Category: Syria

Citation: 2019 RLLR 91
Tribunal: Refugee Protection Division
Date of Decision: November 12, 2019
Panel: Stephen Rudin
Counsel for the claimant(s): Katherine M Macdonald
Country: Syria
RPD Number: TB8-01528
Associated RPD Numbers: TB8-01583, TB8-01584
ATIP Number: A-2020-01459
ATIP Pages: 000055-000061

REASONS FOR DECISION

[l]        [XXX], and [XXX], (the claimants) are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

Joined claims

[2]       Pursuant to Rule 55 of the Refugee Protection Division (RPD) Rules, these claims for refugee protection were heard jointly.² The principal claimant is [XXX]. Each claim was decided on its own merits, and decisions were made for each claimant.

Appointment of a Designated Representative

[3]       The IRPA requires the designation of a representative for all claimants less than 18 years of age. The children in this claim are aged three and seven.

[4]       In accordance with subsection 167(2) of the IRPA,³ and Rule 20 of the RPD Rules,⁴ on February 5, 2018, the RPD designated [XXX] to be the representative for the minor claimants for the purposes of this claim for refugee protection.

ALLEGATIONS

[5]       The complete story alleging the basis of the claimant’s fear is captured in the Basis of Claim Form (BOC),⁵ and amendment to the principle claimant’s BOC.⁶ The associate claimants rely on the principle claimant’s BOC.⁷ Their allegations can be summarized as follows.

[6]       The claimant alleges that she and her children fear returning to Syria. As a Sunni Muslim, and a person who was born and has lived in Saudi Arabia, she fears that if they were to return, they would be detained, tortured, and possibly face death because of her father’s affiliation as a member of the Muslim Brotherhood.

[7]       The claimant alleges that many of her family members have been targeted by the current Syrian regime because they were perceived as being opponents of the govermnent.

[8]       Believing that they could not remain in Saudi Arabia as they had no status, and because they feared returning to Syria, the claimants, accompanied by the principle claimant’s mother-in­ law, former husband and two of her sisters-in-law, left Riyadh, Saudi Arabia on [XXX], 2018, and arrived in New York on the same day. On [XXX] 2018 the claimants flew to Buffalo, and crossing at the Peace Bridge into Canada, made their applications for refugee protection.

DETERMINATION

[9]       For the reasons that follow, the panel finds that the claimants would face a serious possibility of persecution on a Convention ground, and on a balance of probabilities, would be subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture upon their return to Syria.

[10]     Therefore, the panel finds that the claimants are a Convention refugees, and have a well­ founded fear of persecution or hmm should they return to Syria.

IDENTITY

[11]     For the following reasons, on a balance of probabilities, the panel finds that the principle claimant is a citizen of Syria. She established her citizenship by providing a photo copy of her Passport.⁸

[12]     For the following reasons, the panel notes that the associate minor claimants are stateless. The minor claimants were born in Saudi Arabia. The principle claimant’s former husband is a Palestinian, who was working in Saudi Arabia on a temporary residence permit. According to their birth certificates, the minor claimants were born in Saudi Arabia.⁹ Although the habitual residence of the minor claimants was Saudi Arabia, they had no entitlement to permanent status or claim against Palestine. Moreover, the minor claimants hold Palestinian Passports and travel documents, which limited their entry to Syria.¹⁰

ANALYSIS

[13]     In assessing this claim, the panel focused on the credibility of the claimants’ allegations of the risk of persecution or harm they might face upon their return to Syria because of their perceived political opinion.

[14]     The panel is cognizant of the difficulties faced by the claimant in establishing their claims. These include cultural factors, the environment of the hearing room, and the stress inherent in responding to oral questions through an interpreter. The panel has taken these considerations into account in arriving at its determination.

[15]     For the following reasons, on a balance of probabilities, the panel found the principal claimant to be a credible witness, and therefore believed what she alleged in support of their claims. Although her testimony sometimes focused on the current situation in Syria and had to be reminded to address her specific fear as it related to a nexus to the IRPA, she testified in a straight forward manner and there were no relevant inconsistencies in her testimony, or contradictions between her testimony and the other evidence before the panel.

[16]     The claimant testified that her father and brother were believed to be members of the Muslim Brotherhood, and as early as 1980 fled Syria to live in Saudi Arabia, where he claimant was born. She further testified that her brother was wanted by the Syrian authorities because of the possible family link to the Muslim Brotherhood, and his avoidance of compulsory military service. Further, when the claimant entered Syria for her wedding celebration in 2011, the claimant testified that she was suspected at the border of being involved with the Muslim Brotherhood, and believed that she was fortunate not to have been arrested.

[17]     For the following reasons, on a balance of probabilities, the objective evidence indicates that there is more than a mere possibility that the claimants would face persecution or harm if they were to return to Syria.

[18]    The United States Department of State 2018 report notes that:

[t]here continued to be a significant number of reports of abuse of children by the Syrian government… [There are] regular reports of detention and torture of children younger than age 13, in some cases as young as 11, in government detention facilities.¹¹

[19]    The International Religious Freedom Report indicates that:

… [m]embership in the Muslim Brotherhood or “Salafist” organizations is illegal in Syria and punishable to different degrees, including by imprisonment or death.

[…]

The personal status law on divorce for Muslims is based on an interpretation of sharia implemented by government-appointed religious judges. In interreligious personal status cases, sharia takes precedence. A divorced woman is not entitled to alimony in some cases; a woman may also forego her right to alimony to persuade her husband to agree to the divorce. Additionally, under the law, a divorced mother loses the right to guardianship and physical custody of her sons when they reach the age of 13 and of her daughters at age 15, when guardianship transfers to the paternal side of the family.

[…]

An individual’s birth certificate records his or her religious affiliation. Documents presented when marrying or traveling for a religious pilgrimage also list the religious affiliation of the applicant.¹²

[20]     The same document noted that, “[t]here were continued media reports the government and its Shia Muslim militia allies [consisting mostly of foreigners] killed, arrested, and physically abused members of opposition groups which were predominantly Surmi Muslim.”¹³

[21]     The panel has chosen to rely on the documentary evidence of the Syria National Documentation Packages (NDP), because it originates from a variety of reputable independent sources, which, reasonably, is expected to be knowledgeable with respect to the situation in Syria. The documentary evidence is seen as reliable, probative, detailed information, so as to provide the panel with a thorough understanding of the political situation in Syria.

[22]     On the basis of the totality of the evidence and the cumulative findings noted above, in the specific instances of this case, the panel finds that the claimants have satisfied their burden of establishing more than a mere possibility that they would face persecution should they return to Syria. Based on the forgoing reasons, the panel finds that because of the principle claimant’s perceived relationship to the Muslim Brotherhood, there is more than a mere possibility that the claimant would face persecution or harm should she return to Syria.

[23]     In regard to the minor claimants, for the following reasons the panel finds that their claims for refugee protection should be accepted. They have never lived in Syria, and with their immediate family now in Canada, there is no one in Syria to care for them. Further, in a decision of the Honourable A.W.J. Sullivan of the Ontario Court of Justice, the principle claiman) has been granted joint custody of the minor claimants.¹⁴ In making this finding, the panel is guided by the principle expressed in Baker, that although not determinative, the best interests of the child is an important factor in humanitarian and compassionate considerations that must be given substantial weight.¹⁵

CONCLUSION

[24]     Therefore, based on the foregoing reasons, the panel finds that the claimants are Convention refugees, and their claims are accepted.

(signed)           Stephen Rudin

November 12, 2019

¹ The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
² Refugee Protection Division (RFD) Rules SOR/2012-256 [RPO Rules], Rule 55.
³ IRPA, supra, footnote 1, section 167(2).
⁴ RPD Rules, supra, footnote 1, Rule 20.
⁵ Exhibits 2-4, Basis of Claim Forms (BOCs).
⁶ Exhibit 10. Amended BOC.
⁷ Exhibit 2, BOC – TBS-01528.
⁸ Exhibit 1, Package of Information ftom the Referring CBSA/CIC, Copy of Passport.
⁹ Exhibit 9, Personal Disclosure, at pp. 19-20 and 23-24.
¹⁰ Exhibit 8, Temporary Resident Visa (TRV) Materials, Copies of Palestinian Passports.
¹¹ Exhibit 5, National Documentation Package (NDP) for Syria (March 29, 2019), item 2.1.
¹² Ibid., item 12.1.
¹³ Ibid.
¹⁴ Exhibit 9, Personal Disclosure, at pp. 38-41.
¹⁵ Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

Citation: 2019 RLLR 86
Tribunal: Refugee Protection Division
Date of Decision: March 5, 2019
Panel: D. Young
Counsel for the Claimant(s): Ali Dakakni
Country: Syria
RPD Number: TB7-16920
ATIP Number: A-2020-01459
ATIP Pages: 000032-000036

REASONS FOR DECISION

[1]       This is the decision in the claims of [XXX] (the principal claimant), [XXX] (the principal claimant’s spouse), [XXX] and [XXX], (the minor claimants). The claimants are making claims against Syria, seeking Canada’s protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹ The principal claimant was appointed Designated Representative for the minor claimants. A third minor claimant, citizen of the United States, (U.S.), had initially made a claim with the rest of the family but that claim was withdrawn before the hearing.

[2]       The claimants have lived in the United Arab Emirates (UAE) since 2016. They had residence permits based on the principal claimant’s employment. The principal claimant was, according to documents filed, a valued employee of [XXX] in Dubai.² Prior to that, he had worked for the same company in the Kingdom of Saudi Arabia. The family was planning to re-locate to Canada for the principal claimant to take a job with [XXX] in Toronto. The family’s application to the Canadian government for a visa was refused because “the LMIA/Job Offer which you have provided in support of the application is fraudulent”.³ A subsequent application for a visa was also refused. The principal claimant alleges that because he was leaving his job in UAE, his employer had replaced him and refused to extend his employment. As a result, the claimants would be required to leave UAE. The only country they had a right to live in was their country of nationality, Syria. The family fears targeting due to their perceived opposition to the Assad regime and that the principal claimant would be forced to serve in the Syrian army. They had been issued Non-immigrant visas to the U.S. in 2015 valid until 2017. They travelled to the U.S. on [XXX] 2017. They crossed the Canada­U.S. border ten days later, outside of an authorized port of entry and made refugee claims.

[3]       The panel had concerns about the evidence regarding the claimants’ decision to leave the UAE. At the end of the hearing, counsel was given the opportunity to submit representations in writing. Along with his representations, counsel submitted documents regarding this issue along with documents about the U.S. administration’s statements regarding refugees from Syria and the text of a tweet from the Canadian Prime Minister. As these were relevant to issues raised by the panel in the hearing, the documents were entered into evidence.⁴

Identity

[4]       Certified copies of the claimants’ current Syrian passports were included with the referral.⁵ These are sufficient to establish the claimants’ identity and nationality.

Credibility and Subjective Fear

[5]       The panel stated in the hearing that credibility and subjective fear were issues in this claim. Specifically, on credibility, the truthfulness of the claimants’ evidence regarding why they had left the country they were living in, where they had ongoing resident status, even though that status was not permanent. Had the status been permanent, the claims would likely have been excluded from consideration in accordance with Article 1E. As it stands, the claimant’s decision to leave a country where they had status becomes a consideration in assessing their subjective fear. Further, the claimants’ decision not to make an asylum claims in the U.S. also gives rise to an issue of whether the claimants lack subjective fear and also affects the assessment of the credibility of their allegations of fear of return to Syria.

[6]       The documents submitted by counsel post-hearing give a detailed explanation of the claimant’s efforts to re-locate to Canada and set out more clearly the sequence of events. The panel finds, on a balance of probabilities, that when the claimants left the UAE, they were likely facing removal from that country.

[7]       Regarding the decision to pass through the U.S. and make a claim in Canada, the evidence is not as convincing. The claimants allege that the current president’s statements regarding a Muslim ban was the reason and that therefore they had no choice but cross over to Canada. The panel notes that the claimants had visas permitting them to enter the U.S. and had been allowed entry to the U.S. during the time of the president’s statements regarding banning Muslims but had been refused visas to travel to Canada. This undermines the claimants’ assertion that they would be more welcome in Canada than the U.S. Counsel in his submissions referred to the Canadian Prime Minister’s tweet.  The statements does re-affirm that Canada accepts refugees fleeing risk of persecution. The statement does not say that persons who are already in safe countries should leave those countries and instead come to Canada. That said, even though the panel does not find that the claimants would be unsafe in the U.S., their belief is not so completely unreasonable that the panel can find that it indicates a lack of subject fear sufficient to undermine their claim.

Objective Basis

[8]       With regard to the objective support for the claimants’ allegations of the risk they face in Syria, this is found in the documentary evidence. Political opinion in Syria is imputed to citizens based on their locality or family connections. The International Protection Considerations with Regard to People Fleeing the Syrian Arab Republic, Update IV prepared by the United Nations High Commissioner for Refugees (UNHCR) states:

A particular and deepening feature of the conflict is that different parties to the conflict frequently impute a political opinion to larger groups of people, including families, tribes, religious or ethnic groups or whole towns, villages or neighbourhoods, by association. As such, members of a larger entity, without individually being singled out, become the targets for repercussions by different actors, including government forces, ISIS, and anti­government armed groups, for reason of real or perceived support to another party to the conflict.⁶

[9]       Refusal to take part in the actions of the Syrian army, in the current circumstances, is an expression of political opinion under the Convention definition and the actions which likely would be taken against the claimants would come within the definition of persecution.

Internal Flight Alternative and State Protection

[10]     Syria is embroiled in a multi-dimensional, multi-national war which affects the entire country and has led to extreme sectarian violence. I find that the current security situation in the country is such that there is no access to state protection or a viable internal flight alternative for this claimants at the current time.

CONCLUSION

[11]     Having considered all of the evidence before me, I find the claimants to be Convention refugees and I accept the claims.

(signed)           D. Young

March 5, 2019

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended.
² Exhibit 10.
³ Emphasis added.
⁴ Exhibit 11.
⁵ Exhibit 1.
⁶ Exhibit 6, NDP for Syria (28 September 2018), item 1.12.