Date: 20050706
Docket: IMM-6910-04
Citation: 2005 FC 944
Ottawa, Ontario, this 6th day of July, 2005
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MOHAMMAD SALAH
(a.k.a. Mohammad Y. Salah)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Mohammad Salah is a stateless person of Palestinian descent. Although the Applicant has never resided in Jordan, he carries a Jordanian passport which permits him to live and travel in Jordan. He was born in Egypt, where he lived from 1983 until 2000 on a residency permit. In 2000, the Applicant travelled to the United States to seek employment opportunities. While there, he allowed his Egyptian residency permit to lapse and thus no longer has the right to return to Egypt. He arrived in Canada on August 4, 2003 and shortly thereafter filed an application claiming refugee protection. In a decision dated June 10, 2004, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") rejected his claim. The Applicant seeks judicial review of that decision.
ISSUES
[2] The following issues are raised:
1. Did the Board err in concluding that the Applicant's claim should be assessed against Jordan alone?
2. Did the Board err in concluding that the Applicant's inability to work legally in Jordon or Egypt did not amount to persecution?
ANALYSIS
Issue No. 1: Did the Board err in concluding that the Applicant's claim should be assessed against Jordan alone?
[3] The definition of "Convention refugee" as set out in section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") includes persons who have no nationality and are unable or unwilling to return to the country of their former habitual residence because of a well-founded fear of persecution on a Convention ground. The term country of former habitual residence is also employed with respect to "persons in need of protection" under section 97 of the Act.
[4] Despite the fact that the Applicant's evidence centres on Jordan, he submits that the Board erred in assessing his claim solely against Jordan. In his view, Jordan cannot constitute a country of former habitual residence because he has never lived there. The crux of the Applicant's argument appears to be that the Board had a duty to assess him against his "true" countries of habitual residence, although he does not identify any particular ones.
[5] The jurisprudence of this Court, while limited, has described "habitual residence" as a relationship with the state that is comparable to that which exists between a citizen and his country of nationality. Moreover, a person must establish de facto residence for a significant period of time in the country of question (Kadoura v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1328 (F.C.T.D.)). Based on the plain wording of "habitual residence" and the existing jurisprudence, it is questionable whether Jordan constitutes a country of former habitual residence for the Applicant and whether the Board was required to assess the Applicant's claim against Jordan.
[6] However, the important question from the Applicant's perspective in not whether the Board was required to assess Jordan, but whether by focusing on Jordan, the Board overlooked the Applicant's "true" countries of habitual residence. In my view, it did not. The Applicant made claims against two countries in his personal information form: Jordan and Egypt. Although the Board's reasons focus on the situation in Jordan, the decision and the record demonstrate that the Board also considered the Applicant's reasons for leaving Egypt (where he had previously resided for 17 years). In particular, the transcript indicates that the Board questioned and heard evidence from the Applicant on Egypt. If the Board had eliminated the possibility of Egypt as a country of reference, there would have been no need to hear the Applicant's testimony on why he left Egypt and why he let his residency lapse.
[7] The Applicant testified that, while in Egypt, he had worked illegally for his uncle. When his uncle's business closed, the Applicant travelled to the United States in search of employment opportunities. The Applicant further testified that he could not return to Egypt because he had let his residency permit lapse while living in the United States. Based on this evidence, the Board concluded that the Applicant had left Egypt because he wanted to "seek a better life in the United States" and not because of a well-founded fear of persecution. Similarly, it is clear from the evidence that the Applicant did not leave and was not being denied re-entry into Egypt on a Convention ground. Rather, he no longer had status in Egypt because he had failed to renew his residency permit while abroad. As discussed by Justice Gibson in Arafa v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1286 (F.C.T.D.), at para. 8:
...not every stateless person is a convention refugee. In order for a stateless person who is outside the country of his or her former habitual residence and who is unable to return to that country to be a convention refugee, he or she must find himself or herself in that situation by reason of a well-founded fear of persecution for one or more of the reasons cited in the definition.
[8] In my view, it was reasonably open to the Board to conclude that the Applicant had not left or been denied re-entry into Egypt on a Convention ground. Moreover, as the Board turned its mind to both of the countries identified by the Applicant in his personal information form and testimony, there is no reason for the Court to intervene.
Issue No. 2: Did the Board err in concluding that the Applicant's inability to work legally in Jordan or Egypt did not amount to persecution?
[9] The Applicant submits that, if Jordan was an appropriate country of habitual residence, then the Board erred in concluding that his inability to work legally did not amount to persecution. In oral submissions, the Applicant expanded on this issue to include his ability to work in Egypt.
[10] Severe restrictions on the right to earn a livelihood and systematic governmental interference with the opportunity to find work may, in some circumstances, amount to persecution (Xie v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 286 (F.C.T.D.)). However, unlike Xie, the Applicant in the present case has not provided any evidence that he would be denied work in Jordan. The Applicant has never attempted to obtain employment in Jordan nor did he provide testimony of similarly situated Palestinians being denied employment. Given these circumstances, I find it was open to the Board to conclude that the Applicant did not have a well-founded fear of persecution in Jordan.
[11] With respect to Egypt, the Applicant, although he lived there for a long period of time, presented no evidence to support a conclusion that his inability to work legally amounted to persecution. Indeed, the Applicant's testimony was that he did work in Egypt for at least the last three years he was there. The conclusion, although not stated explicitly by the Board, is that the Applicant failed to demonstrate that his difficulties in working in Egypt amounted to persecution.
[12] There is no reviewable error.
CONCLUSION
[13] In summary, the Board carefully considered the evidence that was before it. That evidence, as put forward by the Applicant in his application to the Board and in his testimony, painted a picture of a stateless person who wishes for economic reasons to leave the country where he was a resident. He stated this overall objective clearly during the following exchange:
CLAIMANT: What I would like to say, that what I'm asking for, living a good life, I'm not asking for more than anything else, I'm a human being like anyone else. It's not my fault if I'm Palestinian, nobody can choose his identity, date of birth, his father, his mother.
PRESIDING MEMBER: So would you say that your desire to be here is to some degree economically driven?
CLAIMANT: Economically and I want my status to be settled down . . .
[14] Unfortunately for the Applicant, the refugee system, as set out in IRPA and international convention, is not intended to provide persons with a way to find a more desirable or stable life. As stated in Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32, at para. 18 (F.C.A.), "it is to furnish a safe haven to those who rightly fear they will be persecuted in their country of origin". In this case, the record demonstrates that the Applicant does not meet that test in respect of either Egypt or Jordan.
[15] The Applicant proposed that I certify a question as follows:
Can a country where a person has never resided be a country of reference?
[16] In my view, this question is not determinative of this application since the Board assessed the evidence presented by the Applicant for both Jordan and Egypt.
ORDER
THIS COURT ORDERS THAT:
1. This application for judicial review is dismissed; and
2. No question of general importance is certified.
"Judith A. Snider"
____________________________
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6910-04
STYLE OF CAUSE: MOHAMMAD SALAH v. THE M.C. & I.
DATE OF HEARING: June 28, 2005
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Snider.
DATED: July 6, 2005
APPEARANCES BY:
Michael Romoff FOR APPLICANT
Gordon Lee FOR RESPONDENT
SOLICITORS OF RECORD:
Makepeace, Romoff FOR APPLICANT
Toronto, Ontario
John H. Sims Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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