MB9-26129

RAD File / Dossier de la SAR : MB9-26129 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 Toronto, ON Appel instruit / entendu à Date of decision December 14, 2020 Date de la décision Panel Joseph W. Richards II Tribunal Counsel for the person who is the subject of the appeal Guillaume Cliche-Rivard 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 OVERVIEW [1] I dismiss this appeal. [2] XXXX XXXX XXXX XXXX (the Appellant) is a citizen of the Kingdom of Saudi Arabia (KSA). [3] The Appellant fears persecution in Saudi Arabia as a Shia Muslim - the minority Islamic sect in the country. Major anti-government protests erupted in the KSA in 2011 and 2012. Sunni-Shia tensions increased, especially in the Appellant's hometown of Qatif, which is predominantly Shia. The Appellant arrived in Canada on a student visa in XXXX 2011. More recently, the Appellant was instructed by a KSA official to immediately return to the country or else he would face serious charges. He also fears living in other areas of the KSA due to the government's mistreatment of the Shia minority. The Appellant filed for refugee protection in February 2019. [4] The Refugee Protection Division (RPD) rejected the Appellant's claim due to a lack of credibility and insufficient evidence of a prospective risk of harm. The Appellant's subjective fear was undermined by his delay in filing a refugee claim, his return to the KSA in 2014, his trip to China in 2015 on his KSA passport, and the lack of credible evidence of threats from the KSA authorities. Moreover, the objective evidence failed to support the Appellant's allegations. The Appellant was self-represented at the RPD hearing. [5] The Appellant submits that the RPD erred in failing to properly consider the evidence in its totality and in its credibility assessment. In particular, the Appellant argues that Shia Muslims face a serious possibility of persecution in the KSA. [6] The determinative issues in this appeal are credibility (in particular, as it pertains to his subjective fear) and the prospective risk of harm. After reviewing the evidence, I find that the Appellant failed to credibly establish a serious possibility of persecution or, on a balance of probabilities, section 97 harm. The Appellant's credibility was undermined by discrepancies in the Basis of Claim (BOC) form, his travel to the KSA in XXXX 2014 and to China in 2015. The objective evidence does not support a finding that the Appellant faces a personalized risk, pursuant to section 97 of the Immigration and Refugee Protection Act. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS The role of the Refugee Appeal Division (RAD) [8] The RAD reviews the RPD's decision and comes to an independent assessment of the refugee claim.1 In providing a final determination, the RAD will intervene if it finds that the RPD erred, unless the RPD's decision can be confirmed on another basis.2 The standard of correctness applies.3 If the RPD has a meaningful advantage in assessing the credibility of oral testimony, then the RPD's finding may be accorded deference.4 [9] In this case, the RPD did not have a meaningful advantage. Accordingly, I have conducted an independent assessment of the oral and documentary evidence using the correctness standard. The RPD did not err in its credibility analysis The Appellant's subjective fear [10] The Appellant contends that the RPD erred in assessing his intentions when he left the KSA in 2011 and travelled back there in 2014. Counsel essentially argues that the Appellant's fear only crystallized in 2014-2015, that is, after returning to Canada from the KSA. The RPD determined that an adverse inference was warranted because not only did he voluntarily return to the KSA, but the Appellant also failed to mention this 2014 trip either in the BOC narrative or as a response to the question in the BOC form specifically asking him to provide the dates when he left his country of origin. I find that the RPD did not err. [11] The Appellant asserts that he provided credible testimony regarding his fear and that any omissions or discrepancies can be reasonably explained as accidental misunderstandings, without any intent to mislead the tribunal. However, negative credibility findings are not necessarily indicative of an intention to mislead the tribunal: they reflect on whether the evidence is worthy of belief. When assessing testimonial credibility, factors pertaining to a witness's honesty and/or accuracy are highly relevant.5 When refugee claimants are confronted with an inconsistency, they are given the opportunity to offer an explanation - an explanation which will be evaluated for its reasonableness. [12] Counsel's argument in the Appellant's memorandum appears to focus on the precise moment when the Appellant decided to never return to the KSA. However, I note that the Appellant's own evidence is inconsistent in that regard. The Appellant first testified that he never intended to return to the KSA when he left in 2011 ("To be honest, I didn't have intention to go back.").6 He immediately qualified that response by noting an exception; he did envision occasional trips to visit his family but that, after hearing about local conditions, he decided not to return. In any event, the Appellant's BOC form clearly associates the Appellant's late 2011 departure to the Sunni-Shia tensions. Furthermore, the Appellant testified that he decided to leave the country around the time of an uprising in Bahrain and protests against the KSA government's unfair treatment of the Shia minority in the eastern region of the country.7 Accordingly, I find that the Appellant's conduct - after first arriving in Canada in 2011 - is relevant to the assessment of his subjective fear. [13] First, the Appellant omitted any reference to his 2014 trip to the KSA in the BOC form. There were at least two opportunities in the BOC form where he could have alluded to this significant detail: in the narrative itself (Question 2b) or in response to a specific question (Question 2e).8 I also note that the Schedule 12 form requests that the applicant provide the exact route used to come to Canada "immediately before making this refugee claim...".9 Instead, the Appellant's narrative, as written, reads as if tensions in the KSA - and his risk of harm, as a result - consistently worsened from 2011-2012 onwards. The RPD appropriately seized on this discrepancy at the hearing. The Appellant attributed the error to a misunderstanding of the forms, in particular that the BOC form does not specifically request the last date of departure from one's country. Counsel submits that the Appellant readily admitted the trip in his testimony, and copies of the Appellant's KSA passports were provided to the RPD and include stamps confirming this travel. [14] I find these explanations unreasonable under the circumstances. The Appellant completed his BOC on his own, attesting that it was complete, true and correct. He did not require the assistance of an interpreter in order to complete it.10 He confirmed the completeness and accuracy of his forms at the beginning of the RPD hearing.11 Considering these facts as well as the severity of the Appellant's allegations, I find that he failed to adequately explain why he omitted from his BOC any mention of his 2014 trip to his country of origin. The significance of the omission is only amplified by the Appellant's contention that his fear fully materialized after returning from this trip. Therefore, a negative credibility finding was warranted, and the RPD did not err. [15] The return to the KSA is itself concerning. The Appellant claims that he went back to renew his passport and relied on assurances from his parents that it was safe. Again, the Appellant's behaviour was incompatible with his fear, as alleged. By prioritizing renewing his passport and spending time with family, the Appellant further undermined the credibility of his subjective fear. [16] The same is true for the Appellant's trip to China in 2015. The Appellant travelled on a KSA passport to a third country, alive to the risk that if an issue arose in China, he could be sent to the KSA.12 I note that the Appellant did not spend a few days or a week in China; he was there for an entire month.13 I appreciate that he may not have fully contemplated the potential consequences of something going wrong on the trip. However, I do not accept Counsel's argument that the RPD's finding was unduly speculative. The Appellant had temporary resident status in a safe country, that is, Canada. He feared persecution at the hands of Saudi authorities. Under those circumstances, leaving a safe country to take an extended vacation, thousands of kilometres away, using the passport of a country one fears returning to, constitutes behaviour incompatible with credible subjective fear. The Appellant could not offer a reasonable explanation. Even if he did not expect the worst to happen during his travels, the Appellant's testimony reveals that he was generally aware of the risk. In light of the severity of his allegations, the Appellant's failure to take minimal precautions (e.g. seeking legal advice, contacting Canadian and/or Chinese immigration officials, shortening the duration of the trip) undermines the credibility of his fear. Accordingly, the RPD did not err in its determination. [17] Given that the Appellant lacks credible subjective fear, he does not meet the definition of a Convention refugee, pursuant to section 96 of the Immigration and Refugee Protection Act (IRPA). The lack of credible evidence of a prospective risk of harm [18] The Appellant points to the evidence that his immediate family was targeted by the KSA authorities and that the family was threatened to stop communicating with him. Also, the Appellant submits that the fact that he refused the KSA's recent request to return to the country exposes him to harm on a forward-looking basis. The RPD found these allegations to be unduly vague and insufficiently corroborated. I find that the RPD did not err. [19] I agree with the RPD's finding that the Appellant is a Shia Muslim, who currently practices his religion in private. It is undisputed that Shia Muslims are discriminated against by the KSA regime. The determinative question is whether this discrimination rises to the level of section 97 harm, that is a risk to life, cruel and unusual treatment or punishment, or danger of torture. The Appellant's particular circumstances must be considered, as the risk must be personalized. The RPD found that the evidence did not meet that threshold. I agree. I reach that determination for the following reasons: (i) Threats against the Appellant's family: The Appellant alluded to these threats in his BOC and oral testimony. The Appellant associated these threats to the KSA's desire to stifle criticism related to the government's treatment of the Shia minority. When asked to provide details, the Appellant first stated that his family "...received a threat that someone might me (sic) leaking some information of what is happening right there in Qatif..."14 Asked to elaborate, the Appellant indicated that the "threat was to put them in jail for an unknown amount of time because of trying to leak information, even though they were not."15 The Appellant did not provide the date, time, or location of the alleged threat, nor did he indicate which specific family members were contacted. The Appellant's vague assertions about the motives of the authorities fail to illustrate a specific incident involving the Appellant's family. General warnings from the authorities are distinct from specific accusations and threats. I am left then to conclude that if the Appellant has restricted his communication with his family, he has done so out of precaution and not because of a direct threat. I note that the Appellant has not alleged either he or his family have engaged in any political or religious activity that would draw the interest of the government. Therefore, I agree with the RPD's assessment that insufficient evidence was provided to establish that the Appellant's family has been targeted. (ii) Demands to return by Saudi authorities: The Appellant asserts that, on multiple occasions, KSA authorities have requested that he return. His refusal to do so, he posits, gives the authorities the impression that he is sympathetic to anti-government protestors. I disagree. The Appellant testified that he was first asked to return to the KSA in 2014, after the government stopped sponsoring him. At the time, the government gave him the ultimatum that he can either return or stay and pay for his education on his own.16 The Appellant testified that the increasing Saudi-Canadian diplomatic tensions as of 2018 sparked another call from Saudi authorities. This time, the Appellant was allegedly informed that, if he did not return, he would be charged. The Panel invoked its specialized knowledge and asserted that the directive in question only applied to sponsored Saudi students; the Appellant had completed his studies two years earlier.17 The Appellant did not provide credible evidence to the contrary. The country documentation specifically states that Saudi students were recalled.18 For these reasons, I find, on a balance of probabilities, that the Appellant was not threatened with criminal prosecution, as alleged. (iii) The Appellant's profile: The Appellant does not allege that, before leaving the KSA in 2011, he was involved in the political protests in Qatif. The Appellant testified that he has Facebook and LinkedIn profiles, and yet the evidence does not reveal that he has published political or religious opinions that could antagonize the KSA regime.19 The Appellant practices his Shia Muslim faith in private, and the evidence does not show that he publicly expresses his convictions here in Canada. While the country documentation does indicate that Shia Muslims are systematically mistreated, some areas of the country have significant Shia presence and influence, such as the Appellant's home region in the Eastern Province. There, the KSA authorities target activists, Shia mosques, and public Shia assemblies.20 Accordingly, based on the Appellant's profile, I find that he would not likely face section 97 harm if returned. [20] Counsel asserts that the relationship between the Shia minority and the KSA regime remains very tense.21 I agree. However, these tensions and the evidence of anti-Shia discrimination, even when viewed cumulatively, are insufficient to establish persecution or section 97 harm. The Appellant's profile must be considered. The Appellant failed to present sufficient credible and probative evidence of a serious possibility of persecution or a risk to life, cruel and unusual treatment or punishment, or a danger of torture. The Appellant's profile as a Shia Muslim does not suggest that the Appellant would draw any particular interest from the authorities. Counsel's attempt to portray the Appellant as a dissenter to the KSA's regime is simply unsupported by the evidence.22 CONCLUSION [21] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Joseph W. Richards II Joseph W. Richards II December 14, 2020 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, November 7, 2014, 2014 FC 799, at paras. 54-55; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 103. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at paras. 78, 103. See IRPA, s. 111. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at paras. 78, 103. 4 Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145, at para. 105; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 70. 5 Magonza, Magreth Benard v. M.C.I. (F.C., no. IMM-1506-18), Grammond, January 7, 2019, 2019 FC 14, at paras. 16-19. 6 Exhibit P-2, Appellant's Record, Transcript of the RPD Hearing, at p. 9. 7 Ibid., at p. 17. 8 See Exhibit RPD-1, RPD Record, at pp. 13-14. 9 Exhibit RPD-1, RPD Record, at p. 47. 10 Ibid., at p. 20. 11 Exhibit P-2, Appellant's Record, Transcript of the RPD Hearing, at pp. 14-15. 12 Ibid., at p. 27. 13 Ibid., at p. 26. 14 Ibid., at p. 18. 15 Ibid., at p. 19. 16 Ibid., at p. 18. 17 Ibid., at p. 20. 18 National Documentation Package (NDP) for Saudi Arabia (March 29, 2019), item 1.4, Christopher M. Blanchard, US Congressional Research Service, "Overview, Domestic Issues. Saudi Arabia: Background and U.S. Relations", September 21, 2018, at p. 17. 19 Exhibit P-2, Appellant's Record, Transcript of the RPD Hearing, at p. 21. 20 NDP for Saudi Arabia (March 29, 2019), item 12.1, US Department of State, "Saudi Arabia. International Religious Freedom Report for 2017", May 29, 2018, at pp. 10-12; item 12.2, US Commission on International Religious Freeedom, "Saudi Arabia. US Commission on International Religious Freedom 2019 Annual Report", April 2019, at pp. 3-4; item 12.5, Americans for Democracy & Human Rights in Bahrain, "Voice for the Voiceless: Religious and Cultural Discrimination in Saudi Arabia", February 2017, at pp. 8-10, 20-21, 72. 21 Exhibit P-2, Appellant's Record, Memorandum, at para. 19. 22 Ibid., at para. 20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-26129 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