Date: 20241202

Docket: IMM-12132-23

Citation: 2024 FC 1945

Ottawa, Ontario, December 2, 2024

PRESENT: The Honourable Mr. Justice Lafrenière

JUDGMENT AND REASONS

[1] The Applicants, Khalil Chedid [the Principal Applicant], his wife, Aleksandra Chedid [the Associate Applicant], and their children, Ilya Chedid and Lydda Chedid [the Minor Applicants], seek judicial review of a Refugee Appeal Division [RAD] decision dated September 21, 2023, upholding a Refugee Protection Division [RPD] decision deeming the Applicants neither Convention refugees under s. 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] nor persons in need of protection under s. 97 of the IRPA.

[2] For the following reasons, the application for judicial review is dismissed.

I. Background

[3] Mr. Chedid is a 35-year old Muslim citizen of Tunisia who worked for the United Nations [UN] in Türkiye as a Migrant Service Assistant from 2016 to 2022. Mrs. Chedid is an Orthodox Christian Serbian citizen. Their children are both citizens of Serbia.

[4] The Applicants lived in Türkiye before seeking refugee protection in Canada in May 2022. They alleged persecution stemming from incidents in Tunisia and Türkiye when Mr. Chedid worked for the UN.

[5] Mr. Chedid claims that, while visiting the Tunisian consulate in Türkiye in May 2019, he was asked to collect information for the Tunisian government through his employment with the UN, which he refused to do. Mr. Chedid claims that he was unable to renew his passport from abroad as a result and had to renew his passport in person in July 2019. He testified that during that visit, and when he visited his mother in Tunisia in 2021, he was held at the airport for more than three hours for unknown reasons.

[6] Mr. Chedid further claims that in February 2022, two unknown men confronted him outside of his home in Türkiye and asked him for his work laptop. When Mr. Chedid responded that he did not have his laptop with him, the two men presented a handgun and a packet of surreptitious photos taken of his family. The men stated they knew everything about him and that they could reach him in other countries where the Applicants had professional and family ties. Mr. Chedid suspected the men to be members of the terrorist group ISIS because they spoke Arabic.

[7] Mr. Chedid resigned from his position with the UN shortly after this incident and fled to Canada with his family to seek asylum. He fears returning to Tunisia because he refused to act as an informant for the Tunisian government and fears a risk of harm from ISIS if he returns to Türkiye. Mrs. Chedid and her children also claim to face government and societal Islamophobic persecution in Serbia because they are a mixed-faith family.

[8] The RPD rejected the Applicants’ asylum claim. It found that there was insufficient evidence to establish the profile of the two men who approached Mr. Chedid in 2022 and their ability to locate him in Tunisia should they have an interest in doing so. The RPD also found there was only a speculative risk of harm from the Tunisian government because Mr. Chedid no longer worked for the UN, which was the basis for the government’s interest in him, and he has a valid residence permit in Türkiye. The RPD similarly found that the risk to Mrs. Chedid and the children as a result of being a mixed-faith family was only speculative based on the objective country condition evidence for Serbia.

[9] The Applicants appealed to the RAD. In support of their appeal, they attempted to submit new evidence in the form of a letter from Mr. Chedid’s father and a summons issued on October 12, 2022 by the Court of Tunis requesting his attendance before an Investigative Judge for failing to have appeared before the head of the office in Bardo, Tunis on more than one occasion [Proposed Evidence]. The RAD refused to admit this evidence because it could have been reasonably obtained prior to the hearing before the RPD on November 18, 2022.

[10] The determinative issue before the RAD was whether the RPD made critical forward-facing risk assessment errors. After independently assessing the record and the transcript of the hearing, the RAD concluded that the RPD did not make any such error.

[11] The RAD agreed with the RPD that the Applicants lacked evidence of forward-facing risk of persecution by the two unidentified men because the record did not disclose any interest or means to pursue the Applicants in Serbia or Tunisia. The RAD also confirmed the RPD’s finding that there was no serious possibility the Applicants were at risk of harm from the government in Tunisia as the record showed that their interest in Mr. Chedid was as an informant in Türkiye. Finally, like the RPD, the RAD concluded that there was insufficient evidence to establish individual or cumulative discrimination constituting prejudice against Mrs. Chedid or the children in Serbia.

II. Analysis

[12] The issues raised by the Applicants are twofold. First, did the RAD err by refusing to admit the Proposed Evidence? Second, was the RAD’s Decision reasonable?

A. Did the RAD err by refusing to admit the Proposed Evidence?

[13] The Applicants submit that the RAD’s refusal to admit the Proposed Evidence was unreasonable because it misapprehended the nature of the evidence. According to the Applicants, they only learned of the summons after the RPD’s decision and it therefore should have been accepted as new. As explained below, I see no error in the RAD’s conclusion.

[14] Pursuant to ss. 110(4) of the IRPA, there are limited situations in which an appellant may introduce new evidence to the RAD to prove circumstances pre-dating an RPD decision. New evidence may be introduced if that evidence arises after the RPD decision, if the evidence was not reasonably available, or if circumstances dictate that an appellant could not reasonably have been expected to present the evidence to the RPD. The RAD has no discretion to admit proposed evidence that does not fit within these narrow exceptions: Singh v Canada (Citizenship and Immigration), 2016 FCA 96 at paras 34-35 [Singh].

[15] It is common ground that the summons in question was issued prior to the RPD hearing. Moreover, the RAD accepted that Mr. Chedid only learned of the summons after the RPD rendered its decision. Nonetheless, it found that the summons ought to have been discovered earlier by Mr. Chedid given that prospective risk was a live issue in his claim long before the RPD decision.

[16] The RAD noted that the evidence in the record before it clearly indicated that the Tunisian government was interested in Mr. Chedid because they wanted him to act as a spy. His father stated in his letter that he had “complete certainty” that Mr. Chedid’s name was listed under unofficial lists because he refused to work with the Tunisian authorities. With the aid of some of his close influential friends in Tunisia, the father managed to obtain such proof within six days of speaking with his son.

[17] The RAD concluded that Mr. Chedid could have reasonably been expected to discuss prospective risk in Tunisia with his father prior to the RPD decision and could have obtained the summons at an earlier date. I see no error in this reasoning.

[18] Failure to request third party evidence that could have been sought and produced for the RPD is not an exception contemplated by the IRPA ss. 110 (4): Jadallah v Canada (Citizenship and Immigration), 2016 FC 1240 at paras 29, 30 and 34. I find that the RAD’s rejection of the Proposed Evidence was justified by the evidentiary record and the statutory constraints of s.110 (4) of the IRPA, regardless of the Applicants’ actual knowledge of the existence of the summons prior to the RPD decision.

[19] I should add that, in any event, the Applicants did not establish any nexus between a summons requesting Mr. Chedid to appear before a judge and a prospective risk of persecution in Tunisia. No evidence was adduced regarding the purpose of the summons and none is evident on the record.

B. Did the RAD err by unreasonably concluding that the Applicants did not establish prospective risk of harm in Tunisia and Serbia?

[20] The Applicants argue that the RAD unreasonably failed to consider Mr. Chedid’s prospective risk at the hands of the Tunisian government due to the information and expertise he had attained in Türkiye. I disagree.

[21] It was reasonably open to the RAD to find that the evidence demonstrated that the Tunisian government’s interest in Mr. Chedid was directly related to his work with the UN. Because Mr. Chedid is no longer employed with the UN, it appears logical for the RAD to conclude he could no longer provide any useful spying information. I agree with the Respondent that the Applicants have not meaningfully engaged with this finding.

[22] The Applicants raise before me an argument that was not advanced before the RAD. They submit that Mr. Chedid would be targeted not only because of his former position at the UN, but also because of the information and expertise that he amassed during his six years of employment with the organization. They claim that his expertise or knowledge did not vanish once his employment with the UN ended, nor would it be reasonable to attribute such simplistic logic to Tunisian authorities. I disagree.

[23] This argument is at odds with the Applicants’ submissions to the RAD where they conceded that it is unknown what the Tunisian authorities want from Mr. Chedid. Notably, the Applicants did not raise explicit concerns about persecution related to Mr. Chedid’s professional expertise. Since the Applicants never argued that the Tunisian government would be interested in pursuing Mr. Chedid after he resigned from the UN, they cannot now criticize the RAD for failing to address an argument which was never made before it.

[24] Even if the Applicants had properly raised this particular concern before the RAD, the RAD’s reasoning on this point remains justified by the evidentiary record. Mr. Chedid’s evidence about his encounters with Tunisian authorities in 2019 and 2021 indicate that the Tunisian government wanted him to inform them about Tunisians in Türkiye. In light of this evidence, and without more, it was reasonable for the RAD to conclude that Mr. Chedid had not established a serious prospective risk that the Tunisian government would harm or force him to work as a spy in Tunisia.

[25] The Applicants further submit that the RAD improperly speculated about the means and motivations of the two unidentified men who threatened Mr. Chedid in Türkiye in light of his suspicions they were associated with ISIS or another terrorist organization. They raise before me essentially the same arguments that were carefully considered and rejected by the RAD.

[26] The RAD accepted that unidentified men visited Mr. Chedid, demanded information from him, and threatened to track down the Applicants if he failed to comply. However, the only basis the Applicants submitted for the contention that these men were related to ISIS was the fact that they spoke Arabic and Mr. Chedid’s belief that they were ISIS members. In my view, the RAD reasonably found that this was insufficient to establish a likely link to ISIS.

[27] It is trite law that an applicant seeking refugee protection under s. 96 of the IRPA must establish a serious possibility of persecution based on a Convention ground: Alam v Canada (Minister of Citizenship and Immigration), 2005 FC 4 at para 5. In seeking to determine if a claimant has met their burden, the RAD may draw logical inferences based on the facts and record. Speculation is not to be confused with inference: Kaur v Canada (Citizenship and Immigration), 2017 FC 757 at para 62.

[28] I see no error in the RAD’s finding that just because the two men told Mr. Chedid that they know where his parents live in Tunisia, it does not mean that there is a serious possibility that they actually do know where his parents live. The same can be said about the RAD’s finding that even if these men do have a continued interest in pursuing the Applicants in Türkiye, it does not mean that there is a serious possibility that they would also have a continued interest in pursuing them in Tunisia or Serbia. Finally, even if these men did have a continued interest in pursuing the Applicants in Tunisia or Serbia, it was reasonably open to the RAD to conclude that the Applicants failed to establish that there is a serious possibility that they have the means to pursue that interest in terms of connections in either country or their own ability to travel to Serbia or Tunisia.

[29] The Applicants further argue that the RAD unreasonably found that Mrs. Chedid and the children did not face a serious possibility of government or societal Islamophobic persecution in Serbia by failing to consider evidence of cumulative harassment. I disagree.

[30] Beyond stating that the RAD failed to consider the cumulative nature of Mrs. Chedid’s past experience in Serbia, the Applicants fail to identify any evidence which the RAD unreasonably assessed.

[31] The RAD adopted the RPD’s detailed findings regarding the risk of persecution in Serbia. The RPD acknowledged that Mrs. Chedid’s profile, which includes her identity as a Christian woman married to a Muslim foreigner, suggested that she may face some unfair treatment in Serbia. The RPD also accepted that Mrs. Chedid had experienced episodes of discrimination in Serbia and that these experiences have resulted in emotional ramifications for her. However, while the RPD agreed that Islamophobia and xenophobia exist in Serbia, on the whole, it was not satisfied that Mrs. Chedid and her children face a serious possibility of persecution, or that they would be subjected to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment based on Mrs. Chedid’s profile or her children’s father being a Muslim foreigner, should they return to Serbia.

[32] The RAD agreed with the RPD that based on the evidence before it, Mrs. Chedid cannot be said to have faced discrimination that, either individually or cumulatively, led to consequences of a substantially prejudicial nature such that there were serious restrictions on her rights in Serbia. I am not convinced that the RAD erred in adopting the RPD’s finding given the lack of specific details in Mrs. Chedid’s account to support a personalized risk in Serbia.

III. Conclusion

[33] The RAD reasonably concluded that the Applicants failed to establish any errors in the decision of the RPD, which denied their claim. Moreover, the RAD was clear as to why the Proposed Evidence was inadmissible. Its decision is transparent, intelligible and justified and well within a range of reasonable outcomes. Accordingly, the application for judicial review will be dismissed.

[34] This case does not raise a serious question of general importance for certification and none will be granted.

JUDGMENT IN IMM-12132-23

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed.

2. No question is certified for appeal.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: