TB6-02388

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 : TB6-02388 Private Proceeding / Huis clos Redetermination of the Appeal 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) (a.k.a. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 12, 2017 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jared Will 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 XXXX(the Appellant), a stateless former habitual resident of Qatar, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He asks that the RAD find him to be a Convention refugee. DETERMINATION [2] Pursuant to section 111(1) (b) of the Immigration and Refugee Protection Act (IRPA), the RAD substitutes the determination of the RPD and finds that the Appellant is a Convention refugee. His appeal is allowed. Background [3] The Appellant alleged before the RPD that he was born in Gaza in 1984 and lived there for six months before his family moved to Qatar. The Appellant grew up in Qatar as a temporary resident. Later he attended university in Jordan for five years, but returned to Qatar each year to preserve his status there. After he finished his university studies, he found employment as an engineer in Qatar and continued to live there. In XXXX 2015, the Appellant traveled to Canada to visit relatives; while here, he learned that his employment in Qatar had been terminated. He feared he would be deported to Gaza because his residency status was dependent on employment. He fears harm in Gaza because his family is affiliated with the Fatah political faction, while Gaza is ruled by the rival Hamas faction. The Appellant made a refugee claim in Canada. Procedural Events [4] The Appellant's application refugee protection was heard on October 6, 2015 and November 19, 2015. In a decision of January 28, 2016, the RPD rejected the Appellant's claim. The RPD found that the Appellant is stateless, and that Qatar is his country of former habitual residence (CFHR). The RPD noted that the Appellant's testimony was that he has no fear of persecution in Qatar. Although the RPD found that the Appellant does not have a right to return to Qatar, the RPD found that his refugee claim could not succeed, as he does not have a well-founded fear of persecution against Qatar, his CFHR. [5] The Appellant appealed the decision of the RPD to the RAD. In a decision of June 16, 2016, the RAD dismissed the appeal and confirmed the findings of the RPD. [6] The Appellant appealed the decision of the RAD to the Federal Court. In a decision of January 11, 2017, the Federal Court allowed the application for judicial review finding that the RAD failed to conduct an assessment of Gaza as a CFHR and misunderstood the definition of CFHR. The Court returned the matter to the RAD for redetermination with the direction that the question of whether Gaza is a CFHR is to be considered. [7] The Appellant argued in his first appeal to the RAD that the RPD applied the wrong test to determine his CFHR. In his submission, the RPD was required to use a "flexible and purposive" test, and should have found that Gaza, Qatar, and Jordan are all countries of former habitual residence. In his view, the RPD should have found him unable to return to Qatar and Jordan, and then determined that he has a well-founded fear of persecution in Gaza. [8] In the de novo appeal to the RAD, the Appellant tendered additional evidence and argument and submits that Gaza must be found to be a CFHR. ANALYSIS Role of the Rad [9] 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 DE NOVO APPEAL [10] 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. [11] In support of his pleadings on Appeal, the Appellant submitted two news articles which provide evidence on country conditions in Palestine. The Appellant submits that this evidence speaks to the salience of social media posts in Palestine. [12] 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. i) 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.2 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. ii) 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. iii) 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. b) 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. c) 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 his 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. [13] In the case at hand, the Appellant submits that the new evidence meets the statutory requirement to be admitted as new evidence because it post-dates the rejection of his claim and it is probative and relevant to his claim. The RAD finds that the Appellant's argument has merit. The RAD agrees with the Appellant and finds under the circumstances he could not have reasonably been expected to have tendered this evidence prior to the rejection of his claim and as such, this evidence is admitted in this appeal. Oral Hearing [14] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), 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 decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. 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 evidence (i.e., evidence admitted under section 110(4), section 110(5) or Minister's 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 the proposed new evidence does not raise a serious issue with respect to credibility. Accordingly, the RAD cannot hold a hearing in this appeal. Is Gaza a Country of Former Habitual Residence? [16] The Federal Court in its decision directed the RAD to determine whether Gaza is country of former habitual residence for the Appellant. The evidence in the record is that the Appellant was born in XXXX, Gaza, in 1984, to parents who are stateless Palestinians. He lived there for six months until he and his family moved to Qatar, where his father had secured residency permits. The Appellant lived in Qatar uninterrupted until 2002 when he enrolled at the University of Jordan. He returned to Qatar following university, and found employment as an engineer. During a visit to Canada in XXXX of 2015, he learned that his employment in Qatar had been terminated. As his residency was conditional on employment, he cannot stay in Qatar if he cannot find another employer to sponsor him.3 [17] The Appellant argues on appeal that it is an error to adopt a test for CFHR that is nothing more than counting how much time he lived in a given country.4 The Appellant argues that the RAD must apply an analysis recently proposed by Professors James Hathaway and Michelle Foster which largely follows the guidance in Maarouf 5but includes consideration of whether the refugee claimant has the right to legally return to the country of former habitual residence. [18] The Appellant submits that the proper test for a CFHR is flexible and purposive, and no one factor is determinative. He further submits that relevant factors include the period of residence in the country, the legal right to return to the country, ability to permanently remain and enjoy rights similar to those of nationals, and personal connections to the country. [19] The RAD notes that in their analysis Hathaway and Foster argue that the ability to return to a country is indicative of a "real or continuing connection" with that state.6 [20] The Appellant submits that Gaza, Qatar, and Jordan all meet these requirements and are countries of former habitual residence. However, he submits that as he cannot return to Jordan or Qatar, his claim must be assessed against Gaza. [21] The Appellant also relies on the decision of the Federal Court in his appeal of the RAD decision7 in his claim. In that decision, the court found that the RAD misunderstood the meaning of significant period of residence in determining his first appeal. The Court found that there is no minimum period of residence for a CFHR, and that even a short period could be significant. [22] The RAD finds that the issue of whether Gaza is a CFHR has been largely settled by the Federal Court in its decision of the Appellant's appeal of the RAD's previous decision in this claim.8 The Court found that "the Appellant's first six months in Gaza was a significant period of residency 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."9 The Court further found that there is no minimum period of residency to establish a CFHR and that the fact that the Appellant was a habitual resident of Gaza many years ago is not a bar to Gaza being CFHR. In addition, the Federal Court found that his rights of return and residence are also akin to the rights associated with citizenship. [23] The RAD finds that the Appellant's time in Gaza albeit for a short time was a significant period of residency because it included his birth and his acquisition of the rights of residence and return. Although his stay in Gaza was brief, it was regular, continual, and usual. In light of the foregoing, the RAD finds that Gaza is a country of former habitual residence for the Appellant. [24] Accordingly, the RAD finds that the RPD erred by excluding Gaza as one of the Appellant CFHRs. Is the Appellant at Risk of Persecution in Gaza? [25] Where the stateless claimant has more than one country of former habitual residence, such as the Appellant in this case, he or she "must show that, on a balance of probabilities, he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any of his or her other countries of former habitual residence."10 The RAD notes the fact that the Appellant cannot return to Qatar, his other country of reference, is not an issue in dispute. [26] The RAD notes that while the RPD did not make any findings with regard to the risk faced by the Appellant in Gaza, the Appellant testified before the RPD with regard to the risk he faces in Gaza. The evidence before the RPD was that the Appellant comes from a family affiliated with Fatah which is opposed to the ruling Hamas in Gaza and that he himself has an anti-Hamas political profile. He alleged before the RPD that due to his actual and perceived profile he would be subjected to persecution by Hamas. The RAD further notes that the Appellant also tendered documentary evidence including social media posts, letters and evidence about his family which support his pro-Fatah and Anti-Hamas profile. [27] The RAD notes that there is sufficient evidence in the national documentation package in the record which establishes that individuals known or perceived by Hamas to be involved in anti-Hamas activities or that are affiliated with Fatah are likely to face more than a mere possibility of risk of persecution at the hands of Hamas. The RAD also notes that the Appellant tendered documentary evidence which establishes the risk faced by persons who hold profiles similar to his. [28] The RAD notes that the RPD did not challenge any of this evidence. The RAD also notes that the Federal Court has held that in the absence of credibility analysis or any negative credibility findings, a claimant's testimony is deemed to have been accepted as true by the Board.11 The RAD further notes that the principle asserted in Maldonado12 is that, when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness. The RAD has found that the RPD did not provide a reason to discount the Appellant's testimony. As a result, the RAD finds that there is no reason to rebut the presumption of truthfulness or to find the claimant to be not credible. [29] The RAD has carefully considered the objective evidence. It establishes that persons with the Appellant's political profile are at risk of persecution in Gaza. Accordingly, the Appellant would be at risk upon return to Gaza. CONCLUSION [30] The RAD has found that the Appellant is stateless, that his countries of former habitual includes Gaza. The Appellant claimed a well-founded fear of persecution in Gaza. The RPD has not raised any credibility concerns with the Appellant's allegations in this regard and there is nothing which rebuts the presumption of truthfulness. The objective evidence establishes that persons with the Appellant's political profile are at risk of persecution. The RAD finds Appellant meets the definition of a Convention refugee or a person in need of protection as he has a well-founded fear of persecution in his country of former habitual residence. [31] This appeal is allowed. Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "L. Favreau" L. Favreau July 12, 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 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. 3 Exhibit RPD-1, RPD's Record, pp. 21-22, Basis of Claim Narrative. 4 Exhibit P-2, Appellant's Record, p. 177, Memorandum, para. 31. 5 Maarouf, Ayman v. M.E.I. (F.C.T.D., no. 93-A-343), Cullen, December 13, 1993. Reported: Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.); (1993), 23 Imm. L.R. (2d) 163 (F.C.T.D.). 6 Exhibit P-2, Appellant's Record, p. 183, Memorandum, para. 52, quoting from James C. Hathaway and Michelle Foster, The Law of Refugee Status, 2nd ed (Cambridge: Cambridge University Press, 2014). 7 Al-Kateeb, Mahmoud Issa Ahmad v. M.C.I. (F.C., no. IMM-2962-16), Simpson, January 11, 2017, 2017 FC 31. 8 Ibid. 9 Ibid., para. 21. 10 Thabet, Marwan Youssef v. M.C.I. (F.C.A., no. A-20-96), Linden, McDonald, Henry, May 11, 1998. Reported: Thabet v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 21 (C.A.); (1998), 48 Imm. L.R. (2d) 195 (F.C.A.), at para. 30. 11Zaytoun, Hussein v. M.C.I. (F.C., no. IMM-1769-14), Mactavish, October 2, 2014, 2014 FC 939. 12Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD File No. / N° de dossier de la SAR : TB6-02388