TB7-25395

RAD File / Dossier de la SAR : TB7-25395 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 XXXX) (a.k.a. XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 28, 2019 Date de la décision Panel Cynthia Pay Tribunal Counsel for the person(s) who is(are) the subject of the appeal Esther Lexchin Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This decision is about XXXX XXXX XXXX XXXX XXXX (the Appellant), who claims to be a citizen of Eritrea. He is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant alleges that he fears returning to Eritrea because he would be conscripted into mandatory National Service there. The RPD rejected his claim on the basis that he was a citizen of Sudan, and did not establish that he is at risk in that country. I find that the RPD erred in finding that the Appellant was a Sudanese citizen. I agree with its finding that he is an Eritrean citizen, and further find that he is a Convention Refugee. DECISION [2] I allow the Appellant's appeal and substitute my own determination that he is a Convention refugee pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND [3] The Appellant claims that he is an Eritrean citizen. He claims that he was born in Sudan and that his family then moved to Saudi Arabia, where he spent most of his life except when he attended university in Jordan. He claims that his parents, who are Eritrean, obtained Sudanese passports for themselves and for him through bribery and the help of third-party intermediaries, and that although his Sudanese passport is genuine, it was obtained improperly, and that he does not have a right to Sudanese citizenship under Sudanese law. The Appellant's family moved to Saudi Arabia where they lived for most of his life. They had residence permits to live there, but these were tied to work and were not permanent. As an adult, the Appellant worked in Saudi Arabia until recently, when he lost his job during a period of "Saudization", where priority for jobs were given to Saudi nationals, which would also mean that he would lose his residence permit there. Fearing the possibility of being returned to Eritrea, the Appellant obtained a visa to travel to the United States, and entered Canada on XXXX XXXX, 2017, when he made a refugee claim. [4] The Appellant's refugee claim was heard by the RPD on October 26, 2017. In its reasons dated November 23, 2017, the RPD rejected the Appellant's claim on the basis that he is a Sudanese citizen. Some of its findings included the following: (a) the RPD found that the Appellant had a Sudanese birth certificate which states that his father was a Sudanese national, indicating that he too was a Sudanese national; (b) the Appellant had a Sudanese passport, which he had renewed a number of times and had used without problem to obtain visas from Jordan and the United States as well as a Saudi residence permit, also indicating that he is a Sudanese citizen; and (c) he did not establish that he faces persecution or that he is a person in need of protection in relation to Sudan. [5] The Appellant has now appealed to the Refugee Appeal Division (RAD). He has not provided new evidence or requested an oral hearing, and I have no basis to hold one. He asks that the RAD find that the RPD erred and grant his claim or, in the alternative, send his claim back to the RPD for redetermination. ROLE OF THE RAD [6] As held by the Federal Court of Appeal in Huruglica,i the RAD must review RPD decisions on a correctness standard with respect to questions of law and findings of fact (and mixed fact and law) which raise no issue of the credibility of oral evidence. Deference may be required when the RPD is in an advantageous position with respect to the assessment of oral evidence.ii In this appeal, I was able to clearly listen to the recording of the RPD hearing as well as review the record, and I do not find that the RPD was in an advantageous position in assessing this evidence. ISSUES [7] The Appellant argues that the RPD erred as follows: (a) in making no findings regarding his Eritrean identity documentation; (b) in its findings regarding his Sudanese identity documents; and (c) in its credibility finding regarding his fear of military service in Sudan. ANALYSIS [8] After conducting my own analysis of the record, I allow the appeal and substitute my own determination that the Appellant is a Convention Refugee. I turn now to explain my reasons for reaching this conclusion. a) Did the RPD err in making no findings regarding his Eritrean identity documentation? [9] The Appellant argues that the RPD erred in making no findings regarding his Eritrean origins or his evidence in support of his Eritrean identity, including his Eritrean identity card, his parents' and siblings' Eritrean identity cards, his sister's Eritrean passport, and copies of tax receipts demonstrating that his father paid fees or taxes to the Eritrean embassy in Saudi Arabia. [10] Based on my review of the recording of the hearing, I find that the RPD panel stated at the end of the hearing that it accepted the Appellant's Eritrean citizenship based on his connection to Eritrea via his parents, and that based on country conditions, there was no issue regarding his return to Eritrea; i.e., that if it found he would be returned to Eritrea, there were no credibility issues regarding his claim against that country of reference. The only outstanding issue was whether Sudan was a country of reference for the Appellant. [11] As a result, I find that the RPD accepted the Appellant's documentation regarding his Eritrean identity, found that he is a citizen of Eritrea, and further found that, if he had to return to Eritrea, he would be a Convention Refugee. Based on my review of the record, including the Appellant's Eritrean identity documents and objective country condition evidence, I see no basis to find these determinations in error. His identity documents support his claim to be an Eritrean citizen, and although I do not have the original copies, there is no reason on the face of this documentation to question its authenticity. b) Did the RPD err in its findings regarding the Appellant's Sudanese passport? [12] The RPD found that the Appellant had Sudanese citizenship on the basis of his Sudanese identity documentation. He had a birth certificate issued by the government of Sudan, which identifies his father as a Sudanese national. Both parents had documents indicating that they were Sudanese nationals, and his father's documents were used when the Appellant's birth certificate was obtained. His parents had Sudanese passports, which they used to travel to and reside in Saudi Arabia. As an adult, the Appellant obtained his own Sudanese passports, and successfully used these to apply for and renew his Saudi Arabian residence permit, to obtain a student visa for his university studies in Jordan, as well as to obtain a U.S. visa and to travel there. The RPD rejected the Appellant's claim that he would be unable to return to Sudan because he feared Sudanese authorities would discover that his documents were based on false information, as they had previously accepted and renewed his documentation on several occasions. It found that his allegation that he could not return to Sudan to be speculative and not supported by the evidence. [13] The Appellant argues that the RPD erred in this finding by ignoring his evidence regarding his claim that he is an Eritrean national and that he obtained his Sudanese identity documentation through bribery and third-party intermediaries; in ignoring Sudanese nationality law, which shows that he and his father did not meet the criteria for Sudanese citizenship; and in relying on the fact that that his passport was recognized by other countries such as Jordan or Saudi Arabia. [14] I understand the reasons behind the RPD's finding, and its concern that the Appellant had not had any difficulty using or renewing his Sudanese identity documentation over many years. After reviewing all of the objective evidence, however, I find that it erred in its determination that the Appellant had not met his burden to demonstrate that he does not have Sudanese citizenship. [15] The objective country condition evidence provided in the National Documentation Package (NDP) for Sudan suggests that Eritreans in Sudan may find it difficult or impossible to obtain citizenship there. A Response to Information Request (RIR) dated August 23, 2016,iii states that an official from the Embassy of Sudan in Ottawa stated that people born in Sudan whose parents are refugees are not eligible for Sudanese citizenship, and that a professor specializing in African institutions and governance at Pennsylvania State University reports that people born in Sudan to refugee parents and Eritrean refugees cannot obtain Sudanese citizenship, and are only allowed to stay there on a temporary basis. A report by the United Nations High Commissioner for Refugees (UNHCR) cited in this RIR, and also provided by the Appellant to the RPD, states that refugees in eastern Sudan are generally deprived of access to citizenship, and that the criteria of legal residence for ten years prior to applying for naturalization would be denied for such refugees because living in Sudan as a refugee is not considered "legal residence".iv [16] The UNHCR report states that although the long-standing Eritrean refugee population is highly integrated in eastern Sudan, they are generally deprived of access to naturalization and citizenship. The RIR states that some Eritreans have been able to access Sudanese citizenship, but have relied on personal connections and significant resources in order to do so. This is supported by the UNHCR report, which states that according to many stakeholders who were interviewed, it is possible for Eritrean refugees to acquire Sudanese identity documents by informal means if they have the connections and resources to do so, and that "a significant number of longstanding Eritrean refugees have been able to acquire some kind of association with the Sudanese state," but also that the number of refugees who have been able to do so has been "hotly disputed."v [17] I find that the objective country condition evidence is mixed regarding whether Eritrean refugees or their children born in Sudan can obtain citizenship or Sudanese identity documents there, and as a result, I give the Appellant the benefit of the doubt regarding his status in Sudan; i.e., that he did not have citizenship there. The interpretation of the Sudanese law provided by the UNHCR and official sources such as the representative from the Embassy of Sudan in Ottawa, both support the Appellant's contention that Eritrean refugees and their children cannot officially obtain Sudanese citizenship. At best, they can only obtain Sudanese identity documents via informal means, which is consistent with the Appellant's evidence regarding how he and his family obtained his Sudanese birth certificate and passports. The evidence is unclear regarding whether such identity documents obtained through informal channels give these individuals the rights of Sudanese nationals. As noted above, the UNHCR describes the status of those Eritreans who have obtained Sudanese identity documents as achieving "some kind of association with the Sudanese state." I find that this status does not equal that of a national of Sudan. Overall, I find that the objective evidence corroborates the Appellant's claim that he is unable to obtain Sudanese citizenship, despite having access to a Sudanese passport which he has obtained through informal means, and that therefore, Sudan should not be considered a country of reference with respect to his claim. As a result, I do not need to address the Appellant's arguments concerning the RPD's credibility finding regarding his fear of military service in Sudan. RAD finds that the Appellant is a Convention refugee [18] As the Appellant has established that he is an Eritrean citizen, and I have found that Sudan should not be considered a country of reference for his claim, I must now assess if he faces a well-founded fear of persecution or a risk to life if he returns to Eritrea. [19] As noted above, the RPD stated during the Appellant's hearing that it accepted that he is a citizen of Eritrea, and further found that, if he had to return to Eritrea, based on country condition evidence, he would be a Convention Refugee. I agree with the RPD. The Appellant has provided sufficient Eritrean identity documentation to establish that he is a citizen there, and I see no basis to find that this documentation is suspect. [20] According to objective country condition evidence contained in the NDP, returned asylum claimants to Eritrea are in danger of arbitrary arrest, detention for unspecified periods, torture, indefinite military conscription and forced labour.vi As a result, I find that the Appellant has a well-founded fear of persecution should he return to Eritrea, and because the state is the agent of persecution, he has no internal flight alternative available to him. CONCLUSION [21] On the basis of the findings outlined above, I allow the appeal. I set aside the determination of the RPD and find that the Appellant is a Convention refugee pursuant to paragraph 111(1)(b) of the IRPA. (signed) "Cynthia Pay" Cynthia Pay February 28, 2019 Date i M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. ii Huruglica, ibid., at para 70; X(Re), 2017 CanLII 33034 (CA IRB). iii Exhibit RPD-1, RPD Record, Exhibit 4, National Documentation Package (NDP) for Sudan, 31 March 2017, Item 3.5, Response to Information Request (RIR) SDN105600.E, Immigration and Refugee Board of Canada (23 August 2016). iv Exhibit RPD-1, RPD Record, Exhibit 5, p. 132. v Ibid., p. 133. vi Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Eritrea, 30 June 2017, Item 14.2, RIR ERI105801.E, Immigration and Refugee Board of Canada (14 June 2017). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-25395 RAD.25.02 (September 18, 2018) Disponible en français 8 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 (September 18, 2018) Disponible en français