Date: 20070122
Docket: IMM-2931-06
Citation: 2007 FC 58
Ottawa, Ontario, January 22, 2007
PRESENT: The
Honourable Mr. Justice Blanchard
BETWEEN:
BAHAEDIEN ABDALLA KARSOUA
Applicant
and
THE
MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
The Applicant, Mr. Bahaedien Karsoua, seeks
judicial review of a decision of the Immigration and Refugee Board (IRB) dated
April 20, 2006, rejecting the Applicant’s request for asylum as a Convention
Refugee and as a person in need of protection.
2. Facts
[2]
The Applicant is a 20 year-old stateless Palestinian.
The Applicant was born in Abu Dhabi, United Arab Emirates (UAE), where he
completed 13 years of schooling in private schools. His parents are both
stateless Palestinians. They continue to reside in Abu
Dhabi along with seven of the claimant’s eight
siblings. One bother presently resides in the United
States.
[3]
The claimant’s father has been a long-time
employee of the state-run oil company. His father was born in Yafo, Palestine,
in 1948, and lived in the West Bank thereafter. These areas eventually became part of the state of Israel. In 1967 the Applicant’s father
moved to Jordan, where he was
not allowed to attend university as he was not a citizen. In 1968 he obtained a
two-year Jordanian passport, however, this gave him no status in Jordan. In August 1977 the Applicant’s
father moved to the UAE where he has lived and worked ever since.
[4]
The Applicant’s mother is also a stateless
Palestinian, who was also able to obtain a two-year Jordanian passport.
[5]
The Applicant alleged that he suffered taunts
and discrimination as a result of being Palestinian and a non-citizen of the
UAE at the private school he attended. After receiving a cut on his head, the
Applicant was refused service at the private hospital because he was not an
Emirati, and had to wait two hours to receive treatment at the public hospital
[6]
In May 2003 the Applicant obtained a two-year
passport from Jordan. Using
this passport, he applied for and obtained a Canadian student visa on August
18, 2003. Included in the Applicant’s Jordanian passport, is a resident’s
permit from the UAE which would have expired upon the Applicant being absent
from the UAE for a period of six months or at the latest in 2006.
[7]
The Applicant came to Canada to begin his studies in September 2003. In May 2004, the claimant
returned to the UAE to visit his family for a period of three months. He then
returned to Canada to continue
his studies in August 2004. He claimed refugee status on January 28, 2005, in Halifax, N.S. The hearing took place on February 15, 2006 and the IRB
issued its negative decision on April 20, 2006.
3. The
Impugned Decision
[8]
The IRB found that the Applicant had not
provided “credible or trustworthy evidence” and as a result determined that he is
neither a “Convention Refugee” nor “a person in need of protection” by reason
of a risk to life or a risk of cruel and unusual treatment or punishment or
danger of torture as defined in subsection 97(1) of the Immigration and
Refugee Protection Act, 2001, c. 27, (the Act) (see Appendix).
[9]
The IRB found the Applicant to be a stateless
Palestinian. Although born in the UAE, he is not a citizen of that country.
While the Applicant did travel to Canada and obtained a student visa on the
basis of a two-year Jordanian passport, which did not confer citizenship or a
right of return to Jordan. That passport has since expired. His resident’s
permit for the UAE expired when the Applicant was absent from the UAE for 6
months, which was the case at the time of the IRB decision, on April 20, 2006.
[10]
The IRB found the UAE to be the Applicant’s country
of habitual residence. He was born there in 1977, he was schooled there and
with the exception of a brief visit to Jordan and the West Bank, he has spent his entire life there,.
[11]
The IRB did not believe that the Applicant
provided credible evidence of a fear of persecution or serious harm in his last
country of habitual residence, namely, the UAE.
[12]
The IRB found that the taunts and discrimination
suffered by the Applicant as well as the incident at the private hospital did
not amount to persecution or risk of serious harm.
[13]
The Board accepted that the expiry of the
Applicant’s UAE resident’s permit would mean he would no longer be permitted to
return to the UAE, and that he had no valid travel documents as his two-year Jordanian
passport had also expired.
[14]
The IRB drew a negative inference from the
Applicant’s re-availment to the UAE on one occasion in early 2004 to visit his
family. As a result, the IRB did not believe the Applicant’s behaviour was
consistent with that of a person fleeing persecution or serious harm.
[15]
The IRB found that the Applicant’s denial of
right of return to UAE does not constitute persecution. It IRB cited the decision
of Altawil v. Canada (M.E.I.), (1996) F.C.J. No. 986 (QL), where the
Court found that a denial of a right of return does not amount to persecution
if done pursuant to a law of general application. The IRB found this to be the
Applicant’s situation.
4. Issues
[16]
The Applicant raises the following issues:
A. Did the IRB err in making its adverse
credibility findings and in particular by finding that the cumulative effect of
the harassment and discrimination faced by the Applicant in the UAE did not amount
to persecution?
B. Did the IRB err in failing to specifically
analyze the s.97 claim or in considering the Applicant’s subjective fear in its
analysis?
C. Did the Board err in concluding that a denial
of a right of return does not constitute persecution?
5. Analysis
A. Did the IRB err in making its adverse credibility
findings and in particular by finding that the cumulative effect of the
harassment and discrimination faced by the Applicant in the UAE did not amount
to persecution?
[17]
It is widely accepted that credibility finding
by the IRB are reviewed on the standard of patent unreasonableness (Mugesera
v. Canada
(Minister of Citizenship and Immigration), [2005] 2
S.C.R. 100 at para. 38, 2005 SCC 40). The first issue deals with a question
requiring the IRB to consider whether the evidence of harassment and
discrimination amounts to persecution in the circumstances of this case. In
order to determine the applicable standard of review to this question, it is
necessary to conduct a pragmatic and functional analysis (Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] F.C.R. 392.)
[18]
The analysis requires consideration of the four
contextual factors first set out in Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982, namely:
(1) the presence or absence of a privative clause
or a statutory right of appeal;
(2) the relative expertise of the tribunal;
(3) the purpose of the statute and the provision
in question; and
(4) the nature of the question.
(1) The
presence or absence of a privative or a statutory right of appeal.
[19]
The presence of a full privative clause is
compelling evidence that the Court ought to show deference to a Tribunal’s
decision. A provision permitting appeals, on the other hand, suggests a more
searching standard of review. Here, the Act does not contain a privative clause
nor does it provide a statutory right of appeal. Although a party may apply to
the Federal Court to judicially review the IRB’s decision pursuant to sections
18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, the
availability of a judicial review does not necessarily decrease the level of
deference owed to the IRB. As the Supreme Court of Canada stated in Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, the jurisdiction of a court on appeal is
much broader than the jurisdiction of a court on judicial review. At paragraph
31, the Court stated that: “In principle, a court is entitled, on appeal, to
disagree with the reasoning of the lower tribunal”.
[20]
As a consequence of there being no statutory
right of appeal or privative clause, I am of the view that the impact on the
level of deference owed to the IRB in respect to this factor is neutral.
(2) The relative expertise of the IRB
[21]
In evaluating this second factor, the Court must
consider the “three dimensions” of relative expertise, stated in Pushpanathan,
above, at paragraph 33:
(1) the IRB’s expertise;
(2) the Court’s own expertise relative to that of the IRB;
and
(3) the nature of the specific issue before the
IRB relative to the Court’s expertise.
[22]
The Supreme Court of Canada elaborated on the
relationship between expertise and curial deference in Dr. Q. v. College of
Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. At
paragraph 28, citing Moreau-Bérubé v. New
Brunswick (Judicial Council), [2002] 1 S.C.R. 249, the Court stated that:
Greater
deference will be called for only where the decision –making body is, in some
way, more expert than the courts, and the question under consideration falls
within the scope of this greater expertise.
[23]
The question under review involves considering
whether the facts of discrimination and harassment amount to “persecution” in
the sense intended under the Act.
[24]
The IRB as an expert tribunal on refugee matters
certainly has a recognized expertise in assessing those factors required in
order to obtain refugee status. However, where only 10% of board members are
required by law to be legally trained (subsection 153(4) of the Act), they are consequently
not recognized as experts on questions of law. It follows, therefore, that on
questions of law the court would have greater expertise than the IRB.
[25]
The question here is one of mixed flaw and fact
and requires an analysis with a significant factual component. Given the
expertise of the Court on questions of law and the Tribunal’s recognized
expertise in assessing facts in the context of a refugee claim, I am of the
view that while this factor does not militate in favour of a high level of
deference, a certain level of curial deference is warranted.
(3) The purpose of the statute and the provision in
question.
[26]
The objectives of the Act with respect to
refugees is set out in subsection 3(2) and is to provide a safe haven for
refugees while providing a fair and efficient procedure to achieve that end.
Ultimately, the refugee provisions of the Act are intended to meet Canada’s legal obligations with respect to
refugees under international law.
[27]
The Supreme Court in Pushpanathan above,
at paragraph 48 commented on the role of the IRB under the Act:
Nor can the
Board be characterized as performing a “managing” or “supervisory” function, as
was found in Southam and National Corn Growers. The Board itself
is not responsible for policy evolution. The purpose of the Convention – and
particularly that of the exclusions contained in Article 1F – is clearly not
the management of flows of people, but rather the conferral of minimum human
rights’ protection. The context in which the adjudicative function takes place
is not a “polycentric” one of give-and-take between different groups, but
rather the vindication of a set of relatively static human rights, and ensuring
that those who fall within the prescribed categories are protected.
[28]
The context in which the IRB must conduct its
assessment of the evidence and decide the claim is not a “polycentric” one as
that term is understood in the above jurisprudence. Rather, the question must
be determined in the context of the vindication of a specific claimant’s human
rights. This factor therefore militates towards a less deferential standard of
review.
(4) The nature of the question
[29]
The question under consideration is one of mixed
fact and law. The IRB must decide if the Applicant’s factual circumstances are
sufficient to establish that he has suffered “persecution” in the sense
intended under the Act. It is not a question where factual findings can be
easily divorced from the legal definition of “persecution”. In my view, the
factual component of the question remains an important element in the analysis.
Since findings of facts are within the purview of the IRB, this last factor
militates towards a certain level of deference to the IRB by a reviewing court.
[30]
Considering all the contextual factors above, in
my view, the appropriate standard for reviewing the IRB’s decision regarding
whether discrimination and harassment amounts to persecution is reasonableness simpliciter.
This conclusion is consistent with the findings of my colleagues in the
following cases: Canada (Minister of Citizenship and Immigration) v. Hamdan, 2006 FC 290 at paragraph 17; Al-Mahamud v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 334, 218 F.T.R. 205. The
standard of reasonableness basically involves asking: “After a somewhat proving
examination, can the reasons given by the Commission, when taken as a whole,
support the Commission’s decision?” At paragraph 56 of Canada (Director of Investigation
and Research) v. Southam, [1997] 1 S.C.R. 748, the
Supreme Court of Canada
described the standard of reasonableness simpliciter as follows:
An unreasonable
decision is one that, in the main, is not supported by any reasons that can
stand up to a somewhat probing examination. Accordingly, a court reviewing a
conclusion on the reasonableness standard must look to see whether any reasons
support it.
[31]
The Applicant argues that the IRB failed to
clearly articulate reasons for finding that he failed to provide credible
evidence of a well-founded fear of persecution or that he is a person in need
of protection. In so doing, the Applicant contends that the IRB erred in making
its credibility findings. The Applicant further contends that the IRB failed to
consider the cumulative effect of the numerous incidents of harassment and
discrimination in determining that the incidents did not amount to persecution.
The Applicant further contends that the IRB’s approach constitutes a selective
and limited assessment of the evidence. The Applicant also argues that the IRB erred
in relying only on one event to determine the Applicant’s lack of credibility,
namely the Applicant’s return to the UAE in 2004 to visit his family.
[32]
In my view the IRB did not reject the
Applicant’s evidence in respect to the incidents of harassment and discrimination
as alleged. In its reasons the IRB wrote, “Even if the panel were to accept
these assertions this does not, in the panel’s mind, constitute persecution or
a risk of serious harm.” The IRB made no negative credibility findings
regarding these incidents; it simply found that they did not amount to
persecution. A careful review of the record and particularly the transcript of
the testimony of the hearing before the IRB, establishes that the IRB did
consider the evidence before it. In its reasons it explicitly considered the
discrimination suffered by the Applicant in private school and at the hospital,
and also acknowledged that he was a victim of taunts and discrimination. I note
that none of the incidents of harassment and discrimination complained of by
the Applicant involved violence or warranted police intervention. None of the
incidents were reported to the authorities. The IRB also considered the
Applicant’s stateless status and associated implications of this status on his refugee
claim. I reject the Applicant’s contention that the IRB was limited and selective
in its consideration of the evidence. Upon considering the evidence
cumulatively, I am of the view that it was reasonably open to the IRB to
determine that the Applicant failed to provide credible evidence of a
well-founded fear of persecution. In concluding as it did on this issue, the
IRB committed no reviewable error.
B. Did the IRB err in failing to specifically analyze the
s.97 claim or in considering the Applicant’s subjective fear in its analysis?
[33]
The issue of whether the Applicant is a “person in need of protection”
is a mixed question of fact and law. Such decisions, when
considered “globally and as a whole” are reviewable on the reasonableness simpliciter
standard. See Demirovic v. Canada (Minister of Citizenship and Immigration)
2005 FC 1284, at paragraph 23, Kim v. Canada (Minister of Citizenship and
Immigration), 2005 FC 437, paragraphs 8-22; Herrada et al. v. Canada
(M.C.I.), 2006 CF 1004, paragraph 24; Yousef v.Canada (M.C.I.), 2006
FC 864, paragraph 17.
[34]
The Applicant maintains that the IRB failed to
differentiate the tests required by sections 96 and 97 of the Act, in that it
considered the Applicant’s subjective fear in the determination of his section 97
claim. He further contends that the IRB erred by failing to canvass, comment
upon or discuss his submissions as to the objective risk to life and risk of
cruel and unusual punishment.
[35]
A claim under section 97 of the Act requires
that the Board determine whether a claimant's removal would subject him
personally to the dangers and risks stipulated in paragraph 97(1)(a) and
(b) of the Act. The onus is on the Applicant to establish on a balance
of probabilities that his removal would subject him personally to the risks
stipulated in paragraph 97(1)(a) and (b) of the Act. Here, the
IRB made a clear finding that the Applicant had failed to do so. The Applicant
has failed to point to any evidence that would expose him personally to the
risk or danger stipulated in paragraphs 97(1)(a) and (b) of the
Act. A review of the documentary evidence on country conditions in the UAE reveals
little that would find application to the Applicant’s circumstances. In my view
the IRB committed no reviewable error in its treatment of the Applicant’s section
97 claim. Its determination, that the Applicant was not a person in need of
protection was reasonably open to it on the evidence.
C. Did the Board err in concluding that a denial of a
right of return does not constitute persecution?
[36]
The Applicant argues that the denial of his
right to return to UAE does constitute persecution under these circumstances. In
support of his claim, he cites Altawil v. Canada (Minister of Citizenship
and Immigration), [1996] F.C.J. No. 986 (QL), where Justice Sandra Simpson
states, at paragraph 11: “While it is clear that a denial of a right of return
may, in itself, constitute an act of persecution by a state, it seems to me
that there must be something in the real circumstances which suggests persecutorial
intent or conduct”. The Applicant also cites the following reasoning from the
Federal Court of Appeal in Thabet v. Canada (Minister of Citizenship and
Immigration) (C.A.), [1998] 4 F.C. 21, at paragraph 32: “To ensure that a
claimant properly qualifies for Convention refugee status, the Board is
compelled to ask itself why the applicant is being denied entry to a country of
former habitual residence because the reason for the denial may, in certain
circumstances, constitute an act of persecution by the state”.
[37]
The Applicant argues that the circumstances of
the denial of his right to return amounts to persecution. He concedes that the
UAE system of work permits is a law of general application; however, he submits
that the law adversely affects and creates a pattern of persecution for the
Applicant on the basis of his nationality. He maintains that whereas other
groups have the option of returning to their country of origin if they are
unable to remain in, or return to, the UAE, the Applicant cannot because he is
stateless. The Applicant further submits that the adverse effects of this law
are limited to the Applicant and those in his situation, and are obvious to the
UAE authorities who enacted the law. The Applicant submits that application of
this law by the authorities, in light of their knowledge of the adverse
effects, is persecutorial.
[38]
The above arguments are essentially the same as
those advanced by the Applicant in Altawil and dismissed by Justice
Simpson. Here it is conceded that the impugned law requiring work permits is a
law of general application. The Applicant has failed to point to any evidence
indicating real persecutorial intent or conduct which would result from the impugned
law. Absent such evidence, in the circumstances, I am left to conclude, as did
Justice Simpson in Altawil, that the IRB did not err in determining that
the denial of a right of return does not constitute persecution. As noted by
Justice Simpson in the penultimate paragraph in her reasons for decision in Altawil,
“…not all stateless persons are refugees. They must be outside the country of
their former habitual residence for the reasons indicated in the definition.
Where these reasons do not exist, the stateless person is not a refugee.”
6. Conclusion
[39]
Having found that the IRB committed no
reviewable error in disposing of the Applicant’s claim as it did, the
application for judicial review will be dismissed.
[40]
The parties have had the opportunity to raise a
serious question of general importance as contemplated by paragraph 74(d)
of the Act and have not done so. I am satisfied that no serious question of
general importance arises on this record. I do not propose to certify a
question.
ORDER
THIS
COURT ORDERS that:
1. The application for judicial review of the
Immigration and Refugee Board dated April 20, 2006, is dismissed.
2. No
serious question of general importance is certified.
“Edmond P.
Blanchard”
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