Date:
20131107
Docket:
IMM-10581-12
Citation:
2013 FC 1122
Toronto, Ontario,
November 7, 2013
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
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KHALIL YOUNES AND KHAWLA
KHALIFE
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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 ORDER AND ORDER
[1]
The
present Application concerns a challenge by an elderly husband and wife who
claim refugee protection based on a well-founded fear of persecution in Lebanon
as stateless Palestinians. In the decision under review, dated September 19,
2012, the Refugee Protection Division of the Immigration and Refugee Board (the
RPD) rejected the Applicants’ claims under ss. 96 and 97 of IRPA on two
grounds: a finding of negative credibility with respect to the Applicants’
evidence; and a determination that the conditions the Applicants would face upon
a potential return to a refugee camp in Lebanon “may constitute discrimination,
but not persecution” (Decision, para. 24).
I. The Negative
Credibility Finding
[2]
With
respect to the RPD’s decision, it is necessary to repeat the established law
with respect to the making of a negative credibility finding as I have stated
in Istvan Vodics v Minister of Citizenship and Immigration, 2005 FC 783:
[10] With respect to making negative
credibility findings in general, and implausibility findings in particular,
Justice Muldoon in Valtchev v. Canada (Minister of Citizenship &
Immigration) (Fed. T.D.), states the standard to be followed:
6. The tribunal
adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C. 302
(C.A.) at 305, that when a refugee claimant swears to the truth of certain
allegations, a presumption is created that those allegations are true unless
there are reasons to doubt their truthfulness. But the tribunal does not apply
the Maldonado principle to this applicant, and repeatedly disregards his
testimony, holding that much of it appears to it to be implausible.
Additionally, the tribunal often substitutes its own version of events without
evidence to support its conclusions.
7. A tribunal may make
adverse findings of credibility based on the implausibility of an applicant's
story provided the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of cases, i.e., if
the facts as presented are outside the realm of what could reasonably be
expected, or where the documentary evidence demonstrates that the events could
not have happened in the manner asserted by the claimant. A tribunal must
be careful when rendering a decision based on a lack of plausibility because
refugee claimants come from diverse cultures, and actions which appear
implausible when judged from Canadian standards might be plausible when
considered from within the claimant's milieu. [see L. Waldman, Immigration Law
and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[Emphasis added]
[11] It is not difficult to
understand that, to be fair to a person who swears to tell the truth, concrete
reasons supported by cogent evidence must exist before the person is
disbelieved. Let us be clear. To say that someone is not credible is to say
that they are lying. Therefore, to be fair, a decision-maker must be able to
articulate why he or she is suspicious of the sworn testimony, and, unless this
can be done, suspicion cannot be applied in reaching a conclusion. The benefit
of any unsupported doubt must go to the person giving the evidence.
[12] [With respect to the
provision of clear reasons] [t]he Federal Court of Appeal impresses a
decision-making duty on the CRDD in Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199 (Fed.
C.A.) at paragraph 6 as follows:
In my view, the board
was under a duty to give its reasons for casting doubt upon the appellant's
credibility in clear and unmistakable terms. The board's credibility
assessment, quoted supra, is defective because it is couched in vague and
general terms.
In addition, as expressed in Leung
v. Canada (Minister of Employment & Immigration) (1994), 81 F.T.R. 303
(Fed. T.D.) at paragraph 14, the duty to be clear is linked to a requirement to
state the evidence:
The Board is under a
very clear duty to justify its credibility finding with specific and clear
reference to the evidence.
[Emphasis added]
[3]
In
the hearing before the RPD, the female Applicant primarily provided the sworn
evidence in support of the claim. The RPD’s concerns with respect to her credibility
are addressed in the following paragraphs of the decision rendered:
[10] The claimant indicated that the
principal reason the claimants left Lebanon was the alleged raid on their
residence in Lebanon, and assault on them, in August 2009. In addition, they
alleged that their home was ultimately taken by militant groups in 2011. For
credibility reasons, the Panel does not accept that either of these events
occurred. Explanation follows.
[11] The claimant indicated in
testimony that during the August 2009 event, she was kicked and hit, and there
was an attempt to remove her niqab. In addition, her husband was spat on in the
face and insulted. However, in the Narrative, it was only written that armed
men threatened them, and there was no mention of any physical assault. The
Panel also notes that no assault was mentioned IMM 5611, part of Exhibit R/A-2,
the Port of Entry (POE) Notes.
[12] The claimant did not require
medical attention for injuries suffered during this alleged assault, thus the
assault could not be documented by any medical records. She said she believed
she needed psychological help due to the event, but she did not take it. Thus,
the assault could not be documented by any medical records.
[13] The claimant was asked why
it was not mentioned in her Narrative that this assault occurred. Her answer
was that it was so traumatic to her that she did not wish to mention it. It was
pointed out to her that she had chosen to mention it at the hearing, thus she
was asked again why she had not mentioned it in the Narrative. She merely
repeated that it was traumatic, which was non-responsive. Especially given
that the alleged assault could not be documented, the Panel finds that its
mention at the hearing is an embellishment only, from which the panel makes a
negative inference as to credibility.
[…]
[16] The claimant was also
unable to provide documentary evidence that their home was confiscated by
militants in 2011 as they alleged. The Panel does note the two e-mails in
Exhibit C- 5, from persons close to the claimants, indicating that the home was
seized as alleged, and that the claimants requested that evidence thereof be
provided. None was. Considering the other concerns in regard to credibility
as noted herein, and given the fact that this is not documentary
third-party corroborative evidence, the Panel gives these e-mails relatively
little weight, insufficient to establish that the claimants are credible in
this regard. Thus, the Panel finds that this expropriation did not occur.
[Emphasis added]
[4]
With
respect to the female Applicant’s evidence that she was assaulted in the raid
on her home, the RPD found that the difference between the Port of Entry notes,
the PIF, and her evidence given during the course of the hearing to be of
critical importance. Within the seven lines of text in paragraph 13 of the
decision the RPD provides a line of reasoning which is based on the Applicant’s
evidence elicited by the RPD Member during the hearing of the claim beginning
with the statement “let me ask you a few questions”:
MEMBER: Okay, have you…what
problems have you had due to your gender?
CO-CLAIMANT: I was ill treated
and they persecuted me.
MEMBER: Can you be more specific,
give details? […]
[…]
CO-CLAIMANT: They persecuted me;
they used obscenities (inaudible) to me and since I happen to be a Muslim woman
this is contradictory to our traditions and our habits. They treated me very badly,
they kicked me with their feet and they tried to remove my Hijab off my head
...
MEMBER: They being, sorry? Who is
they?
CO-CLAIMANT: Those who attack us
in our house and who laid hand on our house.
MEMBER: Those who attacked our
house and what?
CO-CLAIMANT: And those who took
over our house.
MEMBER: I see and so they hit you
and kicked you?
CO-CLAIMANT: Yes, they did and
they also insulted my husband, they told him that he was unable to protect his
wife and they spat on his face.
[…]
MEMBER: Okay. Sorry I just need
to concentrate. Yes, so from the beginning, did they also beat your husband?
CO-CLAIMANT: One of them was
about to beat him but they observed that he was exhausted and was very sick.
MEMBER: I see and you they kicked
and hit?
INTERPRETER: They?
MEMBER: You they kicked and hit?
CO-CLAIMANT: Yes.
MEMBER: Did you require medical
attention?
CO-CLAIMANT: No, but I believe l
was in need of a psychologist.
MEMBER: Did you seek mental
health care?
CO-CLAIMANT: No, I did not. What
was our minds then was how to get rid of this situation we were in. They did
certain gestures that were
MEMBER: Gestures, yeah, yeah.
CO-CLAIMANT:…that were so obscene
I really wished that the ground would cleave and get me into that hole.
MEMBER: Oh, I understand. Why is
it that you did not mention in your narrative that you were beaten?
CO-CLAIMANT: Because I would not
really want to live through it again, whenever I think about it or talk about
it it all gets almost refreshed in my mind.
MEMBER: Well you mentioned it
today; why not in your pif narrative?
CO-CLAIMANT: I did not wish
really to think about it so much and put it on paper and re-live it, love [sic]
it over again.
(Tribunal Record, pp. 583-586)
[5]
It
is obvious from the transcript that the Applicant was responsive to the RPD
Member’s questioning to add further evidence to the Port of Entry and PIF
statements. It appears that the RPD Member simply did not accept the
Applicant’s evidence that trauma was her reason for not providing the statements
in the initiating documents. I find that the rejection of the Applicant’s reason
for not mentioning the assault in her PIF constitutes an implausibility
finding: that is, it is implausible that the trauma she testifies to is a
reason for not mentioning the assault. According to the decision in Valchev,
to reach this finding the RPD was required to conclude that the Applicant’s
evidence was “outside the realm of what could reasonably be expected”. There is
no such finding.
[6]
In
my opinion, the RPD Member failed to provide a clear and unmistakable reason
for disbelieving the Applicant’s sworn testimony provided in answer to the
questioning conducted. Therefore, I find that the RPD’s negative credibility
finding is erroneous.
[7]
With
respect to the fact that the Applicants did not claim protection for a year and
a half following their arrival in Canada, the RPD found as follows:
[19] Considering all the
above, the Panel finds that the claimants' behaviour indicated that they did
not have a subjective fear of a return to Lebanon. They claimed to have
feared Lebanon throughout, and to have come to Canada to escape Lebanon. Yet,
they made no claim for over a year and a half after arrival, and made no
efforts to even research how they might make a claim. She claims that the
alleged expropriation of their residence in 2011 spurred their decision to
claim, but the Panel has found [in paragraph 16] that no such expropriation
occurred. Further, given that the claimants claim to have feared Lebanon,
and the Panel finds from their behaviour that they did not, from this the panel
makes a negative inference as to credibility.
[20] Given all the above
credibility concerns, the Panel finds that the claimants' evidence, overall,
has not been credible, and thus insufficient to support their claim for refugee
protection.
[Emphasis added]
Paragraph 19 of the decision
establishes that the erroneous negative credibility finding made in paragraph
13 had a pervasive and perverse effect throughout the decision and, indeed,
even resulted in the conclusion that the Applicants had not established a well-founded
subjective fear in making their claim.
[8]
In
addition, as an element of the negative credibility finding made in paragraph
13, the RPD Member expected documentation to substantiate the assault of the
Applicant. Indeed, as stated in paragraph 12 of the decision, there was no
documentation of the assault because the Applicant did not require medical
attention. As set out in paragraph 16 of the decision, the RPD also expected
documentary evidence to support the Applicants evidence that their home was
confiscated in 2011, but effectively rejected two emails supplied as evidence
of this fact. I find that the rejection was erroneously made because the
evidentiary worth of the emails was not considered independently from the erroneous
negative credibility finding with respect to the female Applicant’s evidence.
[9]
Given
the detrimental impact of the RPD’s erroneous negative credibility finding on
the Applicants’ claim for protection, the decision under review must be set
aside. However, there is also a second reason.
II. The Discrimination
vs. Persecution Finding
[10]
Because
the Applicants’ identity as stateless Palestinians returning to Lebanon was
accepted by the RPD, the RPD properly concluded that a persecution vs.
discrimination determination was required.
[11]
In
the result, the RPD did not make a finding of persecution of Palestinians in
Lebanon. The entirety of the RPD’s reasons for reaching this conclusion are as
follows:
[24] It is incumbent on the Panel
to make a determination as to whether the conditions the claimants would
have to live under in the event of a potential return to Lebanon amount to
persecution, or is simply discrimination and/or harassment, which latter
classification would not result in refugee protection. This analysis
assumes that they would live in their former refugee camp, Ain El Hilweh, and
in their former residence, as the Panel has not accepted the allegations that
their home was damaged and then confiscated, or indeed that they were ever
personally attacked. The starting point is whether the potential harm to
claimants is a serious one. Another way of stating the test is whether any
core human right of the claimants would be denied should he return to Lebanon
and live in a refugee camp for Palestinians. Summarizing the evidence, it
appears that UNWRA supports the residents of the camp to a significant extent.
There have been no allegations that Palestinian refugees do not have enough to
eat or accommodation. Basic education and some health care is provided. Thus,
the populace appears to be able to live a basic life with the essentials of
life provided. This is not to say that this is a desirable way to live one’s
life, only that it is adequate for persons to live their lives with their
essential needs fulfilled. The Panel notes the other restrictions such as not
having the right to vote, be citizens, or have fully unfettered access in the
country. However, the Panel does determine that these conditions do not
derogate from its finding, which it makes, that the conditions the claimants
would face upon a potential return to Lebanon and a refugee camp may constitute
discrimination, but not persecution.
[25] It is also noted from Item
2.3 that "Over the last three years, the government, in coordination with
UNRWA, has taken concrete steps to improve relations between Palestinian
refugees and the Lebanese community and address the housing conditions in the
camps". Thus, there is in addition reason to believe that the conditions
of Palestinian refugees in Lebanon will improve.
[26] The Panel has also reviewed
the very extensive documentation provided in the submission. However, these
do not derogate from the Panel’s finding herein that the situation of stateless
Palestinians in Lebanon does not amount to persecution.
[27] In that regard the Panel
notes the particular situation of the claimants, as indicated by the visa
application in Exhibit RJA-4. The documents therein indicate that the claimants
owned property and a vehicle, and appeared to have significant financial
resources. In addition, as discussed in testimony, the claimants traveled
frequently and for trips of significant durations, further evidence that they
personally, at least, were relatively prosperous and by no means surviving at
the margins of existence, as other residents of Palestinian refugee camps might
be.
[28] There was also evidence
provided of danger in the camp due to fighting amongst Palestinian factions.
This is unfortunate indeed. However, any risk to the claimants from this, the
Panel finds, is in the category of generalized risk, as the camps apparently
can be generally dangerous places, subject to violence by militants. It is
remembered, though, that the Panel has-found that these claimants have not been
personally targeted.
[29] Counsel has provided a very
large amount of printed material, in Exhibits C-4 and C-5 as well as the
submission, which indicate that the camps can be a generally dangerous place,
subject to violence. As indicated above, though, the Panel has found
this danger to be of generalized violence, for which the claimants are not
entitled to refugee protection. The exhibits confirm the existence of the
militant group that the claimants alleged seized their property. However,
the Panel has found that there has been no such seizure.
[30] As a result of the above
analysis, the Panel finds that the claimants do not have a well-founded fear of
persecution, or a risk to their life, or a risk of cruel and unusual treatment
or punishment, or a danger of torture upon a potential return to Lebanon.
[31] The Panel thus finds the
claimants to not be Convention refugees under s. 96 nor persons in need of
protection under s. 97 of the IRPA.
[Emphasis
added]
[12]
I
agree with Counsel for the Applicants’ following argument that the RPD utterly
failed to address the evidence on the issue at hand, to present a credible
analysis of that evidence, and further, the decision rendered disregards and
misstates crucial documentary evidence about the plight of Palestinians in
Lebanon:
It is respectfully submitted that
the R.P.D. Panel erred by unreasonably determining that what the Applicants
faced in Lebanon “may constitute discrimination” as opposed to the
factually-based and more serious level of systematic ‘persecutory
discrimination’. Evidently, the R.P.D. Panel’s Decision was based on an overly
simplistic interpretation of the voluminous documentary evidence filed by the
Applicants, which focused on the past, present and future plight of the
stateless-Palestinian minority population of Lebanon. Moreover, the Panel
failed to make reference to and assess the pivotal documentary evidence before
it, which amply supported the Applicants’ required past and anticipated
persecutory discrimination, mistreatment and compelling risks of harm.
[…] Seen in the most positive
light, the stateless-Palestinians of Lebanon have been and continue to be the
beneficiaries of an on-going cycle of exclusion, suffering, deplorable neglect,
misery, insecurity and despair. It is clear that the Panel simply did not
carefully analyze the overwhelming documentary evidence in light of the
particular circumstances of the Applicants, which it was obliged to do.
In short, the matter of the
Applicants is not one in which the R.P.D. Panel’s dismissive, “cookie-cutter”
or “proforma” - style analysis will suffice and, as a result, serious doubts
may be cast on the thoroughness and accuracy of its analysis and findings, in
its totality.
Moreover, it is submitted that
the R.P.D. Panel in its Reasons, erred by both disregarding and misstating
material documentary evidence before it and improperly making selective use of
the evidence, which led to it erroneous findings of fact, concerning the issue
of the Applicants’ plight as stateless-Palestinians in Lebanon.
As noted by the Federal Court,
in the context of a failed Refugee Claim, in the matter of Simpson v. Canada
(11, August, 2006, IMM-5326-05 (F.C.A):
“While it is true that there is
a presumption that the Board considered all the evidence, and there is no need
to mention all the documentary evidence that was before it, where there is
important material evidence on the record that contradicts the factual finding
of the Board, a blanket statement in the Decision that the Board considered all
of the evidence will not be sufficient. The Board must provide reasons why the
contradictory evidence was not considered relevant or trustworthy.”
(Applicants’ Memorandum of
Argument, paras. 25 - 26)
[13]
With
respect to the RPD’s opinion stated in paragraph 24 of the decision that the
identification of violations of core human rights is critical in reaching a
determination of persecution of Palestinians in Lebanon, Counsel for the
Applicants argues that cogent evidence on the record was not considered:
In the article entitled
“Persecution faced by Palestinian Refugees in Lebanon” from the website
http://refugees.resist.ca/document/ situationlebanon.htm, the following is
noted:
The treatment of Palestinian
refugees in Lebanon has been recognized to constitute a violation of a plethora
of basic human rights. Amnesty International reported in 2003 that the Lebanese
treatment of stateless Palestinians is in violation of:
• The International
Covenant on Economic, Social, and Cultural Rights;
• The International
Covenant on the Elimination of All Forms of Racial Discrimination;
• The Convention on
the Rights of the Child;
• The International
Covenant on Civil and Political Rights;
• The Convention on
the Elimination of All Forms of Discrimination Against Women, and;
• The Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Canada has either ratified
or acceded to each of these instruments. Palestinians in Lebanon face systematic discrimination that jeopardizes their capacity to attain the
essentials of a safe and healthy existence.
Jordan, Lebanon, and Syria have the largest Palestinian refugee populations. Those in Lebanon probably suffer the most out of these three communities. For them, the pain
associated with the loss of their homes, the decades of exile in foreign
countries is aggravated by a policy of systematic discrimination against them.
According to UNRWA, the hundreds
of thousands of Palestinian refugees in Lebanon have the highest rate of people
living in “abject poverty” of all the Palestinian refugee communities they
serve.
Palestinian refugees were subject
to arrest, detention, and harassment by state security forces, Syrian forces,
and rival Palestinians.
United Nations Relief and Works
Agency (UNRWA), Amnesty International and the Palestinian Human Rights
Organization have recognized that, as a result of this systematic
discrimination, Palestinian Refugees in Lebanon are almost entirely dependent
on UNRWA for basic services.
UNRWA is, however, unable to
provide these services, due to budget constraints.
Since 1994, UNRWA has been facing
serious budget shortages which have affected the quality and scope of the
services it renders.
For over 50 years, [Palestinian
refugees] have been excluded from the international system for the protection
of refugees.
The lack of adequate assistance
is only one of the failures of the international community towards Palestinian
refugees living in UNRWA’s area of operation. Unlike other refugees, they are
not protected by the 1951 Convention relating to the Status of Refugees or the
United Nations High Commissioner for Refugees (UNHCR). Both the 1951 Convention
and the Statute of UNHCR exclude Palestinian refugees from international
protection. Ironically, like the Lebanese law barring [Palestinian refugees]
from owning property in Lebanon, the Convention and the Statue do not
explicitly exclude Palestinian refugees; rather, they exclude anyone who
receives assistance from other organs of the United Nations. Here again,
Palestinian refugees find themselves singled out.
Thus, because of their unique
situation, Palestinian refugees in Lebanon have been denied virtually every
available means of securing their basic rights:
The exceptional
condition of Palestinian statelessness and Palestinian dispersal extends itself
to all political, economic, social and humanitarian spheres.
Harsh discriminatory practices by
the Lebanese government and the incapacity of lack of UNRWA to fulfil its
mandate have driven Palestinian refugees into a situation characterized by
abject poverty, isolation, and persecution.
This deplorable situation is also
highly unlikely to improve in the foreseeable future.
(Applicants’ Memorandum of
Argument, para. 37)
I agree with this argument. As a
result, I find that the RPD failed to reach a supportable discrimination vs.
persecution determination as required, and, thus, for this second reason the
decision must be set aside.
ORDER
THIS
COURT ORDERS that the decision under review is set aside
and the matter is referred back for redetermination by a differently
constituted panel.
There is no question to
certify.
“Douglas
R. Campbell”
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