TB9-06913

RAD File / Dossier de la SAR : TB9-06913 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 11, 2020 Date de la décision Panel Angus Grant Tribunal Counsel for the person who is the subject of the appeal Jonathan Richard Lage Conseil de la|des personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] These are my reasons for granting the appeal of XXXX XXXX XXXX XXXX XXXX, and allowing his claim for refugee protection. BACKGROUND Basis of Claim [2] The Appellant has spent almost his entire life in Saudi Arabia, but is a citizen of Yemen and no other country. He fears returning to Yemen for a variety of reasons. First, his family has been involved in a long-standing tribal feud. Further, the Appellant fears that he will be targeted by one of Yemen's warring groups because of his religion, his family background, and his profile as an educated person who has worked for a Saudi XXXX company and is associated with Saudi Arabia. Full details of the Appellant's claim can be found in his Basis of Claim form and amended narrative.1 RPD Decision [3] The Refugee Protection Division (RPD) rejected the Appellant's claim, concluding that elements of his story were not credible, and further determining that he had failed to establish the objective basis for his claim. The RPD found, in other words, that the Appellant had not established that he faced a well-founded fear of persecution. ISSUES ON APPEAL [4] The Appellant raises the following issues on appeal: 1) The RPD erred in finding the Appellant's testimony to be inconsistent and 'non-responsive'; 2) the RPD erred by emphasizing issues not central to the claim; and, 3) the RPD failed to address the central issue in his claim. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [5] My role is to look at all of the evidence and decide if the RPD made the correct decision.2 There is an exception to this, where the RAD defers to the RPD, if the RPD had a meaningful advantage in assessing the credibility of oral evidence. I do not find this case falls into the exception. Therefore, I will be looking at whether the RPD's decision was correct. ANALYSIS [6] In my view, the determinative issue in this appeal relates to the Appellant's profile as a XXXX XXXX XXXX who lived for virtually his entire life in Saudi Arabia. In applying this profile to the country conditions evidence3, I find that I cannot agree with the RPD on the risks faced by the Appellant, were he to return to Yemen. I conclude, rather, that the Appellant does face a well-founded fear of persecution in that country and, as such, I accept his claim for refugee protection. [7] Because of my findings with respect to the Appellant's profile, I need not consider the RPD's credibility findings in any great detail. Suffice to say that the RPD did not question the elements of the Appellant's identity that are central to my assessment of his risk profile. For the record, some of the RPD's findings were clearly justified, most notably its adverse inference with respect to the Appellant's failure to disclose the alleged targeting of his family members. Other credibility concerns, however, were unfounded. For example, having listened to the audio recording of the hearing in this matter, I disagree with the RPD member that the Appellant was 'non-responsive' in identifying the particular tribe that he fears. Country Conditions in Yemen - humanitarian crisis and widespread violence [8] For several years, Yemen has been a country on the brink of collapse. Roughly half of its population, or roughly 14 million people, are at risk of starvation and thousands of civilians have been killed or injured since armed conflict intensified in 2014.4 Moreover, all parties to the conflict appear to have engaged in significant human rights abuses, and these abuses extend throughout the country. 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 needed humanitarian assistance. [9] The humanitarian and human rights situation has also led the United Nations High Commissioner for Refugees (UNHCR) to recommend the suspension of forced returns to Yemen.5 [10] Because of the state of the conflict in Yemen, I have assessed this appeal through the lens of the Chairperson's Guideline 1: Civilian Non-Combatants Fearing Persecution in Civil War Situations. The generally accepted proposition flowing from Guideline 1 is that while the Refugee Convention may include those fearing return to situations of civil war, refugee status is not conferred for this reason alone. Rather, the individual circumstances of the claimant must be assessed to determine whether their particular situation falls within the Refugee definition.6 [11] In taking this Guideline into account, together with the Appellant's particular profile, and the country conditions in Yemen, I conclude that there is reasonable possibility that he would face persecution, were he to return to that country. [12] While the RPD pointed to documentary evidence indicating improvements in the security situation in the South of Yemen, and particularly in Mukalla, where the Appellant's family resides, I find on my review of the evidence that the situation remains highly unstable. It is, in other words, premature to conclude that any improvements in the security situation in the South of Yemen are of a durable nature. For example, the evidence suggests that people in Mukalla remain fearful that "Northerners" could return and there is corresponding discussion of whether UAE backed forces should engage in pre-emptive strikes against Northern and/or Al-Qaeda incursions.7 [13] Moreover, while the RPD was correct to point out that Al-Qaeda in the Arabian Peninsula (AQAP) was ousted from Mukalla in 2016, it continues to carry out "an increasingly intensive campaign of bombings and attacks on UAE-backed forces across the south since late 2016."8 Mukalla has been the target of intense airstrikes by the Saudi-led coalition to expel AQAP and its affiliate organizations, but the ensuing situation remains unstable. As one report notes, Ansar al-Sharia (one offshoot of AQAP) was able to avoid airstrikes because they knew the coalition was coming; "[t]hey left in the blink of an eye just like they took over Mukalla in [the] blink of an eye..."9 In these circumstances, I do not think it speculative to conclude that the tenuous situation in Mukalla could easily swing back in AQAP's favour. The Appellant's Profile [14] As noted above, the generally abysmal state of affairs in Yemen is insufficient, on its own, to confer refugee protection on the Appellant. However, in applying this situation to the Appellant's profile, I come to a different from the RPD on the question of the risk that he faces, were he to return to Yemen. [15] The Appellant asserted a fear of persecution because of the fact that he has lived his entire life in Saudi Arabia, possesses Saudi identification and because of his work experience as an XXXX XXXX in Saudi Arabia. [16] Although the Appellant's Saudi affiliation would not likely cause concern to the UAE or Republic of Yemen Government forces operating in the South, there are multiple other actors in the area who would likely view the Appellant's Saudi profile differently, and impute a pro-Saudi political opinion to him. This creates a nexus with the Refugee Convention. Taking this profile into consideration, together with the fact that the Appellant would have to traverse the South of Yemen to return to Mukalla, the precarious security situation, and the severe humanitarian crisis across the region, I conclude that the Appellant does face a reasonable possibility of persecution, were he to return to Yemen. I therefore find that the RPD erred in coming to a different conclusion, and I accept the Appellants claim for refugee protection on the basis of the above analysis. CONCLUSION [17] The appeal is allowed. Pursuant to paragraph 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) "Angus Grant" Angus Grant June 11, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibit 2, pp. 16-38. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; and Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 3 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Yemen (31 October 2018) and Exhibit RPD-1, RPD Record, Exhibits 6 and 7. 4 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Yemen (31 October 2018), item 2.4. 5 Ibid., item 2.5. "UNHCR Position on Returns to Yemen.", April 2015. 6 IRB Chairperson Guideline 1: Civilian Non-Combatants Fearing Persecution in Civil War Situations. 7 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Yemen (31 October 2018), item 4.2. 8 Ibid. 9 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Yemen (31 October 2018), item 2.7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-06913 RAD.25.02 (April 04, 2019) Disponible en français 2 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