TB6-14336

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 : TB6-14336 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 19, 2017 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Abeer Qita Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX (the Appellant), a stateless person of Palestinian decent, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. He has tendered new evidence in support of his appeal, and he has made an application for an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that he was born in Abu Dhabi in the United Arab Emirates (UAE) in 1991. He holds an Egyptian travel document which expired in XXXX, 2016, and which he alleges that he is unable to renew. He left UAE and entered Canada as a student in 2008. He most recently re-entered Canada with a temporary resident visa in XXXX, 2013. He alleges that he is now unable to return to the UAE, as his status there has expired, and that due to the type of travel document he holds, he would not be able to obtain resident status there in the future. The claimant made his inland claim for refugee protection in April, 2016. [4] He alleged that it was his intention to use his student and work experience to make an application for permanent residence in Canada. He has been unable to obtain permanent residence and alleges that he now faces the possibility of removal to Egypt where he fears detention and mistreatment as a Palestinian who is not in possession of a resident permit. [5] He further alleges that he alternatively had been planning to relocate in Syria, where his mother was born and his family owns property. However, the civil war situation there currently makes this impossible, especially as the district near Aleppo where his family's home is located has now reportedly been overrun by rebel forces. He therefore alleges a fear of harm against Syria on this basis. ROLE OF THE RAD [6] The RAD finds that the Federal Court of Appeal's decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. In accordance with the decision of the Court, the RAD will conduct its own assessment of the RPD's decision to determine if the RPD erred and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [7] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] The Appellant has tendered the following proposed new evidence in support of his appeal: a) an email response from the Consular General of the UAE in Toronto which details the requirements to obtain a visitor's visa;2 b) a reference letter for the Appellant from his employer in Canada;3 and c) five letters of support, including three from each of his brothers and two from each of his parents.4 [9] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred, or a circumstance that arose after the rejection of the refugee claim. b) The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove.5 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. c) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD's hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the probative value of the evidence. e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to the Appellant at the time of the hearing? If so, the RAD will proceed to assess the probative value of the evidence. f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of the refugee claim? If so, the evidence need not be considered. If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the probative value of the evidence. [10] The RAD finds that the Appellant bears the burden of establishing how his proposed new evidence meets the statutory requirements and other factors to be accepted as evidence in this appeal. The Appellant submits that the email from the UAE consulate provides proof that the UAE will not issue him a visa without a regular passport contrary to the RPD's finding. However, he has not provided any argument on how the proposed evidence the statutory requirements to be admitted as new evidence. Furthermore, the Appellant has not provided any explanation or reasons why he could not have tendered the letters from his family and employer prior to the rejection of his claim. The RAD finds that, with the exception of the email from the UAE Consulate and the letter from the Appellant's brother, XXXX XXXX XXXX, the RAD finds that the Appellant has not demonstrated that he could not have tendered this evidence prior to the rejection of his claim or that it otherwise meets the statutory requirements to be admitted as evidence in this appeal. Accordingly, this proposed evidence is not admitted in this appeal. [11] The RAD finds that the email from the UAE consulate and the letter from the Appellant's brother, XXXX XXXX XXXX,6 both have some relevancy to the findings of the RPD with regard to the ability to obtain a visa and residency in the UAE and that the Appellant could not have reasonably anticipated that the RPD would draw a finding to the contrary. However, the RAD finds that the determinative issue in this appeal is whether the Appellant has established that he faces a serious possibility of harm amounting to persecution in the country of reference or whether he would be personally subjected to a risk to his life or cruel or unusual treatment or punishment or a danger of torture there, on a balance of probabilities. [12] The RAD further finds that, in determining the country of reference, namely his former country of habitual residence, the RAD has considered the Federal Court decision in Maarouf, which states that the definition of a country of former habitual residence should not be "unduly restrictive" and does not require that a person should be legally able to return there. However, it also states that the claimant "must have established a significant period of de facto residence in the country in question".7 As such, the RAD finds that whether the Appellant can obtain a visa or otherwise obtain residency status in the country of reference is not relevant to the determinative issue in this claim. Accordingly, this new evidence is not admitted in this appeal. APPLICATION FOR AN ORAL HEARING [13] According to subsection 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in subsection 110(3) must be understood in relation to subsection 110(4). [14] When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (subsection 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [15] The RAD finds that, given no new evidence has been admitted in this appeal, an oral hearing cannot be held. ANALYSIS OF THE MERITS OF THE APPEAL [16] The RPD found that the country of reference for the Appellant's claim is the UAE, the Appellant's country of former habitual residence. The Appellant submits that the RPD erred in its conclusion that the UAE is his country of former habitual residency. He argues that he only needs to demonstrate a well-founded fear of persecution against any one of the countries of former habitual residence and not necessarily his last country of former habitual residence. He argues that, since Syria is the only country he could enter with his travel document, if it was valid, Syria should be his country of habitual residence. He further argues that he has established that he has a well-founded fear of persecution in Syria and that this life would be in danger in Syria. [17] The RAD is not persuaded by the Appellant's argument in this regard. The RAD agrees with the RPD that Syria cannot be considered to be a country of former habitual residence for the Appellant. As noted by the RPD, the Appellant has not established any connection to Syria outside of it being the birthplace of his mother. Although he has testified that he vacationed in Syria with his family as late as 2010, he has never lived there. [18] The RAD agrees with the RPD and finds that only the UAE can reasonably be considered to be his country of former habitual residence, as he was born and spent most of this life there. The RAD notes that the Appellant lived in the UAE until 2008 when at age 17 he traveled to Canada on a study permit. He remained in Canada where he studied. The Appellant's Egyptian travel document contains a residence permit for the UAE issued in 2011. He returned to the UAE twice in 2011 and twice in 2012 last entering the UAE in XXXX 2012. In XXXX 2013, he left UAE and returned to Canada on a temporary resident visa. The RAD further notes that the Appellant's parents reside in the UAE, under the sponsorship of one of his older brothers. [19] The RAD finds that the evidence in the record clearly establishes that the Appellant had a significant period of de facto residence in the country in the UAE. The RAD therefore agrees with the RPD and finds that Syria cannot be considered to be a country of former habitual residence for the Appellant and that the UAE is the country of reference for this claim. [20] The Appellant has not made any allegations of a fear of physical or other harm in the UAE. As also noted by the RPD, the Appellant testified that he resided there with his family without difficulties until he traveled to Canada at age 17 to undertake his university studies. He has alleged that he would, however, be unable to return to live in the UAE now because it is impossible to get residency there with an Egyptian travel document, and he testified that holders of Egyptian travel documents cannot even travel to the UAE. [21] The RAD agrees with the RPD and finds that, even if the Appellant's Egyptian travel document were to prevent him from obtaining status in the UAE, it does not mean that he would now face harm there for any Convention reason or as a person in need of protection. The Appellant has not alleged that he would be discriminated against as a Palestinian in the UAE, although the holders of Egyptian travel documents are likely to be Palestinians. The RAD further agrees with the RPD that any law that precludes the Appellant from obtaining residency or a visa to return to UAE is a law of general application which is not clearly discriminatory. [22] The RAD finds that the Appellant has not provided sufficient credible or trustworthy evidence to show that being subject to such a provision would mean that he faces discrimination amounting to persecution in the UAE. The recent Federal Court decision in Hegi dealt with this issue and referred to previous jurisprudence in finding that a denial of a right to return to the UAE does not constitute persecution if it arises from a law of general application.8 CONCLUSION [23] Having reviewed all of the evidence in this appeal, the RAD agrees with the RPD, on a balance of probabilities, that there is not a serious possibility that the Appellant would be persecuted in the country of reference, namely, his former country of habitual residence of the UAE, or that, on a balance of probabilities, he would be personally subjected to a danger of torture, or face a risk to his life, or to a risk of cruel and unusual treatment or punishment in UAE. [24] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "L. Favreau" L. Favreau April 19, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, New Evidence, page 50. 3 Exhibit P-2, Appellant's Record, New Evidence, page 61. 4 Exhibit P-2, Appellant's Record, New Evidence, pages 62-72. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 6 Exhibit P-2, Appellant's Record, New Evidence, Letter from the Appellant's brother, p. 65. 7 Maarouf, Ayman v. M.E.I. (F.C.T.D., no. 93-A-343), Cullen, December 13, 1993. Reported: Maarouf v. M.E.I., [1994] 1 F.C. 723 (T.D.); (1993), 23 Imm. L.R. (2d) 163 (F.C.T.D.). 8 Hegi, Farag Fadel v. M.C.I. (F.C., nos. IMM-1312-15 and IMM-2073-15), Bell, March 22, 2016, 2016 FC 242. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-14336