VB7-01090

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 : VB7-01090 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision December 19, 2017 Date de la décision Panel Rena Dhir Tribunal Counsel for the person(s) who is(are) Thaer Abuelhaija Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX XXXX (the "appellant") was born in the United Arab Emirates. He appeals the February 7, 2017 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on February 6, 2017 and a Notice of Decision was sent to the appellant on February 14, 2017. The RPD found that the appellant is neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the "Act" or "IRPA").1 DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(a) of the Act, the Refugee Appeal Division (the "RAD") confirms the determination of the RPD, namely, that the appellant is neither a Convention2 refugees pursuant to section 96 of the Act nor a person in need of protection pursuant to section 97 of the Act. This appeal is therefore dismissed. BACKGROUND [3] The appellant was represented by an immigration consultant at the RPD hearing. The appellant is represented by the same immigration consultant before the RAD. The Minister intervened by documents only before the RPD. The Minister has not intervened in the RAD appeal. [4] A transcript of the RPD proceedings has not been included in the Appellant's Record.3 [5] The appellant does seek to present "new" evidence to the RAD pursuant to subsection 110(4) of the Act. BASIS OF CLAIM [6] According to the allegations set out in the appellant's Basis of Claim form (BOC),4 the appellant was born in the UAE. His parents were Palestinians born in Syria and were employed in the UAE. They held Syrian travel documents for Palestinians. The appellant holds a Palestine authority passport and a Syrian travel document. The appellant's wife is a Jordanian citizen. [7] The appellant alleges he was told that his current employment position would not be renewed and that he would have to find a new position or face having to leave the UAE. The appellant fears that this situation will be difficult for him as he is stateless and has nowhere to go. [8] The appellant travelled to the US in XXXX 2016 and travelled to Canada. The appellant made an inland claim for refugee protection in Canada on XXXX XXXX, 2016. He fears persecution in UAE as he is not a citizen of that country. Specifically, the appellant fears discrimination in areas of employment and education. GROUNDS OF APPEAL [9] The appellant's submissions as to the grounds of this appeal can be summarized as follows:5 * Did the RPD member err in failing to take note of the country conditions as they relate to the appellant? * Did the RPD member fail to take into consideration that the appellant does not have the legal right to return to the UAE as his residency permit is based on his sponsor? * Did the RPD member fail to assess Syria as a country of reference? REMEDY SOUGHT [10] The appellant has requested6 that the RAD, under paragraph 111(1)(c) of the Act, allow the appeal and refer the matter to the RPD for redetermination by a differently constituted panel. CONSIDERATION OF NEW EVIDENCE [11] Subsection 110(4) of the Act 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 they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The appellants are required to provide full and detailed submissions as part of their memorandum and provide explanations for how the proposed new evidence meets the requirements of subsection 110(4), and how it relates to their claims.7 [13] Once the "new evidence" has been accepted by the RAD, the RAD is also guided by the recent Federal Court of Appeal (FCA) case, Singh.8 In Singh, the FCA has said: [64] In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case. [14] In Singh,9 the FCA also said: [54] [. . .] The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected. [15] The RAD will assess the evidence on "newness" as outlined in subsection 110(4). If it passes this test, the RAD will go on to assess the "new evidence" on credibility and relevance before admittance of such evidence for the RAD appeal. [16] The appellants have submitted the following document10 as new evidence at the RAD appeal pursuant to subsection 110(4) of the Act: * A passport copy and expired temporary resident visa in the UAE; * An expired temporary resident visa in UAE; and, * A stamp of Department of Homeland Security in the US where it mentions the date of leaving the UAE and entering the US. [17] The appellant has not provided any explanations as to why this information is being presented as "new evidence" pursuant to subsection 110(4) to the RAD. I note that the RPD decision was rendered on February 7, 2017 with the RPD hearing taking place on February 6, 2017. The appellants were aware that nationality of the appellant was an issue before and at the RPD hearing. I note that all this information was before the RPD member. The appellants have not provided any persuasive arguments as to why the RAD should consider this as "new evidence" when this information was before the RPD. Thus, I do not find the appellant has adequately established that these documents are "new evidence" pursuant to subsection 110(4) as they were already before the RPD. ORAL HEARING [18] The appellant has requested11 an oral hearing pursuant to subsection 110(6) of the Act when she initially submitted her RAD appeal and the AR12 was received on June 30, 2016. No new evidence was introduced by the appellant at this time for the appeal. [19] Subsection 110(3) of the Act requires that the RAD proceed without a hearing, on the basis of the RPD Record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the appellant. [20] 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,13 in which case, according to subsection 110(6), 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 decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [21] The appellant has not provided 'new evidence' pursuant to ss. 110(4). As such, the RAD will proceed without a hearing in this appeal. ROLE OF THE RAD [22] In this appeal, and taking into consideration the recent FCA decision in Huruglica,14 with respect to findings of fact (and mixed fact and law), which raise no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Otherwise, where an issue concerning credibility of oral evidence is evident, I will be applying the points set out in Huruglica15 which is to conduct an independent assessment of all the evidence to determine whether the appellant is a Convention refugee or a person in need of protection, while giving certain deference to the RPD's findings regarding the appellant's credibility and any other issues where the RPD enjoys a particular advantage. As well, it is clear from the many recent court cases that have been previously mentioned, all agree that the standard of correctness should be used for any error of law found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [23] One of the key factors in this refugee claim for the RPD member to assess was whether the appellant has a country of nationality. Article 1E of the United Nations Convention Relating to the Status of Refugees states:16 The Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. [24] The appellant was born in the UAE but according to country documents17 regarding citizenship, the appellant is not eligible to obtain citizenship in the country. The appellant's wife is from Jordan but he is ineligible to seek citizenship in that country. The appellant holds a Palestinian authority issued passport which does not grant him citizenship in Palestine. [25] Furthermore, country documents note that "birth in the UAE does not entitle a child to permanent residency".18 I note that the appellant was born in the UAE. Although he has not been eligible to apply for citizenship in the country, he has lived there all his life. The appellant has gone to school, including obtaining a post-secondary degree, and has worked at various jobs19 in the UAE. Thus, the only country the appellant has lived in is the UAE, where he has born. According to section 96 of the Act, subsection (b), "a Convention refugee is a person who, [...] not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country." In the case of the appellant, he is stateless and "a stateless person is someone who is not recognized by any country as a citizen."20 [26] In the Maarouf21 decision, Justice Cullen of the Trial Division, after an extensive review of the legal principles and authorities, endorsed the following propositions: . . . In my view, the concept of "former habitual residence" seeks to establish a relationship to a state which is broadly comparable to that between a citizen and his or her country of nationality. Thus the term implies a situation where a stateless person was admitted to a given country with a view to continuing residence of some duration, without necessitating a minimum period of residence. . . . a "country of former habitual residence" should not be limited to a country where the claimant [appellant] initially feared persecution. Finally, the claimant [appellant] does not have to be legally able to return to a country of former habitual residence as a denial of a right of return may in itself constitute an act of persecution by the state. The claimant [appellant] must, however, have established a significant period of de facto residence in the country in question.22 [27] The Trial Division has held, in a number of decisions, that a country may be a country of former habitual residence even if the claimant [appellant] is not legally able to return to that country.23 [28] The appellant submits that the RPD member failed to acknowledge Syria as a country of reference. The appellant's parents were born in Syria and as a result, the appellant was eligible to apply for a Syrian travel document. However, there is no evidence to support that the appellant has lived in Syria or that he is a national24 of that country. Therefore, I find that Syria cannot be considered as a country of former habitual residence. Thus, I have no reason to disagree with the RPD member's analysis where the RPD member finds:25 [13] . . . A country of former habitual residence implies a situation where a stateless person(s) was admitted to a given country with a view to continuing residence of some duration, without necessitating a minimum period of residence. Having lived most of his life in the UAE with his current status until 2018, I therefore find that the UAE is the claimant's country of former or habitual residence. [29] Therefore, I find that the UAE is the appellant's only country of former habitual residence. I also note that "statelessness per se does not give rise to a claim to refugee status: the claimant [appellant] must demonstrate a well-founded fear of persecution based on a Convention ground."26 [30] I have reviewed the country documentation27 on the situation of non-citizens in the UAE that were before the RPD and are before the RAD now. Finally, I have taken into consideration the country documents that were before the RPD and now the RAD. I find the appellant has not adduced persuasive evidence to establish a serious ground for a well-founded fear of persecution. [31] The appellant testified that he fears that he will not have employment in the UAE and will be deported. Country reports note: According to the UAE Visa Officer, foreigners can reside in the UAE either on a work permit or residency permit (UAE 21 May 2009). A work permit is granted to an applicant who has an employment contract with an employer; the residency permit allows dependents of such a worker to reside in the UAE (ibid.). The Visa Officer stated that these permits are usually valid for two to three years depending on the type of job and are renewable provided the worker continues to be employed (ibid.). Rights to residency are lost if the person is away from the UAE for more than six months, although he or she can re-apply (ibid.).28 In Altawil,29 the court upheld the CRDD's determination that Qatar had not denied the claimant re-entry because of a Convention reason. In the ruling, Justice Simpson stated, ". . . it seems to me that there must be something in the real circumstances which suggests persecutorial intent or conduct. Absent such evidence, I am not prepared to conclude that the Law, which is one of general application, is persecutorial in effect . . .".30 [32] Furthermore, in relation to employment, country reports note: The government allowed foreign workers to switch jobs without a letter of permission from their employer. Labor regulations provide foreign employees the option to work without an employment contract or, in cases in which a contract was in force, to change employer sponsors after two years as well as within the first two years within the terms of the contract. The government designed this regulation to improve job mobility and reduce the vulnerability of foreign workers to abuse.31 The appellant alleged that his job was being given to a UAE national and I do not find the appellant has provided persuasive evidence to support that this policy is persecutory. [33] The appellant submits that the RPD member failed to consider that the discrimination he faced in education and healthcare amounts to persecution. According to country documents, "noncitizens faced legal and societal discrimination."32 The RPD member finds that the appellant had access to education which included obtaining his Bachelor of Arts.33 There is no persuasive evidence before the RPD or the RAD to indicate that the appellant was not allowed to obtain education in the UAE. Country reports note: . . . approximately 89 percent of the country's residents were noncitizens, more than half of whom originated from the Indian subcontinent. Societal discrimination against noncitizens was prevalent and occurred in most areas of daily life, including employment, education, housing, social interaction, and health care.34 [34] The determinative issue is whether or not the harm the claimant [appellant] fears constitutes persecution. It has been established since at least the early 1980s that cumulative acts of harassment, which on their own may be no more than acts of common criminality, may constitute persecution.35 The RPD member's duty is to assess whether or not the evidence in this case demonstrates such a pattern of serious and systemic harassment, criminality or abuse that it should be designated as persecution. [35] Furthermore, for the appellant to be a Convention refugee, his fear of persecution must be by reasons of one of the five grounds enumerated in the Convention refugee definition and supported by objective country conditions. He must establish that there are serious grounds to believe that there is such well-founded fear and he will have the fear everywhere in UAE and that the state is unwilling or incapable of protecting him. It is not sufficient for the appellant to establish that the harm in question is inflicted commonly in his country or that the danger would happen randomly. [36] I have conducted an independent assessment of all the evidence before the RPD and the RAD. I note that the appellant left the UAE and travelled to the US in XXXX 2016 while he still had status in the UAE, but made no attempt to find another job and maintain his status. I also note that the appellant's residence permit has an expiry date of XXXX XXXX, 2018, indicating that it has not yet expired. I acknowledge that the appellant has been out of the country for more than six months, which would invalidate the permit, but as indicated in the documentary evidence previously cited, the appellant can re-apply and look for other employment. [37] Although there are cases of discrimination in the UAE towards the non-citizens of the country, I do not find the appellant has provided persuasive evidence that this amounts to persecution. In considering all the evidence, I find, on a balance of probabilities, that the appellant would not face persecution or a risk to life were he to return to the UAE. As well, I find that any sanctions the appellant faces are a result of his own decisions and of a law of general application. I also find that there is insufficient evidence to conclude that he would not be admitted to the UAE or that he would be deported to Syria upon arrival in the UAE. The appellant has also not provided sufficient, credible, or trustworthy evidence to adduce that he would not have the ability to find other employment in the UAE. Overall, I find the appellant has not adduced persuasive evidence to establish serious grounds for a well-founded fear of persecution if he was to return to the UAE. REMEDY [38] For all these reasons, I confirm the determination of the RPD in accordance with paragraph 111(1)(a) of the Act, namely, that the appellant is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed. DECISION [39] The appeal is dismissed. (signed) "Rena Dhir" Rena Dhir December 19, 2017 Date 1 Immigration and Refugee Protection Act, S.C., 2001, c. 27. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Exhibit 2, Appellant's Record (AR). 4 Exhibit 3, Refugee Protection Division Record (RPDR). 5 Exhibit 2, AR. 6 Exhibit 2, AR, Memorandum. 7 Refugee Appeal Division Rules, SOR/2012-257, subparagraph 3(3)(g)(iii). 8 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 9 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 10 Exhibit 4. 11 Exhibit 2, AR. 12 Exhibit 2, AR. 13 Subsection 110(6) of the Act. 14 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 15 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 16 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention 17 Exhibit 3, RPDR, National Documentation Package (NDP), United Arab Emirates (UAE), Item 3.1. 18 Exhibit 3, RPDR, NDP, UAE, Item 3.1. 19 Exhibit 3, RPDR, p. 47. 20 Lin, Yu Hong v. M.C.I. (F.C.T.D., no. IMM-1855-94), Reed, December 12, 1994. The definition of "stateless person", found in the 1954 United Nations Convention Relating to the Status of Stateless Persons, in Article 1, states: For the purpose of this Convention, the term "stateless person" means a person who is not considered as a national by any state under the operation of its laws. 21 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). 22 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), 739-740. 23 Maarouf,; Bohaisy, Ahmad v. M.E.I. (F.C.T.D., no. IMM-3397-93), McKeown, June 9, 1994; Ibrahim, Ali Ibrahim Khalil v. S.S.C. (F.C.T.D., no. IMM-4190-93), Pinard, July 8, 1994. Reported: Ibrahim v. Canada (Secretary of State) (1994), 26 Imm. L.R. (2d) 157 (F.C.T.D); Zdanov, Igor v. M.E.I. (F.C.T.D., no. IMM-643-93), Rouleau, July 18, 1994; Shaat, Rana v. M.E.I. (F.C.T.D., no. A-539-92), McGillis, August 4, 1994. Reported: Shaat v. Canada (Minister of Employment and Immigration) (1994), 28 Imm. L.R. (2d) 41 (T.D.); El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994; and, Desai, Abdul Samad v. M.C.I. (F.C.T.D., no. IMM-5020-93, Muldoon, December 13, 1994. 24 Exhibit 3, RPDR, NDP, Syria, September 30, 2016, Item. 3.6. 25 Exhibit 3, RPDR, Member's Decision. 26 Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993, at 4; Lenyk Ostap v. M.C.I. (F.C.T.D., no. IMM-7098-93), Tremblay-Lamer, October 14, 1994, at 152. See also United Nations High Commissioner for Refugees Handbook, para. 102. 27 Exhibit 3, RPDR, NDP, UAE, May 13, 2016. 28 Exhibit 3, RPDR, NDP, UAE, May 13, 2016, Item 3.1. 29 Arafa, Mohammed v. M.E.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993, at 4; Alusta, Kahil v. M.E.I. (F.C.T.D., no. A-779-92), Denault, May 16, 1995; Daghmash, Mohamed Hussein Moustapha v. M.C.I. (F.C.T.D., no. IMM-4302-97), Lutfy, June 19, 1998. 30 Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996, at 5-6. 31 Exhibit 3, RPDR, NDP, UAE, May 13, 2016, Item 2.1. 32 Exhibit 3, RPDR, NDP, UAE, May 13, 2016, Item 2.1. 33 Exhibit 4, RPDR, Member's Decision. 34 Exhibit 3, RPDR, NDP, UAE, May 13, 2016, Item 2.1. 35 Oyarzo v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779 at 781; Mirzabeglui, Maryam v. M.E.I. (F.C.A. nos. A-538-89 and A-538-89), MacGuigan, Mahoney, Linden, January 28, 1991; and Retnem, Rajkumar v. M.E.I., (F.C.A. no. A-470-89), MacGuigan, Décary, Pratte (dissenting), May 6, 1991. Reported: Retnem v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 317 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB7-01090 RAD File No. / N° de dossier de la SAR : VB7-01090