Date: 20110614
Docket: IMM-4165-10
Citation: 2011 FC 695
Ottawa, Ontario, June 14, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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HANADI AL-MUSAWI
(a.k.a. Hanadi Hassan M Al-Musawi)
and
RIYAM AL-OJAIMI
(a.k.a. Riyam Wiaam Abd Al-Ojaimi)
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Applicants
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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
[1]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial
review of the decision of the Refugee Protection Division (RPD) of the
Immigration and Refugee Board, dated 17 July 2010 (Decision), which refused the
Applicants’ application to be deemed Convention refugees or persons in need of
protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The Applicant and her
daughter, the Minor Applicant, are citizens of Iraq. The
Applicant’s father and mother are permanent residents of Canada. When her father applied to immigrate to Canada in 1999 under the Skilled Worker Program, the Applicant
joined her application to his. However, when she married, her application was
severed and effectively cancelled. In 2006, she reapplied under the Skilled
Worker program. She last communicated with Canadian immigration officials
regarding this pending application in 2008, when she allegedly was told not to
follow-up until 55 months after the date of filing. She is still awaiting the
outcome of that application. In April 2008, she applied and was accepted to
study at an applied arts and technology college in Ontario. In July 2008, she applied for a student visa to study in Canada.
[3]
Prior to
fleeing Iraq, the Applicant and her husband were employed
in Baghdad by Iraqna, a large, Egyptian-owned
mobile phone company. The Applicant is a computer engineer and held a position in
the company as team leader. She claims that, at the material time, about 60
percent of employees in the Baghdad office were foreigners, mostly
Americans; that the company itself is rumoured
to be a Jewish/Israeli company; and that many of the senior employees had admitted
to her co-workers that they were Jewish. She further claims that
Iraqna employees are in danger of being kidnapped by Iraqi insurgents,
particularly those employees who are Jewish but, more significantly, those who
are engineers. By getting rid of the engineers who build the telecommunications
network, insurgents can register their opposition to the government and slow
down progress in the country.
[4]
The Applicant claims
that, in speaking with her co-workers over lunch and coffee, she was vocal in
her criticism of the government, of Sunni parties and of militias such as the
Al-Mahdi army, and that her outspokenness angered her Shia co-workers. The Applicant
states that she is a Shia Muslim and that her husband is a Sunni Muslim, a fact
that she concealed from her co-workers.
[5]
On 1 June 2008 the
Applicant alleges that an anonymous caller telephoned her and advised her to
quit her job and divorce her husband because he is a Sunni. She dismissed this
incident, thinking the caller was a disgruntled employee.
[6]
On 20 June 2008 at 8:15 a.m.,
the Applicant says that she had left her house and was getting into her car to
drive to work when a man opened her car door and climbed into the passenger
seat next to her. At the same time, a second car approached and two masked men
jumped out of it and tried to pull her from her own car. Her neighbours came
running and screaming to rescue her. This attracted the attention of the guards
outside the Ministry of Justice, which is located very near the Applicant’s
home. The guards began shooting into the air. The kidnappers pushed the
Applicant to the ground and shot at her, but they missed. She and her husband
did not call the police because they believed the police to be infiltrated by
militia and criminals.
[7]
Two days later, the
Applicant alleges that another anonymous caller telephoned her, saying that she
had not been forgotten by the militia men and advising her to quit her job and
divorce her husband. The Applicant went to stay with her uncle, and her husband
went to hide with his family in Mosul. Her husband informed her that, while in
Mosul, Al-Qaeda threatened him and accused him
of being a spy because he had married a Shia. He subsequently fled to Syria. The Applicant and the Minor Applicant left Iraq on 1 July 2008. They arrived in Canada on 17 September 2008 and sought refugee protection on 26
September 2008. The Applicant is currently working full-time with the Canadian
branch of Iraqna.
[8]
The
Applicant and the Minor Applicant appeared before the RPD on 31 May 2010. They were
represented by counsel and an interpreter was present. Applicant’s counsel submitted
additional written argument on 10 June 2010. The RPD found, in the Decision
released 17
June 2010,
that the Applicant’s refugee claim was motivated by her desire to come to
Canada and not by a desire to flee Iraq. This is the Decision
under review.
DECISION UNDER REVIEW
[9]
The
RPD found that the Applicant was motivated by a desire to come to Canada, rather than
a desire to flee Iraq, based on an examination of her actions.
The
Applicant’s Actions Indicate a Continuing Prior Interest in Coming to Canada
[10]
The
Applicant applied to study in Canada in April 2008, although her problems in Iraq did not
arise until May of the same year. The RPD concluded that the Applicant applied
to a Canadian college not to study here but as a way to get a Canadian visa.
The Applicant explained that, although she had been accepted to study here and
had intended to do so, she did not follow through with this plan because she
was “out of the track of studying” and, after the attempted kidnapping, was
under too much stress to cope with study at that time. The RPD did not accept
this explanation. It observed, first, that there was no evidence to show that
she had “psychological issues” at the time and, second, that at the hearing the
Applicant appeared capable, confident and well-able to cope with the demands of
life in Canada. Consequently,
the RPD drew a negative credibility inference.
[11]
The
RPD also
considered that the Applicant has made two previous applications for permanent
residence – once in 1999 and once in 2006 – which indicate her continuing prior
interest in coming to Canada. Contrary to the Applicant’s understanding
that the 1999 application was cancelled, documentary evidence from Citizenship
and Immigration Canada indicates that it is still pending. The RPD found that,
if the Applicant feared being returned to Iraq, she would
have followed up on at least one of these two applications. This caused the RPD to draw a
negative credibility inference.
The
Applicant’s Claims of Employment-Related Risks Are Implausible
[12]
The
RPD also notes that several elements of the Applicant’s Personal Information
Form narrative (PIF) were implausible and uncorroborated. For example, it was
unlikely that Iraqna, a company owned by an Arab country with a recent history
of hostility toward Israel, would be perceived as being a Jewish/Israeli company, as the
Applicant claimed. The Applicant was unable to point to a single employee who
was Jewish, despite her senior position in the company, and she was unable to produce
any corroborating evidence that such a perception existed even though she
claimed that it was widespread. The RPD identified this weakness as significant
because the perception
of the company as being a
Jewish/Israeli company was one of the reasons the Applicant had offered to
explain why Iraqna employees were targeted. This caused the RPD to
draw a negative credibility inference.
[13]
Also
implausible in the RPD’s view was the Applicant’s assertion that she
was vulnerable to attack because she worked for a company that built the
telecommunications infrastructure. The China Daily newspaper article introduced
in evidence to support her claim is dated January 2006 and is not recent. The
RPD observed that the August 2007 UN Report on Iraqi Asylum Seekers did not
include engineers or telecommunications workers among the professionals at risk
in Iraq. The Applicant’s
allegation that Iraqna employees have recently gone missing was uncorroborated.
The RPD found that
there was “not a serious possibility” that the Applicant was at risk because of
the nature of her employment.
[14]
The
RPD gave little weight to the Applicant’s assertion that she was vulnerable
because she spoke out against the government and the militias to her colleagues
at work. When questioned, she admitted that she had not been targeted at work,
only that her manager had warned her that some of the other employees had
certain views about her.
The Alleged
Attack Is Unlikely to Have Happened as Claimed
[15]
With
respect to the alleged kidnapping, the RPD found
several aspects of the Applicant’s story to be implausible. First, it was
unlikely that she would not know how many shots the kidnappers had fired at her.
She was lying on the ground at their feet and therefore in very close
proximity. The gunshots would have been loud, even if the Ministry of Justice
guards were also firing their guns from across the street. Second, it was
unlikely that the kidnappers would have fired at her at such close range and
missed. Third, the Applicant was unable to document this attempted kidnapping,
despite the fact that neighbours and Ministry of Justice guards witnessed it. She
did not report it to the police. Her explanation that the witnesses were too
frightened to give evidence and that she believed the police to be infiltrated
with insurgents was not accepted. The RPD found that the events could not
reasonably have occurred as the Applicant indicated, and it drew a negative
credibility finding.
The Applicant
Will Not Be a Single Woman or Single Mother if Returned to Iraq
[16]
The
RPD acknowledged
evidence in the National Documentation Package that single women and single mothers
were at higher risk than others in Iraq. However, it concluded
that the Applicant need not be a single woman or a single mother if she were to
return to Iraq. The
Applicant and her husband are still in a relationship. His reasons for fleeing Iraq are tied to her
alleged persecution. Given the Applicant’s failure to establish that she was
persecuted, there is nothing preventing her husband from returning to Iraq, in
which case the Applicant will not be a single woman and single mother in Iraq and
therefore will not face the related risks.
The
Applicant’s Claim of Religious Persecution is Unfounded
[17]
In
light of the Applicant’s general credibility problems and the lack of evidence
corroborating the claim that she and her husband belong to different religious
sects, the RPD did not
accept the Applicant’s claim that their marriage puts them at risk of religious
persecution. Although Shia Muslims are vulnerable to sectarian violence, this
is a generalized risk. Moreover, the RPD recognized the most recent US DOS
Report, which states that sectarian violence has “decreased to the lowest level
since 2004.”
ISSUE
[18]
The
Applicant raises the following issue:
Whether the
RPD erred in finding that the Applicant failed to establish an objective basis
for a well-founded fear of persecution based upon her identity as a female
professional employed by a company previously targeted by insurgents.
STATUTORY PROVISIONS
[19]
The
following provisions of the Act are applicable in these proceedings:
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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.
Person in need of protection
(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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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.
Personne à protéger
(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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STANDARD OF REVIEW
[20]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[21]
The
RPD’s finding that the Applicant failed to establish an objective basis for a
well-founded fear of persecution is a question of mixed fact and law.
It attracts a standard of reasonableness. See Butt v Canada (Minister of Citizenship and
Immigration), 2010 FC 28
at paragraph 6.
[22]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph
47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
ARGUMENTS
The Applicant
The
RPD Did Not Consider the Applicant’s Identity as a Whole
[23]
The
Applicant submits that the Decision is flawed because the RPD failed to
consider all evidence together in assessing her objective fear of persecution
based on her identity as a professional woman working for a company that deals
in the repair and reconstruction of telecommunications infrastructure and that,
in consequence, is seen as supportive of the Iraqi government and, therefore,
is a target for insurgents. Instead of looking on her identity as a whole, the
RPD’s assessment “parsed [the Applicant’s] identity into separate components.”
[24]
The
Applicant contends that where she works and what she does puts her at risk. She
refers to the China Daily newspaper article from 2006, which specifically
refers to Iraqna and which states:
Insurgents have sabotaged efforts to
repair Iraq’s dilapidated infrastructure,
blowing up power lines and killing or kidnapping engineers as part of a
campaign against the Shi’ite and Kurdish led government. [my emphasis]
[25]
In
addition, the Applicant, as an engineer who works for a company that previously
had been targeted by insurgents for its support of the government through the
repair of the country’s dilapidated telecommunications system, is perceived as
having a pro-government political opinion.
[26]
Also,
the British Home Office reports that women and girls, particularly those who
are perceived as or actually transgressing traditional roles and/or who are exposed
in society, have been intimidated and specifically targeted for attacks
(including murder) by non-state actors. Vulnerable groups include women engaged
in the professions, politics and journalism; civil society activists; and women
who transgress social or religious mores.
[27]
The
Applicant argues that her profile, the elements of which are outlined above,
clearly puts her at a disproportionate risk compared to other Iraqi citizens and
that the documentary evidence supports this argument.
The Respondent
The
Applicant Lacked Subjective Fear
[28]
The
Respondent notes that, to establish a fear of persecution, an applicant must
establish both subjective and objective fear. See Canada (Attorney
General) v Ward, [1993] 2 SCR 689 at 723. A finding that the applicant
lacks subjective fear may render an assessment of the objective fear
superfluous and warrant dismissal of the claim. See Ahoua v Canada (Minister of
Citizenship and Immigration), 2007 FC 1239 at paragraph 16.
[29]
In
the instant case, the Decision makes it clear that the Applicant was found to
be not credible and to lack a subjective fear of persecution based on: her
desire to come to Canada and not specifically to flee Iraq; her application to
study in Canada as a way of obtaining a student visa; her two previous
applications for landing, neither of which she has followed up on since 2008;
her uncorroborated and implausible claims regarding the danger of working for a
company that was perceived to be a Jewish/Israeli company and that reputedly
hired “many” Jewish senior employees; the lack of reported attacks on Iraqna
employees since 2006; the implausibility of elements of her uncorroborated alleged
attack by armed kidnappers; and the improbability that she would be targeted
because of her political opinion, which was expressed, with no obvious repercussions,
only in the workplace. The Respondent argues that this negative credibility
finding, which remains unchallenged by the Applicant, renders the objective
component of the test irrelevant.
The Findings
Regarding Lack of Objective Fear Were Reasonable
[30]
In
the alternative, the Respondent argues that the RPD’s analysis regarding the
Applicant’s lack of objective fear of persecution was reasonable. There has
been no documentary evidence of attacks on Iraqna employees since 2006. Having
found that the Applicant was not at risk in Iraq, the RPD
reasonably concluded that it would be safe for her husband to return to Iraq. This, in
turn, meant that she would not be a single woman and single mother in Iraq and would
not face persecution on that basis.
[31]
The
Applicant argues that, because she falls into several generalized risk
categories, she meets the profile of a Convention refugee. Being subject to
generalized risk does not entitle an applicant to refugee protection in Canada. It was
reasonable for the RPD to find that these generalized risks could not
constitute a reasonable basis for her claim.
ANALYSIS
[32]
At
the hearing of this application in Toronto, the Applicant’s essential complaint
was that, in assessing forward-looking risk, the RPD failed to assess whether
there was more than a mere possibility of persecution based upon the
Applicant’s identity as a female, professional engineer in Iraq. The Applicant
says that, in assessing risk, the RPD parsed her identity and should have had
regard to her full profile.
[33]
My
reading of the Decision is that the Applicant did not establish subjective fear.
Also, in looking to the future, the RPD makes it clear that not only does the
evidence show that general violence in Iraq has declined
but that there was no evidence that Iraqna employees were being targeted.
[34]
In
her written submissions, the Applicant attempted to show that Iraqna employees
were at risk because of rumored Jewish associations of the company. This was
rejected by the RPD and the Applicant does not question the RPD’s findings on
this issue.
[35]
The
Applicant is now attempting to parse her own profile. At the hearing, she wished
to leave out of account that she was an Iraqna employee and that she still
works for the Canadian arm of Iraqna in Canada, as the RPD
found. There is nothing to suggest that if she returns to Iraq she will
not, or cannot, continue working for Iraqna. As the RPD found, there is no
evidence of attacks on Iraqna employees (male or female) since 2006.
[36]
The
Applicant’s account of what had happened to her in the past was discredited. She
does not challenge the RPD’s findings in that regard, nor does she challenge
the RPD’s finding that she was motivated to come to Canada and not to flee Iraq.
[37]
In
assessing future risk, whether section 96 persecution or section 97 risk, the
RPD clearly referred to the general situation on violence and the Applicant’s
particular profile, which included her employee association with Iraqna.
[38]
I
can find nothing unreasonable in the Decision.
[39]
Both
parties agree that there is no question for certification and the Court
concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed.
2.
There
is no question for certification.
“James
Russell”
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