Citation: 2020 RLLR 147
Tribunal: Refugee Protection Division
Date of Decision: December 2, 2020
Panel: Kari Schroeder
Counsel for the Claimant(s): Hachem Hassan Fawaz
Country: Jordan
RPD Number: VC0-02662
Associated RPD Number(s): VC0-02663
ATIP Number: A-2021-01106
ATIP Pages: 000190-000203
REASONS FOR DECISION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of [XXX] (the “principal claimant”) as a stateless Palestinian and her son [XXX] (the “minor claimant”) as a citizen of Jordan, who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).[1]
[2] As the claimant’s allegations stem from gender-based violence and discrimination, I have applied the Chairperson’s Gender Guidelines in rendering a decision.[2]
ALLEGATIONS
[3] The following is a brief synopsis of the claimants’ allegations.
[4] The principal claimant was born in Saudi Arabia to Palestinian parents. The minor claimant was born in Saudi Arabia to the principal claimant and a Jordanian man. The principal claimant has been divorced from her Jordanian husband since 2011. In Saudi Arabia, the principal claimant suffered from various forms of discrimination due to her gender, her statelessness and her marital status.
[5] The principal claimant obtained a [XXX] in [XXX] from [XXX] in Syria in 2004. She married her husband in 2007. She worked as a [XXX] in Saudi Arabia from 2005-2018. She was subjected to sexual harassment, employment discrimination and attempted sexual assault by her employer.
[6] During the marriage, the claimants both suffered repeated physical and emotional abuse. The principal claimant was able to leave her husband and obtain a divorce. The ex-husband married another woman and provided little to no support for the claimants. He visited the minor claimant occasionally but was critical and abusive. He repeatedly threatened to take the minor claimant to Jordan to live with him. These threats intensified when the ex-husband learned that he might have to leave Saudi Arabia permanently. He informed the principal claimant that he would be leaving Saudi Arabia and returning to live in Jordan, and that he had decided to take his son with him. Fearing that she would lose her son, the principal claimant decided to leave Saudi Arabia and came to Canada in [XXX] 2018.
[7] The principal claimant fears that if she returns to Saudi Arabia, she will continue to face discrimination and harassment as a woman. She also fears that her ex-husband will follow through on his plans to kidnap her son and force him to live in Jordan.
DETERMINATION
[8] I find the principal claimant is a Convention Refugee pursuant to section 96 of the Act.
[9] I find the minor claimant is not a Convention Refugee or person in need of protection pursuant to section 96 or section 97 of the Act.
ANALYSIS
Identity
[10] I am satisfied that the claimants are not citizens of Saudi Arabia even though they were both born in that country. Birth in Saudi Arabia does not entitle a person to citizenship; it is granted only if a person’s parent is a Saudi citizen.[3]
[11] The minor claimant’s identity as a national of Jordan has been established through a certified copy of his passport. He acquired this citizenship through his biological father. I am satisfied that the minor claimant is a citizen of Jordan and no other country.
[12] The principal claimant is a stateless Palestinian. She has established her identity through a temporary passport from the Palestinian Authority as well as a travel document from Egypt. Both claimants also have Saudi Arabia resident cards.
Credibility
[13] The principal claimant was a credible witness. She testified in a straightforward manner and offered spontaneous details without being prompted. At no point did I find she was evading answering my questions or embellishing her responses. I have several documents before me to support her allegations, including proof of her profession as a [XXX], proof of her divorce and copies of text message exchanges between her and her ex-husband. Based on the presumption of truthfulness, the corroborative evidence, and the claimants’ consistent testimony, I accept their allegations as credible. I accept that the claimants were both victims of family violence. I also accept that the claimant faced significant challenges living in Saudi Arabia as a woman and a foreigner, and that she ultimately left the country out of fear that she would lose her son.
Principal Claimant
Potential Exclusion under Article 1(f)(b)
[14] I have considered whether the principal claimant is excluded under Article 1F(b) for child abduction, however, I find that the principal claimant is not excluded. The panel did not notify the Minister due to the finding, upon review of the evidence, that the principal claimant could likely rely on the defence of imminent harm. As explained in greater detail in my reasons, I find the claimants were victims of domestic violence in the past, that the principal claimant left Saudi Arabia out of imminent concern for her son’s well-being, and that these findings are clearly determinative of the exclusion issue.
[15] In applying Article 1F(b) the focus is on whether the acts could be considered crimes under Canadian law.[4] In this case the relevant provision is the offence of child abduction under Section 283(1) of the Criminal Code, which states:
Abduction
283 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of
- an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
- an offence punishable on summary conviction.[5]
[16] Further, Section 285 provides for a defence of imminent harm to Section 283(1). Section 285 states:
No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.
[17] In Mendez, the Ontario Court of Appeal considered the purpose and intent of the 1993 amendments to the Criminal Code which set out the current version of the imminent harm defence.
Bill C-126 amends s. 285 so that the accused will also have a defence if that person took the child in the course of “escaping from danger of imminent harm.” This amendment is intended to create a defence where a person leaves a physically abusive marital relationship and takes along the children. A battered woman should not have to choose between staying with her abuser, leaving her children with him, or escaping the violence with the children but running the risk of a charge of parental child abduction. The amendment is not, however, intended to create a broad defence.[6]
[18] In this case, the principal claimant could not take her son out of Saudi Arabia without her ex-husband’s permission. Even though the minor claimant resided fully with his mother, the minor claimant’s residency in Saudi Arabia depended entirely on his father’s sponsorship. Therefore, if the minor claimant wanted to leave the country, his father had to apply for an exit visa for him. The principal claimant testified that she had been trying to leave the country with the minor claimant, and that it took a lot of convincing before he finally agreed to allow her to take the minor claimant to the United States for a [XXX] conference. However, unbeknownst to the ex-husband, the principal claimant simultaneously applied for a Canadian visa, as her ultimate intention was to claim refugee protection in Canada. Therefore, although the father technically consented to his son leaving the country, he was unaware of what he was consenting to, and I find she did not obtain the father’s full consent to take her son out of Saudi Arabia.
[19] However, the facts of this case give rise to the defence of imminent harm. The principal claimant testified to a long-standing pattern of abuse against the claimants through the duration of the marriage and beyond. During the father’s sporadic visits with his son, he was physically and emotionally abusive. As a follower of a strict interpretation of Islam, he became angry with his son when his hair was too long. On one occasion he hit the minor claimant for listening to music that was ‘forbidden.’
[20] Moreover, the ex-husband consistently threatened to take the minor claimant away from her, and to take him out of Saudi Arabia to live with him in Jordan. The principal claimant, as a woman in Saudi Arabia with very few legal rights, even regarding her own child, would have no recourse to stop this from happening. She has no status in Jordan and would not be able to go to that country to protect her son from further abuse. Further, I find that if the father did follow through on his threat to remove the minor claimant from his mother’s care, the minor claimant would continue to experience physical and emotional abuse at the hands of his father. Even if the father did not follow through on his threats to remove the minor claimant from Saudi Arabia, the minor claimant would likely be forced to live with his father in Saudi in the absence of his mother. Therefore, the principal claimant was left with the choice to take her son out of the country, or leave him behind and risk not only permanent separation from him but leaving him with his abusive father. In my view this is precisely the type of scenario contemplated in Mendez.
[21] As a result, I find that the defence of imminent harm does apply to the principal claimant’s actions. I have found the principal claimant to be credible in terms of the mistreatment she and the minor claimant suffered at the hands of her ex-husband. Saudi Arabian laws are inherently persecutory towards women and there are no laws protecting women and children from domestic violence. I am satisfied on the evidence that the imminent harm defence applies in the particular circumstances of the principal claimant. I therefore find that there are no serious reasons for considering the principal claimant excluded under Article 1F(b) for child abduction.
Countries of Former Habitual Residence (CFHR)
Egypt
[22] I find that Egypt is not a CFHR in this case. Although the claimant is in possession of an Egyptian travel document, she has never resided in that country. Rather, she pursued an online [XXX] through an Egyptian university while residing in Saudi Arabia. Although she did visit Egypt frequently to write exams, she never had de facto residence in that country. The principal claimant testified that the longest period of time she ever remained in Egypt was for one month, and that she lived in a university dorm. She never had a fixed address. Other visits to the country were brief, lasting a matter of days. On many occasions she would leave Saudi Arabia in the morning, write her exam in Egypt, and then fly back to Saudi Arabia on the same night. During the entire period, she maintained a residence, employment and her son’s schooling in Saudi Arabia. On the evidence I am satisfied that Egypt is not a CFHR.
Syria
[23] The principal claimant resided in Syria for a period of 8 years while she attended [XXX] school. She testified that she had a student residency permit and lived in that country as a [XXX] during the entirety of her education. I am satisfied that Syria is a CFHR in this case.
Saudi Arabia
[24] The principal claimant also has de facto residence in Saudi Arabia. She was born in that country, and resided there for the majority of her life with the exception of her eight years in Syria. She attended school, worked as a [XXX] and raised her son in that country. I find that Saudi Arabia is a CFHR in this case.
Well-founded fear of persecution
[25] In order to be found to be a Convention refugee, a stateless person must show that, on a balance of probabilities, he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any and all of his or her other countries of former habitual residence.[7]
[26] I find that the principal claimant meets this test. As explained in more detail below, the principal claimant has established a well-founded fear of persecution in Saudi Arabia. Further, she cannot return to her other CFHRs, which in this case is Syria. As the principal claimant’s student residency expired in Syria in 2004, and she no longer has any status in that country, I am satisfied that the principal claimant is unable to return to Syria.
[27] In terms of her fear of returning to Saudi Arabia, the principal claimant testified to the enormous challenges she faced as a woman, a stateless person, and a single, divorced mother. As a female [XXX] she experienced repeated sexual harassment from her male clients. She was subjected to an attempted rape by her male supervisor. She was not able to drive due to her gender. Beginning in Grade 4, she was forced to wear a full length abaya to cover her body, hair and face, which she was adamantly opposed to but powerless to argue against. She testified that as a woman, she was unable to move freely about, as the law dictates that a male guardian must accompany her in any public setting. Further, even though the principal claimant was divorced from her husband, she experienced constant threats from him. She testified that now that he knows she has made a refugee claim in Canada, if she returns, the punishment against her “would be multiplied.”
[28] I find that the principal claimant has established a nexus to the Convention Ground of membership in a particular social group, namely as a woman fearing gender-based persecution. The laws and customs of Saudi Arabia dictated everything from her manner of dress to her mode of transportation. As a non-citizen, the principal claimant also faced further problems that women with citizenship do not. For example, whereas women are now able to drive in Saudi Arabia, women without citizenship cannot. She experienced many years of domestic violence and did not have the right to prevent her ex-husband from taking her son away. As will be discussed, the law in Saudi Arabia regulates many aspects of women’s lives in the name of religion, including who they can marry and whether and where they can work, study or travel. The objective evidence before me also support’s the principal claimant’s allegations.
[29] Saudi Arabia is a deeply patriarchal society that severely restricts the rights and freedoms of women. Women are not considered to be full, independent or autonomous persons with agency. They are effectively rendered legal minors.[8] For example, a woman’s testimony in court is weighed as half of that of a man.[9] A report by Americans for Democracy & Human Rights in Bahrain and the Bahrain Institute for Rights and Democracy explains the situation for women in this way:
Saudi Arabia’s male guardianship system is inextricably related to broader understandings of women’s places in Saudi society. The “ideal Saudi woman” is understood to be an “obedient wife and mother, educated as her family permits, segregated from gender mixing unless necessary, and entrusted with preserving the Islamic morality and traditional values promoted by the Saudi state.” In this way, the ideal Saudi woman is meant to be dependent on a man in the family rather than be the head of a family. This understanding of a woman’s role in the family and in society underpins the level of control men have over women, particularly over their wives and daughters. For example, this level of control allows a father to declare a run-away daughter to be “disobedient,” and to obtain the assistance of the police in returning his “disobedient” daughter to his care.[10]
[30] Freedom House reports that women are subject to “extensive legal and societal discrimination, most notably through the guardianship system, in which every woman must rely on a close male relative to approve basic activities.”[11] According to Amnesty International, women are required to have permission from their male guardian — their father, husband, brother or son — to enrol in higher education, seek employment, travel or marry.[12] This source also states that women are inadequately protected against sexual and other forms of violence. Human Rights Watch adds that women may be required to seek guardian consent to access healthcare, obtain a passport or be discharged from prison.[13] In another report, Human Rights Watch maintains that recent gender-related reforms in Saudi Arabia are partial, incomplete and in some cases, nullified by the guardianship system, which remains largely intact.[14] This is echoed by Americans for Democracy & Human Rights in Bahrain and the Bahrain Institute for Rights and Democracy who state that the Saudi Arabian government has not demonstrated the necessary political will to see reforms through and has failed to fully implement and enforce reform.
[31] The Department of State (DOS) finds that widespread societal exclusion enforced by, but not limited to, state institutions restricts women from using many public facilities.[15] It states that the law requires women to sit in separate, specially-designated family sections. They often cannot consume food in restaurants that do not have such sections. According to the DOS, women risk arrest for riding in a private vehicle driven by a male who is not an employee (i.e. a hired chauffeur or taxi driver) or a close male relative. Furthermore, cultural norms enforced by state institutions require women to wear an abaya in public. The DOS reports that women have unequal marital, inheritance, divorce, child custody, citizenship, political and property rights.
[32] Women in Saudi Arabia do not have rights equal to that of men. In this case, the principal claimant’s freedom to make decisions about her movement, education, employment, healthcare, travel, marriage, and clothing are restricted by custom and the guardianship system in Saudi Arabia.
[33] Not only do the conditions in Saudi Arabia not afford women with basic rights, women’s ability to make their own decisions about issues central to their lives is seriously hampered. This represents serious, sustained and systematic limitations on fundamental issues in one’s life that amount to persecution. The principal claimant seeks to live free of gender norms in Saudi Arabia. Based on the totality of the evidence, I find that the principal claimant would face a serious possibility of persecution as a woman in Saudi Arabia.
State Protection
[34] In terms of state protection, I do not find that it would be available to the principal claimant since the state enforces these violations of human rights and fundamental freedoms.
Internal Flight Alternative
[35] I also do not find that the principal claimant could live elsewhere in the country since the government enforces the persecutory laws throughout the country.
Minor Claimant
[36] The minor claimant is a citizen of Jordan, and I have considered whether he has a well-founded fear of persecution in that country. I have already found that the minor claimant would face an imminent harm in Saudi Arabia from his father, however, he is not a citizen of that country and I have therefore not assessed whether he has a well-founded fear in that country. The principal claimant alleges that her son faces a risk in Jordan, as he may have to live in that country with his abusive father. She also argues that she would be permanently separated from her son, as she does not have status in Jordan and would not be able to accompany him to that country.
[37] The current location of the minor claimant’s father is not clear from the evidence. The principal claimant testified that she has not spoken to her ex-husband in about a year. She believes he still lives in Saudi Arabia, as he remarried and has another family there, and he previously sent her messages from his Saudi Arabia phone number, however, the principal claimant did hear from a mutual friend that he had also set up a business in Jordan. He also repeatedly told the principal claimant that he would be relocating to Jordan. Ultimately the principal claimant does not know with certainty in which country her ex-husband resides full time.
[38] In this case then, the minor claimant would be returning to Jordan, a country that he has never lived in. His family there consists of his father, who may or may not live in the country full-time, and his elderly grandmother. The principal claimant alleges that she believed that her ex-husband would remove her son from her care, simply as a way to torment her, however, that he ultimately has shown no interest in raising for or caring for the child.
[39] I have considered the principal claimant’s arguments regarding family separation and am aware that the minor claimant is an [XXX]-year old boy who would be returning to a country he has never lived in, to face an uncertain and unknown situation. However, I find that the claimants have not established with sufficient evidence that the minor claimant meets the definition of a Convention Refugee or person in need of protection. There is insufficient evidence to show that he would be forced to live with his abusive father, as it is not clear that the father even lives in the country. Likewise, there is insufficient evidence to show what the minor claimant’s situation would be if his father was not in the country, for example, that there would be no long-term or foster care available to a minor without family to care for him. There is insufficient evidence to establish that he would be an ‘abandoned child’ in the context of the facts in Patel.[16] I have considered the objective evidence regarding child abuse in Jordan, and agree that there are serious gaps in the legal protection afforded to children who are abused by family members.[17] However, there is insufficient evidence to establish that this would be, on a balance of probabilities, the situation facing the minor claimant. Further, the objective evidence is silent on the treatment of unaccompanied children in Jordan. While I am extremely sympathetic to the claimants’ situation, and the humanitarian and compassionate factors that arise from this case, without clearer evidence to establish the risks the minor claimant would face, the principal claimant has not met her onus of establishing that the minor claimant would face a forward looking risk under section 96 or 97.
[40] I am mindful in this case of the court’s comments in Chavez Carrillo:[18]
[15] It is established that if an applicant has the citizenship or nationality of a country where he or she has no well-founded fear of persecution, protected person status will be denied…. This Court has held on several occasions that there is no concept of family unity incorporated into the definition of Convention refugee.
…
[17] However, the human aspect of this case is clear, and it cannot be ignored. At first glance, the RPD’s decision seems to have as a direct consequence the separation of the applicant from his mother. In the event of a departure, the mother will have to choose between allowing her son to leave by himself for the United States and accompanying him to a country where she does not benefit from any legal status.
[18] Fortunately, the solution to this problem can be found in subsection 176(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRP Regulations]. It provides that “[a]n applicant may include in their application to remain in Canada as a permanent resident any of their family members. Therefore, when the applicant’ s mother files an application for permanent residence (if she has not already done so), she will certainly include the applicant as a family member. The mother and her minor son will surely not be separated merely because he was not granted refugee status and she was.
[41] Based on the evidence before me, I find that the minor claimant would not face a serious possibility of persecution in Jordan as a minor child, nor would he face, on a balance of probabilities, a forward looking risk of torture or personalized risk to life or risk of cruel and unusual treatment or punishment.
CONCLUSION
[42] I find that the principal claimant is a Convention Refugee pursuant to section 96 of the Act, and the Board therefore accepts her claim.
[43] I find that the minor claimant is not a Convention Refugee or person in need of protection pursuant to the Act, and the Board therefore rejects his claim.
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] IRB Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa, Canada,March 1993, updated November 1996, and R. v. Lavallee, [1990] 1 S.C.R. 852.
[3] Exhibit 3, National Documentation Package (NDP), Saudi Arabia, March 31, 2020, Item 3.1 Response to Information Request (RIR) SAU105183.E.
[4] Vlad, Anghel v. M.C.I. (F.C., no. IMM-1800-06), Snider, February 15, 2007, 2007 FC 172 at para. 22; M.C.I. v. Diaz, Paola Andrea Pulido (F.C., no. IMM-4878-10), Phelan, June 21, 2011, 2011 FC 738 at para. 12; Radi, Spartak v. M.C.I. (F.C., no. IMM-2928-11), Near, January 5, 2012, 2012 FC 16 at para. 23.
[5] Criminal Code (R.S.C., 1985, c. C-46).
[6] R v. Mendez, (1997) 32 O.R. (3d) 67.
[7] Thabet v. MCI, [1998] 4 FC 21, 1998 CanLll 9063 (FCA).
[8] Exhibit 3, NDP, Item 5.2.
[9] Exhibit 3, NDP, Item 5.1.
[10] Exhibit 3, NDP, Item 5.5.
[11] Exhibit 3, NDP, Item 2.4.
[12] Exhibit 3, NDP, Item 2.2.
[13] Exhibit 3, NDP, Item 2.5.
[14] Exhibit 3, NDP, Item 5.2.
[15] Exhibit 3, NDP, Item 2.1.
[16] Canada (Minister of Citizenship and Immigration) v. Patel, 2008 FC 747 (CanLII), [2009] 2 FCR 196
[17] Exhibit 3, NDP, Jordan, March 31, 2020, Item 2.1.
[18] Chavez Carrillo 2012 FC 1228.