Date: 20110811
Docket: IMM-156-11
Citation: 2011 FC 989
Ottawa, Ontario,
August 11, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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SARAH MOHAMMAD ALTWAYJERY
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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
[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 December 14, 2010 (Decision), which refused the
Applicant’s application to be deemed a Convention refugee or a person in need
of protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant says she is a stateless woman from Gaza, Palestine named Sarah Mohammad Altwayjery. She is
accompanied by her pre-school-aged children who are also stateless: Nour Eliman
Mahmood Abdelrahman; Linda Mahmood Abdelrahman; and Maher Mahmood Abdelrahman (Minor
Applicants).
[3]
The Applicant
says that, against the wishes of her family who are Hamas supporters, she
married her husband in Gaza in 2000. Her husband was
targeted by the Hamas over several years in Gaza. When he refused to work with Hanas, the family
was threatened and changed addresses within Gaza to avoid attention. In 2008, her husband was
badly beaten by the Hamas. In August 2008, three Hamas agents came to their
house, hit the Applicant, and locked one child in a closet.
[4]
Fearful
of this situation and of potential war with Israel, the husband made
arrangements for the family to be smuggled out of Gaza in January 2009. He had
been planning to go with them but, when his father was injured by a bomb, he
decided to stay in Gaza to care for him. The Applicants
fled Gaza with a smuggler and
came to Canada, arriving on January 5,
2009 and claiming refugee protection on February 6, 2009.
[5]
Their
application for refugee protection was denied.
DECISION UNDER REVIEW
[6]
The
determinative issue in the RPD’s lengthy decision was identity. The RPD
accepted that the Applicant had established her name and the names of her
children by her oral testimony. The RPD also accepted that they were
Palestinian. However, the RPD found that the Applicant did not establish, on a
balance of probabilities, that she and her children were residents of Gaza
rather than of the West
Bank.
Because the Applicants allege a fear of Hamas only in Gaza, and not in the West
Bank, their claim for protection hinges on their residency in Gaza. On this basis, the RPD
denied their claim.
[7]
The RPD
explained that the Applicant had presented no identity documents from Palestine. The Applicant said
that this was because the smuggler who brought them to Canada had taken all of the
documents and disappeared. The Applicant claimed to be unable to obtain replacement
documents sent from Gaza via her husband or
friends because she had not been in touch with anyone in Palestine for fear of
revealing her location to her Hamas persecutors, who would allegedly harm her
husband if they learnt that she was in Canada.
[8]
The RPD
noted that s. 106 of the Act provides that the RPD must determine “whether the
claimant possesses acceptable documentation establishing identity, and if not,
whether they have provided a reasonable explanation for the lack of
documentation or have taken reasonable steps to obtain the documentation.” Rule
7 of the Refugee Protection Division Rules, SOR/2002-228 (Rules) also
requires a claimant to provide identity documents, explain why they are
missing, or take steps to obtain them. Accordingly, the RPD focused its
analysis on whether the Applicant had complied with these rules.
[9]
The RPD
found that the Applicant’s testimony regarding her identity document was
contradictory and not credible. The Applicant was vague and evasive in
itemizing what identification she allegedly had possessed in Gaza. Her claim that she could
not remember what documents she had had, their appearance, or where they had
been kept in her home in Gaza, was not credible in
light of her testimony that her husband had specifically collected the
documents from a filing cabinet the night she fled and had given them to a
smuggler.
[10]
The RPD
stressed that the Applicant had been informed of the importance of establishing
her identity on numerous occasions, and she knew the absence of her identity
documents was a major issue in her claim. As such, the RPD found it puzzling
that she was unprepared or unwilling to explain which documents she had
previously possessed and where they were.
[11]
Because
she had no documents, the Applicant relied on the declarations of fellow
Palestinians in Winnipeg to establish her
origins. The RPD accepted that these declarations established that she is
indeed Palestinian, but not that she is a resident of Gaza. None of the declarants
is from Gaza and their declarations
do not speak to the Applicant coming from there.
[12]
Two
individuals attended the hearing to testify in support of the Applicant, but
they did not establish her residency. Unfortunately, one of them had to leave
before testifying because of delays in the hearing caused by problems with the
hearing room. Counsel indicated that this witness, who was not from Gaza, would have been able
to provide general information about Gaza but did not know the Applicant or her
personal circumstances in Palestine (nor did he know anyone else from Gaza in Canada). As such, the RPD
concluded that this witness would not have been able to confirm the
determinative issue of the Applicant’s residency and thus his testimony was not
necessary for a fair hearing.
[13]
Similarly,
the other witness, who did testify, was not able to establish that the Applicant
came from Gaza. This witness had not
known the Applicant or her family prior to her arrival in Canada. He came from the West
Bank, knew few people from Gaza,
and had visited Gaza only once for three
hours. He knew nothing specific about the Applicant’s situation. He claimed
that her accent and the food she made suggested she was from Gaza, but since he
himself had only had limited exposure to Gaza, the RPD found that he was not able to
establish her credibility and/or residence.
[14]
The RPD
also found the Applicant’s testimony about her alleged residences in Gaza not credible because it
was contradictory and confusing. Her answer to Question 11 of her PIF states
that from 1999 until July 2008 she lived on Alwahada Street at “different
addresses” and that from July 2008 until January 2009 she lived at Hamaliyrah
30 Street. In her oral testimony, she said she lived on Alwahada Street and in the Hay Al
Rammal district. When asked to clarify, she said that the 30 Street address was
the Hay Al Rammal district. She then said she had moved back and forth several
times between Alwahada
Street and
the Hay Al Rammal district. There was also a contradiction between the dates of
these moves given in the PIF and at the hearing.
[15]
The
Applicant and her counsel explained that these inconsistencies were due to her
nervousness, anxiety, and lack of focus. The RPD considered these explanations
but found that they did not account for the significant problems in testimony.
With respect to her explanation that she was tired because of delays in the
hearing and gave confusing testimony for this reason, the RPD noted that the
delays occurred in the afternoon, after the bulk of her testimony had been
given. In particular, the Applicant had been questioned about her residences in
the morning, before the delays had taken place.
[16]
The RPD
also considered and rejected the Applicant’s explanation that she had been
confused by the English instructions on the PIF form and had given incomplete
and inaccurate information for this reason. The RPD noted that she had affirmed
the PIF both at the time of signing and at the hearing, and she had also not
chosen to review or amend her PIF in the 16 months after she filed it. The
Applicant did make some changes to her original version of the form, suggesting
a deliberate attempt to clarify the information, and suggesting that she had
completed the form when the residence information was fresh in her mind. The RPD
also noted that the Applicant had had the PIF instructions translated in their
entirety, thus lessening the chances of misunderstanding.
[17]
Furthermore,
the RPD noted that the Applicant used vague terminology to refer to her alleged
home territory, giving only the general answer of “Gaza” to questions about the
whereabouts of her birth certificate, her identity card, certain bomb attacks,
etc. She was unable to name any specific locations within the territory, and
displayed a lack of real knowledge of her alleged home.
[18]
The RPD
also found that the Applicant’s testimony regarding her family was not
credible: for example, she mentioned a sister who she saw often after her 2000 marriage
and who helped with her children, the first of whom was born in 2004. However, the
PIF indicates that this sister died from cancer in 2000 (the same year the Applicant
was married and four years before her first child was born). When confronted
with this discrepancy, the Applicant provided unconvincing explanations, saying
that she saw her sister for a few months only after the wedding and before she
died, and that she was the one who had helped with her sister’s children and
not vice versa.
[19]
Similarly,
the Applicant’s testimony about the timing of her parents’ deaths does not
match her PIF information, suggesting that she was fabricating information
about the circumstances and deaths of her family.
[20]
The RPD
found the Applicant’s testimony of a complete lack of contact with her husband
to be implausible. When asked why she cannot ask her husband, who allegedly
remains in Gaza, to send her some identification, she claimed that they are not
in contact out of a fear that he will be harmed by the Hamas if her location in
Canada is revealed (which she says could result from a phone call). She says
she does not trust anyone in the Winnipeg Palestinian community to make
inquiries about her husband. Since her husband was originally planning to accompany
her to Canada (which suggests that
their relationship is intact) the RPD found it implausible that neither party
would not have at least tried to ascertain the other’s survival of the bombing
and the alleged escape from Gaza.
[21]
The Applicant’s
testimony about the dates of the bombing was also inconsistent with the
documentary evidence. The Applicant said that she fled Gaza in January 2009, a day
and a half after the Israelis began to bomb the territory; however, other evidence
indicates that the Israeli bombing actually occurred in December 2008. When
confronted with this discrepancy, she said that she was confused by the English
language, but the RPD did not accept this explanation as the discrepancy also
appeared in the PIF, which had been translated to the Applicant in its
entirety.
[22]
The RPD
considered whether the Chairperson’s Guidelines on Women Refugee Claimants
Fearing Gender Related Persecution applied to the Applicant’s situation, and
concluded it did not, having questioned the Applicant about whether she faced
gender-based persecution.
[23]
The Applicant
also alleged that she feared her father-in-law, since he had been opposed to
her marriage and she feared he would influence her husband to take her children
away from her. Since her husband had originally fully intended to accompany her
in the flight from Gaza, the RPD did not find
this fear credible.
[24]
There
were other credibility issues, such as inconsistent testimony about whether the
Applicant and her husband had possessed a telephone, and about the plane flight
to Canada. However, this
testimony took place towards the end of the hearing when the Applicant was
tired and concerned about her children falling asleep in the back of the room.
Therefore, the RPD did not rely on these inconsistencies in making its finding
and relied on the other credibility issues mentioned in more detail above.
ISSUES
[25]
The Applicant
raises the following issues:
a. Did the Board err in finding that the Applicant
did not establish her identity as a resident of Gaza?
STATUTORY PROVISIONS
[26]
The
following provisions of the Act are applicable in these proceedings:
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Credibility
106. The Refugee Protection Division must
take into account, with respect to the credibility of a claimant, whether the
claimant possesses acceptable documentation establishing identity, and if
not, whether they have provided a reasonable explanation for the lack of
documentation or have taken reasonable steps to obtain the documentation.
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Crédibilité
106. La Section de la protection
des réfugiés prend en compte, s’agissant de crédibilité, le fait que, n’étant
pas muni de papiers d’identité acceptables, le demandeur ne peut
raisonnablement en justifier la raison et n’a pas pris les mesures voulues
pour s’en procurer.
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[27]
The
following provision of the Rules is also applicable in this case:
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Documents
establishing identity and other elements of the claim
7. The claimant must provide acceptable
documents establishing identity and other elements of the claim. A claimant
who does not provide acceptable documents must explain why they were not
provided and what steps were taken to obtain them.
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Documents
d’identité et autres éléments de la demande
7. Le demandeur d’asile transmet à
la Section des documents acceptables pour établir son identité et les autres
éléments de sa demande. S’il ne peut le faire, il en donne la raison et
indique quelles mesures il a prises pour s’en procurer.
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STANDARD OF REVIEW
[28]
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.
[29]
The
issue in this case concerns the Applicant’s identity, and her credibility in
establishing that identity. The applicable standard of review is
reasonableness: see Zheng v Canada (MCI), 2008 FC 877 at paragraph 13: “In
light of Dunsmuir and
this Court’s previous jurisprudence, I am of the view that the standard of
review applicable to identity findings is that of reasonableness.”
[30]
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.”
[31]
The Applicant also says in her argument that the RPD failed to
give sufficient reasons for rejecting her claim and thus breached procedural
fairness. This issue will be reviewed under a standard of correctness. See Andryanov
v Canada (Minister of Citizenship and Immigration) 2007 FC 186 at paragraph
15; and C.U.P.E. v Ontario (Minister of Labour), 2003 SCC
29 at paragraph 17.
ARGUMENTS
The Applicant
[32]
The Applicant
argues that the RPD erred in finding that she did not establish her identity as
a resident of Gaza. The Applicant
acknowledges that she bore the onus to prove her identity and submits that she
provided a reasonable explanation for lacking identification documents, which
the RPD should have accepted.
[33]
The
Applicant escaped Gaza with the help of a
smuggler who took her documents. Alone in a completely foreign environment, she
was vulnerable to her smuggler and had no choice but to follow his directions.
The RPD was unreasonable in not accepting this explanation, and in finding it
implausible that she would entrust her and her children’s lives to a smuggler
and give him all of her documents. Her statement that it was not credible that
“the claimant would entrust her and her children’s lives to a smuggler whom
they didn’t know and would give him all her personal information including
document…” shows a lack of understanding of the Applicant’s background.
Clearly, the RPD did not understand the gravity of the situation in Gaza and the necessity of putting
one’s life in the hands of smugglers who are strangers. This is a commonplace
in such dire circumstances.
[34]
The RPD
failed to provide clear grounds for its disbelief that the Applicant had not,
or could not, contact her husband out of fear of retribution by Hamas. The RPD
unreasonably failed to understand the fear held by the Applicant arising from
the environment in which she was raised.
[35]
The RPD’s
analysis of the evidence is unreasonable in being overly critical of the
apparent inconsistencies between the PIF and the Applicant’s oral testimony. It
was clear that the Applicant had difficulties understanding the interpreter,
and she offered reasonable explanations consistent with her PIF whenever she
was asked to clarify something. The RPD unreasonably dismissed these
explanations on the grounds that the Applicant should have understood
the questions the first time they were posed to her.
[36]
Apart
from reviewing the difficulties in pinpointing the exact residences held by the
Applicant at different ages, the RPD does not explain how the Applicant’s
responses about other locations in Gaza are vague or general.
[37]
The Applicant
alleges that the RPD failed to give sufficient reasons to justify the Decision
and thus breached procedural unfairness.
The Respondent
[38]
The
Respondent submits that the RPD’s findings respecting identity are entirely
reasonable. The onus was on the Applicant to offer proof of her identity and
residence. The RPD found that she had failed to do so satisfactorily. This was
a conclusion that was reasonably open to the RPD. The Court’s intervention is
therefore not merited.
[39]
The
Respondent objects to the Applicant’s argument that the RPD’s disbelief that
she would give her identity documents to an unknown smuggler shows a lack of
understanding of the Applicant’s circumstances. The Respondent points out that
the Applicant, in making this argument, quotes the RPD out of context and
refers only the first half of the sentence containing this allegedly
insensitive remark. Reading the sentence as a whole, it is apparent that the RPD
said “I do not find that it is credible that the claimant would entrust her and
her children’s lives to a smuggler whom they didn’t know and would give him all
her personal information including documents, while refusing to trust the
people from her community who had befriended her in Winnipeg for the past year
[to help contact her husband]”. Read in context, this sentence shows that the RPD
did not find it credible that the Applicant did not trust her friends in Winnipeg to help contact her
husband, when she had entrusted a smuggler with her life, her children’s lives,
and their personal documents.
[40]
The Applicant
has relied on this mischaracterization to argue that the RPD unreasonably
rejected her explanation for missing documents (that the smuggler had them) and
denied the claim on that basis. In actuality, however, it is clear from the
reasons that the RPD found the Applicant’s testimony in general not to be
credible because of its contradictory, vague and evasive nature, and for
various reasons beyond any disbelief about her trust in the smuggler. The Applicant
has not really taken issue with these findings about the vague and contradictory
nature of her testimony; as such, these findings stand. In light of her
unreliable testimony, it was reasonable of the RPD to conclude that she had not
established her identity or residence on the basis of her testimony.
[41]
The Respondent
also submits that although the Applicant would have preferred that the RPD
place more weight on her alleged circumstances and fears, it is up to the RPD
to decide how to weigh the evidence, and the Court cannot intervene on this
basis.
[42]
The Applicant
complains that the RPD was overly critical in noting inconsistencies between her
PIF and her oral testimony. She alleges that her testimony was in fact
consistent with her PIF. However, the Respondent points out that the Applicant
does not aver in her affidavit that the RPD incorrectly repeated her testimony;
thus, this argument must fail for a lack of evidentiary foundation. The
inconsistencies are evident from a review of the RPD’s reasons and the PIF; the
Applicant even acknowledged that she was inaccurate and failed to mention
certain information (see paragraph 29 of the RPD’s Reasons).
[43]
Furthermore,
an examination of her PIF and her testimony shows that she was indeed
inconsistent. For example, regarding her residences in Gaza, she gave a number of
inconsistent answers about when and where she moved to and from different
addressed. The RPD gave the Applicant the chance to explain these
inconsistencies, and she failed to do so. Therefore, it was reasonable for the
RPD not to accept her testimony as credible. Contradictions and discrepancies
in the evidence of a claimant are a well-accepted basis for a finding of lack
of credibility.
[44]
The Applicant
also argues that the RPD was unreasonable in dismissing the Applicant’s
explanations for her inconsistencies; however, the Respondent submits that it
is clear from a review of the reasons that she was given a number of opportunities
to explain them. The Applicant is simply asking the Court to reweigh the
evidence.
[45]
The Applicant
further argues that the RPD erred in failing to recognize that the Applicant
had difficulty understanding the questions put to her, and suggests there “may
be a cultural difference the Board failed to recognize”. However, the reasons
make it clear that the RPD took into account the Applicant’s explanation that
she was nervous and had difficulty with the English language; the RPD
nevertheless concluded that her explanations did not account for the
significant problems in testimony. In asking the Court to overturn this
reasonable conclusion, the Applicant is simply asking for a reweighing of the
evidence.
[46]
The Applicant
also argues that the RPD failed to provide sufficient reasons to substantiate
her conclusion that the Applicant’s lack of specificity about different
locations within “Gaza” betrayed a lack of
actual knowledge about the territory. As was established in Via Rail Canada
Inc v National Transportation Agency, [2001] 2 FC 25; and [2000] FCJ No
1685 at paragraphs 21 and 22, adequate reasons are present where the major
points in issue are addressed and the decision-maker’s reasoning is
transparently communicated. This standard was met here: the RPD’s findings transparently
explain the reasoning process.
[47]
The Applicant
also accuses the RPD of failing to provide clear grounds for rejecting her explanation
for why she has not contacted her husband; the Respondent submits that this
argument is invalid. The RPD was cognizant of the Applicant’s alleged fear of
Hamas; nevertheless, the RPD found it was not credible that neither partner
would attempt to ascertain whether the other had survived the bombing and that the
Applicant would not trust her friends in Winnipeg to help her make contact with
her partner. The RPD’s reasoning is clear and, in objecting to it, the Applicant
is really asking the Court to reweigh the evidence.
ANALYSIS
[48]
This
is one of those cases where there is very little the Court can say by way of
analysis other than that it disagrees with the Applicant’s criticisms of the
Decision.
[49]
The
Applicant appears to think that she was treated unfairly by the RPD. She says
that the RPD was overly critical, should have accepted her explanations for the
inconsistencies and vagaries in her testimony, failed to appreciate her
difficulties with English, failed to appreciate the circumstances under which
she had had to leave Gaza, and failed to
appreciate how Gaza is organized at an
administrative level.
[50]
A
reading of the Decision and the CTR reveals that nothing could be further from
the truth. The RPD took great care, and showed great patience, in identifying
the problems surrounding the Applicant’s identity as a Palestinian from Gaza, explained the problems
to the Applicant, and gave her every opportunity to explain discrepancies and
clarify vagaries, taking into account that the Applicant was under stress at
the hearing and that she had testified through an interpreter. The Applicant
was also forewarned about documentation issues and she and her counsel had
ample time to prepare themselves to address these issues.
[51]
The
RPD provided a thorough and transparent account of why the Applicant had not
established her identity as a Palestinian from Gaza. It is always possible to disagree with the
RPD’s findings, as the Applicant does, and to claim they were unreasonable.
Having heard the Applicant on all points of concern, I can see no basis for an
allegation that the RPD acted unreasonably or failed to afford the Applicant
procedural fairness. The Decision provides justification, transparency and
intelligibility within the decision-making process and falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. See Dunsmuir, above, at paragraph 47.
[52]
In
the end, the Applicant is simply asking the Court to reweigh the evidence and
re-decide the issues in her favour. This is not the role of the Court in
judicial review. See Baylon v Canada (Minister of Citizenship and Immigration), 2009 FC 938 at
paragraph 25.
[53]
Counsel
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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