Docket: IMM-4348-11
Citation: 2012 FC 386
Ottawa, Ontario, April 2, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ANWAR ISMAIL SHALTAF
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Anwar Ismail Shaltaf left Palestine and, in 2008, claimed
refugee protection in Canada based on his fear of persecution by the
Israeli army. He maintains that he was mistreated over the course of many years
because of his status as a Palestinian male, and that this mistreatment, taken
cumulatively, amounts to persecution.
[2]
A
panel of the Immigration and Refugee Board considered Mr. Shaltaf’s claim and
concluded that his conduct was not consistent with a subjective fear of
persecution, and that the various incidents he described amounted to
discrimination, not persecution. Mr. Shaltaf argues that the Board erred by not
considering the full range of his experiences and by concluding that his behaviour
was inconsistent with a subjective fear of persecution in Palestine. Mr. Shaltaf
also contends that the Board failed to consider the objective documentary
evidence supporting his claim. He asks me to quash the Board’s decision and
order another panel of the Board to reconsider his claim.
[3]
In
my view, the Board did consider whether the events recounted by Mr. Shaltaf
amounted cumulatively to persecution. In addition, its conclusion that Mr.
Shaltaf had not shown that his conduct was consistent with a subjective fear of
persecution was supported by the evidence.
[4]
However,
I agree with Mr. Shaltaf that, in the circumstances, the Board should have
considered the documentary evidence. I will, therefore, allow this application
for judicial review, in part.
[5]
The
issues are:
a.
Did the
Board err in finding that Mr. Shaltaf’s treatment did not amount to persecution?
b. Did the Board
err in failing to consider the documentary evidence?
II. Factual Background
[6]
Mr.
Shaltaf grew up in a refugee camp in the West Bank near Jerusalem. The camp
was frequently attacked by the Israeli army. Some of those attacks resulted in
Mr. Shaltaf being personally assaulted and arrested. In 1988, he went to
university in India. On a return
visit to Palestine, he was
accused of being a member of Fatah. He was not allowed to return to India to continue
his studies.
[7]
Mr.
Shaltaf started working as a truck driver, but his job became difficult because
travel was limited between cities. In 1996, he was travelling in his truck with
a cousin when they encountered a confrontation between Palestinians and Israeli
soldiers. A bullet struck and killed his cousin.
[8]
Mr.
Shaltaf was often stopped at check points. Sometimes he was beaten or detained
for several hours. Once, he encountered a large explosion which injured many
people. In 2002, Israeli soldiers entered the refugee camp and asked all men
between the ages of 15 and 55 to assemble. They were detained and interrogated.
Later that year, soldiers shot at Mr. Shaltaf and others who were gathering
spring water.
[9]
In
2003, he attempted to travel with his mother to Mecca, but the
Israeli military prohibited males under age 35 from crossing the border. However,
after a few days, Mr. Shaltaf was allowed to proceed to Mecca. On his return,
he sold his truck because of the difficulties he was having travelling around
the region.
[10]
In
2005, Israeli soldiers entered his home. Later that year, he obtained a visa to
travel to the United
States
for tourism and business reasons. He returned to Palestine soon thereafter
to get a visa for his son.
[11]
In
2006, while in Palestine, Mr. Shaltaf was driving near Bethlehem when he was
stopped at a check point. At gunpoint, he was ordered to bark like a dog at
every passing car for an hour. He decided to leave Palestine for the US,
with the ultimate goal of claiming refugee protection in Canada. He arrived
in Canada in the fall
of 2008.
III. The Board’s Decision
[12]
The
Board noted that the reason Mr. Shaltaf gave for his mistreatment in 2006 was that
he was on a “no depart list”. However, he made no mention of that allegation
either in his original or his amended written narrative. The Board drew an
adverse inference about Mr. Shaltaf’s credibility from this omission. In
addition, the Board noted that Mr. Shaltaf had actually been allowed to leave Palestine on numerous
occasions. There was also no evidence that this was the reason he was sometimes
detained at the border.
[13]
The
Board also noted that Mr. Shaltaf lived safely in the US for over two
years from 2006 to 2008. At that point, he returned to Palestine. The Board found
his return to be inconsistent with his claim that he would be seriously harmed
in Palestine. Further,
Mr. Shaltaf could have made a refugee claim in the US, but did
not. He declared that his reason for going to the US was for business
and tourism. Again, the Board found that Mr. Shaltaf’s refugee claim was not
supported by credible evidence of a well-founded fear of persecution.
[14]
As
for cumulative evidence of persecution, the Board weighed the positive and negative
factors. Mr. Shaltaf had received an education in Palestine and had
obtained employment there. He had a residence. He had also experienced difficult
circumstances, but he had not been personally targeted.
[15]
Cumulatively,
the Board found that Mr. Shaltaf, while enduring discrimination, had not been
subjected to persecution. Further, if he had genuinely believed he had been
persecuted, he would not have returned to Palestine after going
to the US. The only
incident that followed his return to Palestine was the barking episode,
and that incident, while humiliating, did not amount to persecution.
IV. Issue
One - Did the Board wrongly conclude that the treatment Mr. Shaltaf received
did not amount to persecution?
[16]
Mr.
Shaltaf argues that the Board failed to consider whether the various problems
he encountered in Palestine constituted, as a whole, persecution. He also
maintains that the Board should have considered documentary evidence showing a
pattern of mistreatment of Palestinian males.
[17]
In
fact, the Board did address the question of the cumulative effect of Mr.
Shaltaf’s treatment in Palestine. It considered his most
serious allegations of mistreatment, but concluded that his own conduct, his
return to Palestine in 2005,
indicated that he did not regard his treatment to that point as persecution.
Thereafter, the most serious incident was being forced to bark like a dog but
that, too, while humiliating, did not amount to persecution.
[18]
I
cannot see any error in the Board’s treatment of this evidence. While the Board
has an obligation to consider whether isolated incidents of discrimination
amount, cumulatively, to evidence of persecution, Mr. Shaltaf’s re-availment
suggested an absence of subjective fear of persecution up to 2005. There was
insufficient evidence, including in the documentary evidence, of persecution
thereafter.
VI. Issue Two – Did the Board err
in failing to consider the documentary evidence?
[19]
The
Board did not refer to any documentary evidence. That evidence was not
particularly relevant to the issue of persecution given that the Board found an
absence of subjective fear on Mr. Shaltaf’s part. Documentary evidence would
not have furthered his claim under s 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27, [IRPA] (see Annex for statutory references).
[20]
However,
that evidence would have been relevant to Mr. Shaltaf’s s 97 claim. The Board
did not carry out a s 97 analysis. It felt that, because Mr. Shaltaf could not
meet the burden of proof under s 96, he could not meet the higher burden under
s 97.
[21]
While
it is often the case that a s 97 analysis is pointless when a claimant has
failed to make out a s 96 claim (e.g., where the claimant is found not
to be credible), that was not true here. Mr. Shaltaf’s failure under s 96 was
due in large part to the Board’s finding that he lacked subjective fear. That
finding did not dispose of the s 97 argument since the inquiry under s 97 is
objective. Therefore, the objective documentary evidence could have nourished
Mr. Shaltaf’s s 97 claim. The Board should have conducted an analysis of that
evidence, along with Mr. Shaltaf’s testimony, to determine whether the standard
of proof under s 97 had been met.
VI. Conclusion and Disposition
[22]
The
Board’s decision regarding Mr. Shaltaf’s claim of persecution under s 96 of
IRPA was intelligible and transparent, and represented a defensible outcome
based on the facts and the law. Therefore, it was not unreasonable. However,
in the circumstances, the Board should have considered whether the documentary evidence
supported Mr. Shaltaf’s claim under s 97. I must, therefore, allow this
application for judicial review in respect of s 97. Neither party proposed a
question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is allowed in part;
2.
The
matter is referred back to a different panel of the Board to consider Mr.
Shaltaf’s claim under s 97 of IRPA.
3.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
Convention
refugee
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
Person
in need of protection
97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Définition
de « réfugié »
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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