TC0-09298

RAD File / Dossier de la SAR : TC0-09298 TC0-09299 / TC0-09300 / TC0-09301 TC0-09302 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision February 16, 2021 Date de la décision Panel Douglas Fortney Tribunal Counsel for the persons who are the subject of the appeal Mary Jane Campigotto Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal. The Appellants are XXXX XXXX XXXX XXXX or the Principal Appellant), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (Minor Appellants), stateless Palestinian refugees and XXXX XXXX (XXXX or the Female Appellant), a citizen of Lebanon. The stateless Appellants allege they are at risk of persecution in Lebanon due to their Palestinian ethnicity, and all Appellants allege they fear the Amal Movement in Lebanon. [2] In its decision dated June 19, 2020, the Refugee Protection Division (RPD) rejected the Appellants' claim for refugee protection. The RPD found that the determinative issue regarding the stateless Appellants is the lack of an objective basis for their claims in the United Arab Emirates (UAE). With regard to the Female Appellant, the RPD found the determinative issue was credibility. [3] The determinative issues for the Refugee Appeal Division (RAD) in this appeal are credibility and the identification of the country of former habitual residence for the stateless Appellants. I find that the RPD erred in its credibility determination and that the country of former habitual residence for the stateless Appellants should be Lebanon and not the UAE. [4] The appeal is allowed. I substitute my own decision that the Appellants are Convention1 refugees. BACKGROUND [5] The stateless Appellants were born in the UAE and lived there their entire lives. XXXX left Lebanon when she married XXXX. All the Appellants are Sunni Muslims. The Appellants fear persecution by Shi'a Amal militants based on their religion, imputed political opinion and as Palestinian refugees in the case of the stateless Appellants. [6] XXXX testified to being dismissed from his employment in the UAE in March 2019. XXXX feared returning to Lebanon due to some disputes that he and his brother had with the Amal Movement in Beirut. XXXX testified that he had been threatened by the Amal group due to a local dispute in August 2018 when visiting his brother, and that XXXX was told to leave Lebanon by armed men when she arrived in XXXX 2019 to visit her sick father. The Appellants flew to the United States (U.S.) on XXXX XXXX XXXX 2019 and entered Canada pursuant to an exception to the safe third country agreement on May 20, 2019. NEW EVIDENCE AND ORAL HEARING [7] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; ii. was not reasonably available at the time of the decision; or, iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.3 [9] The Appellants have submitted the following Documents as new evidence: * Document 1: The written statement of XXXX dated August 23, 2020. Paragraphs 1 to 17 of this letter largely "summarizes and clarifies" allegations made in XXXX Basis of Claim (BOC) form and testimony at the hearing. As such, these sections of the letter do not constitute new evidence. Paragraphs 17 to 23 of the letter refer to the August 2020 peace agreement between the UAE and Israel and the effect this has on Palestinian refugees in the UAE. As such, this does constitute new evidence and may be relevant in this appeal. Document 1, paragraphs 17 to 23 are accepted into new evidence as Exhibit 1. * Document 2: XXXX UAE employment contract dated December 17, 2006. This document was entered into evidence at the RPD and therefore does not constitute new evidence in this appeal. * Document 3: UAE Document "Residency Details" for XXXX with official stamp dated August 9, 2020. This Document states that the UAE residency permit of XXXX was cancelled on November 15, 2019. As this official document is dated after the RPD hearing and appears to contain relevant information as to the residency status of XXXX in the UAE, I accept this document into new evidence as Exhibit 2. * Document 4: a copy of an online New York Times article dated August 14, 2020 entitled: "For Palestinians, Israel-U.A.E. Deal Swaps One Nightmare for Another." As this document is dated after the RPD hearing, is from a recognized and credible source and appears to provide relevant information as to the treatment of Palestinian refugees in the UAE, I accept this document into new evidence as Exhibit 3. * Document 5: a copy of a report dated August 18, 2020 by the Begin-Sadat Center for Strategic Studies entitled: "The Israel-UAE Peace Agreement Spells Trouble for Ankara and Tehran." As this document is dated after the RPD hearing, is from a recognized and credible source and appears to provide relevant information as to the treatment of Palestinian refugees in the UAE, I accept this document into new evidence as Exhibit 4. * Document 6: a copy of an online report dated August 16, 2020 from the Financial Times entitled: "Israel's deal with UAE is a setback for wider peace." As this document is dated after the RPD hearing, is from a recognized and credible source and appears to provide relevant information as to the treatment of Palestinian refugees in the UAE, I accept this document into new evidence as Exhibit 5. * Document 7: a copy of an online report dated August 19, 2020 from Haretz.com entitled: "Why U.A.E. Struck a Deal with Israel and Why it Matters." As this document is dated after the RPD hearing, is from a recognized and credible source and appears to provide relevant information as to the treatment of Palestinian refugees in the UAE, I accept this document into new evidence as Exhibit 6. * Document 8: a copy of an online report dated August 19, 2020 from Bloomberg entitled: "The real deal for Israel and the UAE is weapons." As this document is dated after the RPD hearing, is from a recognized and credible source and appears to provide relevant information as to the treatment of Palestinian refugees in the UAE, I accept this document into new evidence as Exhibit 7. * Document 9: a copy of an online report dated May 24, 2019 from the "Emirates Leaks" website entitled "Large-Scale Arrests against Palestinians in UAE." As this document is dated prior to the RPD hearing and is a publicly available online document, I decline to accept this document into new evidence. * Document 10: a copy of a report dated December 6, 2007 from the International Spectator website entitled: "The Role of Hezbollah in Lebanese Domestic Politics." As this document is dated prior to the RPD hearing and is a publicly available online document, I decline to accept this document into new evidence. * Document 11: a copy of a 1997 report from the Journal of Refugee Studies entitled "Palestinians and Lebanon: The Common Story." As this document is dated prior to the RPD hearing and is a publicly available online document, I decline to accept this document into new evidence. * Document 12: a copy of a February 2007 report from the Kennedy School of Government/Brookings Institute entitled "The Israeli-Hezbollah War of 2006: The Media as a Weapon in Asymmetrical Conflict." As this document is dated prior to the RPD hearing and is a publicly available online document, I decline to accept this document into new evidence. [10] The Appellants have requested an oral hearing. Under section 110(6) of the IRPA,4 the Refugee Appeal Division (RAD) can only consider ordering a hearing when new evidence has been accepted, and that new evidence raises a serious issue with respect to credibility. The official documents in Exhibits 2 and 3 and the country document in Exhibits 4 to 7 do not directly engage the credibility of the Appellants. I find that the statements made by the Principal Appellant in paragraphs 17 to 23 of his affidavit (Exhibit 1) are credible and supported by the new evidence in Exhibits 4 to 7.the affidavit are credible. This appeal will therefore proceed without an oral hearing. ANALYSIS [11] My role is to look at all the evidence and decide if the RPD made the correct decision.5 Countries of habitual former residence [12] The stateless Claimants are stateless Palestinians. As stated in the RPD reasons, statelessness per se does not give rise to a claim to refugee status. A refugee Claimant must demonstrate a well -founded fear of persecution based on a convention ground or that they possess a section 97(l)6 risk in a country of former habitual residence. [13] The concept of "former habitual residence"7 implies a situation where a stateless person was admitted to a country with a view to enjoying a period of continuing residence for some duration. The Claimant does not have to be legally able to return to a country of former habitual residence. The Claimant must have established a significant period of de facto residence in the country in question. The Claimants must establish that they are persecuted in one country of former habitual residence and are unable to safely return to any other. [14] The Federal Court of Appeal established that a broad and liberal approach must be taken when assessing a proposed country of former habitual residence: there is no minimum period of residence required in that country, the analysis should not be unduly restrictive, the Claimant does not need to be able to legally return; and the Claimant must have established some significant period of de facto residence there.8 [15] As the stateless Claimants lived for most of their lives in the UAE and were born there, The RPD Member found that the UAE is a country of former habitual residence for them. I agree with this finding. [16] The RPD Member also found that XXXX had not established that his residency visa in the UAE was cancelled or the statements that stateless Claimants are not able to re-enter the UAE. [17] According to the Immigration and Refugee Board's (the Board) January 29, 2021 National Documentation Package (NDP) for the UAE, item 14.2: According to the BADIL legal researcher, Gulf states, including the UAE, do not generally "allow the entry of Palestinian refugees unless this is processed through a local agent, and they come for work purposes" (BADIL 6 Nov. 2017). According to Human Rights Watch's submission for the January 2018 Universal Periodic Review of the UAE, "[t]he kafala (visa-sponsorship) system, with some reforms, continues to tie migrant workers to their employers. Those who leave [their employers] can be punished for 'absconding' and fined, imprisoned, and deported" (Human Rights Watch 29 June 2017). The BADIL legal researcher provided the following information regarding Gulf countries, including the UAE: In order to enter the country, Palestinians must make the arrangements in advance, including getting a work visa. Moreover, they need a 'kafeel' [sponsor], a national of the country they want to go to, to guarantee officially their behaviour. The 'kafeel' makes sure the people under their supervision work, pay their taxes, don't run away, etc. Usually the 'kafeel' is the head of the company or the employer of the Palestinians, but it could potentially be someone else. (BADIL 6 Nov. 2017) [18] XXXX testified at the hearing that with Emiratization, the UAE government was decreasing its reliance of the use of non-citizens for work. Many employers in the Emirates, including his employer, started pressuring people to resign rather than formally terminating their employees without cause as otherwise the companies could be subject to civil litigation and substantial financial penalties. [19] As a consequence of his UAE employer's actions, XXXX employment was terminated, even if as in this case the employee was pressured to resign. Under the Kafeel system, XXXX did not have an alternative employer. Pressure within the UAE for Emiratization would make this a difficult task and the recent Israel-UAE peace accord as documented in the new evidence accepted for this appeal demonstrates that Palestinian refugees would be even less likely to benefit from new employment under the Kafeel system in the UAE. [20] XXXX has submitted new evidence in Exhibit 1 that documents that his residency permit in the UAE has been cancelled. Based on the above considerations and new evidence, I find that the stateless Palestinian Appellants do not have the right of re-entering the UAE even though it does qualify as a country of habitual former residence. [21] The RPD Member found that Lebanon is not a country of former habitual residence for the stateless Appellants as they have never lived in Lebanon or had any sort of de facto residence there, only visiting family on vacations. As recognized by the RPD Member, the stateless Appellants were able to legally enter and return to Lebanon, and if they had not gone to the U.S. and then Canada, they likely would have been required to return to Lebanon. The Appellants presented Lebanese travel documents for Palestinian refugees that were provided to them by the government of Lebanon, and XXXX testified to having extensive family in Lebanon and had visited the country about ten times. [22] In the Federal Court case of Al-Khateeb,9 the Court found: [19] The RAD misunderstood the dictionary definition on which it relied for the meaning of the word "habitual." It is defined as "regular, continual, or usual." None of these words deal with duration. Instead, they suggest a normal uninterrupted lifestyle. [20] The RAD also misunderstood the meaning of "a significant period of residence" as that term is used by Mr. Justice Cullen in Maarouf v. Canada (Minister of Employment and Immigration) [1994] 1 F.C. 723. Because there is no minimum period for a CFHR [country of former habitual residence], significance must be capable of meaning something other than a substantial period of time. It follows that a short period can be significant. [21] In other words, a period of residence can acquire significance for reasons other than longevity. The Applicant's first six months was a significant period, because it included his birth, and his acquisition of the rights of Residence and Return which are associated with citizenship, and which last a lifetime. [23] The stateless Appellants had acquired the rights of Residence and Return to Lebanon which are associated with citizenship and which last their lifetime. While they had not lived in Lebanon for any significant time, they had travelled to the country several times, visiting family members. During their visits to Lebanon, there is no evidence to suggest that the stateless Appellants did not enjoy a "normal uninterrupted lifestyle". The stateless Appellants have no rights to residency in any other country except Lebanon. [24] Israa is a Lebanese citizen but not her spouse and children. Lebanese law discriminates against Lebanese women married to foreigners in that their children and spouses are denied citizenship, while this is not the case for Lebanese men: In general, no Palestinian, or a foreigner, is entitled to Lebanese nationality.[...] Lebanese nationality can only be derived from one's father. Women can only transfer nationality to a child if he or she is born out of wedlock and recognized by the Lebanese state while still a minor.[...] Therefore, children born to a Palestinian, i.e. state-less, father are not eligible for the Lebanese citizenship.10 [25] Based on the above considerations I find that Lebanon is a country of former habitual residence for the stateless Appellants. The stateless Appellants' allegations as to any risks they face in Lebanon will therefore be considered further in this analysis. Credibility issues as to risks in Lebanon [26] In his reasons, the RPD Member stated that XXXX testified that in her only interaction with the Amal Movement, men had talked to her and given her the option of staying in the house or leaving the neighbourhood. The RPD Member put it to the female Claimant that in her BOC form she had only stated she had been told to leave Lebanon immediately. When asked for an explanation, XXXX stated she did not think she had to go into that much detail in her BOC form. [27] The RPD Member found it unlikely that XXXX would not write in "proper detail"11 the threat she had been given by the Amal Movement, given its importance to her claim, and that she had exaggerated this threat in her BOC form. The RPD Member rejected Israa's explanation for the discrepancy and drew a negative inference with regard to her credibility. [28] When the RPD Member asked XXXX why her husband was targeted by the Amal Movement, she responded that her husband never told her, and that she did not know. The RPD Member found it unlikely that the female Claimant would not know why her husband was in a dispute with the Amal Movement if it had been serious enough of a matter to have the family flee to Canada, rejected her explanation and drew a negative inference with regard to her credibility. Given these findings, the RPD Member found that XXXX interaction with the Amal Movement did not occur. [29] The Appellants submit that XXXX did not testify that she had an encounter with Amal, but that it was her father that had an interaction with men from Amal. I have reviewed the transcript of the RPD hearing and confirm that XXXX testified that it was her father who had the discussion with the Amal men. In this respect, the RPD Member did misapprehend XXXX testimony. [30] The RPD Member questioned why XXXX did not question Amal in greater detail why her husband was being threatened by them. The Appellants submit that the RPD Member failed to reasonably consider the cultural as well as country conditions the significantly subservient role that woman have in Lebanese society. While a Canadian couple may discuss "politics, religion, or risks to the family,"12 such a norm does not readily transfer to Palestinian family relationships and structural norms. I agree with the Appellants that cultural norms in the region make it unlikely that Amal militants would speak directly to XXXX but would communicate only through a male intermediary, in this case her father. I find to be unreasonable the RPD Member's negative credibility finding as to XXXX interaction with Amal. On the balance of probabilities, I find to be credible XXXX allegation that she and her family were threatened by unknown men believed to be affiliated to Amal and their militia. [31] XXXX testified that he is afraid of Amal based on the incidents of assault against his brothers, XXXX and XXXX in July 2017. This was based on requests by Amal to have his brothers act as informants against the UAE. XXXX brothers refused. On the balance of probabilities, I find to be credible the Appellants' allegations that they were threatened by Amal militia while last visiting Lebanon. [32] According to the Board's January 29, 2021 NDP for the UAE, item 14.1, there are alliances in the Gulf region wherein UAE has an alliance with Saudi Arabia and is in opposition to the Iranian backed groups such as Amal and Hezbollah. The ongoing conflicts in Yemen and Syria have created increased intensity in these alliances and actions of these groups. [33] Publicly available historical country documents from multiple indicate that Amal's enmity with Palestinian refugees is long-standing as evidenced by heavy fighting that erupted between Amal and Palestinian camp militias for the control of the Sabra, Shatila and Burj el-Barajneh camps in Beirut, from 1985-87. [34] The Amal Movement with their current ally Hezbollah is one of Lebanon's main political parties: Lebanese President Michel Aoun was elected in 2016 by Lebanon's parliament for a six-year term. Aoun is affiliated with the Christian Free Patriotic Movement (FPM), which along with Hezbollah and the Shi'a Amal Movement comprise the major components of the March 8 political bloc.13 [35] According to the Board's November 30, 2020 NDP for Lebanon, item 14.1: Civilian authorities maintained control over the government's armed forces and other security forces, although Palestinian security and militia forces, the designated foreign terrorist organization (FTO), Hizballah, and other extremist elements operated outside the direction or control of government officials. The Syrian conflict affected the country economically and socially. Over the past several years, the Syrian conflict has generated an influx of more than one million refugees and strained the country's already weak infrastructure and ability to deliver social services. Significant human rights issues included: arbitrary or unlawful killings by nonstate actors... [36] I find that Shi'a militias such as the Amal militia constitute non-state actors which have operated outside the direction or control of government officials and have committed arbitrary or unlawful killings. I find that in their particular circumstances the Appellants have successfully rebutted the presumption of state protection. [37] As to Internal Flight Alternative (IFA), according to the Board's November 30, 2020 NDP for Lebanon, item 1.3: "Shi'a individuals identified as being opposed to Hezbollah or Amal are unlikely to be able to escape societal discrimination through internal relocation."14 While the specific reference here is to Shi'a individuals, the implication is that Amal has the ability to reach those individuals that have been targeted despite internal relocation. [38] Also, in the same document: "DFAT [Australia. Department of Foreign Affairs and Trade] assesses that PRLs [Palestinians resident in Lebanon] face a high risk of official and societal discrimination in that the restrictions placed upon them leave them unable to access public services and employment opportunities available to Lebanese and foreigners of other nationalities; and unable to participate fully in social, political, and economic life."15 [39] I find that based on their particular circumstances there is no IFA for the Appellants in Lebanon. CONCLUSION [40] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees. (signed) Douglas Fortney Douglas Fortney February 16, 2021 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 IRPA, section 110(6). 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 6 IRPA, section 97(1). 7 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 6. 8 Maarouf v. Canada (Minister of Employment and Immigration), 1993 CanLII 3021 (FCA) [1994] 1 FC 723. 9 Al-Khateeb v. Canada (Citizenship and Immigration), 2017 FC 31. 10 National Documentation Package (NDP) for Lebanon (November 30, 2020), item 1.6: Country Policy and Information Note. Lebanon: Palestinians. Version 1.0., June 2018. 11 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 9. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 145. 13 NDP for Lebanon (November 30, 2020), item 1.17: Lebanon, November 13, 2020. 14 NDP for Lebanon (November 30, 2020), item 1.3: DFAT Country Information Report: Lebanon, March 19, 2019. 15 Ibid. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-09298 TC0-09299 / TC0-09300 / TC0-09301 TC0-09302 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français