TB8-06642

RAD File / Dossier de la SAR : TB8-06642 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 29, 2019 Date de la décision Panel M. Pettinella Tribunal Counsel for the person who is the subject of the appeal Mayoori Malankov 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 BACKGROUND AND OVERVIEW OF THE APPEAL [1] XXXX XXXX XXXX XXXX ("the Appellant") alleges a fear of persecution in Eritrea. He also alleges the following. He was born and grew up in Jeddah, Saudi Arabia to Eritrean born parents. His parents separated shortly after he was born, and he then remained in the care of his father and his father's sister. His status in Saudi Arabia has always been contingent upon his father's employment as a foreign worker. When he and his sister were coming of age, their father made arrangements for them to find safety abroad out of fear that they would lose status in Saudi Arabia and be deported to Eritrea. In 2012, the Appellant's sister left for XXXX and successfully claimed refugee status there. The Appellant travelled to the United States (US) on XXXX XXXX, 2016. He entered Canada a few days later and filed a claim for refugee protection. [2] The Refugee Protection Division (RPD) denied the claim finding that the Appellant had failed to establish his identity as an Eritrean citizen on a balance of probabilities. [3] On appeal, the Appellant submits that the RPD's assessment of his identity was wrong. He also submits that the RPD made incorrect credibility findings. [4] Having found that the RPD erred in its findings, and that the Appellant has provided sufficient credible evidence to establish his identity on a balance of probabilities, I am allowing the appeal, and substituting the RPD decision with my own determination, namely that the Appellant is a Convention refugee. SCOPE OF THE APPEAL [5] As held by the Federal Court of Appeal in Huruglica, the Refugee Appeal Division (RAD) is to review decisions of the RPD on a standard of correctness on questions of law, fact, and mixed fact and law, after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard.2 Unless otherwise stated, a correctness standard has been applied. ANALYSIS Admissibility of documents submitted on appeal The Appellant tendered the following items as proposed new evidence in support of his appeal: a) Appellant's Saudi Residence Permit;3 b) Identification page of the Appellant's first passport;4 c) Copy of Appellant's mother's Eritrean National ID card;5 d) Corrected translation of the Appellant's father's record of diaspora tax payments;6 e) Affidavit of XXXX XXXX XXXX, with attachment;7 f) Kingdom of Saudi Arabia, Ministry of Interior, Civil Affairs information.8 [6] The Appellant maintains that all of the items meet the statutory requirements for admissibility because he could not reasonably have been expected in the circumstances to have presented them at the time of the rejection. He also maintains that the items meet the Raza factors. [7] The Appellant points out that items (a) and (b) are official documents issued by a foreign government, and they serve to address a core finding of the RPD regarding his identity. He maintains that he had every reason to believe that the multiple identity documents he provided, including his genuine Eritrean passport, were sufficient to discharge his burden to prove his identity on a balance of probabilities and that no further duplicative identity documents would be necessary. He submits that the documents disprove the RPD's finding on identity. [8] Item (c) is a copy of the Appellant's mother's Eritrean National ID card. The Appellant submits that it is evidence of his mother's identity and Eritrean nationality. He maintains that the document is credible as it is a foreign document presumed to be authentic. He also maintains that the document is relevant as it serves to address the RPD's finding that he did not prove his mother's identity on a balance of probabilities. He maintains it is new in that he believed the evidence he submitted with his refugee claim was sufficient. [9] The Appellant points out that items (d) and (e) contain the corrected translation of his father's record of diaspora tax payments. He submits that these documents address a core finding of the RPD that it had no objective evidence or reasonable explanation as to his father's use of two different names to interact with the same Eritrean authorities. He points out that the corrected translation indicates both his father's real Eritrean name, XXXX XXXX XXXX, and his Saudi alias, XXXX XXXX XXXX. The Appellant maintains that he could not have known that the translation contained an error, and only discovered the error after his counsel read the RPD's decision and reviewed all the documentary evidence that had been filed. [10] Item (f) is information from the Kingdom of Saudi Arabia's Ministerial Agency of Civil Affairs website regarding the issuance, renewal or replacement of government documents. The Appellant submits that the information is relevant in rebutting the RPD's speculations about the reliability of his evidence and explanations concerning his birth documents. He submits that it is new in that he could not have reasonably predicted that the RPD would misunderstand the nature of these documents and draw erroneous conclusions on the basis of that misunderstanding, especially given all of the other evidence tendered to prove his identity. [11] In my view, items (a) to (f) meet the statutory requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). The Appellant could not reasonably have been expected to have provided them prior to the rejection of his claim. He could not have known that the RPD would find flaws in his identity evidence, or find his evidence insufficient to establish his identity on a balance of probabilities. Considering that he provided numerous reliable documents to support his identity, I agree with the Appellant that he believed they were sufficient. I also accept that the Appellant was unaware that there was a translation error for one of his documents and he only found out after the rejection of his claim. Items (a) to (f) address apparent irregularities the RPD identified in the Appellant's evidence. The documents also meet the adapted Raza factors - credibility, relevance and newness.9 Since they meet the test for new evidence, items (a) to (f) are accepted in this appeal. Oral hearing before the RAD [12] The Appellant requested that a hearing be held under section 110(6) of the IRPA in the event that the RAD finds the record insufficient to grant him protection. [13] My jurisdiction to convene an oral hearing is limited: there must be admissible new evidence that raises a serious issue of credibility, is central, and determinative.10 Items (a) to (f) have been admitted as new evidence, however for the reasons that follow, there is no need to convene an oral hearing. Identity/credibility The Appellant's Eritrean passport and US visa [14] The RPD gave little weight to the Appellant's Eritrean passport and US visa due to his limited knowledge of how the original passport was issued, his limited knowledge of the application process for the US visa, and inconsistencies between the US visa and the visa application documents. It noted that the Appellant's visa application documents and testimony indicated that he was authorized to study at the XXXX XXXX XXXX in Los Angeles, whereas the visa indicates that it was issued for the XXXX XXXX XXXX XXXX. [15] The Appellant submits that there was no reason to doubt the authenticity of his Eritrean passport - it is presumed to be authentic. He points out that both Saudi Arabia and the United States accepted his passport as authentic, given that the Saudi residence permit and the US visa were respectively issued on that basis. He also points out that in Canada, the Minister seized the passport and made no finding that the passport was not authentic. The Appellant submits that the RPD erred in failing to rule on the authenticity of the passport but nevertheless assigned it little weight. He argues that the passport is either authentic and of significant probative value, or inauthentic and of no probative value. [16] It is also submitted that even if there is reason to doubt the authenticity of the visa, it is not itself sufficient to reject the validity of the passport. The Appellant submits that the RPD's finding that inconsistencies in the US visa cast doubt on the validity of the visa, and in turn the issuing passport, is illogical. He argues that it does not follow that inconsistencies in a document issued by the US government at one time, undermines the authenticity of the passport, issued at another time by the Eritrean government. [17] Further, the Appellant points out that despite being confronted about the inconsistency about where he was going to study in the US and telling the US authorities that he was not going to study at the institute named on the visa, he was permitted to enter the United States. He maintains that the authorities of the state that issued the visa accepted that the error had in fact been made, while the RPD disbelieved that such a mistake could be made. [18] The Appellant submits that the RPD did not have a reasonable basis for rejecting the credibility of the explanations he offered regarding concerns about his passport or US visa. He maintains that the RPD's insistence on knowing how Eritrean authorities originally assess and determined his identity and citizenship to issue him a passport is unreasonable given that he was around four years old at the time. As for subsequent renewals of his Eritrean passport, the Appellant points to evidence indicating that passports can be obtained while abroad with the payment of the passport fee, any 2% tax in arrears, as well as any other fees imposed by the ruling party. He points out that he provided a record of his father's diaspora taxes paid up to XXXX of 2016. He maintains that his testimony regarding his lack of personal involvement in filling forms or providing documents is consistent with the documentary evidence. [19] In my view, the Appellant's argument succeeds for the following reasons. I note no irregularities on the face of the Appellant's Eritrean passport11 to cast doubt on its authenticity. There were also no questionable circumstances in which the passport was obtained. The Appellant's testimony regarding the renewal of his passport is consistent with the objective documentary evidence regarding the renewal of Eritrean passports.12 I also note that the Appellant's passport is a machine-readable, non-biometric passport, consistent with the objective evidence on the introduction of such passports in 2010. The Appellant's passport was issued by Eritrean authorities and it is the best proof of Eritrean citizenship. I give it significant weight in terms of establishing the Appellant's identity and citizenship. [20] I also give significant weight to the US visa issued to the Appellant.13 One would expect US officials to have been satisfied with the evidence the Appellant provided to prove his identity and citizenship before issuing him a US visa. This reinforces the credibility of the Appellant's alleged identity and citizenship. [21] The fact that there is an inconsistency in the Appellant's evidence regarding the school he indicated he was going to attend in the US is immaterial. The only reason the Appellant obtained a visa for the US was so that he could make his way to Canada to file a claim for refugee protection. The Appellant had no intention to go to school in the US. Therefore, an inconsistency in the name of school in the US is irrelevant. The fact that his identity evidence was consistent is material and reinforces the authenticity of his US visa. [22] For these reasons, the RPD was wrong to give little weight to the Appellant's Eritrean passport and US visa. The Appellant's birth documents [23] The RPD noted an inconsistency in the evidence regarding the Appellant's date of birth. It noted that a birth notification form indicates that the Appellant was born on XXXX XXXX XXXX 1997, while a birth certificate indicates that the Appellant was born on XXXX XXXX, 1998. It found the Appellant's explanation for the inconsistency unreasonable and his evidence unreliable, and gave the birth documents little weight. [24] The Appellant maintains that the birth notification form is the original document and contemporaneous record of his birth, as confirmed by his testimony. He maintains that it is not a replacement birth document as indicated in paragraph 9 of the RPD's decision. He maintains that the birth certificate was obtained at a later date and is the one that contains an error in his birth year. [25] The Appellant submits that the birth notification form is the original and correct record of his birthdate, which matches the remainder of his documents indicating the birth year of 1997. He points out that item (f) of his new evidence indicates that an original birth report is one of the documents required to obtain a birth certificate. He submits that this substantiates that the birth report is the original and correct record of his birth, and preceded the birth certificate. He also points out that, based on information in item (f), the birth reporting form contains less information than a birth certificate because the registration of birth only requires the mother's information, whereas to issue a birth certificate, both parents are required to submit original passports and residence permits. He submits that this explains why one document contains less information about his parents. He also submits that this does not make it any less probative. He submits that the error made in the year of birth on his birth certificate is insufficient grounds to find that his identity was not established on a balance of probabilities, especially considering that his correct year of birth is otherwise consistently confirmed by all of his other identity documents, including Saudi-issued documents. [26] I agree with the Appellant that his evidence regarding his birthdate is largely consistent. The birth registration or notification document is the first document registering the Appellant's birth. The document indicates that the Appellant was born on XXXX XXXX, 1997.14 The Appellant's school records indicate he was born in 1997.15 The Appellant's Saudi exit-entry permit16 references the Appellant's passport, which shows a birthdate of XXXX XXXX, 1997.17 The Appellant's US visa application has his date of birth as XXXX XXXX, 1997.18 Considering that the preponderance of the Appellant's documents reflect a birthdate of XXXX XXXX, 1997 or year of birth as 1997, I accept that an error was made on his birth certificate, which indicates that he was born on XXXX XXXX, 1998.19 The error on the birth certificate is insufficient to undermine the reliability of the birth certificate, regarding information other than the birthdate, or the Appellant's other identity documents. I note no other inconsistencies in the documents noted above. I also note that the Eritrean citizenship of the Appellant or his parents is noted in many of the same documents. I give the documents, including his birth certificate, considerable weight in terms of establishing the Appellant's identity and Eritrean citizenship. Identity of the Appellant's mother [27] The RPD found the Appellant's personal and national identity were further undermined by limited evidence of his mother's identity. It noted that the Appellant failed to provide personal identity documents for his mother, and did not properly list her on his Schedule A form. It found that the Appellant did not establish his mother's identity on a balance of probabilities. It gave little weight to the mother's identity in terms of the Appellant establishing his own identity. [28] The Appellant submits that the RPD wrongly concluded that he did not provide personal identity documents for his biological mother, and thus failed to establish her identity. He points out that he provided his parents' marriage certificate, which contains his biological mother's name, photograph, and nationality. He also points out that his birth documents also reflect his biological mother's name and other personal information. The Appellant submits that the RPD also ignored his testimony about why he did not list his biological mother on his Schedule A form. He points out that he testified that he considered his father's sister, XXXX XXXX XXXX, as his mother because she raised him. Based on the above, the Appellant submits that the RPD erred in its assessment of the evidence with respect to the identity of his biological mother. [29] This argument has merit. The Appellant indicated that he considers his paternal aunt, XXXX XXXX XXXX, his mother because she raised him. He provided XXXX XXXX XXXX Eritrean passport and National Identity Card to establish her identity.20 With respect to his biological mother, the Appellant provided his parents' marriage certificate, which contains his biological mother's name, photograph, and nationality.21 On appeal, he also presented his biological mother's Eritrean Identification Card.22 I find that the identity evidence the Appellant provided for his de facto mother and his biological mother support the Appellant's identity and Eritrean citizenship. The RPD was wrong to find otherwise. Identity of the Appellant's father [30] The RPD noted inconsistencies in the identity documents for the Appellant's father. It noted that documents for the Appellant's father were in two names: XXXX XXXX XXXX and XXXX XXXX XXXX. It noted the Appellant's explanation that his father's proper name is the former, but his father obtained a work contract in Sudan, for Saudi Arabia, under the latter name and has been using that name in Saudi Arabia ever since. The RPD also noted that the passport for the Appellant's father has his birthplace as Asmara but his Eritrean ID lists his birthplace as XXXX. It noted the Appellant's limited knowledge of how his father's personal information was affirmed for any of his documents. The RPD found the Appellant's explanation for the inconsistencies in his evidence unreasonable and the documents unreliable. It found that the Appellant had not established his father's identity on a balance of probabilities. It gave the father's documents little weight in terms of the establishing the Appellant's identity. [31] The Appellant submits that the RPD ignored pertinent evidence regarding his father's dual identity. He points out that a consular letter attached to a redacted RPD decision confirms that the Eritrean government is aware of its citizens who have adopted a Saudi Arabian alias, and will issue a passport in the alias, while using the person's real name in the Eritrean National ID card. He maintains that paragraph 13 of the redacted RPD decision helps reconcile issues with this practice, namely, one way to confirm whether the same person is being referred across different documents is by matching the National ID number. He points out that his father's Eritrean National ID number of XXXX is listed on his Eritrean ID card and passport even though the latter bears his alias. He also points out that his diaspora tax payment record bears his Eritrean ID number and both his real name and alias. [32] The Appellant submits that the RPD ignored that his evidence is consistent with his narrative and what is known to be a practice that Eritrean expatriates living in Saudi Arabia deal with. Namely, the documents issued for the purpose of interacting with Eritrean authorities are in his father's real Eritrean name, whereas the documents issued for the purpose of transactions with the Saudi authorities were issued in his Saudi alias - i.e. his marriage certificate and passport, which were required for Saudi residency and residency renewal purposes. [33] With respect to the RPD finding that there was no reliable evidence as to the proper year the Appellant's father was born, the Appellant submits that while he incorrectly estimated his father's year of birth, and his father's marriage certificate shows an incorrect year of birth, he provided four other documents confirming his father's correct date of birth of XXXX XXXX, 1964. He submits that the discrepancies in the documents regarding his father's date of birth and exact place of birth are minor and insufficient to undermine or reject his father's identity documents. [34] The Appellant submits that this father's identity evidence is highly relevant in establishing his own identity and Eritrean nationality. He maintains that the RPD failed to properly assess the evidence that supports the opposite conclusion it reached. He submits that his father's identity has been established well beyond the required balance of probabilities standard. [35] In my view, the Appellant presented a number of documents that reconcile the issue regarding his father use of two names. The father's Eritrean passport contains the father's Eritrean Identification Card number XXXX.23 This number corresponds to the number contained in the father's Eritrean Identification Card,24 despite the fact that the documents are issued under different names. Further, the father's diaspora tax payment record shows the same Eritrean Identification Card number, and both his real name and alias.25 They are identified on this record as the individual's "name" and the individual's "name in passport". [36] Moreover, as the Appellant points out, a consular letter presented in another case suggests that the Eritrean government is aware of its citizens who have adopted a Saudi Arabian alias, and will issue a passport in the alias, while using the person's real name in the Eritrean National ID card.26 This supports the Appellant's contention that it is a known practice. [37] I also note that the father's date of birth and place of birth are largely consistent across most of the documents.27 This reinforces the reliability of the documents. [38] For these reasons, I give considerable weight to the identity documents for the father in support of the Appellant's identity and Eritrean citizenship. The RPD was wrong to give the documents little weight. Appellant's intent to come to Canada [39] The RPD noted that according to the Appellant's BoC narrative, his intent was always to claim protection in Canada, however, when the Appellant entered Canada he stated that his original plan was to stay in the US and was then counselled to come to Canada. It noted the Appellant's explanation that he did not reveal his true intention out of fear of being denied entry into Canada; this was false information provided by an acquaintance in Saudi Arabia; and he was also influenced by what he heard from community members in XXXX. While the RPD accepted the Appellant's explanation that he had been coached in Saudi Arabia to avoid getting deported, it found that the Appellant nonetheless demonstrated a willingness to mislead and give false answers to government officials out of a desire to seek refugee status in Canada. The RPD found that this detracts from his credibility and the reliability of the testimony and evidence he presented. [40] The Appellant points to a decision of the Federal Court indicating that fear upon arrival in Canada may explain inconsistencies between port of entry notes and the BoC. He points out that he confirmed that he was untruthful at the port of entry because he was afraid of being deported. Furthermore, the Appellant submits that this type of inconsistency is peripheral to the determination of whether the person is a refugee and therefore has limited value as a determination of general credibility. He also points out that he offered this information willingly in his BoC narrative and reiterated it at the hearing. He submits that admitting to being untruthful on his own initiative is a factor that weighs in favour of his credibility. [41] I accept, as the RPD did, that the Appellant was coached on what to say at the port of entry to avoid getting deported. I also note, as the Appellant points out, that he corrected the record by admitting he had been untruthful about his intentions. A refugee claimant may need to lie in order to get to a place to make a refugee claim. In this case the Appellant lied about his intention to study and remain in the US. However, as the Court stated in Wang, when he does so, he ought to immediately correct the record and most certainly not later than when the refugee claim is made.28 In this case the Appellant corrected the record when his refugee clam was made. This reinforces the Appellant's credibility and the reliability of the testimony and other evidence he presented. The RPD was wrong to find otherwise. The Appellant's sister's claim for refugee protection in XXXX [42] The RPD drew a negative inference with respect to the Appellant's credibility for failing to disclose at his port of entry interview that his sister, XXXX, had claimed refugee protection in XXXX, even though he listed her properly in his BoC. [43] The Appellant points out that he explained at his hearing that he did not recall being asked the question about family members claiming refugee protection during his port of entry interview. He maintains that his alleged failure to mention his sister at the interview is not related to a crucial element of his refugee claim. He also points out that he did list his sister in his BoC. [44] I accept that the Appellant did not recall being asked if he or his family had ever asked for refugee status in Canada or in any other country during his port of entry interview. In my view, there would be no good reason for the Appellant to not mention that his sister had sought refugee protection in XXXX. If anything, it might support his claim. However, not only did the Appellant list his sister, XXXX, in his BoC as a family member,29 he also listed her as a family member who was granted refugee protection in XXXX,30 and he mentioned in his narrative that his sister has refugee status in XXXX.31 The RPD was wrong to draw a negative credibility inference from the apparent inconsistency in the Appellant's evidence regarding his sister. Prevalence of fraudulent documents in Eritrea [45] The RPD noted objective evidence regarding the prevalence of fraudulent documents in Eritrea. It found that this evidence, coupled with the inconsistencies in the Appellant's supporting documents, the assistance provided to the Appellant in Saudi Arabia, and his previous willingness to mislead government officials, reasonably supports the notion that the documents submitted by the Appellant may not be reliable or trustworthy. [46] The Appellant submits that the RPD's overarching reference to the prevalence of fraudulent documents in Eritrea is not sufficient evidence on its own to reject a document. He maintains that the availability of such documents does not relieve the RPD of the duty to determine whether the particular documents he presented are genuine or not. He submits that he has proven his identity on a balance of probabilities, notwithstanding the ability to obtain fraudulent Eritrean documents. [47] I agree with the Appellant. Evidence of widespread availability of fraudulent documents in a country is not, by itself, sufficient to reject foreign documents as forgeries.32 While this evidence may be relevant if there are other reasons to question the documents or a refugee claimant's credibility, in this case there was insufficient basis to do so for the reasons mentioned above. I note that the RPD did not find that the Appellant's documents were not genuine. In my view, this is because there was insufficient evidence to call into question their authenticity. Other documents the Appellant presented [48] The RPD found that the other supporting identification documents the Appellant provided are insufficient to overcome the problems it had identified with his other evidence. It found that it could not rely on these other documents to establish the Appellant's identity and citizenship. [49] The Appellant submits that the evidence before the RPD was sufficient to prove his identity and Eritrean citizenship on a balance of probabilities. He points to numerous primary and secondary documents he provided to assess his identity. He submits that with the additional evidence provided to the RAD, his identity and Eritrean citizenship is definitive and established well beyond the required standard. He submits that the only correct conclusion in this case is that he has established his Eritrean identity. [50] In my view, the RPD erred in giving no weight to the Appellant's other documents. The other documents include the Appellant's school records, his Saudi Arabian entry-exit permit, his US biometrics report, his Saudi Resident ID card, and the birth certificates for three of his siblings. Information contained in these documents is largely consistent with the information in the Appellant's other evidence. These other documents support the Appellant's identity and citizenship. I give each of them some weight in terms of establishing the Appellant's identity and citizenship. Summary on identity [51] I have reviewed the documents and other evidence the Appellant maintains establish his personal identity and Eritrean citizenship. I find that the numerous documents and other evidence are credible and corroborate the Appellant's account of a complicated family history of displacement from Eritrea. The objective evidence corroborates his account and explanations, including his explanation for his father's use of two different names. There were no significant inconsistencies or omissions noted in the Appellant's evidence with respect to his personal identity or Eritrean citizenship that were not reasonably explained. I find that the Appellant has provided sufficient credible evidence to establish his personal identity and his identity as Eritrean citizen on a balance of probabilities. Well-founded fear of persecution [52] The Appellant maintains that the country conditions evidence on Eritrea overwhelmingly establishes a risk of persecution and torture for failed asylum seekers who are forcibly returned. He also maintains that he faces a documented risk of forced, indefinite conscription to the National Service or the "People's Army/Militia". He points out that he indicated in his Basis of Claim Form (BoC) narrative that he does not wish to serve the Eritrean regime; however he is of legal age for conscription and maintains that the evidence is clear that if he is returned, he will not have a choice. [53] In my view, the Appellant's argument has merit. I have found that the Appellant has established on a balance of probabilities that he is who he says he is and that he is citizen of Eritrea. The Appellant's evidence regarding his tenuous status in Saudi Arabia is credible. Moreover, objective documentary evidence indicates that those opposed to, or perceived to be opposed to the authoritarian regime in Eritrea face severe mistreatment or punishment in that country. [54] The United States Department of State reports that all citizens of Eritrea between ages 18 and 50 must perform national service by law. Also reported is that forced labor occurs during national service. Despite the 18-month legal limit on national service, the government did not demobilize many conscripts from the military as scheduled and forced some to serve indefinitely under threats of detention, torture, or punishment of their families. Persons performing national service could not resign or take other employment, generally received no promotions or salary increases, and could rarely leave the country legally because authorities denied them passports or exit visas, with limited exceptions.33 [55] Human Rights Watch reports that the treatment of conscripts in the national service is often harsh, depending on the whim of the commander. Physical abuse, including torture, occurs frequently; so does forced domestic servitude and sexual violence by commanders against female conscripts. There is no redress mechanism for conscripts facing sexual and other abuses.34 [56] It is reported by Amnesty International that significant numbers of national service conscripts remained in open-ended conscription, some for as long as 20 years. Also reported is that conscripts faced harsh living conditions, were paid low wages and had limited and arbitrarily granted leave allowances which, in many cases, disrupted family life.35 [57] A report by the United Nations Human Rights Council states that with a few exceptions, those who have been forced to return have been arrested, detained and subjected to ill-treatment and torture. The report indicates that a common pattern of treatment of returnees is their arrest upon arrival in Eritrea. They are questioned about the circumstances of their escape, whether they received help to leave the country, how the flight was funded and whether they had contact with opposition groups based abroad. Upon their repatriation, witnesses said they were detained between ten weeks and five years in harsh conditions of detention, subject to torture and punishment and sometimes to forced labour.36 [58] The documentary evidence, some of which is noted above, is clear and overwhelming that those opposed to, or perceived to be opposed to, the authoritarian regime in Eritrea face severe mistreatment or punishment in that country. Failed asylum seekers are perceived to be opposed to the regime. The Appellant is a young man who faces conscription to the national service in Eritrea if sent to that country; a service that has been labelled as slavery. He has expressed his opposition to the regime in Eritrea. As a failed asylum seeker, the Appellant would be at risk of torture as reported by forcibly-returned asylum seekers. [59] Considering the Appellant's age, his opposition to serving the regime in Eritrea, his history of living in Saudi Arabia and now Canada, combined with a lack of adequate state protection or a viable internal flight alternative in Eritrea - since the state is the agent of persecution and similar conditions exist throughout the country, I find on a balance of probabilities that the Appellant has satisfied the burden of establishing a serious possibility of persecution, due to his imputed political opinion, in Eritrea. I therefore conclude that the Appellant has established a well-founded fear of persecution under section 96 of the IRPA. CONCLUSION [60] This appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, I set aside the determination of the RPD and substitute its decision with my own determination, namely that the Appellant is a Convention refugee. (signed) "M. Pettinella" M. Pettinella July 29, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 103. 2 Ibid., paras. 69-74. 3 Exhibit P-2, Appellant's Record, at pp. 100-101. 4 Ibid., at p. 102. 5 Ibid., at pp. 104-105. 6 Ibid., at pp. 107-109. 7 Ibid., at pp. 110-117. 8 Ibid., at pp. 119-121. 9 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 10 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, ss. 110(6). 11 Exhibit RPD-1, RPD Record, at pp. 42-50. 12 Exhibit RPD-1, RPD Record, exhibit 3, at p. 59, National Documentation Package (NDP) for Eritrea (30 June 2017), item 3.6, at pp. 6-8. 13 Exhibit RPD-1, RPD Record, at p. 46. 14 Exhibit RPD-1, RPD Record, at p. 400. 15 Exhibit RPD-1, RPD Record, at p. 349. 16 Exhibit RPD-1, RPD Record, at p. 350. 17 Exhibit RPD-1, RPD Record, at p. 43. 18 Exhibit RPD-1, RPD Record, at p. 351. 19 Exhibit RPD-1, RPD Record, at p. 346. 20 Exhibit RPD-1, RPD Record, at pp. 362-367. 21 Exhibit RPD-1, RPD Record, at p. 412. 22 Exhibit P-2, Appellant's Record, at pp. 104-105. 23 Exhibit RPD-1, RPD Record, at p. 359. 24 Exhibit RPD-1, RPD Record, at p. 360. 25 Exhibit P-2, Appellant's Record, at p. 107. 26 Exhibit RPD-1, RPD Record, at p. 378. 27 Exhibit RPD-1, RPD Record, at pp. 346, 359, 360, 409. 28 Wang, Yong v. M.C.I. (F.C., No. IMM-5464-15), Zinn, August 26, 2016; 2016 FC 972. 29 Exhibit RPD-1, RPD Record, at p. 19, section 5. 30 Exhibit RPD-1, RPD Record, at p. 20, section 6. 31 Exhibit RPD-1, RPD Record, at p. 24, line 38. 32 Ismaylov, Anar Ibrahim v.M.C.I. (F.C.T.D., no. IMM-1232-01), Gibson, January 11, 2002, 2002 FCT 30; Papaskiri, George v.M.C.I. (F.C., no. IMM-6179-02), O'Keefe, January 16, 2004, 2004 FC 69; Cheema, Munawar Ahmad v.M.C.I. (F.C.T.D., no. IMM-615-03), von Finckenstein, February 11, 2004, 2004 FC 224. 33 NDP for Eritrea, supra, footnote 13, item 2.1, at pp. 23-24. 34 Ibid., item 2.5, at p. 2. 35 Ibid., item 2.2, at p. 2. 36 Ibid., item 14.2, at p. 11 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-06642 RAD.25.02 (April 04, 2019) Disponible en français 17 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 (April 04, 2019) Disponible en français