Docket: IMM-1003-16
Citation:
2016 FC 1355
Ottawa, Ontario, December 8, 2016
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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RANA ISMAIL
ABDUL RAHMAN
BASSAM IBRAHIM
GHABAIN
REEM IBRAHIM
BASSAM GHABAYEN
YASMEEN
GHABAYEN
IBRAHIM BASSAM
GHABAYEN
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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
[1]
Rana Ismail Abdul Rahman, Bassam Ibrahim
Ghabain, Reem Ibrahim Bassam Ghabayen, Yasmeen Ghabayen and Ibrahim Bassam Ghabayen
[collectively, the Applicants] have brought an application for judicial review
of a Refugee Protection Division [RPD] decision dated February 1, 2016, which
determined that the Applicants are neither Convention refugees nor persons in
need of protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001 c 27 [the Act].
[2]
Subsequent to the RPD decision, the Refugee Appeal
Division [RAD] dismissed the Applicants’ appeal for lack of jurisdiction because
they had entered Canada through the United States under an exception to the
Safe Third Country Agreement. As a result, the Applicants were not eligible to
appeal the negative RPD decision to the RAD under paragraph 110(2)(d) of the Act.
I.
Background
[3]
The Applicants are all stateless Palestinians.
The principal Applicant (Rana Rahman) and her three children were all born in
Kuwait and lived there their whole lives; they do not have citizenship in that
country. The male Applicant (Bassam Ghabain) was born in Gaza and moved to
Kuwait shortly thereafter. All of the Applicants have Egyptian travel documents
for stateless Palestinians.
[4]
At the age of 18, Mr. Ghabain left Kuwait to
attend school in Gaza. In October 1999, he graduated with a degree in Computer
Science from Al Quds Open University in Gaza. Immigration status for
Palestinians in Kuwait is dependent on sponsorship from Kuwaiti employers. Mr.
Ghabain returned to Kuwait, and from 1999 until May 2015, he was sponsored by
his employers in Kuwaiti when employed in a number of information technology
roles.
[5]
In his most recent role, Mr. Ghabain was
employed as a senior computer specialist with Kuwait Finance House. He held
this position from September 2004 until May 2015. In May 2015, Mr. Ghabain’s
employment contract was terminated as the government of Kuwait began enforcing
a policy compelling banks to employ a workforce that consisted of no more than
40% foreigners. He was given three months to find a new Kuwaiti employer who
would sponsor him, thereby allowing him and his family to remain in Kuwait.
[6]
Mr. Ghabain was unable to find a new employer
and thus secure immigration status through a new sponsor. Faced with the
possibility of being placed in detention for illegally being in Kuwait once
their Temporary Resident Permits expired, the Applicants applied for American
tourist visas, which were granted and issued in June 2015. The Applicants flew
to New York and then travelled to Buffalo before eventually entering Canada on
August 25, 2015, and filing a claim for refugee protection on September 6, 2015.
[7]
The Applicants’ claims were joined and heard
together by the RPD on October 20, 2015. The claims were rejected by the RPD on
December 11, 2015, and the Applicants were notified of the decision February 1,
2016.
[8]
The RPD determined the Applicants’ countries of
residency were Kuwait and Gaza. The RPD found that the Applicants did not have
a well-founded fear of persecution in Kuwait or Gaza on any of the five
Convention grounds and thus were not Convention refugees under section 96.
[9]
The RPD also determined that the Applicants
removal to Kuwait or Gaza would not personally risk their life or subject them to
a risk of cruel and unusual punishment or torture. The Applicants were
therefore found to not be persons in need of protection under section 97 of the
Act.
[10]
I will grant this application for the reasons
that follow.
II.
Issues
[11]
The Applicants presented a number of arguments
and issues that I do not need to address as I find that that there is a
determinative issue on these unique facts. The determinative issue is whether
the RPD ignored evidence and whether it failed to explain in their reasons why
the Applicants are denied entry to a country of former habitual residence?
III.
Standard of Review
[12]
The RPD decision is reviewable on the
reasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9, at paras
47-48).
IV.
Analysis
[13]
This Court recognizes, as did the RPD, that
statelessness alone does not confer refugee status. The leading case on the
treatment of stateless individuals is Thabet v Canada (Minister of Citizenship
and Immigration), [1998] 4 FC 21 [Thabet]. Linden J. writing for the
unanimous court said “There is no reason why stateless
persons should be any more or less accommodated in their claims to refugee
status.” That being said, the Federal Court of Appeal then set out the
test to be used when a person is stateless that recognized that there is
uniqueness to determine if they are a refugee, but have the test so there is no
advantage or disadvantage to the two groups when determining if they meet the
definition of being a convention refugee.
[14]
According to the test in Thabet, above,
the RPD had to first determine the Applicants’ habitual residences. In this
case, it was determined that the Applicants habitually resided in both Kuwait
and Gaza. The RPD then had to determine if on a balance of probabilities whether
the family would suffer persecution in any country of former habitual residence.
The RPD found the Applicants would not suffer persecution in either Kuwait or
Gaza.
[15]
Finally, the RPD had to consider whether the
Applicants could return to any of their countries of former habitual residence;
if not, the RPD 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” (Thabet, at para 32). The RPD is
to ask, if not being able to return to a country of habitual residence, is in
itself persecution and why they would not be able to return.
[16]
The Applicants argue that the RPD did not fully
address all of the reasons that they would be denied entry into their countries
of habitual residence or if that denial were persecution in itself.
[17]
The RPD determined that the family cannot return
to Kuwait as they are not employed and thus do not have a sponsorship and as
stateless individuals they would not be allowed entry.
[18]
Neither the principal Applicant nor the children
could follow the male Applicant to Gaza if he were removed there. The female
Applicant and her children could not as they have no documentation from and
have never lived in the Occupied Palestinian Territories.
[19]
The RPD failed to consider that the principal Applicant
and children were born and raised in Kuwait with no connection beyond the male Applicant
to any other state. This is a matter that the decision maker must engage in and
address in their reasons of which the decision maker did not, making the
decision unreasonable.
[20]
The RPD found that stateless persons in Kuwait
do not face persecution. Rather, there is some discrimination against all
non-Kuwaitis that may include restrictions on residency and movement.
[21]
The RPD looked at the principal Applicant’s
rights as a woman within Kuwait including her inability to sponsor her family
and found she would not be persecuted if returned to Kuwait.
[22]
The RPD findings directly contradict the
National Documentation Package (Country Information and Guidance: Kuwaiti
Bidoon, United Kingdom Home Office, May 20, 2014, at 3.1.5-3.1.6; see also Operational
Guidance Note: Kuwait, United Kingdom Home Office, January 2013 at
3.6.35-3.6.36), which specifically addresses the persecution of stateless
persons in Kuwait (known as “Bidoon”):
Undocumented Bidoon are subjected to
numerous infringements of their civil and human rights. Their lack of legal
status means they are not allowed to participate in the political process, they
have no right to work, are constantly at risk of arrest or detention and their
family relationships are effectively illegitimate.
Undocumented Bidoon living in Kuwait experience
discrimination so severe that it amounts to persecution. A grant of asylum will
therefore normally be appropriate in such cases.
[23]
The severity of the discrimination faced
particularly by the principal Applicant and children goes beyond discrimination.
Whereas foreign nationals who can no longer find work in Kuwait can be removed
to another jurisdiction, the mother and children are disproportionately
affected. They cannot claim citizenship, and cannot remain in Kuwait. They face
the risk of arbitrary and indeterminate detention. This may reveal that there
is prosecutorial intent or conduct in denying a right of return to the
Applicants. The decision failed to address the fact that if removed to Kuwait,
she and her children could face arbitrary and indefinite detention. The
decision is unreasonable in failing to address the evidence and whether failure
to be returned to a country is persecution in itself.
[24]
With respect to the Applicants’ claim of
persecution in Gaza, the RPD determined that while there is evidence that the treatment
faced by Palestinians in Gaza amounts to serious harm, it is not connected to a
Convention ground.
[25]
The RPD determined that Mr. Ghabain’s alleged
fear of being forcibly recruited into a political organization, thus giving rise
to an enumerated Convention ground, was not supported by the objective evidence
and the Applicants would not suffer persecution from any of the five grounds
from Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 [Ward].
[26]
The RPD did engage in finding that while there
is evidence that the treatment faced by Palestinians in Gaza amounts to serious
harm, it is not connected to a Convention ground and is of a general nature. The
RPD was guided by the guidelines (Guidelines on the Civilian Non-Combatants fearing
Persecution in Civil war Situations) when dealing with the applicants being returned
to civil war when they are compelled to leave as a result of armed national
conflicts such as exist in the Gaza Strip. The fact that an individual fears
returning to a civil armed conflict is not enough to be considered a refugee. The
RPD considered the embargo and siege tactics which severely curtail the lives
of the residents of the Gaza strip and that it amounts to serious harm but in
the end held that on these facts the fear was general and felt by all citizens.
[27]
What the reasons do not address is as the FCA
instructed, the RPD 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” (Thabet).
[28]
As noted previously, the principal Applicant and
the children would not be allowed to go to Gaza but that specifically was not
addressed nor was whether that denial would be persecution in itself given the
family separation and the fact they cannot go back to Kuwait without possible
incarceration. In addition, nowhere in the reasons is mentioned that Canada, since
November 27, 2012, has issued an Administrative Deferral of Removals [ADR] to
the Gaza strip. Re-entry into a country of habitual residence may not have
been denied as provided in the Convention but the error is the ADR was not
examined, as a reason the Applicants could not return to the Gaza Strip. The RPD
does not have to refer to all documents but the decision maker does have to
refer to the pertinent ones that go to the crux of the central elements of the
claim. This ADR is of course temporary and can change at any time but it has
been in place since 2012 and should be addressed as Canada does not lightly
issue ADR and this is one of significant duration.
[29]
The evidence before the RPD was that the family
cannot go back to either Kuwait or Gaza. This was of central importance to the
families claim and yet the 2012 ADR is not mentioned or referred to in the
reasons. This omission and lack of discussion in the reasons makes this
decision reviewable as it is unreasonable.
[30]
I will not comment on how the ADR will be
treated by the decision maker or if any of the Applicants’ arguments are meritorious,
but as the FCA has directed, the RPD is compelled to ask why the Applicants is
denied entry to a country when they are making a refugee determination
regarding stateless persons. Unlike in Altawil v Canada (Minister of Citizenship
and Immigration), [1996] FCJ No 986, and Karsoua v Canada (Minister of Citizenship
and Immigration), 2007 FC 58, the specific facts of this case go beyond a
law of general application.
[31]
The Court is not satisfied as to the existence
of justification, transparency and intelligibility within the decision-making
process, and find that the decision falls outside the range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir,
above, at paras 47-48).
[32]
The application is granted and will be sent back
to be heard by a different decision maker.
[33]
No certified questions were presented or arose.
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