MB9-26130

RAD File / Dossier de la SAR : MB9-26130 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 28, 2020 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Raphael Vagliano 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] I dismiss this appeal. The Appellant, XXXX XXXX XXXX XXXX XXXX XXXX, is a stateless Palestinian. The Appellant's claim was joined with that of his mother. Her claim was allowed and his was rejected. Summary of Basis of Claim (BOC) Narrative [2] The Appellant is a XXXX-year old stateless Palestinian who was born and raised in Saudi Arabia. After receiving his primary and secondary education in Saudi Arabia, he studied for one semester in Canada and for three years in Bahrain before coming to Canada to make a refugee claim. His refugee claim is based on discrimination which, on a cumulative basis, amounts to persecution. The Appellant states that he was denied some educational and work opportunities because he is a Palestinian. He was teased as a child and subject to discriminatory treatment by traffic police. Although born in Saudi Arabia, he cannot acquire citizenship. Having lost his residency permit (iqama), he risks mistreatment while in indefinite detention because it would be difficult to deport him to Gaza. He would also face discrimination because he does not agree with the strict Wahhabi interpretation of Islam which prevails in the Saudi Arabia. Reasons for Decision of the Refugee Protection Division [3] The Refugee Protection Division (RPD) identified two countries of former habitual residence, Saudi Arabia and Bahrain, where the Appellant studied from XXXX 2015 until XXXX 2018. This finding was not challenged on appeal. The determinative issue for the RPD was whether the Appellant faces risks described in section 96 and 97 of the Immigration and Refugee Protection Act (IRPA) in Saudi Arabia. The claim was rejected for the following reasons:1 i) The RPD concluded that neither the Appellant's own lived experience in Saudi Arabia nor the documentary evidence demonstrate that he faces a serious possibility of persecution in Saudi Arabia; ii) Bullying at school and unfair treatment for a traffic violation do not establish that he experienced sustained and systemic mistreatment in the country; iii) There is no evidence that Saudi Arabia would be able to deport the Appellant to another country because he is stateless. He has not demonstrated that he would face indefinite detention in Saudi Arabia; and iv) The inability to return to Saudi Arabia is not, in itself, a persecutory act by the Saudi government because it is a neutral law which applies equally to all foreign nationals. Grounds for the Appeal [4] The Appellant submits that the RPD erred for the following reasons: i) The RPD erred by not finding that Saudi Arabia's deprivation of the right to nationality amounts to persecution; ii) The RPD erred by disregarding two RPD decisions which found that Saudi Arabia's policies are persecutory to stateless Palestinians; iii) The RPD ignored submissions that Saudi Arabia does not grant citizenship to non-citizens born in it its territory. The Appellant continues to be a stateless Palestinian who would be forced into a precarious existence as a temporary resident with unlawful status; iv) The RPD erred by failing to find that the Appellant's inability to return to Saudi Arabia is persecutory; v) The RPD erred by finding that the Appellant would not be at risk of detention in Saudi Arabia; vi) The RPD applied the wrong legal test to assess the risk of detention. It used a balance of probabilities test instead of that of a reasonable chance. It misconstrued evidence when it concluded that the Appellant is not at risk of detention in Saudi Arabia on the basis of a reported exemption from deportation for Palestinians; vii) The RPD failed to consider difficulties in obtaining corroborative evidence with respect to Palestinian detainees due to the lack of independent oversight of Saudi detention facilities; viii) The RPD erred by expecting the Appellant to provide further evidence specific to the detention of Palestinians; and ix) The RPD failed to consider that the discrimination and abuses which the Appellant would face would amount to persecution on a cumulative and prospective basis. Summary of the Refugee Appeal Division (RAD)'s Reasons for Decision [5] The determinative issues for the appeal are whether Saudi immigration and nationality laws discriminate for reasons enumerated in the Refugee Convention, whether the cumulative nature of discrimination in Saudi Arabia amounts to persecution, and whether the Appellant risks detention and deportation in circumstances which are described in sections 96 and 97 of the IRPA. The RPD erred by failing to consider the experiences of similarly situated persons. In addition, it did not assess the cumulative nature of discrimination as required by the Federal Court of Appeal. My independent assessment has determined that Saudi laws are of general application and not discriminatory for reasons of concern to the Refugee Convention. Although discrimination exists, it does not rise to the level of persecution, even when considered on a cumulative basis. There is not a serious possibility that the Appellant would be detained and deported in persecutory circumstances should he return to Saudi Arabia. DECISION [6] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection.2 ANALYSIS [7] My role is to look at all the evidence and decide if the RPD made the correct decision.3 [8] The RPD made no adverse credibility observations, but made the following findings: All non-citizens face restrictions with respect to assess to education, social services, property ownership and some employment. Although sponsorship is required to hold a residency permit, this results from laws of general application which do not discriminate based on grounds enumerated in the Refugee Convention. Bullying in school and discriminatory treatment by traffic police are not persecutory in nature. The evidence shows that undocumented migrant workers have been targeted for deportation. Given his stateless status, it is unlikely that he would be among them. Item 14.2 of the National Documentation Package (NDP) is cited in support of the conclusion that Saudi policy was not to deport Palestinians.4 The evidence does not support the submission that Palestinians are subject to indefinite detention. Statelessness is not a ground for protection under the Refugee Convention. The Appellant's inability to return to Saudi Arabia would be the result of immigration laws of general applicability, not because of his status as a stateless Palestinian. [9] The RPD limited its assessment to three issues: i) the Appellant's past experiences, ii) the general, non-discriminatory, nature of immigration and nationality laws, and iii) current detention and removal practices in Saudi Arabia. The RPD committed two errors. First, it failed to consider evidence about the experiences of similarly situated persons as required by the Federal Court.5 Second, the RPD failed to assess the cumulative nature of discrimination.6 As a result, I will conduct an independent assessment to determine whether the decision can be upheld in light of these considerations. Risk in Saudi Arabia Country Conditions [10] The United States (U.S.) Department of State (DOS) report provides the following information.7 The United Nations High Commissioner for Refugees estimates that there are about 70,000 stateless persons who were born in Saudi Arabia, sometimes referred to as Bidoon (without citizenship). They constitute a poor and marginalized community which sometimes encounters discrimination with respect to employment and educational opportunities. Bidoons are issued with five-year residency permits to facilitate access to health care and other services which give them the same rights as sponsored foreign workers. They are entitled to special identification cards which provide access to additional government services which are similar to those available to citizens. Some Palestinian residents are registered as refugees, but between 300,000 and 400,000 are not. [11] The DOS report distinguishes between Palestinian immigrants with sponsors, Palestinian refugees, and stateless Palestinians (Bidoons) who were born in Saudi Arabia. Counsel's submissions fail to recognize this difference, nor do they account for the special status which Bidoons enjoy compared to other non-citizens. [12] Rights enjoyed by Bidoons are outlined in a May 2015, Response to Information Request (RIR).8 Non-citizens born in Saudi Arabia have the right to free elementary and high school education, although post-secondary institutions are restricted to Saudi citizens. Bidoons are treated differently from other foreigners who must pay to attend public schools. [13] Additional information about the treatment of Bidoons is found in a June 2016 RIR.9 It indicates that they are entitled to five-year residency permits which are known as "black cards". This is done "to facilitate their social integration in government-provided health care and other services, putting them on similar footing with sponsored foreign workers". The black card includes a social security number which permits them to access benefits as if they were Saudi nationals. Nevertheless, they are not permitted to own property. [14] An older August 2014 RIR provides inconsistent information.10 According to the Arab News, Bidoons may experience problems finding work, and they are not eligible for government services which are available to citizens. They must renew their residency permits every two years. A 2013 country report is cited in support of the statement that some services are reserved for citizens, including education, health care, public housing, courts, and legal services. This information is out of date. The 2018 U.S. DOS report cited above is consistent with the 2016 RIR which both show that the law has changed.11 Bidoons now receive five-year residence permits, which give access to services available to sponsored foreigners and citizens. [15] A May 2015 RIR addresses the question of re-entry to Saudi Arabia.12 Generally speaking, non-citizens are not permitted to return after their re-entry visa has expired. Applications can be made for re-entry permits outside of Saudi Arabia, but their issuance is contingent on an assessment of political and other activities outside the country. This is subject to the requirement that those who fail to return before the expiry of their exit/re-entry permit must wait 3 years before re-admission. Nevertheless, Bidoons can return with an expired re-entry permit, but they may be denied admission on a discretionary basis. [16] Information about the treatment of Palestinian immigrants is dealt with in a November 2017 RIR.13 There are between 300,000 and 400,000 Palestinians in Saudi Arabia, most of whom hold travel documents from Jordan, Lebanon, Syria, Iraq and Egypt. They are subject to the same immigration and employment laws as other foreigners. Sponsorship is required to reside in the country and access social services. Residence permits need to be renewed annually. This document provides inconclusive information about the deportation of Palestinian immigrants. Although it states that Palestinians would not be deported in case of administrative irregularities,14 no information was available about actual practice. Impediments to removal through Israel were mentioned. It makes not specific mention of Bidoons. Assessment [17] Counsel's submissions fail to distinguish between Palestinian immigrants who are susceptible to arrest and deportation after losing their sponsorship and the situation of stateless Palestinians who were born in Saudi Arabia. Their treatment and legal situation are different. Bidoons have more rights than other foreigners, but less than citizens. The legal environment does not support the conclusion that Palestinian Bidoons have been discriminated against on the basis of their Palestinian nationality. The RPD is correct that the nationality and immigration laws of Saudi Arabia apply generally to non-citizens and do not discriminate on Convention grounds. Although the RPD also failed to appreciate the difference between Bidoons and Palestinian immigrants, stateless Palestinians born in Saudi Arabia have additional rights and benefits which are to their benefit. Palestinian Bidoons receive preferential treatment compared to other non-citizens, including other Palestinians. Although Bidoons do not have the same rights as nationals, this is not persecutory in nature, given the general applicability of the law. [18] The issue of the potential arrest and indefinite detention of the Appellant should he return to Saudi Arabia is highly speculative in nature. First, his residency permit has expired. As a result, the Canada Border Services Agency would not return the Appellant to Saudi Arabia without receiving Saudi re-entry authorization. If the Appellant is able to enter Saudi Arabia on his own initiative, he would either have to obtain a re-entry permit before leaving or go back with his expired re-entry permit to seek discretionary entry. If admitted, he would have the status of a Bidoon with the right to a "black card". Although the documentary evidence indicates that Palestinian immigrants who lose their sponsorship may be deported, it does not address the situation of Bidoons. The documentary evidence concerns the detention and deportation of Palestinian immigrants, not Bidoons. The NDP indicates that the Appellant would be entitled to a five-year "black" residency card which confers the same rights as if he were sponsored. This likely includes the right not to be deported. In addition, if Saudi authorities did not want the Appellant in the country, it would be easier for them to deny him re-entry than to admit him for the purpose of detention for deportation, even if they did have a policy to deport Bidoons. Risk assessments are based on facts which have been established, on a balance of probabilities standard, not on speculation. Although counsel is correct that the balance of probabilities test does not apply to the assessment of future risk, there is not a serious possibility that the Appellant would be detained indefinitely for deportation in conditions which would constitute persecution on the facts before me. [19] I also note that the Appellant has a Palestinian Authority passport15 which is valid until 2023 which could facilitate the removal to Gaza, depending on Egyptian and Israeli policies with respect to border crossings which may be in force at the time of the proposed removal. The documentary evidence does not establish that the Saudi government is detaining Bidoons for removal in circumstances in which repatriation to Gaza is not possible for technical reasons. Given his entitlement to a "black card", the submission that there is a serious possibility that he would face indefinite detention is without foundation. Judicial Comity [20] Decisions of the RPD and RAD are both positive and negative with respect to whether the cumulative nature of discrimination in Saudi Arabia amounts to persecution. The Appellant filed two RPD decisions which allowed the claims for protection. The first, dated December 4, 2018, is a brief decision rendered from the bench. The panel noted that foreigners can never obtain permanent residence or citizenship, and that the claimants had limited access to education, health care and experienced social discrimination because of their situation.16 Refugee claims are decided on a case by case basis in light of the particular facts of the case. In this case, we do not know what the particular "situation" of the claimants was. Vague statements of this nature are of little jurisprudential value for purposes of comity. [21] The second RPD decision is dated April 12, 2019. The assessment of country conditions in this decision is both superficial and inaccurate. The panel ignored all of the evidence in the NDP concerning the status of Bidoons when it made brief comments about rights of non-citizens and the mixed evidence about the deportation of Palestinians. It then cited a paragraph from the 2018 U.S. DOS report concerning human rights concerns in Saudi Arabia to justify its conclusion that the claimant had a well-founded fear of persecution.17 [22] In the case before me, the RPD provided a more comprehensive assessment of the documentary evidence and clear reasons why it concluded as it did. Although the RPD should have addressed this issue in its reasons, I have taken into account the superficial nature of the two decisions, the fact that they come from the same Division, and my determination that adequate reasons were given to support a different conclusion for purposes of judicial comity. My independent review leads me to conclude that the RPD's decision should not be set aside on this basis. Concluding Remarks [23] Counsel is correct that the RPD erred by failing to assess the experiences of similarly situated persons. However, counsel filed documents and made submissions about the detention and deportation of foreigners with no sponsorship, but failed to distinguish between Bidoons and foreign nationals. Furthermore, the Appellant does not face a serious possibility that he would be detained indefinitely and deported in circumstances that amount to persecution. With respect to the adverse effects of nationality and immigration laws, the totality of the evidence indicates that legal challenges faced by Bidoons are related to the operation of laws of general operation which apply to all non-citizens. Nevertheless, Saudi-born stateless persons enjoy benefits that other non-citizens do not enjoy. Given that the Appellant is a member of the advantaged class, he has not been adversely treated compared to other non-citizens. In addition, the distinction is based on birth in Saudi Arabia, not Palestinian nationality. The legal regime does not involve discrimination on Convention grounds. However, the treatment of Palestinians in general, and the past experiences of the Appellant in particular, establish a degree of discrimination at a societal level. I agree with the RPD that this treatment is not of sufficient seriousness to constitute persecution. According to the Supreme Court of Canada in the Ward decision, this is present when there is a sustained or systemic violation of fundamental human rights.18 [24] Although the Appellant states that he disagrees with the conservative interpretation of Islam which prevails in Saudi Arabia, he did not cite examples of any problems he experienced as a result of this, nor did not refer to any restrictions which were placed on his religious freedom. [25] The Appellant obtained his primary and secondary education in Saudi Arabia, but was required to pursue his post-secondary education outside the country. After one semester of study in Canada, he was admitted to university in Bahrain in XXXX 2015, where he studied until XXXX 2018, prior to coming to Canada in XXXX 2018. Poor treatment in elementary school led his mother to relocate and to enroll the Appellant in a private school. The family moved to a private compound two years later for greater security. He was able to complete high school in Saudi Arabia. Although he was not permitted to leave the country for one semester while he was under police investigation, he does not deny that he was driving a vehicle without the required registration plate. Assuming that it is true that he was held accountable rather than the car's Saudi owner as a result of discriminatory treatment, this does not rise to the level of persecution, even when other instances are considered on a cumulative basis. [26] Although the RPD erred by failing to assess the cumulative nature of discrimination, my independent assessment leads me to conclude that any discrimination, which the Appellant may experience in Saudi Arabia, does not constitute persecution for purposes of refugee protection, nor would it likely lead to death, torture or cruel and unusual treatment or punishment, as understood in section 96 and 97 of the IRPA. CONCLUSION [27] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) H. Shepherd H. Shepherd October 28, 2020 Date 1 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 12-14, paras. 36-44. 2 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended, at para. 111(1)(a). 3 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), [2019] 2 FCR 597. 4 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Saudi Arabia (29 March 2019), item 14.2; Response to Information Request (RIR) ? ZZZ106013.E. 5 Salibian v. Canada (Minister of Employment and Immigration), 1990 CanLII 7978 (FCA), [1990] 3 F.C. 250. 6 Retnem v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 53 (F.C.A.); see also Mete v. Canada (Minister of Citizenship and Immigration), 2005 FC 840 (CanLII). 7 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Saudi Arabia (29 March 2019), item 2.1. 8 Ibid., item 3.1, RIRSAU105183.E. 9 Ibid., item 3.2, RIR SAU105539.E. 10 Ibid., item 3.5, RIR ZZZ104924.E. 11 Item 3.2, op. cit. 12 Item 3.1, op. cit., p. 3. 13 Item 14.2, op. cit. p. 2. 14 Ibid., at p. 8. 15 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 113. 16 Ibid., Exhibit 8, pp. 473-476. 17 Ibid., at pp. 477-483. 18 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-26130 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