TB9-30953

RAD File / Dossier de la SAR : TB9-30953 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 7, 2021 Date de la décision Panel M. Oh Tribunal Counsel for the person who is the subject of the appeal Joshua A. Blum 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] XXXX XXXX XXXX XXXX ("the Appellant") is a stateless Palestinian who has resided in Saudi Arabia for most of his life. He fears persecution in Gaza, which he believes is one of his countries of former habitual residence ("CFHR") despite never having lived there. He also fears persecution in Saudi Arabia due to his identity as a stateless Palestinian, and as a liberal and secular Muslim. The Refugee Protection Division ("RPD") rejected the Appellant's refugee claim. The Appellant challenges this decision. He argues that the RPD erred in determining that he does not face treatment amounting to persecution in Saudi Arabia. He submits that Palestine should have been identified as a CFHR. As he faces serious risks in Gaza, and as it is the only place to which he can return, the Appellant believes the Refugee Appeal Division ("RAD") should assess his risks there, in order to avoid a violation of the principle of non-refoulement. [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the appeal is dismissed. The RPD correctly identified Saudi Arabia as the sole CFHR. Although the Appellant cannot return there, his inability to return and his treatment in Saudi Arabia as a foreign national result from an ordinary law of general application. I am unpersuaded by the Appellant's arguments about discrimination amounting cumulatively to persecution in Saudi Arabia. The RPD correctly concluded that the Appellant was not credible in relation to his testimony about his profile as a secular, liberal Muslim. As for the possibility of refoulement to Gaza, the jurisprudence establishes that the risks relevant to the analysis under sections 96 and 97 of the IRPA are the risks that exist in the CFHR. As Gaza is not a CFHR, the possibility of refoulement to Gaza does not fall within the scope of the analysis. The Federal Court jurisprudence is consistent on this point, and I am bound to apply it. I confirm the RPD's negative decision. The Appellant is neither a Convention refugee, nor a person in need of protection. BACKGROUND [3] The Appellant was born in Saudi Arabia to stateless Palestinian parents from Gaza. The Appellant has never lived in Gaza. He has been there only twice, for family vacations as a child. The Appellant lived in Saudi Arabia initially under his father's sponsorship, since his father had a Saudi employer. However, after the Appellant graduated from university in 2015, he required his own sponsor to maintain his immigration status. This proved to be difficult, due to Saudization policies. These policies prioritize the hiring of Saudis over foreign nationals by requiring a certain proportion of employees to be Saudi nationals. The Appellant was able to find a sponsor, but in exchange for sponsorship, he was required to pay the sponsor XXXX Saudi riyals each month. The sponsor did not have much work for him, and the Appellant made his earnings on commissions. [4] However, in XXXX 2018, the Appellant received a termination letter from the company, indicating that they would not be able to renew the contract any further. As the Appellant was not able to find work in his field, he believed he would lose his residency in Saudi Arabia and be forced to move to Gaza. The Appellant alleges that, as a foreign national in Saudi Arabia and as a Palestinian, he faced constant harassment and mistreatment from authorities. He faced delays in renewing documents, arbitrary questioning from police, and frequent encounters with religious police. The Appellant describes that religious police forced him to pray. He worried that his preferred hair grooming and style choices would lead to problems with religious police. Therefore, the Appellant planned to leave Saudi Arabia. His Canadian visa applications were all refused. As the Appellant already had a United States visa, he used it to reach the Canada-United States border in late XXXX 2018, where he crossed irregularly and initiated a claim for refugee protection. [5] The RPD heard the Appellant's claim on October 2, 2019. In a written decision, dated October 31, 2019, the RPD rejected the claim. The RPD identified Saudi Arabia as the sole CFHR, and therefore assessed the Appellant's claim only against that country. The RPD found that the Appellant had embellished some of his allegations about discrimination. Upon clarifying the Appellant's evidence in the hearing, the RPD understood that there were other factors that accounted for what the Appellant had perceived as discriminatory treatment. The RPD was not persuaded on a balance of probabilities that the Appellant's Palestinian identity was the reason for his upsetting encounters with authorities. The RPD also identified an inconsistency in the Appellant's evidence about his religious profile, which caused it to reject the Appellant's allegation of being forced to attend prayers against his will. In any event, the RPD noted that reforms in 2016 had curtailed the enforcement powers of religious police, and they were no longer able to investigate, detain, or conduct arrests. After the introduction of these reforms, the religious police were reportedly less visibly present and active. [6] The RPD acknowledged that the Appellant was disadvantaged, as compared to Saudi nationals, in many respects and especially in securing employment. He required a sponsor to work and remain in Saudi Arabia. And, given the circumstances of his exit, he was no longer able to return to Saudi Arabia. However, the RPD considered that the Appellant's differential treatment in Saudi Arabia resulted from an ordinary law of general application affecting all foreign nationals in the country. The RPD found that this, including the Appellant's inability to re-enter Saudi Arabia, was not persecutory. The RPD also noted how there was evidence to suggest that Palestinians were exempt from certain penalties for foreign nationals overstaying their status. As the Appellant would only be able to return to Saudi Arabia in a legal manner, the RPD found his fears of arrest and detention upon return were not well founded. Role of the Refugee Appeal ("RAD") Division [7] The jurisprudence establishes that the RAD is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.1 I see no reason, in the present case, to show deference to the RPD's findings. I have therefore applied a correctness standard throughout this decision. Admissibility of New Evidence and Request for an Oral Hearing [8] The Appellant has provided the following new evidence in his appeal: i. News articles on the Saudization process and foreign workers in Saudi Arabia;2 ii. An affidavit from a legal assistant and an excerpt of a Basis of Claim ("BOC") form, pertaining to decisions issued by the same RPD panel in other cases, where the RPD identified a CFHR despite the claimants making only short visits to the country;3 iii. An affidavit from a former staff member at XXXX XXXX XXXXof Palestine in Jeddah, speaking to incidents of long-term detention of Palestinians in Saudi Arabia, dated XXXX XXXX XXXX 2019, along with various documents supporting her credentials;4 iv. An article from The Guardian, dated August 16, 2019, which is referred to by the affiant in item (iii) and discusses the deportation of foreigners from Saudi Arabia;5 and v. An affidavit from the Appellant, responding to the RPD's findings.6 [9] Items (i) to (iii) will be admitted, however, items (iv) and (v) are inadmissible. [10] Subsection 110(4) of the IRPA states that, on appeal, 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 claim's rejection. If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider factors around the credibility, relevance, and newness of the evidence.7 Item (i): News articles about Saudization [11] The two articles at item (i) are dated November 26, 2019 and November 5, 2019. They discuss the process of Saudization and how it has continued with the nationalization of various sectors of the economy, including the planned nationalization of the industrial sector by 2021. The government warned that foreign workers who violated residency and labour regulations faced the possibility of deportation, as well as imprisonment and fines. This information, which arose only after the RPD's rejection of the claim, could not have been provided to the RPD. I am satisfied that the sources of information are credible, and that this new information is relevant to the issues raised on appeal. I therefore admit these two articles. Item (ii): Evidence pertaining to other RPD decisions on identification if CFHR [12] The Appellant has also provided two decisions from the same RPD panel that decided the Appellant's claim. He points out that in these other decisions, the RPD recognized a CFHR even where the claimant had never lived in the CFHR. The decisions come from other clients at his counsel's firm. The Appellant states these decisions are being relied upon as authorities on a question of law. I agree that these RPD decisions are not the kind of evidence contemplated under subsection 110(4) of the IRPA, and I need not consider whether they meet the new evidence requirements as case law will always be considered when argued by a party. [13] To the extent that the legal assistant's affidavit and the BOC form excerpt are being relied upon for the facts contained in them, I have considered the requirements of subsection 110(4) of the IRPA and determine that these documents are admissible. The documents provide factual context that is not fully provided in the RPD decisions. Such evidence could not have been provided earlier, as the Appellant's current counsel was only retained for his appeal, and information about these decisions would not have been available to the Appellant's previous counsel. The documents at item (ii) meet each of the Singh/Raza factors. The documents are admitted. Item (iii): Affidavit from former XXXX XXXX at XXXX XXXX of Palestine [14] The RPD seemed to doubt whether stateless Palestinians were subject to the same penalties as other foreign nationals in Saudi Arabia who remained in the country without valid status. The Appellant provides an affidavit from a former XXXX XXXX at the XXXX XXXX of Palestine in Jeddah. The affiant states that she had first-hand experience in hearing about Palestinians who were placed in immigration detention, as the XXXX would receive calls about five times a day about Palestinian foreign workers who had been detained. She confirms that the XXXX would attempt to facilitate deportation, and if this was not possible, to arrange for deportation to third countries, such as Yemen, Sudan, and Turkey. The affiant states that for those without a right of return to any country, long-term detention could take place, and she estimates a period of 1-3 years in detention before finding a solution for such individuals. For those with a right of return to Gaza, a delay of more than a year was possible, as deportation still required coordination with Egyptian authorities. [15] There is indeed mixed evidence on the possibility of detention and deportation for stateless Palestinians in Saudi Arabia. The Appellant could not reasonably have been expected to provide this type of evidence to the RPD, and he only happened to connect to her through his current counsel. Spelling errors in the affiant's business card, and the XXXX use of Gmail rather than a dedicated domain are perhaps unusual, but I have not identified any issues in the other documents supporting the affiant's credentials. For the purposes of admissibility, I consider the affiant's evidence to be sufficiently credible. The affidavit brings new information about the long-term detention of stateless Palestinians in Saudi Arabia, which is relevant to the arguments in the Appellant's memorandum. The affidavit will be admitted. Item (iv): Article from The Guardian [16] The remaining documents are not admissible. [17] The article from The Guardian is contained as an exhibit to the affidavit at item (iii). The affiant refers to how there are reports in the media about the treatment of foreigners. She cites this news article as an example. However, the possibility of immigration detention in Saudi Arabia was a fear the Appellant raised in his hearing, and the RPD identified the well-foundedness of his fears as an issue from the very outset. The article from The Guardian is dated August 16, 2019, which is prior to the rejection of the Appellant's claim. The Appellant could reasonably have been expected to provide this evidence to the RPD to support the fears alleged in his hearing. As the article does not meet any of the criteria under subsection 110(4) of the IRPA, it will not be admitted. Item (v): the Appellant's affidavit [18] The Appellant's affidavit - item (v) - simply responds to the RPD's various findings. He provides further explanations for the discrepancy between his oral testimony and his BOC narrative. He states that he explained the very same things to his former lawyer as he explained to the RPD during his oral hearing, about his journey of questioning his faith and ultimately turning away from religion. This somehow did not make its way into the narrative, and the Appellant did not read the narrative as being incorrect. He states he interpreted the BOC narrative to mean that he no longer prays and does what Muslims are expected to do. Had he known the importance of this issue, he would have clarified in the narrative that he no longer prays at all. The Appellant responds to the RPD's finding about reforms to the religious police. He says he still hears about people being detained for doing things like speaking freely in public or socializing with the opposite sex. He also responds to the RPD's statements about his involvement in paying his sponsor to maintain his immigration status. He says he has heard of Palestinians being detained while awaiting deportation. [19] The Appellant argues that his affidavit is admissible because he could not have responded to the RPD's decision until the decision was issued. He says his affidavit provides helpful context to decide the correctness of the RPD's credibility finding. However, the matters discussed in the affidavit were all reasonably foreseeable as issues that would be addressed in the RPD's decision. During the hearing, the RPD confronted the Appellant about what it saw as a contradiction between his testimony and his narrative regarding his religious beliefs. The Appellant was given the opportunity to address the issue at that time. The Appellant also testified about his fears of the religious police, and of immigration detention and deportation, but the RPD identified the well-foundedness of his fears as an issue in the claim. The Appellant, who was represented by counsel, had a fair opportunity to address these concerns at his hearing. I am not persuaded that this affidavit meets any of the criteria under subsection 110(4) of the IRPA. Request for an oral hearing [20] The Appellant requests an oral hearing in the event that the RAD does not grant him refugee protection. However, the only new evidence admitted are items (i) through (iii). These do not raise any serious issues with respect to the Appellant's credibility. As the requirements of subsection 110(6) of the IRPA have not been met, the request for an oral hearing is denied. ANALYSIS [21] The Appellant raises the following issues in this appeal: a) Whether the RPD erred by failing to recognize Palestine as a country of former habitual residence; b) Whether the RPD erred in its assessment of the risks faced by the Appellant in Saudi Arabia; and c) Whether the RAD should consider the possibility of refoulement to Gaza, and the risks that exist for the Appellant there. [22] These issues are addressed below. a) Whether the RPD erred by failing to recognize Palestine as a country of former habitual residence [23] The RPD identified Saudi Arabia as the sole CFHR, and I see no error in this determination. [24] The RPD rejected the assertion that Palestine could be a CFHR, citing the Federal Court's decision in Maarouf.8 In that decision, the Federal Court held that in order to identify a country as a CFHR, the claimant must have established a significant period of de facto residence in the country in question. In the present case, the Appellant has never resided in Gaza. He visited Gaza in 1999 as a child, for a period of three weeks, for a family vacation. He returned there for another family vacation in 2005 for one month. The RPD considered that these visits had no significance beyond being family vacations. There was no view to establishing continuing residence there for a certain period. [25] The Appellant argues that Palestine must be identified as a CFHR in his particular case. He submits that while the RPD considered Maarouf, it did not follow what the decision actually says. According to the Appellant, the decision does not stand for the proposition that a CFHR must be a place where the claimant has entered with the intention of settling there. He believes Maarouf called for a liberal interpretation. The Court stated that, "...the definition of a [CFHR] should not be unduly restrictive so as to pre-empt the provision of 'surrogate' shelter to a stateless person who has demonstrated a well-founded fear of persecution...".9 The Appellant also highlights how there is no minimum period of residence required to find a CFHR, and that the concept of "former habitual residence" seeks to establish a relationship to a state which is broadly comparable to that between a citizen and their country of nationality. [26] The Appellant also relies on the Federal Court's decision in Al-Khateeb,10 where the Court held that a short period of time could also be significant. The Appellant says that he, like the applicant in Al-Khateeb, has rights akin to citizenship in Palestine. He possesses a Palestinian ID and passport. He is legally allowed to return to Gaza and reside there. [27] The Appellant argues that the literal meaning of a CFHR should not defeat the critical question of whether the place in question is one where the claimant's relationship is most comparable or analogous to that of a citizen and their country of nationality. The only thing that makes him stateless is the fact that Palestine is not internationally recognized as a state. The Appellant also submits that the principle of non-refoulement favours his interpretation, which aligns the risk assessment to the place where the Appellant will be returned. He says that if Gaza is not considered a CFHR, his risk there can never be assessed under the IRPA. [28] I must admit I find the Appellant's argument to be compelling in many ways. Were it not for Palestine's lack of international recognition as a state, Palestine would properly have been a country of nationality, against which the RPD would have been required to assess his claim. It seems incongruous, and even contrary to the purposes of the Refugee Convention and the IRPA, to disconnect the risk assessment from the only place to which the Appellant can return. However, as I explain further below, the argument advanced by the Appellant has been considered by the Federal Court on several occasions. I am bound by the Federal Court's jurisprudence, which unequivocally rejects the Appellant's interpretation. At a minimum, some period of residence is required in the CFHR, and the residence must be significant in some sense. [29] The case law sets out a number of considerations for identifying a country as a CFHR: * Though some period of residence is required, there is no minimum period of residence required for a country to be considered a CFHR;11 * A "significant" period of de facto residence must be established in the CFHR;12 * "Significant" can mean something other than a substantial period of time - a short period can be significant;13 and * A country's issuance of a travel document and even the right to reside in that country are not necessarily evidence of a CFHR.14 [30] The Appellant places great emphasis on Al-Khateeb, however the RPD correctly addressed this decision in its reasons. The RPD found it was distinguishable because the significance of the applicant's six months of residence in Al-Khateeb was tied to the applicant's birth in Gaza. The Federal Court considered that the birth's occurrence in Gaza gave the applicant his rights of residence and return, and these were akin to rights associated with citizenship. In this way, even the short period of residence in Gaza for six months was at least legally significant. However, in the present case, the Appellant's acquisition of his rights of return and residence in Gaza are not tied to his birth in Gaza. The Appellant was born in Saudi Arabia. The Appellant's family visits to Gaza as a child do not carry any legal significance, nor were they significant in terms of their duration. A cumulative period of less than two months of physical presence in Gaza over the course of the Appellant's entire life cannot meet any definition of "significant" or "habitual residence". [31] The Appellant's reliance on his possession of a Palestinian Authority passport and identification card are also misplaced. Though these could be seen as establishing rights akin to citizenship, the jurisprudence rejects the notion that travel documents and rights of residence are determinative evidence of a CFHR. At a minimum, the Appellant must have resided in Gaza for it to be considered a CFHR. In Kadoura,15 the Federal Court considered the situation of a stateless Palestinian who was born in the United Arab Emirates ("UAE"), who asserted a claim against Lebanon. The applicant possessed a Lebanese travel document and other documents issued by the Lebanese government. Despite having the right to reside in Lebanon, the applicant had never actually resided there, and the Federal Court found it was reasonable to conclude that Lebanon was not a CFHR.16 [32] Similarly, in Qassim,17 the Federal Court considered the situation of a stateless Palestinian from the UAE who asserted a claim against Iraq. The applicant possessed Iraqi travel documents and an identity card, but he had only traveled to Iraq twice, for eight weeks and then for five weeks. Even coupled with his residency documents and family ties in Iraq, the RPD had reasonably found that there was no significant period of de facto residence in Iraq. The Court expressly rejected the notion that family ties were more important than the period of duration.18 [33] It is worth keeping in mind that while the identification of Gaza as a CFHR is the Appellant's desired outcome in the present claim, there are many situations where the identification of a CFHR based only on short visits to the country would unfairly disadvantage a stateless claimant. In my view, the jurisprudence suggests that once a period of residence is established, it may be possible to look to potentially relevant factors. These might include the claimant's possession of travel documents and rights of residence, family history and ties, or the claimant's pattern of physical presence in the country, in order to assess whether there is a relationship to the state broadly comparable to that between a citizen and their country of nationality. This would distinguish places where a claimant's residence was a clearly temporary and transient situation, for example to complete a course of studies, compared to a place where the claimant had centred their existence. However, a threshold question is whether there is a significant period of de facto residence. Absent this, the country cannot be a CFHR. I therefore agree with the RPD's conclusion that short childhood visits to Gaza were insufficient to identify Gaza as a CFHR. [34] I am not persuaded by the Appellant's reliance on other decisions from the same RPD panel, where the panel reached different conclusions about the existence of a CFHR. It is unclear why the RPD chose to apply the jurisprudence differently in the other two decisions. The first decision refers to the strength of the claimants' family ties to Gaza and their identities as Palestinians.19 The second decision discusses frequent visits to Lebanon, in addition to the claimants' possession of Lebanese travel documents and rights of residence.20 Despite there being no significant period of de facto residence in these places, the RPD recognized the countries as a CFHR. However, for reasons explained above, I do not agree with the RPD's application of the jurisprudence in those cases. Regardless of these decisions, I find that the RPD correctly applied the jurisprudence in the decision that is the subject of the present appeal. [35] There is no error in the RPD's determination of the CFHR in this case. Saudi Arabia is the Appellant's sole CFHR. b) Whether the RPD erred in its assessment of the risks faced by the Appellant in Saudi Arabia [36] The Appellant disputes the RPD's assessment of his claim against Saudi Arabia. I have carefully considered the Appellant's arguments, but I reach the same conclusion as the RPD. Each of the arguments are addressed in turn. Erroneous findings [37] The Appellant believes the RPD made several erroneous findings, including: * Dismissing the Appellant's experiences of mistreatment and discrimination by treating them in isolation, and failing to consider them cumulatively; * Showing insensitivity to the Appellant's precarious status in Saudi Arabia by characterizing his agreement with his sponsor as being a mutually beneficial one in which the Appellant did not have "clean hands"; * Expecting the Appellant to look for employment prior to the expiry of his residence permit in fields outside of his residency category of marketing and sales, despite objective evidence about the prospect of detention and deportation in the event he overstayed; and * Making a negative credibility finding about the Appellant's testimony on his lack of religious belief, which is reasonably explained by a minor difference in expression or miscommunication between him and his previous lawyer. [38] It is important to note that while the RPD described the Appellant's testimony as mostly direct and straightforward, the panel found that there were exaggerations and embellishments designed to bolster his refugee claim. In oral testimony, the Appellant claimed he had faced "extreme racism" in Saudi Arabia, but the RPD found this was not necessarily the case. Where it seemed the Appellant was alleging employment discrimination based on his Palestinian identity, upon further clarification, the RPD found that the issue from employers was not with the Appellant's identity as a Palestinian per se, but his status as a foreign national. Employers were required to have a certain proportion of Saudi nationals in their workforce. As for his problems while attending government offices, the Appellant complained of how he was told his sponsor had to accompany him. Again, when this was explored in greater depth, it seemed it was actually the sponsor's responsibility to do things like update his insurance coverage and residency permit, and the sponsor was therefore required to be present. The Appellant was never refused services, and delays of about two months in renewing his driver's license and health coverage were not unreasonably lengthy delays. [39] The Appellant claimed that, in 2014, he and two of his friends were approached by police and asked what they were doing. They were searched and taken to the police station. One of the friends was Syrian and another was Palestinian. In 2018, there was another incident when the Appellant and his sister were approached by police and asked about their relationship. The officers left after seeing their identification. There was insufficient evidence to indicate that these incidents occurred because of the Appellant's identity as a Palestinian. [40] The RPD cannot seriously be faulted for dismissing these incidents, given that these incidents did not appear to be discriminatory or connected to the Appellant's identity as a Palestinian, even considered alongside the other factors pointed out by the Appellant. Were some of these incidents part of a much greater pattern of mistreatment, or even part of a social or historical context of persecution and discrimination against Palestinians as an oppressed minority in Saudi Arabia, the analysis could very well be different. However, there was insufficient documentary evidence to indicate that Palestinians were an oppressed minority in Saudi Arabia. I am willing to accept that the Appellant was the subject of some periodic, derogatory comments about his Palestinian nationality, for instance in his interaction at a government office where an officer made comments about Hamas. However, the Appellant has not satisfied me that the other incidents alleged were connected to his Palestinian identity. I am therefore not persuaded by the Appellant's arguments about the RPD's failure to consider cumulative discrimination amounting to persecution. [41] The RPD accepted that the Appellant was having difficulty securing employment and sponsorship due to his status as a foreign national. However, the RPD determined that the Appellant's entitlements and the work opportunities available to him, though different from Saudi nationals, resulted from a law of general application. Foreign nationals could only be employed if they could secure a sponsor, but this was a policy that applied to all foreign nationals in Saudi Arabia. Saudization policies made it more difficult for foreign nationals to find employment, but these were conditions imposed by the government to regulate the job market, and were not persecutory in nature. [42] It is in the context of this analysis that the RPD made its comments about the Appellant's fraudulent arrangement with his sponsor. It is the Appellant's characterization of his sponsorship arrangement as potentially persecutory that the RPD seemed to dispute when it commented that he did not have "clean hands". The Appellant perceives this as insensitive, and perhaps it was unintentionally so, given the Appellant's difficult reality in Saudi Arabia as a stateless person. However, the underlying problem that the RPD was pointing to in its reasons was that it did not believe the Appellant was being persecuted by his employer in an exploitative manner. I agree with this assessment. The Appellant testified to how he paid XXXX Saudi riyals (approximately XXXX Canadian dollars) to his sponsor each month. Through this arrangement, the Appellant also received health insurance. The residency permit renewal fee itself was XXXX Saudi riyals. I do not believe this mutually beneficial arrangement is significant evidence of employment discrimination or persecution even when considered cumulatively. [43] The RPD's comments about the Appellant's failure to seek other employment opportunities before the expiry of his residence permit were also made in the context of its analysis about a law of general application. In the face of worsening Saudization policies and the Appellant's previous difficulties securing employment, I would not fault the Appellant for seeking possibilities abroad and leaving before the expiry of his residency. However, the RPD's statements on this issue were hardly determinative. The true matter at issue is whether the Appellant's inability to maintain his status and pursue work opportunities constituted persecution on a Convention ground. I address this matter further below. [44] As for the credibility of the Appellant's testimony about his religious beliefs, I am in complete agreement with the RPD. The Appellant's testimony was not consistent with his BOC form. In oral testimony, the Appellant described that he was no longer a practicing Muslim, or as the Appellant describes in his argument, a "secular Muslim"21. The following exchange took place in the hearing: Member: So, why would you go outside during enforced prayer times? Claimant: So, for instance, I'm going for a walk or running an errand or anything of the sort, and besides, I don't want to pray. There's a lot of things I don't want to practice even though I'm a Muslim. I'm not convinced by it. And people are forcing me to do it.22 [45] The Appellant went on to describe that he has not prayed as a Muslim since 2009, that there were a lot of things about Islam he was not convinced of, and that he was being forced to do these things. However, the Appellant's BOC narrative merely states that although he considers himself a Muslim, he does not always pray in the mosque and he does not follow the fundamentalist version of Islam enforced in Saudi Arabia.23 [46] The RPD pointed out how the BOC narrative omits any mention of his refusal to pray, and how it instead says he does not always pray in the mosque. When confronted with the differences between his testimony and his BOC narrative, the Appellant's testimony shifted: I haven't prayed since I finished school because at school you have to - in high school you have to pray. I even don't fast even though it's mandatory. What I mean in the story is I don't practice my obligations as a Muslim. I... and I don't pray in a manner where... I don't pray in a manner where it... where... like they... like I should according to the Muslim rituals. That was when I was in school. Currently, I don't pray. I don't fast at all. At all.24 [47] When asked why he did not mention this in his narrative, the Appellant responded: So, I thought that I don't practice my rituals as a Muslim. I thought that it's understood what I meant. And it didn't occur to me to specifically mention prayers in particular. I have even faced problems with my family because of not fasting, which is considered with my, with my family... yeah. I faced problems with my family because of not fasting, which is considered an obligation in the family. And I have not mentioned that in my narrative.25 [48] As seen above, the Appellant's testimony was not straightforward. He started by describing a longstanding refusal to follow the Muslim faith since high school, from which time he has not prayed. Only when confronted with the inconsistency in his BOC narrative did he then state that he does pray, but not in a manner that accords with Muslim rituals. Then he shifted back and stated he does not pray, and went on to expose even further omissions about his refusal to fast and the problems this created between him and his family. He explained that he did not think to mention prayers in his BOC narrative. [49] The Appellant's new explanation is about miscommunication, misunderstanding, or poor phrasing with his previous lawyer is inadmissible. I agree with the RPD. There is a contradiction in the Appellant's evidence, and his response did not adequately account for this. If, as the Appellant says, he is a liberal and secular Muslim who fears being forced to pray on threat of penalty from religious police, it is reasonable to expect that such allegations would have been included from the very outset of the Appellant's claim. The written narrative makes no mention of the Appellant's misgivings with his faith, that he has stopped praying since high school, or that he refuses to fast. The BOC form did not indicate that he is a liberal, secular Muslim, as described in the memorandum of argument, despite the Appellant's emphatic assertions that this is one of the main grounds for his claim against Saudi Arabia. The Appellant's testimony was not credible, and I find he has not established a genuine desire to stray from religious customs in Saudi Arabia in a manner that would result in persecutory treatment from religious police. I do not accept his allegations about being forced to pray by religious police, nor do I accept that he is a liberal, secular Muslim as he now alleges. Claim of persecution on religious and political grounds [50] The Appellant says the RPD misapprehended some of the grounds of his claim, which included persecution on religious and political grounds as a liberal and secular Muslim. [51] The Appellant emphasizes that his mistreatment from religious police was not based on his identity as a Palestinian. Rather, this was persecution on the ground of religious belief and political opinion. The Appellant believes the RPD misunderstood the nature of this ill-treatment and did not consider it relevant, since it did not relate to his Palestinian identity. He says the RPD did not doubt his experiences of ill-treatment from the religious police. While religious police have had their authority reduced since 2016, the Appellant points to evidence that indicates they continue to police non-Islamic practices and report to other authorities that have the capacity to arrest. Individuals who violate religious standards continue to be detained without charge. The Appellant relies on recent case law criticizing the RPD for dismissing persecutory conditions as merely constituting "prevailing norms" in Saudi Arabia. [52] Contrary to the Appellant's argument, the RPD did not explicitly accept the Appellant's profile as a liberal and secular Muslim or his allegations about his interactions with religious police; nor do I, for the reasons provided above. In addition, I am not persuaded that the case law relied upon, Abu Dakka,26 should change the outcome of this decision. Abu Dakka spoke to a situation where the RPD dismissed credible testimony about the claimants' interactions with religious police regarding their non-compliance with the dress code for women, and also in the context of gender-based violence and official discrimination in Saudi Arabia.27 By contrast, in the present claim, the RPD's statements about following prevailing cultural norms related to the Appellant's freedom to get short haircuts and wear string bracelets. I would point out that the Appellant had never experienced any problems from religious police on this ground. In his BOC narrative, he merely stated that he worried about it. Even if it could be argued that these style choices may be perceived as religious violations or political expressions, I see little objective support for the Appellant's fears. The documentary evidence does not indicate that there is a serious possibility of persecution from religious police for men on account of the kinds of style choices preferred by the Appellant. The Appellant's fears are not objectively well-founded. Risk of immigration detention [53] The Appellant fears he will be detained in Saudi Arabia pending deportation to Gaza, and he argues that the RPD wrongly believed Palestinians were exempt from such treatment. While I accept the Appellant's interpretation of the country conditions evidence, I am not satisfied that a serious possibility of persecution arises; nor do I believe there is a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment on this ground. [54] The RPD acknowledged that Saudi authorities had detained and deported undocumented migrants from the country. However, the RPD also cited a report from the National Documentation Package ("NDP") for Palestine, which indicated that there were some exemptions in Saudi Arabia for Palestinians and other "de facto refugees", such as Rohingya and Syrians.28 It is not entirely clear whether the RPD found that the Appellant could benefit from such exemptions. The panel went on to discuss how the Appellant has no right of return to Saudi Arabia, and that he would be required to return in a legal manner, for instance by finding a sponsor. The RPD found that since the prospect of arrest and detention in Saudi Arabia depended on his ability to return there, these risks were not well-founded. [55] The Appellant submits that the RPD wrongly concluded that Palestinians are exempt from immigration detention. He says this was not supported by the evidence in the NDP for Palestine and Saudi Arabia. A senior researcher who was quoted in the very same document relied upon by the RPD stated that Palestinians faced deportation to neighbouring countries, including to the West Bank and Gaza.29 In item 14.9 of the Palestine NDP, a legal researcher, not commenting specifically on Saudi Arabia, stated that Palestinians risked detention and potentially deportation by local authorities in Gulf countries, including the UAE.30 The Appellant also relies on his new evidence from a former staff member at the Palestinian Consulate General in Jeddah about her experience of hearing reports of immigration detention from Palestinians. The Appellant states that Palestinians are treated no differently from other foreign nationals, and that they are in fact subject to immigration detention and deportation. The RPD therefore dismissed the Appellant's fear by relying on an exemption that does not exist in practice. [56] The Appellant argues that he would face indefinite immigration detention in Saudi Arabia pending deportation, which can be lengthy even for those with Palestinian travel documents and rights to reside in Gaza. Had he not fled Saudi Arabia before the expiry of his residence permit, he would have been an undocumented migrant who faced arrest for his illegal presence. He describes that there are cruel and inhumane conditions in immigration detention, and that he therefore faces risks under both sections 96 and 97(1) of the IRPA as a result. [57] I am willing to accept that some Palestinians may face deportation to Gaza, and that they may be placed in immigration detention pending deportation. The evidence before the RPD was mixed, but I am persuaded by the former consulate staff member's affidavit contained in the Appellant's new evidence. Still, this does not address the RPD's finding about the risk being speculative. The RPD found that these risks were not well-founded because the Appellant would first have to return to Saudi Arabia in a legal manner. The Appellant did not necessarily have to show his ability to return in order for the RPD to consider his risks in Saudi Arabia, but I too find that the risks asserted are speculative. They are premised on the Appellant's ability to return to Saudi Arabia with a new sponsor, which, as he stated in testimony, is not possible. The Appellant testified to how he left Saudi Arabia on an exit re-entry visa, rather than on a final exit visa. He explained that he had not returned to Saudi Arabia during the validity period of that visa, and therefore could no longer return. The country conditions evidence indicates that foreign nationals who leave on an exit re-entry visa and fail to return before their expiry may not be able to apply for a Saudi visa in the future, with one source indicating that there would be a three year ban from re-entering.31 [58] Not only are the asserted risks premised on the Appellant's ability to return, they are premised on his ability to find a new sponsor. They also depend on the subsequent loss of his sponsorship in the future without being able to transfer his sponsorship to another employer, and then his arrest as an undocumented migrant. There are undoubtedly many stateless Palestinians in Saudi Arabia, the Appellant's family members included, who face similar hypothetical risks. These risks depend on a particular sequence of events occurring and a number of variables. For these reasons, I agree with the RPD's finding about the risk of prolonged immigration detention as an undocumented migrant. Under these circumstances, I determine that the Appellant has not established a serious possibility of persecution; nor has he established, on a balance of probabilities, a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment. Denial of entry to Saudi Arabia [59] Finally, it is argued that the denial of a right of return to Saudi Arabia is persecutory. I have carefully considered the Appellant's arguments, but I cannot agree. [60] The RPD recognized that a denial of a right to return could itself be persecutory. However, the reasons for denial in this instance were not linked to any Convention ground. The Appellant could not return to Saudi Arabia because his residence permit had expired, and he had remained outside of the country for longer than was permitted. All foreign nationals were required to have a sponsor to secure a residence permit. The denial of the Appellant's return was not based on his Palestinian identity. Rather, it occurred due to a law of general application. [61] The Appellant submits that the denial of the Appellant's return constitutes a violation of human rights, given the depth of his connection to Saudi Arabia. Such a denial would prevent the Appellant from returning to his family and would effectively exile him from his place of birth and his home. The Appellant says Saudi Arabia's treatment of stateless Palestinians, particularly those who are born and raised in the country, is a systematic violation of human rights, constituting persecution. Although Saudi citizenship and immigration laws do not specifically target Palestinians, the Appellant says that in other contexts, such as mandatory military service and China's family planning policies, the jurisprudence has recognized that a law of general application can constitute persecution where there is a differential or disproportionate impact on a subset of persons for a Convention reason. The Appellant asks the RAD to consider his predicament rather than the persecutor's intent when interpreting the meaning of persecution. [62] The jurisprudence does not support the Appellant's arguments on the issue of the denial of entry. It is possible for persecution to arise from a law of general application. Even where the aim of a law of general application is not persecutory, the state's methods of enforcing it may lead to persecution. The leading case on this issue is Zolfagharkhani,32 where the Federal Court of Appeal set out some general propositions: (1) The statutory definition of Convention refugee makes the intent (or any principal effect) of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution. (2) But the neutrality of an ordinary law of general application, vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required. (3) In such consideration, an ordinary law of general application, even in non-democratic societies, should, I believe, be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory. (4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground.33 [63] The Federal Court has considered the situation of stateless Palestinians especially in Gulf countries, where immigration laws requiring sponsorship have prevented stateless Palestinians from returning without a sponsor. The Court has consistently rejected the Appellant's position. In Thabet,34 the Federal Court of Appeal examined the situation of a stateless Palestinian who was born in Kuwait and who resided there under his father's sponsorship. The Court of Appeal stated as follows: To ensure that a claimant properly qualifies for Convention refugee status, the Board is compelled to ask itself why the applicant is being denied entry to a country of former habitual residence because the reason for the denial may, in certain circumstances, constitute an act of persecution by the state.35 [64] In Thabet, the Court of Appeal noted how the appellant's residence permit had expired after he left Kuwait. Though Palestinians had previously been excluded at the conclusion of the Gulf War, policies had changed such that they were receiving extensions of their residence permits in Kuwait. The appellant's inability to return to Kuwait therefore resulted from his lack of a valid residency permit rather than due to his Palestinian nationality. The Court of Appeal found this to be a valid analysis of the issue of whether the denial of entry was persecutory.36 In these situations, the Federal Court has required evidence of persecutory intent or conduct. Even in cases where the denial of entry would cut off the claimant from their place of birth and residence, the Court has consistently rejected the notion that an inability to return following the expiration of a residence permit constitutes persecution.37 [65] In my view, the Appellant's principal complaint is about Saudi Arabia's handling of the problem of statelessness. He believes the government should have immigration programs in place for people like him, who, by falling outside the eligibility criteria for residence, find themselves in a precarious position without permanent residence or citizenship. The facts of the present appeal are very similar to those considered in the jurisprudence. The reason for the Appellant's inability to return is the expiry of his residence permit in Saudi Arabia and his lack of a sponsor. There is no evidence that the Appellant's inability to return is indicative of persecutorial intent or conduct. Even considered cumulatively alongside the other facts raised, I cannot conclude that the Appellant faces a serious possibility of persecution on a Convention ground in Saudi Arabia. c) Whether the RAD should consider the possibility of refoulement to Gaza, and the risks that exist for the Appellant there [66] The final argument relates to whether the RAD should assess the Appellant's risks in Gaza, even without it being considered a CFHR. The Appellant says his refugee claim should not be denied based on hypothetical safety in a country to which he cannot return, and without an assessment of the risks in the only place where he has rights of return and residence. There is no authority to support the Appellant's position on this issue. I am bound by the jurisprudence, which takes a different approach. [67] According to the Appellant, the RAD should avoid the consequence of refoulement if there is an interpretation of section 96 of the IRPA that will allow for this. Section 96 reads as follows: 96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) 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.38 [68] According to the Appellant, paragraph 96(b) does not necessarily envisage the persecution occurring in the CFHR. It merely requires the claimant to have left the CFHR as a result of their fear of persecution. Under this interpretation, it would be possible for a claimant to have left their CFHR for fear of persecution in some third country, and still be a Convention refugee. If a person left their CFHR for fear of being deported to a country where they would face persecution, as in the Appellant's case, a claim could still be established. The Appellant believes this interpretation accords with the grammatical and ordinary meaning of the refugee definition. [69] The above interpretation finds no support in the jurisprudence. On several occasions, the Federal Court has considered situations in which a refugee claimant might face removal from their CFHR to another country. The Court has consistently rejected the Appellant's proposed interpretation.39 [70] In Marchoud,40 a stateless Palestinian claimed a fear of persecution in Lebanon. However, Lebanon was not a CFHR. Despite the possibility of removal from the CFHR to Lebanon, the Federal Court rejected the argument that the RPD was required to assess the claimant's risk of persecution in Lebanon.41 The Court stated as follows: In my opinion, the panel did not have to carry out this assessment under paragraphs 96(b) and 97(1)(a) of the Act since it is clearly stated therein that the terms "refugee" and "person in need of protection" include persons who have no nationality and who find themselves in a country where they have their habitual residence. Further, such an analysis would be moot since the risk should be assessed on the day of the hearing and not when such a refoulement by the UAE might later take place.42 [71] This interpretation was confirmed in a more recent case, Qassim, supra, where the Honourable Madam Justice Kane cited the above passage from Marchoud and stated: This suggests that, in the case of stateless persons, the relevant question to determine whether sections 96 and 97 apply is whether the person will face a risk of persecution or be in need of protection if returned to their CFHR, and not what might occur later if the CFHR seeks to send the person to other countries. Marchoud was applied in Chehade, where the claimant again argued that the RPD erred by not considering whether he would be deported by Saudi Arabia (his CFHR) to Lebanon. The Court found, at paras 24-25, that the RPD need not have considered what might happen if the claimant was deported by Saudi Arabia; the only issue was the treatment he might face in his CFHR.43 [72] In Qassim, the Court went on to conclude that the RPD was not required to consider whether the CFHR, in that case the UAE, would attempt to remove the applicant to Iraq, or whether he would face persecution there.44 [73] This is not an area in which there is a gap in the case law or where there is no clear line of jurisprudence. I am bound to apply the interpretation that has been adopted by the Federal Court. The RPD made no error in failing to consider the Appellant's risks in Gaza, since it was not a CFHR. [74] The RAD's jurisdiction lies in refugee status determination, i.e. in determining whether the Appellant meets the definition of a Convention refugee or a person in need of protection. On this particular question, I find that the Appellant meets neither definition. However, to be clear, in the event of any future application for relief, I have not made any determination regarding the Appellant's risks in Gaza. CONCLUSION [75] As a stateless Palestinian, the Appellant faces many challenges. He has had enduring, but inherently precarious, status in Saudi Arabia for most of his life. While I am sympathetic to the Appellant's situation, statelessness does not automatically give rise to a claim for refugee protection. The RAD cannot recognize the Appellant as a Convention refugee or a person in need of protection if he does not meet the definitions set out under sections 96 and 97 of the IRPA. Though the Appellant cannot return to Saudi Arabia, the jurisprudence establishes that legal permission to re-enter the country is not required before a country can be considered a CFHR, against which a claim must be established.45 [76] The Appellant does not have a well-founded fear of persecution in Saudi Arabia on a Convention ground. He also does not, on a balance of probabilities, face a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment. I therefore confirm the RPD's negative decision. [77] The appeal is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) M. Oh M. Oh January 7, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII). 2 Exhibit P-2, Appellant's Record, at pp. 40-43. 3 Ibid. at pp. 24-39. 4 Ibid., at pp. 7-17. 5 Ibid., at pp. 19-23. 6 Ibid., at pp. 4-6. 7 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, as endorsed in Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230. 8 Maarouf v. Canada (Minister of Employment and Immigration), 1993 CanLII 3021 (FCA), [1994] 1 FC 723. 9 Ibid. 10 Al-Khateeb v. Canada (Citizenship and Immigration), 2017 FC 31. 11 Maarouf v. Canada (Minister of Employment and Immigration), 1993 CanLII 3021 (FCA), [1994] 1 FC 723. 12 Ibid. 13 Al-Khateeb v. Canada (Citizenship and Immigration), 2017 FC 31 at paras. 19-21. 14 Kadoura v. Canada (Minister of Citizenship and Immigration), 2003 FC 1057 at para. 15; see also Qassim v. Canada (Immigration, Refugees and Citizenship), 2018 FC 226 at para. 38. 15 Kadoura v. Canada (Minister of Citizenship and Immigration), 2003 FC 1057. 16 Ibid., at para. 15. 17 Qassim v. Canada (Immigration, Refugees and Citizenship), 2018 FC 226. 18 Ibid., at paras. 40-41. 19 Exhibit P-2, Appellant's Record, at p. 31. 20 Ibid., at pp. 37-38. 21 Exhibit P-2, Appellant's Record, at p. 61, para. 52. 22 RPD audio recording, at 1:40:54. 23 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim narrative, at p. 27, para. 26. 24 RPD audio recording, at 1:44:01. 25 Ibid., at 1:45:21. 26 Abu Dakka v. Canada (Minister of Citizenship and Immigration), 2020 FC 625. 27 Ibid., at paras. 19-23. 28 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package ("NDP") for Palestine (March 29, 2019), item 14.8, Response to Information Request (RIR), ZZZ106013.E, Immigration Refugee Board (IRB), November 14, 2017. 29 Ibid. 30 Ibid., item 14.9, RIR, ZZZ106014.E, IRB, November 24, 2017. 31 Exhibit RPD-1, RPD Record, Exhibit 4, NDP for Saudi Arabia (March 29, 2019), item 14.1, RIR SAU105398.E, IRB, January 15, 2016. 32 Zolfagharkhani v. Canada (Minister of Employment and Immigration), 1993 CanLII 2971 (FCA), [1993] 3 FC 540. 33 Ibid. 34 Thabet v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 9063 (FCA), [1998] 4 FC 21. 35 Ibid. 36 Ibid. 37 Karsoua v. Canada (Citizenship and Immigration), 2007 FC 58 at paras. 36-38; Iraqi v. Canada (Citizenship and Immigration), 2019 FC 1049 at para. 33; Chehade v. Canada (Citizenship and Immigration), 2017 FC 282 at para. 35; Daghmash v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7947 at paras. 9-11; see also Marchoud v. Canada (Minister of Citizenship and Immigration), 2004 FC 1471 at paras. 14-15. 38 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, s. 96. 39 Kadoura v. Canada (Minister of Citizenship and Immigration), 2003 FC 1057 at paras. 15, and 19-22; Chehade v. Canada (Citizenship and Immigration), 2017 FC 282 at para. 24; see also Iraqi v. Canada (Citizenship and Immigration), 2019 FC 1049 at para. 35. 40 Marchoud v. Canada (Minister of Citizenship and Immigration), 2004 FC 1471. 41 Ibid., at paras. 13, and 16-17. 42 Ibid., at para. 17. 43 Qassim v. Canada (Immigration, Refugees and Citizenship), 2018 FC 226 at para. 61. 44 Ibid., at para. 62. 45 Maarouf v. Canada (Minister of Employment and Immigration), 1993 CanLII 3021 (FCA), [1994] 1 FC 723. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-30953 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français