VB8-01597

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 / Dossier de la SAR : VB8-01597 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision December 4, 2018 Date de la décision Panel Rick Jackson Tribunal Counsel for the person(s) who is(are) the subject of the appeal Thaer Abuelhaija Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX XXXX XXXX (Appellant) is a citizen of Yemen. He has appealed a decision of the Refugee Protection Division (RPD), dated February 20, 2018, rejecting his claim for refugee protection. DETERMINATION [2] The appeal is allowed. Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA),1 the Refugee Appeal Division (RAD) refers the matter to the RPD for redetermination by a differently constituted panel. BACKGROUND AND OVERVIEW OF APPEAL [3] The Appellant is a Sunni Muslim from Sana'a, Yemen. In 2013 the Appellant came to Canada as a student. The Appellant's father is a XXXX from a non-Houthi tribe as well as a XXXX XXXX in the Office of Tourism and a XXXX in Yemen. Upon learning that his mother was struck ill and his father was under a form of house arrest, the Appellant returned to Yemen in XXXX 2014 to assist his family. While the Appellant was in Yemen, Houthi militias took over the government in Sana'a. He remained in Yemen until XXXX 2015. Prior to his departure from Yemen the Appellant was kidnapped and held for approximately a week until his father paid a ransom. Following his release the Appellant travelled by car to Saudi Arabia and from there returned to Canada where he made a refugee claim. [4] The Appellant's refugee claim was rejected by the RPD on December 18, 2015 on the basis of credibility. The RAD allowed an appeal of the RPD decision on May 2, 2016 and the claim was referred back to the RPD to be heard by a new panel. The RPD again rejected the Appellant's refugee claim on February 19, 2018, also on the basis of credibility. The Appellant now appeals this second decision of the RPD. He fears that if returned to Yemen he will be persecuted or harmed by Houthi militants in Sana'a. RPD findings [5] The RPD accepted the Appellant's identity. However it found several elements of the Appellant's allegations to be not credible including: (i) the Appellant's alleged motivation for risking a return to Yemen to support his mother; (ii) the Appellant's allegations in regard to his political activities in Yemen; (iii) the Appellant's allegation that he was kidnapped by Houthi militants in Yemen; (iv) the Appellant's allegations in regard to the situation of his father; (v) the Appellant's allegation that he would be persecuted in Yemen by the Shia Houthi because he is a Sunni Muslim. [6] The RPD also found that the Appellant had not established that he has an individualized risk of harm in Yemen. The RPD concluded that there was insufficient reliable or trustworthy evidence to establish that the Appellant was either a Convention2 refugee or a person in need of protection. The appellant's arguments [7] The Appellant argues that the RPD erred in assessing the appellant's credibility; in considering the country conditions evidence and; in assessing the Appellant's risk of persecution or harm under section 96 and 97(1) of IRPA. I will deal with the Appellant's specific arguments in my analysis below. Additional evidence under Refugee Appeal Division Rule 29 and 37 and oral hearing [8] The Appellant seeks to submit the following additional evidence3 under Refugee Appeal Division Rule (RAD Rules)4 29 and RAD Rule 37. Specifically, he seeks to submit: a) A letter from the Peoples General Conference in Yemen; b) A copy of a decision to appoint the Appellant's father as a XXXX XXXX in the Ministry of Tourism in Yemen; c) A copy of a decision to dismiss the Appellant's father from his position by the XXXX. [9] In deciding whether to allow an application, I must consider any relevant factors, including: a) the document's relevance and probative value; b) any new evidence the document brings to the appeal; and, c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the Appellant's Record, Respondent's Record or Reply Record. [10] I find that the documents provide new additional evidence in regard to the situation of the Appellant's father in Yemen that addresses key elements of the Appellant's refugee claim. The documents (a) and (c) are dated after this appeal had been perfected and therefore were not reasonably available. The Appellant has not explained why document (b) which was issued in 2007, could not have been provided prior to the Appellant's second RPD proceeding. However under the circumstances, and based on the objective evidence before me, I find that the Appellant could have encountered challenges in obtaining documents in the midst of the civil war in Yemen, particularly in Sana'a where the Appellant resides. I have no reason to doubt the credibility of these documents and consequently I accept their probative value. I find that all three documents meet the requirements of section 110(4) and the Singh/Raza5 factors and they are accepted as additional evidence. [11] As I have found the additional evidence credible, there is no reason for an oral hearing under section 110(6). ANALYSIS [12] With respect to questions of fact, mixed fact and law, I have applied the standard of correctness as per Huruglica.6 When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I may defer to the RPD's credibility assessment of oral testimony, if I find that the RPD had a meaningful advantage in the circumstances. Reasons will be provided in my analysis if I find that the RPD had meaningful advantage. The Second RPD Credibility Assessment [13] In Maldonado,7 the Federal Court of Appeal held that when an applicant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there is reason to doubt their truthfulness. In this case the RPD did not believe central elements of the Appellant's evidence as I have noted above. [14] The Appellant argues that the RPD made numerous errors in its credibility assessment and failed to weigh any inconsistencies in the Appellant's evidence against the objective documentary evidence presented. In my independent review of the record I find the RPD has made several errors in its credibility assessment and its findings on credibility cannot stand. [15] The Appellant argues that, in determining the Appellant's allegation of risk at the hands of the Houthis, is "undermined by his return (to Yemen),"8 the RPD failed to consider the "bounds of family loyalty that may lead a person to engage in dangerous conduct that otherwise could be viewed as conduct inconsistent with a lack of subjective fear."9 [16] I agree with the Appellant's argument that the RPD has not explained why it rejected or found unreasonable the Appellant's explanation that, notwithstanding the risks, he felt compelled to return to Yemen to be with his mother because of her psychological condition. The RPD is required to be clear in its findings and in this instance it has not been sufficiently clear. The RPD compounded its error by speculating, without medical evidence, that the Appellant's actions would have "exasperated her stress." I note that at the time the Appellant returned to Yemen he had not made a refugee claim in Canada and he was a young student far from Yemen. Under these circumstances, I find it reasonable that he may not have fully appreciated the nature of the civil war that was developing in his country at the time. I find the RPD erred in finding that the Appellant's return to Yemen undermines his credibility and this RPD finding is unsupportable. [17] The RPD also found that the evidence contained in the medical note undermines the Appellant's allegation about when he received medical attention and undermines his allegations of having been kidnapped and tortured. I note the Appellant has not challenged this finding in his Appeal Record. However in my independent review of the evidence I do not find the copy of the handwritten medical note provided in the RPD record10 is sufficiently clear to establish the RPD's finding. While I do find the words "3 months" appears in the note, I do not find that it states that the injury took place in XXXX 2015 as the RPD states in its reasons.11 The RPD has utilized this evidence to determine that the kidnapping "did not occur."12 I find that the RPD has erred in placing weight on a document that is, in my view, not fully legible and which does not appear on its face to support the RPD's finding. [18] The RPD also appears to draw a negative inference from the fact that the Appellant chose to bring forward evidence provided by his uncle rather than his father in regard to the injury. I find it was open to the Appellant to seek information to support his claim from whatever source he believed could provide it and I find no reason that the evidence provided by the Appellant should be disbelieved on the basis of it having been sent to him by his uncle rather than his father or some other person. [19] The Appellant argues that the RPD erred in finding that the Appellant had "testified at the hearing that he (the Appellant's father) was the XXXX of Tourism and operated a XXXX XXXX XXXX."13 I agree with the Appellant that the RPD misconstrued the Appellant's evidence which was that his father worked at the Ministry of Tourism as a XXXX of a Tourism office in 2013. Therefore the RPD's finding that the Appellant was not credible in regard to the circumstances of his father in Yemen cannot stand. I find that this RPD error, which involves the political profile of his father in Yemen was critical to the overall assessment of the Appellant's credibility by the RPD panel and in itself is reason to set aside the RPD decision in this case. [20] The RPD has also drawn what it calls a "serious negative inference" in regard to the failure of the Appellant to corroborate his allegations through documentation.14 It is open to the RPD to seek corroborative documentation, particularly in circumstances where there are credibility issues in regard to the Appellant's testimony. However, in this case I find the RPD's conclusion that the Appellant did not produce such evidence because he was attempting to "mitigate any further contact with family or limit expectations of the (RPD) panel in that the claimant provided such corroboration," to be unsupportable. I agree with the Appellant that there is no indication that the RPD panel appreciated the present circumstances in Sana'a which continues to be caught in the grip of a brutal conflict with regular if not daily aerial bombings by Saudi forces and ground combat between Houthi forces and those that oppose them. Under such circumstances I find it reasonable that communication could become non-existent between the Appellant and his family and I do not find the RPD has sufficiently explained why it has rejected the Appellant's evidence that at the time of the hearing that he had fallen out of contact with all members of his family in Yemen. [21] The Appellant argues that the RPD erred in considering the documentary evidence before it in regard to whether the Appellant could be at risk in Sana'a because he is Sunni. In particular the Appellant notes statements in the National Documentation Package15 that link Shia Houthi suspicion of Sunnis to the conflict and notes that some asylum seekers in the United States of America have claimed that Sunnis who refuse to fight for Houthis are "tarred as spies for the Saudis." In my review of the record I find that the RPD has ignored evidence of Shia-Sunni tensions in the Yemeni civil war as set out in the NDP.16 I also find that the RPD's conclusion that the Appellant does not face a serious possibility of persecution based on his religion in not supportable in light of the totality of the evidence. [22] Based on the above analysis, I find that the RPD provided incorrect and inadequate reasons for its negative credibility findings. I also find that in some instances the RPD provided speculative findings, based on mere conjecture. I further find that the RPD did not consider the totality of the objective documentation before it and dismissed some of the Appellant's explanations without providing adequate reasons. Based on the above analysis, I find that the RPD's overall credibility findings are not sustainable and I cannot confirm the RPD's determination. [23] It is highly disappointing to refer this case back to the RPD for a third hearing in regard to the issue of the credibility of the Appellant's evidence. However in this case I do not find that I am in a position to undertake a full independent assessment based only on the record. There remain questions outstanding in regard to the credibility of the Appellant's evidence and this task is best undertaken by the RPD in the context of the assessing the forward risk to the Appellant if he should return to Yemen. There is also additional evidence that has been provided in regard to the circumstances and profile of the Appellant's father in Yemen that should be fully explored in the context of assessing the future risk of persecution or harm to the Appellant. In this context I would note that despite the first RAD decision noting that there is undisputed evidence that the Appellant's father was already required to have protection in Yemen,17 this evidence was not explored by the second RPD panel. Section 96 Analysis - Lack of Forward Looking Analysis [24] The conflict in Yemen has caused extreme violence and a humanitarian crisis.18 Non-state actors have committed significant abuses while engaged in internal armed conflict, including: Houthi rebels; tribal militias; resistance forces; militant secessionist elements; al-Qaeda in the Arabian Peninsula (AQAP); and a local branch of Da'esh.19 The Houthis have ended their alliance with the recent assassinated Saleh, but the violence in Yemen and particularly in Sana'a remains unaffected and if anything, has escalated since the Appellant's last RPD hearing. [25] Refugee determinations should always be "forward looking." I find this is particularly the case in a situation as complex and fluid as the one in Yemen today. It is often less important to examine what has or has not occurred, than to examine what is likely to occur in the future. It is also not impossible for there to be significant unexplained inconsistencies in an appellant's evidence but for the Board to still find that an Appellant remains at risk by virtue of his profile in his country of origin supported by the evidence found within the objective documentation. As noted above, in this case there is evidence that the Appellant is a member of a non-Houthi tribe who resides in a Houthi controlled area; that he is a Sunni Muslim who may be considered as suspicious by Shia Houthi militants and; he is of an age where forced recruitment or pressure to participate in a Houthi-aligned militia would seem more likely than not. I do not find that these considerations have been sufficiently explored by the RPD in this case in regard to the Appellant's forward looking risk. Summary [26] I find that due to the RPD's handling of the evidence in this case, there remains a question: if returned to Yemen would the Appellant be persecuted, or personally face a risk to his life or a risk of cruel and unusual treatment, or a danger of torture because of his and/or his family's social and political profile, and because he is a Sunni Muslim from a non-Houthi tribe? I find the RPD did not fully assess the risk of persecution or harm to the Appellant upon return to Yemen, in his particular situation and circumstances. [27] Even if I were to agree with the RPD that there is insufficient reliable evidence to show that the Appellant was, as he alleges, abducted, tortured during captivity, and released after his father paid his captors a large sum of money; or that his captors released him on conditions that he was not to have relations, nor to communicate or attend any meetings with his friends and colleagues in Yemen, I do not find that this is sufficient to conclude that the Appellant is not at risk of persecution or individualized harm in Yemen. [28] I have found the Appellant's additional evidence in regard to the Appellant's father's position in Yemen is credible on its face. However I have made this finding without questioning the Appellant about the origins or authenticity of the documents. The RPD is in a better position to determine whether this documentation, in the context of the circumstances of the Appellant's father in Yemen, is central to the claim or supports a nexus to the convention on the basis of family or imputed political opinion or religion. I find that the RPD is in the best position to examine this evidence in the context of the whole claim and in the context of the totality of the evidence. [29] I refer the matter back to the RPD for redetermination by a new RPD panel. CONCLUSION [30] The appeal is allowed. Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently constituted panel. (signed) "Richard Jackson" December 4, 2018 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 Additional Evidence dated October 29, 2018. 4 Refugee Appeal Division Rules, SOR/2012-257. 5 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 7 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 8 RPD Record (RPDR), RPD Reasons for decision, para 11. 9 Shanmugarajah v Canada (MEI) [1992] FCJ no 583; Islam v Canada (MEI) 1999 FCJ no 135); Ribeiro v Canada (MCI) 2005 FC 1363. 10 RPD Record, p. 118. 11 RPDR, Reasons for deciion, para 16. 12 RPD reasons, para 18. 13 RPD reasons for decision, para. 19. 14 RPD reasons, para 22. 15 Appellant's Record (AR), p.24 and 25 and National Documentation Package (NDP) for Yemen,October 31, 2017, item 13.4. Response to Information Request (RIR), YEM105985.E, Treatment of Sunni Muslims by Houthis in areas under Houthi control (2014-September 2017), Immigration and Refugee Board of Canada, 10 October 2017. 16 NDP, Ibid. 17 First RAD Reasons for decision, para 38. 18 NDP, Item 1.5, Country Policy and Information Note. Yemen: Security and humanitarian situation. Version 3.0., United Kingdom. Home Office, June 2017. 19 NDP, Item 2.1, Yemen. Country Reports on Human Rights Practices for 2016. United States. Department of State, 3 March 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-01597 RAD.25.02 (July 05, 2018) Disponible en français 12 RAD.25.02 (July 05, 2018) Disponible en français