TB6-17411

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File / Dossier de la SAR : TB6-17411 Private Proceeding / Huis clos Redetermination of Appeal ? Nouvel examen de l'appel Reasons and decision ? Motifs et decision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered at Toronto, ON Appel instruit à Date of decision September 29, 2018 Date de la décision Panel G. Erauw Tribunal Counsel for the person(s) who is(are) the subject of the appeal Belinda Bozinovski Conseil(s) (de la/des) personne(s) en cause Designated representative Représentant(e) désigné(e) Counsel for the Minister Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "Appellant") is a citizen of Saudi Arabia and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant argues that the RPD erred in its credibility assessment, erred by failing to assess the cumulative effect of the mistreatment the Appellant experienced because he is Shia, erred by ignoring his documentary evidence, failed to give adequate reasons, and erred in finding he lacked a political profile. After careful review of the evidence in the record, the Refugee Appeal Division (RAD) finds that the RPD erred in its credibility assessment. Therefore, the RAD allows the appeal and refers the matter back to the RPD for re-determination by a differently constituted panel. DETERMINATION [2] For the reasons provided below, the appeal is allowed. BACKGROUND [3] The Appellant is from Safwa, Saudi Arabia. He alleges that if he returned to Saudi Arabia he will be persecuted on the basis of his Shia identity. Throughout his life he alleges numerous incidents of mistreatment by Saudi authorities of himself, his family members, and other Shia individuals in Saudi Arabia. For example, he alleges when he was XXXX years old he was stopped by police, put in handcuffs and accused of throwing drugs from the window. During this incident he states that four to six police officers hit him for no reason and stole items from him. Since that incident he alleges approximately 20 other incidents with police where they hit him or insulted him. The Appellant also alleges that he and his family were harassed by religious police on approximately 12 occasions when they went to Al Medina to visit a shrine. He also speaks of being frequently stopped at checkpoints, his brother being beaten at a checkpoint, Shia people being shot and killed for no reason other than being Shia, Shia protestors being shot at by Saudi authorities, and that the Saudi authorities and citizens, including teachers insulted him and his family members by calling them infidels and that they should be killed. He further claims that he was denied education and would not be able to work in Saudi Arabia because he will be discriminated against as a Shia. Last but not least, he fears he will be killed in attacks by ISIS and terrorists at Shia mosques. Further details are provided in his Basis of Claim (BOC) Form, and his testimony at the RPD hearing.1 The RPD's Decision [4] The Appellant had a refugee determination hearing on July 27, 2016. In a written decision issued on November 4, 2016, the RPD rejected the claim. The RPD panel found the Appellant lacking in credibility, that his experiences of mistreatment did not cumulatively amount to persecution, and that he did not establish he possesses a risk profile in Saudi Arabia on the basis of his Shia identity or political profile. Therefore, the RPD concluded that the Appellant does not have a well-founded fear of persecution on a Convention ground, or that he would not personally be subjected to a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Saudi Arabia. First Appeal to the RAD [5] The Appellant appealed to the RAD, arguing the RPD erred in its credibility assessment, erred by failing to assess the cumulative effect of the mistreatment the Appellant experienced because he is Shia, erred by ignoring his documentary evidence, failed to give adequate reasons, and erred in finding he lacked a political profile. By a decision of May 31, 2017 (the first RAD decision), the appeal was rejected. The RAD confirmed the RPD's credibility findings, found his experiences did not cumulatively amount to persecution, and found that the Appellant did not possess a profile that placed him at risk. Judicial Review [6] The Appellant sought and was granted leave for judicial review. By a judgment of November 17, 2017, the Federal Court granted the judicial review and returned the matter to the RAD for reconsideration by another member. The Federal Court returned the matter on consent, so no details are provided by the Federal Court concerning how the RAD's decision was unreasonable. ROLE OF THE RAD [7] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness in accordance with the Federal Court of Appeal's decision in Huruglica.2 In assessing findings involving the credibility of oral testimony, the RAD may apply the modified standard of reasonableness in situations where the RPD enjoys a meaningful advantage.3 Unless otherwise stated in the reasons, the RAD uses the correctness standard on all findings and will consider the overall refugee determination on a standard of correctness, even where the RAD has deferred on some or all findings. Comment on the Appellant's Affidavit Submitted with the Appeal Record [8] Although the Appellant does not indicate that he is providing new evidence at the time his appeal record was submitted, he does provide an affidavit.4 While it appears that his appeal affidavit is not provided for the purposes of new evidence, the Appellant's affidavit repeats his oral testimony, elaborates and clarifies his oral testimony, and criticizes the reasoning of the RPD. The Act expressly limits admissible evidence to new evidence or evidence that was not reasonably available or obtainable at the time the claim was rejected. I am ignoring the Appellant's explanations of his evidence presented at the RPD and his comments on the RPD reasoning. All of those parts of his affidavit are inadmissible, either because they are not new evidence or they are simply arguments that belong in the Appellant's Memorandum. Only the arguments made in his memorandum will be considered. The inclusion of affidavits like this one serves no useful purpose. Rule 29 Application to Submit Additional Documents not Previously Provided [9] The Appellant submits upon re-determination, an application under Rule 29 of the Refugee Appeal Division Rules for the admission of evidence not previously provided. The Appellant requests to submit evidence of his political tweets about the Saudi government's treatment of Shias; evidence of him having a psychotic episode after posting the tweets, which he claims places him at risk in Saudi Arabia on the basis of having a mental illness; evidence that he was sexually assaulted in 2014 by a XXXX XXXX in Saudi Arabia, but too ashamed to disclose it to his lawyer or to the RPD; and documentary evidence about the treatment of Shia in Saudi Arabia since the RPD rejected his claim.5 [10] Rule 29 allows the Appellant to make an application to provide a document not previously provided. Such an application must include an explanation of how the document meets the requirements of section 110(4) of the IRPA and how that evidence relates to the Appellant.6 In determining the application, the RAD must consider any relevant factors, including: the relevance and probative value of the document, any new evidence the document brings to the appeal, and whether the Appellant could have, with reasonable effort, provided the document with the Appellant's Record. The RAD's Assessment of the Rule 29 Application [11] I accept the Appellant's Rule 29 Application into evidence regarding the Appellant's tweets, his alleged psychotic episode, and the alleged sexual assault. However, I do not accept the country documentation about the treatment of Shia in Saudi Arabia. Not only has the Appellant failed to specify in compliance with 3(3)(g)(iii) how each document meets the requirement of 110(4) and Singh, I note that similar information is already in the RPD record and these documents add nothing "new" to the appeal. Nonetheless, since this is being sent back to the RPD for re-determination, it is open to the Appellant to submit all of the documents submitted to the RAD in his Rule 29 Application to the RPD. [12] In regard to the new evidence about the tweets, his alleged psychotic episode, and the alleged sexual assault, this does not affect the disposition, due to my findings below regarding the RPD's credibility assessment. That said, I will briefly explain, even though I accept the Rule 29 application and his new evidence as admissible, why I am unable to recognize the Appellant as a Convention refugee or a person in need of protection instead of sending his claim back to the RPD for redetermination. [13] First, with respect to the Appellant's tweets I am not satisfied that the tweets have come to the attention of Saudi authorities. In this respect, I am guided by the Federal Court decision in Wang,7 which held that a sur place claim could not be maintained in the absence of evidence that the Appellant's claim had specifically come to the attention of the authorities of their country of origin. In particular, I observe that there is no indication based on the evidence provided that the Appellant's twitter content is in the public domain, and not private. In addition, I note that the Appellant only has five followers and retweeted other people's tweets and provided links to news articles. He has not personally articulated a political view critical of the government. Furthermore, while the Appellant submits country documentation that Saudi Arabia monitors social media, the evidence provided is of individuals who were residing in Saudi Arabia, and not of persons outside of Saudi Arabia. I see no persuasive evidence that Saudi Arabia monitors the social media accounts of Saudis residing abroad. Therefore, I am not satisfied on a balance of probabilities that the Appellant's tweets have come to the attention of Saudi authorities, or that the content of these messages would impute a political opinion on him. [14] Second, in regard to the Appellant's psychotic episode, I note that the Appellant's episode was diagnosed as a Brief Psychotic Disorder, and that he is receiving treatment and his condition is in remission as of XXXX XXXX, 2017. No updated information is provided about his mental health, such as any history of mental health issues, the cause of his episode, symptoms, treatment plan, and his prognosis. I have also reviewed the documentation provided about the treatment of persons with mental illness in Saudi Arabia in light of the content of the report from CAMH, and I am not satisfied that he would be at risk in Saudi Arabia due to his mental illness. Specifically, while I note that there is some evidence that Saudis view mental illness as a failing of faith or demonic possession and seek treatment through faith healers, this appears to be more prevalent among rural and uneducated persons. I have no evidence before me that indicates that if the Appellant returned to Saudi Arabia he would be unable to obtain the medication required to keep his condition in remission, especially considering the evidence shows that there are psychological treatment facilities in the Eastern Province and medication is available for mental health patients. Rather, the evidence provided indicates that families play a key role in ensuring that people receive the care they need, and I have no reason to believe that he would either not have the support of his family in Saudi Arabia, be unable to obtain psychological treatment or the medication that currently put him in remission. I acknowledge that there is a stigma against persons in Saudi Arabia about people with mental illness, which is also the case in Canada, I am not persuaded that this stigma, given the lack of evidence about his prognosis and the availability of treatment in Saudi Arabia, demonstrates he faces a risk on the basis of his mental illness if he returned to Saudi Arabia. [15] Third, assuming without deciding that the sexual assault did occur, the Appellant's affidavit does not indicate that this incident occurred because he was Shia, or that he was apprehended by the XXXX on the basis of his Shia identity, which is the basis of his refugee claim. While the affidavit states that the XXXX "started to talk to me about the sexual assaults that happened to Shia people in Safwa", this does not suggest that he was targeted due to his Shia identity. If true, such an incident is unfortunate, but alone does not warrant protection. Request for an Oral Hearing [16] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.8 [17] In this case, I have found the Appellant's tweets, his psychological report, and his allegation of sexual assault admissible as new evidence. However, for the reasons provided above, this evidence does not raise a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim. Furthermore, even if I held a hearing on this evidence, I would not be able to assess evidence that was before the RPD, such the RPD's credibility assessment about his alleged treatment as a Shia in Saudi Arabia, and which I have found to be an error. Therefore, the RAD cannot hold a hearing and the request is denied. ISSUES IN APPEAL [18] The Appellant argues several issues in his appeal, which are overlapping. I have grouped the Appellant's issues as follows: 1) The RPD erred in its credibility assessment; 2) The RPD erred in failing to assess the cumulative effect of the mistreatment he experienced as a Shia; and, 3) The RPD erred in its assessment of documentary evidence and in assessing his risk profile. ANALYSIS The RAD finds the RPD erred in its credibility assessment Erroneously Summarized his Allegations The Appellant's Argument [19] The Appellant argues that the RPD misconstrued the Appellant's allegations when it summarized his refugee claim. The Appellant points to approximate 22 examples of the RPD having misstated his allegations and experiences in Saudi Arabia due to his Shia faith. The RAD's Assessment [20] I reject the Appellant's argument and find the RPD did not err. The Appellant's argument is wholly without merit. The RPD simply provides a summary of the Appellant's allegations, it is not required to repeat verbatim the content of his BOC or his testimony. To do so would be an unnecessary burden on the RPD, and I note that the RPD indicated that further details are provided in the Appellant's BOC in its summary. Furthermore, I fail to see what turns on the few words missing in the RPD's paraphrasing of the Appellant's allegations, as a summary they are in my view peripheral. I do not see the Appellant's allegations having been materially altered or misunderstood based on the RPD's summary in the allegations section of its reasons. Finally, the RPD's summary of the allegations are not findings, which is the only basis upon which the RAD can assess if the RPD erred. The Appellant's arguments about how the RPD erred in its characterization of his evidence is more appropriately argued below, where the RPD actually made negative credibility findings. Exaggeration of Police Abuse and BOC Omission of Number of Times Abused by Police The Appellant's Argument [21] The Appellant argues that the RPD erred by stating that he testified that he was hit hard on his face, when he actually testified that whenever the police hit him in the face, he said it was not very hard, but that it was more like a slap or smack as a means to humiliate him. This was an error because the RPD used this mischaracterization in its credibility finding that he had exaggerated. [22] In addition, the Appellant argues that the RPD erred when it failed to consider his explanation for why he did not mention in his first BOC that he had been stopped by police almost monthly since he obtained his driver's licence. The Appellant submits that he explained that he did not mention it because he did not have a lawyer at the time he completed his first BOC and he did not understand the extent to which he needed to provide such details regarding his mistreatment in Saudi Arabia. However, the RPD erroneously stated his explanation was that he mentioned the experiences in his POE interview and his amended BOC, which he argues was actually his response to a question that was noted on the record as a question he did not understand. The RAD's Assessment [23] I agree with the Appellant and find the RPD erred. The RPD did not take into account his actual testimony about his interactions with the police, and the RPD misstated it. In my review of the RPD hearing, the Appellant stated that he was not hit hard, but that he was sometimes smacked and slapped in the face, slandered and told derogatory things in order to humiliate him. [24] I also agree with the Appellant that his explanation that he did not have a lawyer or know the extent of the information to put in his first BOC, was not adequately considered. I find this is an adequate explanation considering the Appellant did elude to having interactions monthly with the police in his POE interview and his amended BOC, and therefore, I do not place much weight on his failure to indicate that he was stopped monthly in his first BOC, which he completed on his own without the assistance of counsel. Level of Abuse and Objective Documentary Evidence The Appellant's Argument [25] The Appellant argues that the RPD erred in finding that it was an exaggeration for the Appellant to state that all Shia men were regularly beaten by police in the Eastern Provinces, especially since the objective evidence does not support that level of abuse. The Appellant submits that he did not state "all Shia men are beaten regularly by police", but he did say that what happened to him happens to all Shia men, mainly that they are stopped and abused like him, with slaps and hitting. Furthermore, this is supported by the documentary evidence. The RAD's Assessment [26] Having reviewed the RPD hearing, I agree with the Appellant that the RPD mischaracterized his evidence. The Appellant did not state that he was beaten regularly by police, but when asked if all Shia men were treated like him, he had previously testified about being stopped, hit and slapped in the face, and insulted. Since the objective documentary evidence does mention that Shias face discrimination and harassment by the police, I do not find that the Appellant exaggerated and I find the RPD mischaracterized his evidence. Therefore, the RPD erred. Delay and Failure to Claim The Appellant's Argument [27] The Appellant argues that he provided a reasonable explanation for why he did not claim asylum in the United States (U.S.). and his delay in claiming. He submits that when he left Saudi Arabia in August 2015 he had no intention of returning to Saudi Arabia and that he did not want to live there anymore due to the mistreatment of Shias. Rather he submits that his objective was to get a scholarship so he would not return and could study abroad. When he was no longer qualified for the scholarship and grew uncomfortable in the U.S. due to Donald Trump and racism against Muslims, this was when he spoke with his siblings and decided to come to Canada and make a refugee claim. So he applied for a visa and made a refugee claim at the airport. The RAD's Assessment [28] I reject the Appellant's argument and find the RPD did not err. The Appellant stated he left Saudi Arabia and did not want to go back because of the treatment of Shia. If this was the case the ability to obtain a scholarship and to study abroad by no means provided him with that security. It was a temporary measure and gave him no secure status, so I reject this explanation. Furthermore, at the time he was in the United States Donald Trump was not the President, and he had been provided a U.S. visa, was granted entrance to the U.S., and was able to study in Oklahoma. As such, the evidence that he experienced racism does not explain why he would not claim asylum on the basis of his religion in the U.S. The Appellant resided in the U.S. for more than 8 months and had no intention of returning to Saudi Arabia because of his alleged fear of mistreatment as a Shia. I do not accept the explanation of the loss of a scholarship as the reason why he delayed and failed to claim asylum in the U.S. I find his actions are inconsistent with a well-founded fear, and I draw a negative credibility inference as a result. However, this finding is not determinative of his credibility. [29] Based on the above assessment of the RPD's credibility findings I find the presumption of truthfulness has not been rebutted in this case. However, I am not prepared to find that the Appellant is credible in his allegations. Having reviewed the RPD hearing I have questions outstanding regarding his evidence. In particular, there are issues in his evidence that I found to be vague, evasive, evolving and inconsistent, but these were not put to him. Such as his answers in the port of entry (POE) interview about his interactions with police and lack of mentioning that he was hit by police when stopped. I also have remaining questions about the context of his interaction with police when he was XXXX and when he was allegedly hit, as the RPD got caught up on why he could not remember the date of the incident, rather than following up to confirm consistency with his POE interview and his BOC allegations about the incident. Finally, I note that it is unclear how many times the Appellant was hit by police, as his answer was linked to being stopped monthly and he was not asked to describe the extent of what encounters were physical, compared to verbal interactions. It is also unclear whether these incidents of verbal and physical interactions were when he was stopped by police, were they at checkpoints, were they on the street, were some of them by civilians? Such questions would assist in determining whether the Appellant has exaggerated his allegations. These credibility issues remain outstanding on evidence presented to the RPD, and this evidence was not adequately tested by the RPD. Cumulative Discrimination vs. Persecution and Shia Profile [30] Since I have found that the RPD erred in its credibility findings about some of the incidents alleged by the Appellant, I am unable to conclude on the record that these incidents amount to persecution. Therefore, this issue would need to be considered by the RPD after conducting a redetermination of the Appellant's credibility to see if the incidents alleged amount to persecution. I am unable to do so given my remaining concerns outlined above on evidence presented to the RPD. Political Profile [31] Although the Appellant argues that the RPD did not consider all the documentary evidence in its assessment of his profile, I find that the RPD did not err in this assessment. With respect to the political profile, I agree with the RPD that because he demonstrated no political activities or involvement, or participation in protests, he has not established that he possesses a political profile that would place him at risk. None of his alleged interaction with police were the result of real or perceived political activities.9 CONCLUSION [32] After conducting its own analysis of the entire record, the RAD finds that the RPD's findings are insufficient to maintain the determination that the Appellant is not a Convention refugee or a person in need of protection. The RPD's determination stems from mischaracterizing the Appellant's evidence and failing to consider his reasonable explanations for a key BOC omission. [33] However, the RAD is not in a position to find that the Appellant faces a serious possibility of persecution on a Convention ground, or on a balance of probabilities, would be personally subjected to a danger of torture, or face a risk to life or a risk of cruel and unusual treatment or punishment, if returned to Saudi Arabia. In this case, credibility issues remain outstanding on evidence presented to the RPD, and this evidence was not tested by the RPD. Where the RAD is unable to confirm, or set aside and substitute its own decision without hearing evidence that was presented to the RPD, paragraph 111(2)(b) of the IRPA allows the RAD to return the case to the RPD for re-determination. The RAD chooses to do so in this case. Directions [34] In addition to some of the credibility issues outlined above in paragraph 29, I also provide the RPD with the following directions it may wish to consider: 1) The RPD may wish to inquire about the Appellant's social media presence, reach, and activities; 2) The RPD may wish to request an updated and comprehensive psychological report from the Appellant; 3) The RPD may wish to examine why the Appellant failed to disclose an alleged sexual assault in 2014 from his BOC and POE interview; and, 4) The RPD may wish to question the Appellant about the timing of the above three incidents, given they arose approximately two months after the first RAD decision. DETERMINATION OF THE APPEAL [35] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD accepts the appeal and refers the matter back to the RPD for redetermination by a differently constituted panel.10 (signed) "G. Erauw" G. Erauw September 29, 2018 Date 1 Exhibit RPD-1, RPD's Record, Appellant's Basis of Claim (BOC), at pp. 15-49; Exhibit RPD-1, RPD's Record, Audio Recording of the RPD Hearing. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibit P-2, Appellant's Record, Appellant's Appeal Affidavit, at pp. 14-32. 5 Exhibit P-3, Appellant's Record, Rule 29 Application, at pp. 1-333. 6 Rule 29(3), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 7 Wang, Kong Ping v. M.C.I. (F.C.T.D., no. IMM-6298-99), Pelletier, November 14, 2001; 2001 FCT 1237. 8 Section 110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. 9 Nijjar v. Minister of Citizenship and Immigration, 2006 FC 829, at para 22. 10 Paragraph 111(1)(c), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA] --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (September 18, 2018) Disponible en français RAD.28.07 (September 18, 2018) Disponible en français RAD File / Dossier de la SAR : TB6-17411