2023 RLLR 224
Citation: 2023 RLLR 224
Tribunal: Refugee Protection Division
Date of Decision: November 30, 2023
Panel: Stefan Martens
Counsel for the Claimant(s): Salema Hage
Country: Syria
RPD Number: VC3-06912
Associated RPD Number(s): N/A
ATIP Number: A-2024-01133
ATIP Pages: N/A
DECISION
[1] These are the reasons for the decision in the claim of XXXX XXXX, who claims to be a citizen of Syria who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
DETERMINATION
[2] I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA.
ALLEGATIONS
[3] The claimant’s Basis of Claim form[2] narrative and testimony contain his allegations. In short, the claimant fears forcible recruitment into the Syrian army.
[4] The claimant is a married, 26-year-old man who was born in XXXX, Lebanon, to a Syrian father and Lebanese mother. But because of bureaucratic problems, his place of birth was registered as XXXX XXXX XXXX XXXX, Syria.
[5] The claimant’s Lebanese wife and his child continue to live in XXXX.
[6] For the past 20 years, the claimant has been running a XXXX shop in XXXX, but his landlord recently gave him an eviction notice amid Lebanon’s economic crisis.
[7] The claimant holds a courtesy residence card for Lebanon, yet he fears that he will be forcibly repatriated to Syria amid a push to send Syrians back.
[8] And if he is sent back to Syria, the claimant fears that he will be recruited to fight in the war and forced to commit crimes against humanity.
[9] The claimant came to Canada to visit family in Calgary in XXXX 2023. But when CBSA stated it would not allow him into the country because it believed that he was planning to work without documentation in Canada, the claimant applied for refugee protection.
ANALYSIS
Identity
[10] The claimant’s personal identity and his identity as a national of Syria has been established by his sworn testimony and the certified copy of his Syrian passport in evidence.[3]
Country of Reference
[11] I find that Syria is the claimant’s only country of reference.
[12] The claimant was born to a Syrian father and a Lebanese mother, and his wife is Lebanese. He, moreover, lived in Lebanon his entire life until he came to Canada in XXXX 2023, raising the question of whether he can automatically apply for Lebanese citizenship.
[13] I find, however, that the National Documentation Package (NDP) for Lebanon establishes that the claimant cannot obtain the country’s citizenship.
[14] According to a Response to Information Request (RIR) that quoted the director of the Lebanese Emigration Research Center (LERC) at Notre Dame University, “[i]t is practically impossible for anyone who is not born to a Lebanese male to obtain Lebanese citizenship. Citizenship is acquired through paternal jus sanguini and jus soli. Women do not transmit their citizenship to their husbands or children.” Other experts interviewed by the Board for the same RIR state the same thing: “A foreign man who is married to a Lebanese woman cannot acquire Lebanese nationality by virtue of marriage.”[4]
[15] The LERC director added that foreigners have only ever obtained Lebanese citizenship through decree, noting that such decrees are exceedingly rare given their effect on the country’s delicate sectarian balance.[5]
[16] Given this evidence, I accept that the claimant is a Syrian man who cannot obtain Lebanese nationality through his mother and wife because Lebanon only bestows ius sanguinis citizenship to children born of a Lebanese father. And because the claimant’s father was Syrian, I find that he has no access to Lebanese citizenship even though he has a Lebanese mother and a Lebanese wife.
[17] Accordingly, I find his only country of reference is Syria.
No Exclusion on Article 1E Despite Claimant’s Residence in Lebanon
[18] I find that the claimant is not excluded from refugee protection under Article 1E despite his lifelong residence in Lebanon.
[19] Article 1E states that the Refugee Convention “shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”[6]
[20] The Federal Court laid out the criteria to test whether asylum seekers enjoy a status similar to that of nationals in a purported 1E country in Shamlou.[7] To demonstrate that they should not be excluded from refugee protection, asylum seekers must establish that they do not enjoy at least one of these rights in the 1E country:
a. The right to work freely without restrictions;
b. The right to study;
c. The right to access social services; and
d. The right to return to said country.
[21] In this case, the claimant testified that he has held a temporary, “courtesy” residence permit in Lebanon his entire life that he needed to renew every two or three years, depending on the length of his Syrian passport.
[22] As past of his disclosure, the claimant provided a copy of his courtesy residence permit.[8] During the hearing, I asked the interpreter to translate the word at the top of the residence permit. The interpreter did so, stating that the word said “courtesy.” I have no reason to doubt the authenticity of the permit, while I also find it probative regarding the claimant’s status in Lebanon. As such, I attach the card high weight, finding that it establishes that the claimant held a courtesy residency permit in Lebanon.
[23] The NDP states that the courtesy residence is a “temporary residence permit that is granted to Arab and foreign immigrants for free.”[9] In the main, the permit is granted to the foreign children or spouses of Lebanese women[10] – a group that includes the claimant.
[24] The claimant testified that he has long been able to renew his courtesy residence permit but stated that the process is becoming increasingly difficult, noting that his mother is occasionally summoned to prove that she is a Lebanese citizen and that, because of bureaucratic chaos, he might wait for an entire day at the residency office but still not receive a renewed permit by the end of the day.
[25] But regardless of the objective evidence’s characterization of the courtesy residence permit as temporary, as well as the increasing headaches the claimant has encountered in renewing his permit, I do not find that there is sufficient evidence to establish that the renewal process is not, ultimately, automatic.
[26] As such, I find that the claimant does, on a balance of probabilities, possess a residency permit that allows him to permanently remain in Lebanon. Because of other factors, however, I find that the claimant’s status in Lebanon is not durable.
[27] For one, I note that the claimant testified that Lebanese authorities are forcibly deporting Syrian citizens to Syria. Just before he came to Canada, the claimant stated that 300-500 Syrians – mostly people who did not have residence permits – were deported to Syria.
[28] I find the objective evidence corroborates the claimant’s allegations. A Refugee Protection Watch document from 2021 states that Syrian refugees are facing pressure to return to Syria. The piece quotes a Human Rights Watch report that states Lebanese authorities have
pursued an aggressive returns agenda, regularly introducing new decrees and regulations designed to make Syrian refugees’ lives difficult, and ultimately to pressure them to leave. They have forced Syrian refugees to dismantle their concrete shelters, imposed curfews and evicted refugees from some municipalities, obstructed the renewal of residency permits, and summarily deported Syrian refugees they deemed to have irregularly entered Lebanon after April 2019.[11]
[29] Other reports state that the Lebanese Armed Forces (LAF) summarily deported thousands of Syrians, including unaccompanied children, back to Syria between April and May 2023 regardless of their refugee status.[12]
[30] The objective evidence further indicates that Syrians who possess a courtesy residence permit can be denied re-entry to Lebanon simply by virtue of applying for refugee protection in a third country.[13]
[31] Given the totality of the evidence, I find that there is more than mere chance that the claimant will be deported to Syria against his will. The claimant witnessed the deportation of Syrians, albeit those that he believed no longer had status in Lebanon. And while he does have a courtesy residence permit, I find that he is in danger of losing it because he has filed for refugee protection in Canada. More importantly, however, I note that Lebanese authorities have been sending Syrians to Syria regardless of their status in Lebanon.
[32] Because of that, I find that the claimant does not have a durable status in Lebanon because he faces a serious possibility of refoulement to Syria from Lebanon. That, I find, sets him apart from Lebanese nationals, as they have the right to not be forcibly removed their country of citizenship.
[33] In short, because I find that the claimant does not possess the most critical rights and obligations that Lebanese nationals have in Lebanon – such as the right to remain in Lebanon and not be deported forcibly – I find that he is not excluded from refugee protection under Article 1E.
Nexus
[34] I find the claimant has established a nexus to the Convention.
[35] To satisfy the definition of a “Convention refugee” found in section 96 of the IRPA, a claimant must establish that they face a serious possibility of persecution on account of their race, religion, nationality, membership in a particular social group or political opinion in their country of nationality.
[36] The claimant stated that he fears forced conscription into the Syrian military.
[37] Generally, a refugee claim cannot be established simply because a claimant does not wish to serve in their country’s military. Establishing military service requirements is the prerogative of any sovereign state and of those states where military service is compulsory, failure to perform this duty is often punishable by law.
[38] However, there may be cases where a person is able to establish that their objection to military service does in fact meet the requirements of the Convention refugee definition. Although a law of general application is not necessarily persecutory, this can change if the law of general application is applied in a persecutory manner or a violation of a law of general application results in persecution of an individual.
[39] According to paragraph 168 of the United Nation High Commission of Refugees Handbook:
A person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution.
[40] In Lebedev,[14] the Federal Court ruled that refugee claimants can rebut the presumption that compulsory military service is a law of general application, as well as the presumption that punishment for evasion is merely prosecution, if they can demonstrate the applicability of an exception reflected in the UNHCR Handbook. The three exceptions are:
· Where it can be established that the claimant would suffer disproportionately severe punishment for evading service on account of race, religion and nationality, membership in a particular social group or political opinion.
· A claimant’s refusal to take part in any military action because his or her genuine convictions are grounded in religious beliefs, philosophical tenets or ethical considerations. As the court in Lebedev explained, as a matter of principle conscientious objection can only be global and with respect to participation in all conflicts.
· The third exception relates to the claimant’s opposition to participating in military activity that breaches international standards.
[41] The claimant testified that he does not to participate in war crimes for the Syrian army.
[42] According to the objective evidence, parties to the conflict, particularly Syria’s government, continues to commit with impunity serious violations of international humanitarian law, including war crimes, crimes against humanity and other gross human rights abuses.[15] The objective evidence also indicates that the government treats draft evaders as political dissenters and targets them with torture.[16] Based on this objective evidence, I find, on a balance of probabilities, that the acts committed by the Syrian armed forces breach international standards.
[43] I also find that the claimant’s allegations have a nexus to one of the exceptions because the claimant refuses to participate in military activities that breach international standards and, consequently, faces persecution because the Syrian government treats such people as political dissenters. Accordingly, I find that his fear of forced conscription has a nexus to the Convention ground of political opinion (real and imputed).
[44] Because I find that the claimant has at least one nexus to the Convention, I have assessed his case under section 96 of the IRPA.
Credibility
[45] I find that the claimant was a credible witness.
[46] In line with the Federal Court’s decision in Maldonado v. Canada, a claimant’s sworn testimony creates a presumption that the individual’s allegations are true unless there is a reason to doubt their truthfulness.[17] In this case, I found the claimant testified spontaneously and consistently.
[47] I note that, when the claimant initially tried to enter Canada in XXXX 2023, he was denied entry because officials did not believe he would return to Lebanon at the end of his stay.[18] I find that any questions about the claimant’s initial purpose in coming to Canada is not determinative to his claim, since the Board’s purview is naturally to assess claimants’ forward-facing risk of persecution in their country of citizenship. Accordingly, I did not solicit the claimant’s testimony about his initial intentions when he arrived in Canada.
[48] Ultimately, I found the claimant’s evidence to be devoid of major inconsistencies. In short, I accept that the claimant is a 26-year-old Syrian man who fears forcible deportation to Syria and forcible conscription into the Syrian Armed Forces. Because of these findings of fact, I find that the claimant has established, on a balance of probabilities, that he has a genuine subjective fear of persecution in Syria.
Well-Founded Fear of Persecution
[49] I find that the claimant has adduced sufficient credible evidence to demonstrate that he faces a serious possibility of persecution if he returns to Syria.
[50] According to the European Union’s European Asylum Support Office (EASO), hundreds of thousands of people have been detained or disappeared for allegedly opposing the government or having some link with those that do oppose the regime.
A wide range of categories of individuals have been targeted by the GoS [government of Syria], including political activists, protesters, and others who expressed criticism of the government (including on social media), lawyers and human rights defenders, pro-democracy student activists, members of political parties other than the ruling Baath Party, men of military age, returnees from abroad, IDPs returning from parts of Syria outside of GoS control, and former armed opposition fighters who then settled their position with the GoS through so-called reconciliation agreements. Moreover, the authorities went after individuals who did not themselves participate in opposition activities but whose family members or neighbourhoods were associated with such activities.[19]
[51] Another report by EASO states that the al-Assad regime and its intelligence agencies regularly operate outside the law in monitoring people and their activities.
Syrian intelligence agencies operate outside the law. Each intelligence agency maintains its own prison and interrogation facility, with some controlling more than one facility. An April 2019 report by SJAC, based on a sample of 5,003 documents drawn from about 483,000 papers retrieved from Syria during the civil war, revealed how the intelligence agencies created a wide network of informants and used phone surveillance to ensure that the government kept a close watch of the most mundane aspects of Syrians’ everyday life and restricted criticism of Assad and his government.[20]
[52] This is further collaborated by a report by the United Kingdom Home Office which notes that in the current context of the extremely high level of human rights abuses currently occurring in Syria, the regime appears increasingly concerned to crush any sign of resistance.[21]
[53] According to the CIA World Factbook, Syria’s army consists largely of conscripts. Men aged between 18 and 42 must serve in the military for at least 18 months.[22]
[54] A report by the Norwegian Country of Origin Information Centre, Landinfo, indicates that Syrian males who do not show up for compulsory military service risk being listed as wanted by the government and that those caught are in most cases dispatched directly to the military, but in some cases additional punishment is meted out.[23]
[55] According to the objective evidence throughout the conflict, sources reported that the government viewed the activities of draft evaders and deserters as political dissent[24] and that these individuals may risk arrest at the hands of one of the intelligence services, while some are beaten and subjected to torture. [25] Others, by contrast, simply disappear, while others face punishment in the military, including violence from superiors.[26]
[56] Particularly regarding the claimant, I note that there is objective evidence that some Syrians deported from Lebanon were arbitrarily detained, tortured, and forcibly conscripted into the Syrian military’s reserve force upon arrival in Syria.[27]
[57] In short, the claimant fears forced conscription into the Syrian army. The objective evidence, meanwhile, indicates that there is more than a mere risk that his refusal to serve will be viewed as political dissent and punished severely. But even if the claimant were fortunate enough to avoid any punishments for his reticence in reporting to duty, I still find that he would be forced to fight for an army that has been engaging in widespread crimes against humanity. Given the totality of this evidence, I find that the claimant has a well-founded fear of persecution in Syria.
State Protection
[58] I find that there is no state protection available to the claimant.
[59] States are presumed to be capable of protecting their citizens, but this presumption can be rebutted by clear and convincing evidence. In the claimant’s case, I find that there is no adequate state protection.
[60] According to the U.S. Department of State, impunity is pervasive in Syria, and the government is taking no steps to investigate human rights abuses committed by security forces.[28] Freedom House also indicates that corruption is widespread and that basic government services are provided based on perceived diligence to the al-Assad regime. Moreover, Freedom House gives Syria a ranking of zero out of four for both independence of the judiciary and protection of the illegitimate use of force.[29]
[61] Because the claimant is a man who faces persecution for refusing to serve in the military, I find that there is clear and convincing evidence that the claimant cannot avail himself of adequate state protection.
Internal Flight Alternative
[62] I also find that there is no viable internal flight alternative (IFA) available to the claimant.
[63] Based on the personal circumstances of the claimant as a person who is resisting conscription, as well as the objective country documentation about the government’s harsh treatment of opponents, I find that the claimant faces a serious possibility of persecution throughout territory controlled by the Syrian government.
[64] I considered whether the claimant could have a viable IFA in the Autonomous Administration of North and East Syria (AANES) under the control of mostly Kurdish forces, but I find that such an IFA would be unviable in light of the Federal Court of Appeal’s ruling in Thirunavukkarasu,[30] which states that an IFA will not be reasonable when accessing it would require a claimant to risk their lives to cross battle lines when fighting is occurring.
[65] As a result, I find that there is no viable IFA available to the claimant anywhere in Syria.
CONCLUSION
[66] For the forgoing reasons, I determine that the claimant is a Convention refugee pursuant to section 96 of the IRPA; as such, the Board accepts his claim.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Exhibit 2.
[3] Exhibit 1.
[4] Exhibit 3.2, National Documentation Package, Lebanon, 31 August 2023, tab 3.6: Citizenship requirements and procedures for an individual who was born in Lebanon to parents with Syrian citizenship, has a permanent residency permit, and whose spouse was granted Lebanese citizenship by Decree (2012-November 2013). Immigration and Refugee Board of Canada. 12 November 2013. LBN104652.E.
[5] Exhibit 3.2, National Documentation Package, Lebanon, 31 August 2023, tab 3.6.
[6] Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) art 1E.
[7] Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.).
[8] Exhibit 1.
[9] Exhibit 3.2, National Documentation Package, Lebanon, 31 August 2023, tab 13.7: Lebanon: Access to Lebanon for Syrians Entitled to Courtesy Residence in Lebanon. Report based on a Fact-Finding Mission to Beirut, Lebanon, in January and February 2020. Denmark. Danish Immigration Service. 7 May 2020.
[10] Exhibit 3.2, National Documentation Package, Lebanon, 31 August 2023, tab 1.18: Report of the Special Rapporteur on extreme poverty and human rights, Olivier De Schutter, on his visit to Lebanon . United Nations. 11 April 2022. A/HRC/50/38/Add.1.
[11] Exhibit 3.2, National Documentation Package, Lebanon, 31 August 2023, tab 13.14: “I have not known the taste of safety for ten years” Syrians Trying to Survive in Lebanon & Syria. Refugee Protection Watch. November 2021.
[12] Exhibit 3.2, National Documentation Package, Lebanon, 31 August 2023, tab 13.17: Lebanon: Armed Forces Summarily Deporting Syrians. Human Rights Watch. 5 July 2023.
[13] Exhibit 3.2, National Documentation Package, Lebanon, 31 August 2023, tab 13.7.
[14] Lebedev v. Canada (Minister of Citizenship and Immigration), 2007 FC 728
[15] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 2.2: Syria. Amnesty International Report 2021/22: The State of the World’s Human Rights. Amnesty International. 29 March 2022. POL 10/4870/2022.
[16] [16] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 8.5: Syria : Reactions against deserters and draft evaders. Norway. Norwegian Country of Origin Information Centre, Landinfo. 3 January 2018.
[17] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
[18] Exhibit 4.
[19] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 1.22: Syria: Targeting of individuals. Country of Origin Information Report. European Union. European Union Agency for Asylum. September 2022.
[20] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 1.24: EASO Country of Origin Information Report. Syria: Actors. European Union. European Asylum Support Office. December 2019.
[21] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 1.6: Country Policy and Information Note. Syria: Security situation. Version 1.0. United Kingdom. Home Office. June 2022.
[22] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 1.3: Syria. The World Factbook. United States. Central Intelligence Agency. 2 December 2022.
[23] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 8.5.
[24] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 8.4: EASO Country of Origin Information Report. Syria: Military service. European Union. European Asylum Support Office. April 2021.
[25] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 8.5.
[26] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 8.5.
[27] Exhibit 3.2, National Documentation Package, Lebanon, 31 August 2023, tab 13.17.
[28] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 2.1: Syria. Country Reports on Human Rights Practices for 2021. United States. Department of State. 12 April 2022.
[29] Exhibit 3.1, National Documentation Package, Syria, 31 August 2023, tab 2.5: Syria. Freedom in the World 2022. Freedom House. 2022.
[30] Thirunavukkarasu v. Canada (M.E.I.), 1993 CanLII 3011 (FCA), [1994] 1F.C. 589 para. 14.