TB9-21218

RAD File / Dossier de la SAR : TB9-21218 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 28, 2019 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Stéphanie Valois 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] The Appellant, XXXX XXXX XXXX XXXX XXXX, is a citizen of Yemen who appeals a decision of the Refugee Protection Division (RPD), dated July 19, 2019, that rejected his claim for refugee protection. [2] The appeal is allowed. The Refugee Appeal Division (RAD) sets aside the decision of the RPD and determines that the Appellant is a Convention refugee. [3] The Appellant is in his early thirties and was born and raised in Saudi Arabia. He is a citizen of Yemen through his parents, but has never visited that country. His parents and siblings continue to live in Saudi Arabia. He lost his residence permit in Saudi Arabia after his employment was terminated and left the country. His mother was born in the village of XXXX in the City of Taiz in Yemen and is of the XXXX tribe. His father was born in the village of XXXX in the City of XXXX. The Appellant states that his tribal affiliation is XXXX. His grandfather lived and worked in Taiz City before moving to Saudi Arabia because he operated a XXXX XXXX which violated local traditional values. [4] The Appellant obtained a Bachelor's degree in XXXX XXXX XXXX after studying in Russia from 2007 until 2012. He then found work in Saudi Arabia with a XXXX company. He lost his job in 2013 as a result of new "Saudization" regulations that favoured the employment of Saudi citizens. He filed his dismissal letter in support of this allegation.1 However, his former employer helped finance further studies in the United States (U.S.) where he completed a master's degree in XXXX 2016. He filed a letter from the company that confirms this.2 After graduation, he received employment authorization to gain work experience in his field. An Executive Order was signed in January 2017 that placed an immigration ban on six Muslim countries, including Yemen. However, he was able to obtain temporary protected status (TPS) for one year, but was not permitted to work. He filed a copy of his application for TPS status dated November 4, 2015 that was granted from August 25, 2016 to March 3, 2017.3 He then came to Canada on August 10, 2017 to make a refugee claim at the border in Quebec. He fears return to the north of Yemen because his family is from the south. He would also be identified as a Saudi by his accent and place of birth. He fears Houthi rebels who are in conflict with Saudi Arabia. He also fears being recruited by his tribe to fight alongside the Houthis, or that he would be treated like a spy and killed. In addition, Al Qaeda (AQ) and the Islamic State in Syria (ISIS) are active in the south of the country. [5] The role of the RAD is to intervene when the RPD is wrong in law, in fact, or in fact and law. The applicable standard of review is correctness, unless deference should be shown to the RPD because it enjoyed a meaningful advantage over the RAD.4 No issue was identified to which deference should be shown on this basis. [6] No application was made to file new evidence in the appeal record. However, the Appellant submitted new evidence on September 4, 2019, that was not placed on file until October 21, 2019, after the decision had been written by the RAD. However, I have considered the documents and note the following. These documents were submitted after the filing of the appeal record on September 3, 2019. Rule 29 of the RAD Rules specifies that documents submitted after the appeal record has been received must not be used unless allowed by the RAD upon application under Rule 37. The application must contain an explanation of how the documents meet the requirement of subsection 110(4) of the IRPA as well as additional factors, including what they bring to the appeal and whether they could have been provided with the appeal record with reasonable effort. No such application was made. The submissions made in accordance with subsection 110(4) of the IRPA do not substitute for a required application under Rule 29. Although the documents post-date the perfection of the appeal, the Appellant has not provided details with respect to whether there has been a material change in the security situation in Aden and what, in particular, these documents add to the documents that are already in the record. The Appellant made brief submissions under subsection 110(4), but failed to explain what specifically has changed and what difference these documents could make to the appeal. The Appellant has not complied with the requirements of Rule 29, even if the subsection 110(4) submissions could be deemed to be a Rule 29 application. These documents are not admissible. [7] No application was made for an oral hearing in accordance with subsection 110(6) of the IRPA. [8] No transcript of the hearing was prepared. However, an audio digital recording of the hearing is available. [9] The May 31, 2019 version of the National Documentation Package (NDP) was used at the hearing and has not been superseded. RPD Reasons [10] The RPD rejected the claim for the following reasons: i) Post-hearing evidence was not admitted because the documents were not accompanied by an application in accordance with Rules 43 and 50 of the RPD Rules.5 In addition, counsel did not provide clear reasons why they should be admitted. Even if the letter constitutes an application, it was not made without delay as required by section 1 of Rule 50. Counsel never indicated at the hearing that anything needed to be clarified, but waited two weeks to make this submission. In the further alternative, the documents do not comply with Rule 43(3) with respect to relevance, probative value, what the new evidence brings to the hearing and whether it could have been provided with reasonable effort. Of the seven documents, four are Arabic language documents that have not been translated. The birth certificates and passports for the Appellant's parents are relevant, but have little probative value and were previously disclosed. A 1979 invoice from the XXXX XXXX XXXX in California is neither relevant nor probative, and no explanation was given as to why it could not have been provided at the hearing. The unsigned and unsworn letter from the Appellant repeats information that is already before the RPD, nor has he explained why this information could not have been provided as part of the hearing; ii) The RPD concluded that the Appellant is not a credible witness; iii) The Appellant omitted to mention in his Basis of Claim (BOC) narrative that he fears recruitment by Emirati forces in Yemen. When asked why he did not previously make reference to this, he did not explain the omission but rather attempted to change the subject to Al Qaeda. The RPD drew an adverse credibility inference from perceived evasive or non-responsive testimony; iv) The Appellant initially omitted reference to fears relating to his tribe. He testified about fear of the Houthis in the north, despite never having lived there, and then of other groups in the south. He made no mention of his tribe until the hearing, but even then, he only provided vague and non-responsive testimony that vacillated between his tribe wanting to kill him and not wanting to do so. He failed to provide a reasonable explanation for his inconsistent and evolving testimony. The RPD drew and adverse credibility inference from this; v) The RPD noted that the Appellant's family is from the south of Yemen and then proceeded to assess risk based on conditions in Aden, a major city in the south. Because he never lived in Yemen, the RPD did not consider that the law with respect to internal flight alternative (IFA) applies. As a result, IFA jurisprudence was not applied. The RPD indicated that this city has an international airport and is not controlled by the Houthis or by any terrorist group. Documentary evidence does not support the allegations of forced conscription in Aden, and the city is not an area of influence for AQ; vi) The RPD did not accept that the Appellant is at risk of recruitment from his tribe in Taiz or XXXX, given that there is no credible evidence that they have influence outside of their area, nor that members of the tribe would take an interest in him in Aden because of his grandfather's past activities. The RPD concluded that the Appellant's statement that he fears forced recruitment by them detracts from his credibility; vii) The RPD concluded that the documentary evidence does not establish that any group is actively recruiting people in Aden. The Appellant does not have a personalized risk beyond the generalized risk that exists in Aden; viii) The RPD concluded that the evidence does not establish that Saudi-raised Yemenis face harm or persecution for this reason in Yemen. The government is strongly supported by Saudi Arabia in its fight against Houthis and terrorist groups in a coalition that also includes U.S. special forces and United Arab Emirates (UAE) troops. ix) The RPD considered the adverse security circumstances in Aden in light of Guideline 1, and recognized that some sources refer to the situation as being a civil war.6 However, most of the instances of detentions, torture, food shortages, medical problems, bombings and killings take place in areas that are either contested by or controlled by Houthi rebels. The Appellant has not been politically active, nor has he been involved in the current conflict. Any risk that he could face would be indistinguishable from general dangers of civil war, but that not everybody would likely experience any of these. The risk is not personalized, but is a generalized one in Aden, and is therefore excluded from protection pursuant to paragraph 97(1)(b)(iv) of the IRPA. In addition, he would not be personally subject to any danger described in section 97 of the IRPA. Reasons for the Appeal [11] Although the Appellant chose English as the language for both the RPD hearing and the appeal, submissions were provided in French. I have been accredited by the Public Service Commission of Canada as a bilingual member who is qualified to preside over hearings in French. The Appellant submits that the RPD made the following errors: i) Some of the post-hearing documents that were not accepted by the RPD are in French. Counsel asks if the RPD member reads French documents, if they were translated, and whether the RPD made its decision based on them. The RPD breached natural justice if translations were relied on, but not disclosed; ii) Counsel submits that the RPD erred in its adverse credibility findings, given that the Appellant has never been to Yemen and the underlying facts are not in question. The issue is whether his personal characteristics put him at risk in Yemen. RPD exaggerated the importance of his ability to identify potential agents of persecution. He was only required to identify the nature of the persecution, not the identity of potential agents of persecution; iii) The RPD erred in failing to assess the Appellant's fear of his tribe and of militants from the UAE; iv) The RPD failed to consider whether internal relocation is reasonable in accordance with the second prong of the applicable test for a viable IFA. His family is from Maflehi and Taiz, not Aden. Second, the IFA analysis applies once a claimant has been found to be at risk in one part of the country.7 The RPD was required to consider whether the evidence establishes, on a balance of probabilities, that the Appellant faces a serious possibility of persecution in the proposed IFA location. If not, the panel must proceed to assess whether it would be reasonable for the person to find refuge there in light of all personal circumstances. Given the adverse security situation in Aden, it is not reasonable for him to live there. Yemen is experiencing one of the worst humanitarian catastrophes in the world that includes violence from war, famine, cholera, the lack of essential goods, and the unavailability of employment. v) Aden is not a safe place, the NDP indicates forced recruitment is ongoing in Yemen, including in Aden. Counsel cites documents 2.11, 5.1, 5.3, 8.1, and 8.2 of the NDP to submit that Aden is a dangerous place for young men. They risk recruitment by armed groups and arbitrary detention. People who refuse to join can be kidnapped or killed. Aden is not exempt from this risk. The security situation has deteriorated since the hearing. ANALYSIS The RPD did not err in declining to admit post-hearing evidence [12] The RPD considered the applicable RPD Rules and correctly applied them to post-hearing evidence. Given that these documents were not admitted by the RPD, they are not part of the appeal record. The Appellant did not attempt to file them with the RAD. There is no evidence before me to conclude that the RPD member was not able to read the documents in French, or that a translation exists. This is a question that the Appellants should have taken up with the RPD if it was of concern to them. It is now raised for the first time on appeal with no evidence upon which an assessment could be based. This objection to the RPD decision is without merit. The RPD erred in making adverse credibility findings [13] I agree with counsel that the RPD confused the issue of credibility with the ability to identify potential agents of persecution. No issues of fact were challenged by the RPD. Given that the Appellant has never visited Yemen and his residual profile has not been challenged, the assessment must be based on documentary evidence concerning country conditions. The RPD correctly noted that the Appellant's identification of potential agents of persecution developed over the course of the claim, and that at times it was inconsistent. Although this may concern his subjective fear of persecution, it does not detract from the responsibility of the RPD to assess the claim based on experiences of similarly situated persons. Given that no adverse credibility findings were made with respect to the Appellant's personal profile, the significance of this issue was mischaracterized. The RPD erred in failing to conduct an IFA assessment [14] I agree with counsel that the RPD erred in concluding that jurisprudence concerning internal relocation does not apply because he has never been to Yemen. The RPD accepted that the Appellant could not live in either Taiz or XXXX with members of his XXXX tribe. Given the clan-based nature of Yemeni society, protection, social integration and risk management issues would depend to a great extent on whether he would be accepted and protected by members of his clan. He testified that his grandfather returned from the U.S. and opened a XXXX XXXX in Taiz. Because some members of the community believed that this offended traditional cultural values, he moved to Saudi Arabia with his family to avoid persecution. The Appellant submits that his family continues to be the object of ill-will from the community because of this. In addition, the area has been subject to hostilities resulting from the civil war, including Houthi occupation. Once the RPD concluded that he could not return to his ancestral home region and identified Aden as being a safe alternative, IFA jurisprudence applied. The RPD committed an error in law in this conclusion. Failure to consider the second (reasonableness) prong of the IFA assessment is fatal to the RPD's decision. The RPD erred in its assessment of Aden as being a safe place for the Appellant [15] A 2018 report from the United Nations Human Rights Council provides a comprehensive overview of the situation in Yemen that began unfolding in 2011 as a result of a rebellion against President Ali Abdullah Saleh.8 The conflict escalated in 2014 between President Hadi and former President Saleh who was supported by the Houthis and other armed groups. Saudi Arabia intervened in March 2015 with a coalition that includes military resources from the UAE, Bahrain, Egypt, Jordan, Kuwait, Morocco, Senegal and Sudan. The UAE controls access to the south of Yemen with the support of proxy groups such as the Security Belt Forces, the Hadrami Elite Forces and the Shabwani Elite Forces. AQ and groups associated with the Islamic State in Iraq and the Levant (ISIL) are now active in the country and were responsible for a number of attacks in Yemen, including in Aden. The Southern Transitional Council was created in May 2017, is backed by the UAE, and controls a number of cities in Southern Yemen. It declared a state of emergency in Aden after heavy fighting broke out. The Office for the Coordination of Humanitarian Affairs designated Yemen as the world's largest humanitarian crisis in March 2017. As of April 2018, 22.2 million people out of a population of 29.3 million were in need of humanitarian assistance. Of these, the precarious situation of about 11.3 million was determined to be acute. Issues identified include lack of food, health care, sanitation, water, housing and protection. People who are perceived of being critical of the UAE's involvement in the conflict have been targeted in Aden by UAE proxy militias. [16] This report is consistent with the position of the United Nations High Commissioner for Refugees (UNHCR) with respect to forced return to Yemen.9 The organization recommends the suspension of forced returns to Yemen because the population is deprived of access to basic healthcare, safe drinking water, food, nutrition, and protection. About two-thirds of residents are in need of humanitarian aid. [17] The 2018 U.S. Department of State (DOS) report documents the complex and unstable nature of the conflict.10 The Republic of Yemen Government (ROYG) was able to re-establish its presence in Aden and in other areas in the south in 2016. Clashes continued between groups whose loyalty was divided among a number of different actors. Belligerents include the Houthis, the Islah Party (Sunni Islamist), the Rashad Party (Salafi), armed separatists affiliated with Hirak tribal forces, pro-ROYG's resistance groups, Saudi-led coalition forces, and ROYG troops. Terrorist groups, including Al Qaeda, have also carried out many deadly attacks. As a result of the fighting, the humanitarian situation has deteriorated, with about 8.4 million people now at risk of starvation. About 80% of the population requires humanitarian assistance, and 2.3 million citizens are internally displaced. It is estimated that 45% of health care facilities are not functional. The disproportionate and indiscriminate use of force by all parties to the conflict have been reported. [18] The key players in Aden are the Southern Transitional Council, UAE-backed military forces, Salafist groups and the Hadi government.11 Clashes took place in January 2018 in Aden between Hadi loyalists and fighters associated with the Southern Transitional Council that were reminiscent of the Houthi takeover of the city that took place three and a half years previously. The situation in Aden remains volatile and fragile.12 [19] The Appellant testified that he would be perceived as being a Saudi because of his accent and place of birth. This country is currently engaged in active attacks on Houthi and other opposition forces. His clan rejected his grandfather because of his perceived Western values. The Appellant has lived and studied in the U.S. It is clear that he would be at serious risk in his ancestral home at the hands of the Houthis, with no meaningful support from his clan. State protection is not available there. He has a well-founded fear of persecution in that area. [20] This conclusion requires that Aden be considered as a proposed IFA location. The applicable test requires that the decision-maker be satisfied, on a balance of probabilities, that there is no serious possibility of persecution in the proposed area of relocation. If not, the second question becomes whether it would not be unreasonable to seek refugee there.13 According to the Federal Court of Appeal, this is not the same thing as undue hardship resulting from relocation that may involve loss of one's employment or social status, separation from friends or loved ones, a diminished quality of life, or loss of future prospects. It requires the presence of circumstances that would put the life and safety of the person in jeopardy, together with reliable evidence to establish these conditions.14 [21] Although his Saudi affiliation would not likely cause concern to the UAE or ROGY forces in Aden, there are a number of other actors in the area who may consider the Appellant's Western and Saudi profile differently. The issue of imputed political opinion creates a nexus with the Refugee Convention. Even if the risk does not rise to the level of a serious possibility of persecution, his political profile, the precarious security situation, coupled with the severe humanitarian crisis, would put the Appellant's physical security at risk. As a result, relocation to Aden could not be considered to be reasonable. He is not required to put himself at risk of serious injury or death in the middle of a civil war to test the proposed IFA. [22] A review of all of the evidence leads me to conclude that the RPD erred in its IFA analysis. The second (reasonableness) branch of the IFA test applies. Given that relocation to Aden would not be reasonable under current circumstances, the Appellant does not have a viable IFA, even if the risk in Aden does not reach the level of a serious possibility of persecution, as concluded by the RPD. Because this issue is now moot, it will not be given an independent assessment. CONCLUSION [23] In light of all of these factors, I am satisfied that the Appellant is a Convention refugee. [24] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "H. Shepherd" H. Shepherd October 28, 2019 Date 1 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 78. 2 Ibid., at p. 77. 3 Ibid., Exhibit 6, at pp. 94-95. 4 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 5 Refugee Protection Division Rules(SOR/ 2012-256). . 6 Chairperson's Guideline 1: Civilian Non-Combatants Fearing Persecution in Civil War Situations. Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act. 7 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), FCA, A-81-92. 8 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP), for Yemen, (31 May 2019), Item 2.7. "Situation of human rights in Yemen, including violations and abuses since September 2014." ,17 August 2018. 9 Ibid., Item 2.5. "UNHCR Position on Returns to Yemen." , April 2015. 10 Ibid., Item 2.1. "Yemen. Country Reports on Human Rights Practices for 2018.", 13 March 2019. 11 Ibid., Item 4.2. "Yemen's Southern Powder Keg." , March 2018. 12 Ibid., pp. 6-7. 13 Abdalghader v. Canada (Minister of Citizenship and Immigration), 2015 FC 581. at para. 22. 14 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.), at paras. 15-16, and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-21218 RAD.25.02 (April 04, 2019) Disponible en français 4 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