Docket: IMM-729-16
Citation:
2016 FC 1101
Toronto, Ontario, October 4, 2016
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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NADER HUSSEIN K KADDOURA
HEBA A ZAIDAYH
LARINE KADDOURA
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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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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (“IRPA”). The Applicants challenge a decision of the Refugee Protection Division
of the Immigration and Refugee Board (“RPD” or the “Board”), dated January 26,
2016, wherein they were found not to be Convention refugees or persons in need
of protection pursuant to sections 96 and 97 of the IRPA.
[2]
The Applicants are stateless Palestinians born and
raised in Saudi Arabia. The male Applicant, Mr. Kaddoura and his daughter,
Larine Kaddoura, hold a Lebanese Travel Document. The female Applicant, Heba A
Zaidayh, holds an Egyptian Travel Document. The family has never resided in
Lebanon or Egypt. The adult Applicants were educated in Jordan but have no
status there. Mr. Kaddoura’s residency permit for Saudi Arabia expired in
October 2015.
[3]
In February 2013 Mr. Kaddoura travelled to the
United States (“US”) on a visitor visa and stayed for a few weeks with relatives
in Michigan. While there he made no inquiries about asylum in Canada or the US.
Mr. Kaddoura returned to Saudi Arabia and married Ms Zaidayh in July 2013.
Their daughter was born in February 2015. He testified that he had spoken with
his family in Canada and the US and obtained US visas in August 2015 with the
intention of coming to Canada to make a claim. He stated that he was told that
making a claim in the US would be costly, take a long time and would have only
a limited chance of success. No attempt was made to obtain a visa to come
directly to Canada but Mr. Kaddoura testified that he had discussions and
exchanged messages with an immigration consultant in Canada.
[4]
On November 3, 2015 the family travelled
together to the US on six month visitor visas. They remained in Detroit,
Michigan for three weeks visiting his Aunt and her family. On November 24, 2015
the Applicants made their refugee claim at the Port of Entry in Windsor,
Ontario alleging discrimination amounting to persecution in Saudi Arabia. The
reasons cited in the Basis of Claim documents and Mr. Kaddoura’s evidence for
not claiming in the US were the difficulties mentioned above and their desire
to be reunited with his paternal uncle in Edmonton, Alberta.
II.
DECISION UNDER REVIEW
[5]
The Board determined that the Applicants are
neither Convention refugees under section 96, nor persons in need of protection
under section 97 of the IRPA. It found that the Applicants’ last country of
habitual residence is Saudi Arabia, based on the male Applicant’s testimony and
the filed copies of their travel documents. The Board also found that they had
no other country of habitual residence available to them.
[6]
The Board found that the Applicants had made no serious
effort to apply for asylum in the US. While the Board recognized that such a finding
and delay in claiming are not determinative, it concluded that in this case
they were significant factors undermining the subjective basis of the
Applicants’ claims. The Board was not persuaded by the Applicants’ explanation
of the reasons for why they did not claim asylum in the US. In particular, the
Board noted the lack of any evidence presented by the Applicants to support
their assertions about the difficulties they would face in claiming in the US.
[7]
The IRPA’s objective of family
reunification was not relevant to the claim, in the Board’s view, as it did not
accept the male Applicant’s explanation that their claim was motivated by the
presence of family in Canada (the paternal uncle in Alberta). As of the time of
the Board hearing, the Applicants had not travelled to meet the paternal uncle
and his family; nor had that family come east to meet the Applicants. Mr.
Kaddoura testified that his plan was “to be independent
and rely on myself and finish or pursue our, my education, my wife and I and
then after we’ve settled I might go”. They also had family in the US
with whom they had remained close. The Detroit based Aunt, for example, had
travelled to Toronto to look after the baby during the hearing.
[8]
In the result, the Board concluded that the
Applicants did not demonstrate a well-founded fear of persecution on a
Convention ground. Finding that was the determinative issue, the Board did not
consider it necessary to address other elements of the Applicants’ claim.
III.
ISSUES
[9]
Having considered the parties’ submissions, I
would describe the issues as follows:
A. Did the Board err in finding that the Applicants lacked subjective
fear by not claiming asylum in the US?
B.
Was the Board’s negative credibility finding
made in a capricious manner without regard to the material before it?
C.
Did the Board err in finding that the
Applicants’ only country of former habitual residence is Saudi Arabia?
IV.
ANALYSIS
[10]
There is no disagreement between the parties that
the applicable standard of review for each of these issues is reasonableness. The RPD is a specialized tribunal which is owed deference. The Court
should not intervene unless the Board’s decision does not fall within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47.
[11]
The determination of the country of former
habitual residence of a stateless person is a question of fact attracting the
standard of reasonableness: Marchoud v Canada (Minister of
Citizenship and Immigration), 2004 FC 1471 at para 10. It is
well-established that boards and tribunals are ideally placed to assess the
credibility of refugee claimants: Iqbal v Canada (Minister of Citizenship and
Immigration), 2014 FC 415 at para 15; Aguebor v Canada (Minister of
Employment and Immigration), 160 NR 315, [1993] FCJ No 732 (FCA) at para 4.
[12]
A finding that the subjective component of the
bipartite test for establishing fear of persecution is lacking is sufficient to
deny the claims: Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at
para 46; Adjei v Canada (Minister of Employment and Immigration), [1989]
2 FC 680 (FCA). A delay in making a refugee claim is a relevant consideration
in assessing an applicant’s subjective fear: Ortiz Garzon v Canada (Minister
of Citizenship and Immigration), 2011 FC 299 at para 30.
[13]
In Mejia v Canada (Minister of Citizenship
and Immigration), 2011 FC 851, at paragraphs 14 and 15, I stated that:
[14] Delay points to a lack of subjective
fear of persecution or negates a well-founded fear of persecution. This is
based on the rationale that someone who is truly fearful would claim refugee
status at their first available opportunity: Espinosa v Canada (Minister of Citizenship and Immigration), 2003 FC 1324 at para 16;
[15] Recently, in Jeune v Canada
(Minister of Citizenship and Immigration), 2009 FC 835 at para 15, this
Court found that the applicant’s failure to claim asylum at his first
opportunity further undermined his credibility.
[14]
In Garavito Olaya, v Canada (Minister of
Citizenship and Immigration), 2012 FC 913, a decision relied upon by the
Board, Justice O’Keefe found that absent a satisfactory explanation for the
delay, such delay can be fatal to an applicant’s claim. He stated at paragraph 54:
In this case, it is notable that the
applicants remained in the U.S. less than a week. However, as they held
six-month U.S. visitor visas, there was no legal impediment to them staying
longer and filing asylum claims there. Furthermore, the mere fact that the
applicants have one relative living in Canada is not a sufficient basis to
overcome the fact that they did not claim refugee status in the U.S. “as quickly as possible”.
[15]
Justice O’Keefe also found, at paragraph 30,
that it was reasonable for the Board to conclude that the failure to apply for
asylum in the US because it would be granted more easily and faster in Canada were
not valid reasons for negating the adverse inference that he lacked subjective
fear.
[16]
In this matter, the adverse credibility finding,
although not determinative, was also reasonably open to the Board. The Board
had provided the Applicants an opportunity to explain the reasons for the delay
in making a refugee claim and it clearly set out its concerns with respect to
the underlying issue of subjective fear and credibility. It was open to the
Board to make an adverse credibility finding based on the evidence before it.
[17]
The Board considered both of the male
Applicant’s explanations for not claiming asylum in the US: the difficulties
alleged to be inherent in the US process and his desire to reunite with his
Uncle in Edmonton. Given the lack of evidence it was reasonable for the Board
to discount the first explanation. It was open to the Board to conclude that
the Applicants had made no serious efforts to either inform themselves of the
process in the US or to claim asylum at their first opportunity. It was also reasonable
for the Board to conclude that family reunification was not a motive for the
Applicants’ claim in Canada.
[18]
The Board did not err in finding that the
Applicants’ only country of former habitual residence is Saudi Arabia. The
Applicants argue that the Board should have considered the fact that they have
travel documents for both Lebanon and Egypt and considered whether those were
countries of habitual residence available to them.
[19]
In Kadoura v Canada (Minister of Citizenship
and Immigration), 2003 FC 1057, a case also involving a stateless Palestinian applicant, Justice
Martineau held that travel documents and other documents in the applicant’s
possession that had been issued by the Lebanese authorities were not conclusive
evidence of habitual residence.
[20]
At the oral hearing, the
male Applicant testified that, with the exception of living in Jordan while
being students, neither he nor his wife has ever resided in any country outside
of Saudi Arabia. The entry and departure stamps from Lebanon in his travel
document are evidence only of transit through that country. Their counsel’s
representations at the hearing were based solely on Saudi Arabia being the only
available country of habitual residence. I am satisfied that the Board’s
finding that the Applicants could raise a reasonable fear of persecution with respect
to Saudi Arabia alone was reasonable.
[21]
Given its negative credibility finding on the
subjective basis of the claim under section 96, the Board did not err in not
conducting a separate section 97 analysis.
[22]
In the result, the application for judicial
review is dismissed. No questions were proposed for certification.
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