Date: 20060306
Docket: IMM-7723-04
Citation: 2006 FC 290
Ottawa, Ontario, March 6, 2006
PRESENT: The Honourable Johanne Gauthier
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
AMNEH HAMDAN; JAMAL ABUTHAHER
Respondents
REASONS FOR ORDER AND ORDER
[1] The Minister of Citizenship and Immigration seeks judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (RPD) granting refugee status to the respondents.
[2] Mr. Jamal Abuthaher is a stateless Palestinian who left Ramala in 1991 to study in the United States. On his way back to the West Bank in 1993, he married his cousin, the second respondent, Ms. Amneh Hamdan who is a Jordanian citizen of Palestinian ethnicity. Mr. Abuthaher moved back to the West Bank in August 1993 and in September, Ms. Hamdan joined him on a one month visitor visa.
[3] The couple applied to extend Ms. Hamdan's stay in the West Bank. This application was either refused or became void when the Palestinian National Authority (PNA) was appointed in 1994 and started general negotiations with respect to permits with the Israeli authorities. Despite the fact that her visa had expired, Ms. Hamdan remained in the West Bank until 1997. She was given a letter by a human rights organization which apparently was sufficient for her not to be deported when the authorities noted at the check points that her visitor visa had expired.
[4] In May 1997, Mr. Abuthaher obtained a visa and went to look for work in the United Stateseven though in 1992, he had been charged with committing fraud for exchanging food stamps and had been sentenced to probation and community service. He also faced trial and possible jail time with respect to an arrest for fraud and for possession of cocaine at the convenience store where he worked that year.
[5] According to the testimony of the respondents, when Mr. Abuthaher left for the United States, the couple intended to again apply to get a residence permit for Ms. Hamdan in Palestine. Their intention was that if she receives such a permit, she would remain there and wait for Mr. Abuthaher, who would work a couple of years in the United States. If she failed to receive the permit, she would go and join her husband in the United States(pp. 296-297 of the Certified Record). This application was actually filed with the authorities by Mr. Abuthaher's brother after his departure.
[6] Apparently, the negotiations between the PNA and the Israeli authorities were not successful and it remained difficult to obtain a visa for the West Bank. Ms. Hamdan's application was rejected again with no reasons given. She did, however, obtain a three months visa for the United States. She joined her husband in February 1998 after visiting her family in Jordan. She overstayed her visitor visa and the couple remained illegally in the United Statesuntil 2003 when they came to Canada. They informed themselves with respect to the possibility of immigrating to the United States sometime in 1999, but after the events of September 11, 2001, Mr. Abuthaher was subject to arrest and deportation for failing to register as an alien male from a middle Eastern country.
[7] In July 2003, the respondents came to Canada and claimed refugee status on the basis of their nationality and membership in a particular social group.
[8] At the hearing, the RPD referred to the evidence filed by the Minister with respect to criminal charges in the United States against both of the claimants but the Minister's counsel did not attend the hearing.
[9] The RPD found that the respondents were credible witnesses and that there was "insufficient evidence" to demonstrate that they had delayed or failed to claim elsewhere. It found that Mr. Abuthaher's visits to the United States were not to seek asylum but first to find work and then to find a place where he and his wife could live together.
[10] The RPD then agreed with the respondents' negative assessment of their chances of obtaining asylum in the United States given Mr. Abuthaher's criminal convictions and the overstaying of Ms. Hamdan's visitor visa. It also found that there was no reason to exclude them on the basis of article 1(F)(b) given that Mr. Abuthaher had already served his sentence and that his conviction was largely based on circumstantial evidence. The RPD noted that Ms. Hamdan had not committed any crimes and that the information filed by the Minister concerned another person with a similar name.
[11] The RPD held that both spouses had been subject to discrimination against Palestinians in Jordan because their right to found a family and live together had been violated simply because of Mr. Abuthaher's ethnicity. At page 10 of its decision, the RPD states that this discrimination in itself amounts to persecution.
[12] It found that the respondents' right to found a family had also been violated by the PNA and the Israeli authorities who controlled the West Bank and adopted discriminatory policies with respect to family reunification, as well as limitations on the right of Palestinians who have lived abroad for long periods of time to come back to the West Bank. The Board concluded that:
Taking all these acts of discrimination into account, I find that the two claimants have had their basic human rights violated and this amounts to persecution for Convention reasons, dealing with ethnicity and nationality. (...) There is more than a mere possibility that their fundamental rights would be violated if they were to return to Jordan or the West Bank Occupied Territory.
ISSUES
[13] The Minister submits that the RPD erred in:
a) finding that the right to marry and form a family required Israel and Jordan to allow the non-status spouse to enter the country and reside there;
b) finding that an infringement of a right guarantied by the Universal Declaration of Human Rights qualified as persecution;
c) assessing the respondents' claim as against Jordan;
d) assessing the claim as against Israel; and
e) assessing the impact of the respondents' failure to make a claim in the Unites States.
ANALYSIS
[14] There are many errors in this decision but it is not necessary to review them all. As will be explained in these reasons, it is sufficient to say that the RPD made a reviewable error in its appreciation of whether the respondents had been persecuted or discriminated against in Jordan.
[15] Although the RPD did not base its decision on this finding alone, it is evident that a reviewable error in respect of such a major component of the acts of discrimination which were also cumulatively found to amount to persecution, will materially affect the validity of the Board's decision.
[16] Before reviewing the RPD's findings with respect to Jordan, the Court must specify the standard of review that it will apply to those findings.
[17] With respect to the mixed question of facts and law as to whether or not specific acts of discrimination amount to persecution, the standard of reasonableness simpliciter applies (Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398, [1993] F.C.J. No. 796 (QL) (F.C.A); Al-Mahamud v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm. L.R. (3d) 315, 2003 FCT 521; Tolu v. Canada (Minister of Citizenship and Immigration), (2002) 218 F.T.R. 205, 2002 FCT 334; Bela v. Canada (Minister of Citizenship and Immigration), 2001 FCT 581, [2001] F.C.J. No. 902 (QL)).
[18] With respect to questions of law such as the interpretation of international instruments including the Universal Declaration of Human Rights of 1948 (UDHR), the standard of review is correctness. With respect to pure findings of facts, such as whether or not a statute or a particular government policy exists in a particular country or whether there has been discrimination in the past in Jordan, the standard of the patently unreasonable decision applies (Harb v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 108 (F.C.A.) (QL)).
[19] In the section of its decision dealing with Jordan, the RPD starts with a finding that "Jordan has violated international law protecting the female claimant's rights to found a family". Then it states that there are "no statutory or regulatory provisions in Jordanian law for her to make an application to bring her husband into her country".
[20] This passage must be read in the context of the more general comments found in the first part of the decision, where the RPD interprets section 16 of the UDHR to mean that "men and women have a basic right to marry and found a family with whom they wish, without any limitation due to race, nationality or religion, subject only to certain process procedures" (my emphasis).
[21] The words "subject only to certain process procedures" are found nowhere in article 16 of the UDHR. If by using them the RPD meant to imply that States have a positive duty to actually put in place an immigration process whereby permanent residency or citizenship should be granted simply upon the filing of a sponsorship application without any other conditions, the Board was clearly wrong.
[22] While there is no doubt that the UDHR is an internationally recognized cornerstone of human rights protection that describes basic rights of all human beings, it is only a declaratory instrument. Its paragraph 16 deals with the right not to have limitations based on race, nationality or religion imposed on one's right to marry and to found a family.
[23] The Court agrees with the applicant that this paragraph does not per se create a positive obligation on a State to set up sponsorship processes or to adopt legislation that facilitates the entry of a foreign spouse on its territory. As mentioned by Justice Evans in De Guzman v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 2119 (F.C.A.) (QL) at paragraph 97, even the European Convention on Human Rights "...was not intended to displace the general right of States to regulate non-citizens' entry into and residence in their territory".
[24] Obviously, if a State exercises its right to regulate foreign spouses' entry into its territory in a discriminatory manner that imposes limitations based on race, nationality or religion which are also grounds of persecution enumerated in the 1951 UN Convention relating to the status of refugee, such discrimination is a factor which needs to be considered in assessing whether a claimant has an objective fear of persecution.
[25] As indicated by the Supreme Court of Canada in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 63:
"Persecution", for example, undefined in the Convention, has been ascribed the meaning of "sustained or systemic violation of basic human rights demonstrative of a failure of state protection"; see Hathaway, supra, at pp. 104-105. So too Goodwin-Gill, supra, at p. 38, observes that "comprehensive analysis requires the general notion [of persecution] to be related to developments within the broad field of human rights". This has recently been recognized by the Federal Court of Appeal in the Cheung case.
[26] The following definition of persecution, used by Justice Heald of the Federal Court of Appeal in Rajudeen v. Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 601 (F.C.A.) (QL), also continues to be applicable (see Canada (Minister of Citizenship and Immigration) v. Lin, [2001] F.C.J. No. 1574 (F.C.A.) (QL) at paragraph 18, Prato v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1345 (T.D.) (QL) at paragraph 7, Mete v. Canada (Minister of Citizenship and Immigration, [2005] F.C.J. No. 1050 (T.D.) (QL) at paragraph 4):
The first question to be answered is whether the applicant had a fear of persecution. The definition of Convention Refugee in the Immigration Act does not include a definition of "persecution". Accordingly, ordinary dictionary definitions may be considered. The Living Webster Encyclopedic Dictionary defines "persecute" as:
"To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship."
[27] That said, in the present case, the Court is satisfied that however one construes paragraph 16 of the UDHR, the evidence before the RPD could not support its findings because there was no evidence on which it could validly conclude that Jordan imposed or will impose discriminatory limitations on the right of the respondents to found a family.
[28] The documentary evidence clearly indicates that the concept of permanent residence permits does not exist in Jordan whatever the nationality, race or religion of the person seeking it (document No. JOR22772.E dated March 4, 1996 and entitled "Information on rights associated with status of temporary residence and whether temporary residence status can be made permanent"). It also indicates that foreigners can obtain temporary residence permits which give them the right to work in Jordan and to travel. There is no mention that this cannot be used by the Palestinian spouse of a Jordanian. In fact, the document gives several examples including that of a foreign woman married to a Jordanian. According to document No. JOR22772.E, these permits can be renewed yearly upon application to the Ministry of Employment.
[29] This evidence was not contradicted by the respondents. It is not mentioned at all in the decision.
[30] Given the level of deference owed to the RPD with respect to such questions of facts, it is useful to review what evidence was put forward by the respondents with respect to the situation in Jordan.
p. 302 of the Certified Record
PRESIDING MEMBER: So, let's say you and your husband are in the West Bank and you want to go home to visit your parents in Amman, you obviously can go, because you've got a Jordanian passport.
CLAIMANT #2: Yes.
PRESIDING MEMBER: But to take your husband for the visit, he has to apply for a document to let him go to Jordan? Does he have to get a visa?
CLAIMANT #2: It's not actually a visa. What I know from his brother what happened, like, from his brother he want to go to Jordan with his dad, he want to go to Jordan for a visit. He had to -- there is nothing in writing or anything special. It's just between the officers, but there is nothing in a document you can found official document written about them.
PRESIDING MEMBER: So, he would go to the border ---
CLAIMANT #2: He would go ---
p. 303
PRESIDING MEMBER: --- With his Palestinian ID?
CLAIMANT #2: Yes. It is the area called as the area of the bridge's census. You put his name, my husband's name, Jamal Abuthaher, and he money for that, and that's it. When he come from Palestine to Jordan on the bridge, he found his name that it's okay, he can pass, and that's it.
PRESIDING MEMBER: So, he has to pay a fee
---
CLAIMANT #2: Yeah.
PRESIDING MEMBER: --- to cross over the Allenby Bridge into Jordan?
CLAIMANT #2: Yeah.
PRESIDING MEMBER: And if he finds his name on the list, after he has paid the money, he can go ahead, there's no objection to him passing?
CLAIMANT #2: Yeah, no objection to his passing, but he cannot live. It's just for ---
PRESIDING MEMBER: No, just stays there.
CLAIMANT #2: Just for a visit, a visit visa. It's something like this.
PRESIDING MEMBER: Okay, but if you wanted to be more formal about it, if you're in Amman, is there a way you can go and make a formal sponsorship application for your husband to come from the West Bank to ---
CLAIMANT #2: No.
PRESIDING MEMBER: No? There's no application process?
CLAIMANT #2: The no-objection thing, it's just only that he can pass from Palestine to Jordan.
p. 304
PRESIDING MEMBER: Yes, I understand that part, but what ---
CLAIMANT #2: Like, if someone want to go to study in Jordan or have a medical problem he went to Jordan, or who want to travel through Jordan to another country, this is the only thing that they give to them. This is happen after the second (inaudible).
PRESIDING MEMBER: Yes, but there's no formal process for you residing in Jordan to apply to the Jordanian Government and saying I want to sponsor my husband to come to Jordan?
CLAIMANT #2: Because we try, and his brother asked for us.
PRESIDING MEMBER: Is this only for Palestinians, or is it - if, say, you hadn't married a stateless Palestinian, but you married a Brazilian, for example, somebody from Brazil and say I want to bring my Brazilian husband from Rio de Janeiro to Amman, couldn't you go down to the embassy and say I want to bring Paulo to Jordan? There's no mechanism for that?
CLAIMANT #2: I don't know.
PRESIDING MEMBER: You don't know, okay. Because in our country, if I married somebody from England, I could ask our government for a sponsorship paper, and then I would try to bring my wife in. They might agree, they might not agree, but there's nothing like that , that you know of yourself? There's no document that you know of?
CLAIMANT #2: No, no.
PRESIDING MEMBER: You don't know that, you don't know if it exists?
CLAIMANT #2: No.
COUNSEL: Since you and your husband have been in the United States, have you contacted the Jordanian Embassy in Washington or in Ottawa, for that
p. 305
matter, to ask them if you could take your husband back home with you permanently?
CLAIMANT #2: No (ph).
COUNSEL: Why not? Or have you thought about doing that?
CLAIMANT #2: We thought about it and I asked his brother to do that and he asked for us about that, and they said no.
COUNSEL: Which one of his brothers?
CLAIMANT #2: The one who live in Jordan.
COUNSEL: Who lives in Jordan?
CLAIMANT #2: Because the one, they are in Palestine, they don't know about that.
COUNSEL: Do you think your brother has made inquiries recently?
PRESIDING MEMBER: It's his brother or her brother-in-law.
COUNSEL: Yes, your brother-in-law.
CLAIMANT #2: His brother.
COUNSEL: Who is also your cousin. Has he talked to government officials recently?
CLAIMANT #2: It's not a government official, but he has a friend who work in the passport offices and he asked him about that (inaudible).
COUNSEL: When was it that your brother-in-law asked?
p. 306
CLAIMANT #2: That happened after 2000.
PRESIDING MEMBER: What was the date of that asking?
CLAIMANT #2: After the second Intifada or the second uprising in 2000.
PRESIDING MEMBER: In 2000. This official told your brother-in-law no, there's no way?
CLAIMANT #2: (Inaudible)
COUNSEL: Well, let's go on, then.
PRESIDING MEMBER: So, we're almost at 12:00. I don't know whether we should jump into anything else.
RPO: Maybe we should stop right here.
PRESIDING MEMBER: Yes, unless there's something you just want to clear up here. Is there anything here that we need to clean about he - your husband asked --- did you --- who asked your brother-in-law about going to Jordan? Was it you, or was it your sister, or was it your husband?
CLAIMANT #2: Who applied for what?
PRESIDING MEMBER: Who asked this official in the Jordanian passport department?
CLAIMANT #2: His brother.
PRESIDING MEMBER: His brother, but who spoke to the brother?
CLAIMANT #2: Both of us.
PRESIDING MEMBER: You and Jamal spoke to your brother directly?
p. 307
CLAIMANT #1: Let me explain. The thing is, like, when we applied, like, you know, for the refugee claimant over here, we called my brother, like, not three or four weeks ago actually to see, you know, if we can reside in Jordan again, but he said, like, you know, there is nothing in papers you can fill about, and he send us, like, you know, the paper, of our --- we have --- I think there's a green paper down there. This is for the visitors, the Palestinian who cross the border up to Jordan. So, they have to mark it, like, you know, you come for a visit and when you leave back again to come back to Palestine, you have to fill it out again. So, there's nothing, like, you know, written; there's nothing, like, you know, for the Palestinian to say or to live in Jordan, even, like, you know, if nobody of their families or their relatives want to apply for them to reside in Jordan.
PRESIDING MEMBER: Okay. So, one of the things we have to discover here, Counsel and Mr. RPO, is: Is there an unique process for the Palestinians, or does Jordanjust not have a sponsorship provision? Do they keep everybody out? Or is it just something that's being used against Palestinians. It's really a question of what the citizenship law or immigration law in Jordanis, to some extent.
RPO: And how it's applied.
PRESIDING MEMBER: And how it's applied, because they may say one thing ---
RPO: We would have to be Jordanian lawyers, wouldn't we?
PRESIDING MEMBER: Well, I mean, in the Israel Immigration Act there is a provision that you can sponsor people that come into Israel to live, but you have to have a security clearance from the country that you're coming from so you can't be a criminal.
RPO: Right.
PRESIDING MEMBER: But it does exist in the Israeli law. I mean, I would assume that they would have something in theirs.
RPO: Well, of course, the question then arises: If the Jordanian State does
p. 308
have an identical provision, and the claimant has a criminal record from the United States, would he be denied ---
PRESIDING MEMBER: Well, that's possible, but I don't want to get that far down the pipeline. So that's where we're at here. The claimants said that they don't know of any mechanism, and they pointed to a document that you have, it's a green document. I don't know what that is.
RPO: Is it in Arabic?
PRESIDING MEMBER: No. He's got a green document over there.
(...)
PRESIDING MEMBER: We have a bridge census at 4.1.
(My emphasis)
[31] There was never any formal request made by the respondents to the Jordanian authorities with respect to sponsorship, permanent residence or temporary residence permits. There were only some informal inquiries with a friend of whom the RPD knew very little apart from the fact that at one point he worked in some position at the passport office.
[32] As it appears from the transcript, the RPD itself recognized that in order to decide this case, it would have to determine whether the process described by the friend of Mr. Abuthaher's brother was a unique process for Palestinians or whether Jordanian authorities simply keep everybody out. Document No. JOR22772.E contradicts the understanding of the respondents and adds to the information obtained by Mr. Abuthaher's brother, who never addresses and may well never have considered the issue of a temporary residence permit for example.
[33] No further evidence or representations were made in that respect and the decision was issued orally at the end of the hearing.
[34] On the basis of this clearly incomplete evidentiary record, the RPD concluded that there were no statutory or regulatory provisions in Jordan that would enable Ms. Hamdan to live with her husband in her country. It also concluded that Jordanian passport officials had full discretion with respect to such admissions and that no such discretion would be exercised in the future in favour of Mr. Abuthaher because of his Palestinian ethnicity.
[35] There was no discussion during the hearing as to whether or not a decision by Jordanians officials could be challenged in Court. Nonetheless, the RPD invokes its specialized knowledge (no reference made to any specific documentary evidence) to say that even if Ms. Hamdan could appeal such a decision before a Jordanian Court, "such government-influenced courts would not intervene, as there is demonstrated prejudice by ethnic Jordanian judges against stateless Palestinians and Palestinian Jordanians".
[36] Finally and without any further analysis, the RPD concluded that:
(...) the restrictions on stateless Palestinians being allowed to join their spouses in Jordan flows (sic) from ethnic or national discrimination against Palestinians violate international law and amounts (sic) to persecution.
[37] The respondents argue that the RPD is not bound by rules of evidence and that the content of foreign law does not need to be established by the filing of expert evidence as suggested by the Minister. The Court agrees with the respondents that expert affidavits are not necessary, but there are other objective means of establishing the status of legislation in a foreign country as well as its practices in respect of immigration.
[38] The latitude granted to the RPD cannot justify that it accepts as proven, essential facts about which the witnesses before it have an incomplete and clearly poor understanding.
[39] As mentioned, there was simply no evidence that the respondents experienced actual discrimination in the past in Jordan for the Jordanian authorities never actually refused an application by Mr. Abuthaher or his wife.
[40] Furthermore, there was no evidence that there was more than a possibility that there would be discrimination against the respondents if they were to return to Jordan, since there was no information other than document No. JOR22772.E on the actual status of the legislation in Jordan and as to whether or not passport officials had full discretion in respect of anything other than the issuance of a bridge census which is obviously not the appropriate process for this case.
[41] In the circumstances, the findings of the RPD amount to pure speculation. They are not supported by the evidence and the decision must be quashed.
[42] The parties have not submitted any question for certification. The Court finds that this case does not involve a question of general interest that would be determinative. In effect, it is clear that this decision turns on its facts and on the particular evidence presented to the RPD.
[43] Although I offered some comments on the effect of paragraph 16 of the UDHR, this issue is not determinative, given the lack of evidence with respect to the situation in Jordan.
[44] Obviously, the respondents will have the opportunity to file updated evidence on these issues when their claims are reconsidered by a differently constituted panel.
ORDER
THIS COURT ORDERS that:
1. The application is granted.
2. The respondents' claims shall be referred back to a differently constituted panel for reconsideration.
"Johanne Gauthier"
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