should be viewed as requiring Canada's protection because torture was involved. [8] The Appellant goes on to argue that the RPD support of its determination is not sufficiently developed such that the logic and analysis of the RPD's vis-à-vis the Appellant's allegations cannot be effectively understood. This is understood by the Appellant to be an error in law which requires remedial action. [9] With respect to an outcome to this appeal, the Appellant seeks to have the RPD decision "set aside" and that the RAD should 'replace it' by recognizing that the Appellant requires Canada's protection. Alternatively the Appellant argues that the RAD might 'refer back' the claim to the RPD for reconsideration by a different panel. REQUEST FOR A HEARING UNDER IRPA SECTION 110(6) [10] The Appellant has requested a hearing and may have provided new evidence, based on Section 110(4), which includes a newspaper article which notes that Bidoon may have their Article 17 passport confiscated if it is used as an ID at Kuwait government check points.1 I say 'may' because the latter evidence was included with additional submissions related to a recent call by the RAD for comments on recent Federal Court jurisprudence on the role of the RAD in reviewing RPD decisions and there is no explicit request to treat this material as new evidence under IRPA Section 110(4). [11] Regardless, if I were to review it as new evidence I conclude that based on the origin of this material it meets a first threshold that it is 'new' in the sense that it was published (June 10, 2014) after the RPD rejected the claim (May 27, 2014). I would argue, however, that whether this evidence is admitted should also be evaluated using the test found in Raza (Raza, Syed Masood Raza v. Minister of Citizenship and Immigration and Minister of Public Safety and Preparedness 2007 FCA 385), which is a Federal Court of Appeal case assessing the admission of evidence in Pre-removal Risk Assessment (PRRA) claims. There are parallels in the legislative wording of the acceptance of evidence in a RAD appeal and in a PRRA claim, therefore, I would argue that the Raza case has relevance and gives guidance in this assessment. This logic has also been accepted by recent Federal Court jurisprudence Iyamuremye v. Canada2 and Ghannadi v. Canada.3 [12] Using Raza, the admission of this evidence is dependent on whether it meets the criteria of credibility, newness, relevance and materiality. As noted below in the Analysis section, I conclude that this article cannot be viewed as 'material' because the core concern of the RPD is that this claim lacked credibility. I note that the case identified in this newspaper article is somewhat relevant to this case because the events affect Article 17 passport holders. At the same time, however, I cannot conclude that this material is sufficiently analogous to this appeal to meet the materiality aspect of the claim. This is to say, in this case the RPD does not find the Appellant credible with respect to core allegations. One of these allegations is that he cannot renew his green card. If this 'not credible' conclusion is upheld, accepting this evidence has no impact on the appeal therefore it cannot be viewed as evidence which would meet the Raza test for admission and is therefore not admissible into evidence before the RAD. [13] The Appellant also provides Federal Court cases which may be relevant to this appeal. Such evidence is not considered 'new evidence' for the purposes of considering whether to hold a hearing. In this case I conclude that no new evidence has been provided by the Appellant, therefore there is no need for a hearing in the appeal and therefore the hearing request is denied. ROLE AND FUNCTION OF THE RAD4 [14] With respect to the RPD's credibility assessment, which is the determinative issue in this claim, for a number of reasons the RPD did not believe that the Appellant was at risk of persecution or at risk for a IRPA Section 97 reason because it concluded that the Appellant did not meet his burden of establishing that his story was true on a balance of probability. [15] I note that the RAD has now received some Federal Court guidance on the role of the RAD vis-à-vis RPD decision-making. One Justice suggests that the RAD's assessment of the RPD's determination with respect to the Appellants' credibility and with respect to questions of mixed fact and law, should involve an evaluation of the evidence to determine if the RPD made 'palpable and overriding errors'. This jurisprudence sets out that the RPD is owed a "measure" of deference in its conclusions and establishes that the RAD is responsible to perform its "own assessment" of the evidence (Alvarez v. M.C.I5. and Eng v. M.C.I.6. [16] I note that in another recent decision, Spasoja c. Canada (Citoyenneté et Immigration)7, Justice Roy agrees with Justice Shore on the conclusion that 'palpable and overriding errors' should be the standard of intervention with respect to questions of fact. [17] In Huruglica8, the Federal Court has stated that the RAD "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". Justice Phelan in Huruglica indicates that there is no need for the RAD to enunciate a 'standard of review' and suggests that while the RAD might show some deference on a credibility assessment and/or where the RPD enjoys a particular advantage in reaching such a conclusion, in other areas, such as an assessment of country conditions evidence, the RAD need not be deferential. [18] In Jerto9, Justice St-Louis references Huruglica and suggests that "the RAD must accord deference to the RPD's findings on credibility issues". [19] Following Huruglica and Jerto, I conclude that in this appeal, which turns on questions of fact, the RPD's credibility determination must be granted a degree of deference and I must provide my own assessment of the evidence. ANALYSIS OF THE MERITS OF THE APPEAL Issue 1: Did the Board err in its general credibility findings? [20] The basic argument of the Appellant is that while he admits that he omitted to reveal his prior travels and his prior attempts to seek asylum in the UK, he argues that his allegations of mistreatment are true. Given this treatment coupled with other allegations related to his status of having been denied having his 'security' or 'green card' renewed, the RPD should conclude that the Appellant has met his burden of establishing that if he returns to Kuwait he faces a serious risk of persecution or a risk as understood in Section 97 of IRPA. [21] I must conclude that the RPD in this case is very thorough and the conclusion on the Appellant lack of credibility is very persuasive. In reviewing the RPD decision, evidence and the documentation related to Bidoon, I am of the same conclusion. The Appellant has not met his burden of establishing that his allegations are true on a balance of probability. In addition, in reviewing the documentation, I must conclude that simply being Bidoon, at least in the category that the Appellant belongs, is not in itself sufficient to be recognized as requiring Canada's protection. [22] With respect to an assessment that the Appellant's testimony is untrustworthy, the RPD examines the various visas that were found in the Appellant's passports and concludes that the Appellant was not credible in the his testimony about why he had particular visas in his most recent passport. The RPD found for example that the Appellant gave inconsistent testimony for why he secured a US visa. At one point the Appellant stating that he needed the US visa to secure a Canadian visa and at another point stating that it was needed to escape Kuwait but because of his wife's illness it had expired before he had a chance to use it (RPD Decision, Paragraph 26). Elsewhere the Appellant argues that he secured an Irish visa because he needed a European visa but this was found not credible because he was already in possession of a French visa (RPD Decision, Paragraph 27). [23] The RPD also notes that with the receipt of Biometric data from the UK (RPD Record, pp. 147-152), aside from the omission of not reporting the travel and previous asylum claims in the various refugee application forms, various elements of the Appellant's hearing testimony are exposed as misrepresentations. These include "Questions about when he decided to leave Kuwait definitively and if he had any such thought before 2012" (RPD Decision, Paragraph 33). [24] This leads the RPD to conclude that "the claimant has not presented his situation as it is in reality" (RPD Decision, Paragraph 34). In other words the RPD concludes that the Appellant's testimony is not trustworthy. This being the case, in those parts of the Appellant's Memorandum which argues that the RPD erred because the Appellant testified to events which would constitute persecution, the core issue is: was the RPD within its area of discretion to reach a conclusion that all of the Appellant's testimony was not trustworthy? [25] I would agree that if the Appellant were arbitrarily arrested on three occasions or beaten up or that his green card was not renewed, then the Appellant would have a relatively strong claim on Canada's protection. My conclusion is, however, that the Appellant can correctly conclude that the Appellant has not met his burden of establishing the validity of his claims on a balance of probability. This is because of the many misrepresentations that are manifest when comparing the Appellant testimony with the documentary evidence including the biometric evidence from the UK. In this way the allegations related to arrests or beatings have no probative value. [26] I conclude that this is a developed analysis and a clear conclusion and I conclude that the Appellant's argument that the RPD's decision is not sufficiently argued such that we are left to speculate "as to what the tribunal might have been thinking" (Komolafe v. Canada10) is not well founded. [27] I would also note that a case where the Federal Court overturned a decision of the RPD in a case where the claimant was a documented Bidoon is also not relevant. This is because in that case the allegations of the Appellant were found credible (Awadh v. Canada11), and the RPD was held to have not examined allegations related to whether the educational discrimination faced by the claimant constituted persecution. In this case the Appellant's allegations were found not to be credible. Issue 2: Specific Credibility Issue - did the Board err by concluding that the Appellant was documented and therefore not at a serious risk of persecution in Kuwait? [28] This is a set of arguments which is to some extent wrapped up with the credibility allegations and to some extent not. With respect to whether the Appellant is 'documented' the RPD's conclusion is clear that: "Given that the claimant is in possession of a birth certificate, a Bidoon review card, as well as an article 17 passport, the tribunal comes to the conclusion that the claimant is documented" (RPD Decision, Paragraph 18). The RPD is basically stating that it does not believe that the Appellant could not legally work or not obtain a driver's license, which are benefits which are, according to the documentation, available to 'registered' Bidoon. [29] The Appellant makes an argument in his claim that he had some sort of personal confrontation with the authorities responsible for the renewal of his green card (Oral Hearing at minute 1:27). Therefore, the Appellant is alleging that he was thrown into a situation where although he should be documented, 'de facto' he was not. The explanation for securing the passport when he is alleging he is not documented is that he found someone to aid him (via 'wasta') in securing this Article 17 passport (Oral Hearing at minute 1:36). The argument is however, that this was a single event and the Appellant was always in a precarious position because the family of his wife did not accept him (Oral Hearing at minute 1:42). [30] The Appellant notes the reference in the UK guidance on the risks of not being able to renew the green card such that the individual could become a 'de facto' undocumented individual. The Appellant argues that the RPD "failed to take into account the fact that the appellant's Bidoon review card had expired in 2008 and he was denied a renewal on several occasions" (Appellant's Memorandum, Paragraph 6). [31] The RPD focuses on credibility, the omissions, contradictions within the Appellant's testimony and between it and the documentation. The RPD also reaches a general conclusion that the Appellant did not act "as someone fearing persecution" (RPD Decision, Paragraph 21). The RPD concludes that these allegations lack credibility on a balance of probability. [32] My own interpretation is that I share the credibility concerns of the RPD and I must conclude that these conclusions are determinative. While I do not see issues or concerns in this claim which might aid the Appellant defend his credibility, I can draw attention to other problems in the file that I would conclude would raise additional credibility questions. [33] For example, the Appellant alleges that all Bidoon are the 'same' and are all treated in a manner that should be considered persecution (Oral Hearing at minute 1:45). The Appellant's counsel during the hearing also made the point that he has traveled to Kuwait on several occasions and he is of the opinion that the documentary mentions of benefits granted the Bidoon is not the reality. The Appellant's counsel argues that so much of the treatment of Bidoon is a function of arbitrary decision-making on the part of officials (Oral Hearing at minute 1:49). [34] My concern is that on the face of it the Appellant must be aware that he belongs to a privileged group within the registered Bidoon community. This is because he is in possession of a birth certificate that shows that he is born in Kuwait in 1964. It might also be noted that he sets out in his Schedule A Declaration that his parents are born in Kuwait (RPD Record, p. 223). This must place him among the approximately 43,000 Bidoon who can trace their residence in Kuwait to before the 1965 census and that therefore would be among those that the Kuwait government has stated that they are going to naturalize (RPD Record, p. 77). [35] Of course this law was never fully implemented because it was supposed to naturalize 2000 per year beginning in 2000 but this was not accomplished and time passed. The documentation states that of this group of 43,000, 7,827 have been granted naturalization (RPD Record, p. 97) and if the Appellant did have a son, for example, this would be an example of a Bidoon that would be a priority selection for naturalization because he would fit more than one category. This is because the Appellant's son would also be the child of a Kuwaiti citizen (RPD Record, p. 94). [36] A law was introduced in 2013 to increase the number of this group of Bidoon (resident at or before the 1965 census) that would be naturalized annually to 4000 (RPD Record, p. 89). Again it is not clear that this target will be implemented as the Kuwait government has not lived up to its commitments in the past and is clearly concerned about expanding its citizen population given the remarkable benefits available to Kuwaiti citizens. [37] Although there is a clear problem with respect to the pace of the naturalization of this group of Bidoon and the treatment of the larger group of Bidoon with less legitimacy in the eyes of the government who have not been offered naturalization. This latter group in particular has mobilized to aggressively advance their claim and has faced a hardening response on the part of the government. Regardless, a general conclusion of the UK government on this issue is that Kuwait is not a country where human rights abuses are a major problem. According to a 2012 letter to the UK Border Agency from the British Embassy in Kuwait, 33. In general, and particular with reference to peers across the region, Kuwait's human rights record is good. Freedom of speech is largely respected, discussion of the issue is widespread, and NGOs are able to act without impediment and lobby a government that will listen. 34. The situation of the Bidoon, whilst institutionalised, and clearly of concern to human rights groups, the international community and Kuwaitis themselves, is of a different order of magnitude than the human rights issues faced by those persecuted in other parts of the world. Bidoon do not fear for their lives, and whilst detention without trial does happen (particularly for those involved in protests), there is a transparent judicial process (albeit a slow one) that cases against individual Bidoon are referred to (RPD Record, pp 95-96). [38] It is on these bases that the UK government does not view those Bidoon who are documented as requiring protection. The group of documented Bidoon includes both those who are in line for naturalization and those that merely have a tolerated status (green card registration). [39] The Appellant is clearly in the former group and may even have an advantage on that group because he is also married to a Kuwaiti citizen. There is some indication that the government is treating such a status differently in that this is viewed as an alternate route to naturalization (RPD Record, p. 72). Certainly Kuwait in this area is exhibiting sexism (only the male Kuwaiti citizen can pass on citizenship through marriage or parenthood) which has attracted international attention and criticism. I note that the numbers are not large (from the government's perspective) that would fall into this group. According to the 2013 US Human Rights Report, the Kuwaiti ministry of the interior only counts 3200 Bidoon married to Kuwaiti woman (RPD Record, p. 19) and given the fact that the Appellant has been accompanying his wife to various treatments paid for by the government with a passport which is generally associated with this purpose (medical travel), it is likely that the Appellant is counted in this group. [40] With respect to the credibility issue, I also note that the Appellant has made two attempts to secure refugee status in the UK and would therefore be fully aware of the whole question of identity documentation and its impact on a positive refugee determination. This is because, looking at the UK guidance documentation, it is clear that the core criteria for assessing whether the Appellant should receive asylum is whether he is documented or not documented. According to the UK Guidance Report referring to 2013 jurisprudence, "The distinction made in previous country guidance in respect of Kuwaiti Bidoon, between those who are documented and those who are undocumented, is maintained, but the relevant crucial document, from possession of which a range of benefits depends, is the security card, rather than the "civil identification"" (RPD Record, p. 101). Given that the Appellant was turned down in the UK process in 2011 (RPD Record, p. 151) it is likely that this was because the Appellant was viewed as 'documented' and, after all, the Appellant was then in possession of an Article 17 passport (RPD Record, p. 150). [41] I note that the Appellant is now stating that his security card was not renewed in 2008 and this is his core risk factor. It is hard to believe that if this were true the UK would not have considered this fact yet they still reached a negative decision. In any case, looking at the full picture provided in the file, on a balance of probability, this is not credible. The file shows two different Article 17 passports, the second having a start date before the first expired, and both were valid for 3 years. This is longer than expected for such passports according to the UK Guidance which notes such passports are 'typically valid for one trip' (RPD Record, p. 87) and elsewhere that they are 'often valid for two years' (RPD Record, p. 94). [42] An additional credibility concern relates to the resources expended by the Appellant in his travels. Objectively, he has travelled extensively. Although the logic is that this relates to the medical issues of his wife which is funded by the Kuwait government, and there is much evidence of the generosity of the Kuwaiti government in this area, the general travel history found in the various documents implies resources. Aside from previous travel to France and UK, his latest passport has him arriving in France in XXXX in XXXX 2012 and leaving in XXXX 2012 from XXXX (RPD Record, p. 237). There is other travel including his trip to Canada. Taken together, my conclusion is that, on a balance of probability, the Appellant is not credible with respect to the problems he faced in Kuwait. I must also conclude that although the Appellant is a Bidoon, he is 'documented' and has not met his burden of establishing that he faces a serious risk of persecution or a risk of treatment as understood in Section 97 of IRPA if he were to return to Kuwait. CONCLUSION [43] For all these reasons, I confirm the determination of the RPD, namely, that Mr. XXXX XXXX XXXX XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection". [44] Therefore, his appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher November 18, 2014 Date /kp 1 The Appellant also provided an 'additional submission' on this question. Me XXXX XXXX, "Additional Submissions - Following Federal Court Decision in Alvarez and Eng," Received by RPD August 22, 2014, p. 9. 2 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 3 Ghannadi v. Canada (Citizenship and Immigration), 2014 FC 879, 4 The Appellant also provided an 'additional submission' on this question. Me XXXX XXXX, "Additional Submissions -Following Federal Court Decision in Alvarez and Eng," Received by RPD August 22, 2014. 5 Alvarez v. M.C.I. (2014) FC 702. 6 Eng v. M.C.I. (2014) FC 711. 7 Spasoja c. Canada (Citoyenneté et Immigration) 2014 CF 913. 8 Huruglica v. M.C.I. (2014) FC 799. 9 Jerto v. MCI (IMM-491-14) 2014-10-06, p. 4. 10 Komolafe v. Canada (2013 FC 431). 11 Awadh v. Canada, (2014 FC 521). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) Available in English RAD File No. / N° de dossier de la SAR : MB4-02291 12