Docket: IMM-2087-16
Citation:
2016 FC 1300
Ottawa, Ontario, November 24, 2016
PRESENT: The
Honourable Mr. Justice Bell
|
BETWEEN:
|
|
LOTIFYA K.Q.
ALHEZMA
A.KA. LOTFIYA
ALHEZMA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
(Delivered orally from the Bench in Toronto, Ontario on November 17,
2016)
I.
Overview
[1]
This is an application for judicial review of a
decision by the Immigration and Refugee Board’s Refugee Protection Division
[RPD], in which Lotifya Alhezma’s [Ms. Alhezma] claim for refugee protection
was rejected. The RPD found that Ms. Alhezma was neither a Convention refugee
nor a person in need of protection, pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
[2]
For the reasons that follow, I would allow this
application for judicial review.
II.
Context
[3]
Ms. Alhezma is a stateless Palestinian. She was
granted a Jordanian passport that was eventually removed from her in 2011.
[4]
In 1991, Ms. Alhezma’s daughter attacked a
Jewish man, which created a series of problems for Ms. Alhezma. She was
summoned to appear before the Israeli authorities in Jerusalem, was questioned
several times, and her home was broken into. While her daughter was in prison,
she (the daughter) was involved in the death of another inmate. Once again, the
Israeli authorities questioned Ms. Alhezma.
[5]
Aware that conditions in Israeli jails for
Palestinians are difficult at best, the Applicant participated in various
demonstrations to raise awareness around those conditions. During the
demonstrations, Ms. Alhezma was attacked by Israeli security forces with rubber
bullets, tear gas, and with the butts of their rifles. On one occasion when Ms.
Alhezma was attacked with the butt of a rifle, she sustained a back injury for
which doctors recommended surgical intervention. She chose not to pursue the
surgery because of the risks it posed.
[6]
In 1993, Ms. Alhezma was summoned by Israeli
authorities, held, and interrogated for approximately fourteen hours following
the detonation of a car bomb near her home.
[7]
In 1998, Ms. Alhezma stopped attending
demonstrations due to the pain from which she suffered.
[8]
In 2003, Ms. Alhezma was picking olives in the
family orchard when two Israeli settlers threatened her and her fellow olive
pickers with a rifle, chased the group off the orchard, and set their vehicle
on fire. In that same year, Ms. Alhezma’s daughter Maysoun married a man
involved with the Palestinian armed resistance, who participated in the murder
of Israeli soldiers. As a result, Israeli authorities interrogated Ms. Alhezma
and searched her residence.
[9]
In 2011, Ms. Alhezma’s son Khaled returned to
visit her from the United States. The authorities came looking for him in the
night, and destroyed her home. She witnessed the Israeli authorities beat
Khaled, and throw her grandson against the wall.
[10]
Facing constant harassment from the Israeli
authorities, Khaled, his spouse and his six children left for the United States
to make a refugee claim. Ms. Alhezma joined them in January 2015. However, due
to a need for medication that the family could not afford, Ms. Alhezma returned
to Ramallah in March 2015 for treatment. Khaled later informed Ms. Alhezma that
he intended to make a refugee claim in Canada. Ms. Alhezma arrived in Canada on
December 4, 2015, where she sought refugee protection.
III.
Impugned Decision
[11]
The refugee claim included Ms. Alhezma, Khaled,
his spouse, and their six children. A hearing was held on April 6, 2016. The RPD
rejected Ms. Alhezma’s claim on April 20, 2016. It concluded that Ms. Alhezma
had proffered insufficient evidence to establish a valid claim under either
section 96 or 97 of the IRPA. The RPD accepted the refugee claims made by Khaled
and his four children who do not hold Egyptian citizenship.
IV.
Issues and Standard of Review
[12]
While Ms. Alhezma has raised multiple issues, I
indicated to the parties that I was particularly interested in whether or not
the RPD conflated the tests required by sections 96 and 97, and consequently reached
an unreasonable decision.
[13]
Ms. Alhezma contends that the standard of review
is correctness. I respectfully disagree. When a tribunal interprets or applies
its home statute, there is a presumption that the standard of review is
reasonableness: see, Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190 [Dunsmuir]; Alberta (Information and Privacy
Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at para 39, [2011]
SCJ No 61. This Court has concluded that an analysis of the legal requirements
under sections 96 and 97 of the IRPA attracts the standard of reasonableness (Kayitankore
v Canada (Minister of Citizenship and Immigration), 2016 FC 1030 at para 9,
[2016] FCJ No 1034).
[14]
This Court will not intervene if the decision is
justified, transparent and intelligible, and falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir,
above, at para 47).
V.
Analysis
[15]
To be considered a Convention refugee, a refugee
claimant must have a well-founded fear of persecution “for
reasons of race, religion, nationality, membership in a particular social group
or political opinion”.
[16]
As mentioned previously, Ms. Alhezma contends
the RPD applied the wrong legal test in it reaching its decision. In support of
her position, she cites five occasions in which the RPD applied the more
onerous section 97 test in its section 96 analysis. Those excerpts are set out
below:
Palestinians do suffer from restrictions in
their day-to-day lives in the West Bank, which can be a serious inconvenience
and lead to negative economic consequences, this is not unique and it
appears to target all or most people who reside in the West Bank.
…
There is insufficient evidence to conclude
that this claimant would be targeted outside of what the general populace
within the West Bank face as part of the hostilities between the parties.
…
The panel has considered the allegations of
fearing the settlers but the panel does not find this fear to be specific to
the claimant.
…
…there is nothing before the panel to
suggest the elder claimant was of interest to the IDF.
…
The
documentary evidence suggests that the elder claimant’s profile is not one
that would bring the attention of the IDF even with her testimony that she
had been detained a number of years previously. Nothing in her evidence
suggests that she is of interest to the IDF.
[My
emphasis.]
[17]
I note here that IDF is the acronym for Israeli
Defence Forces.
[18]
I agree with Ms. Alhezma’s contention. It is
evident from the above excerpts that the RPD, in its section 96 analysis,
sought a degree of personal risk to Ms. Alhezma which exceeded the risk to
Palestinians in general. Such an approach is appropriate to a section 97 analysis.
The question is not whether Ms. Alhezma is more at risk than anyone else, but
whether the persecution she would face upon returning to the West Bank is based
upon a Convention ground, such that she merits refugee protection (Fi v
Canada (Minister of Citizenship and Immigration), 2006 FC 1125 at para 14,
2007 3 FCR 400).
VI.
Conclusion
[19]
Given the RPD’s application of the section 97
criteria to its section 96 analysis, I am satisfied the decision does not meet
the test of reasonableness as set out in Dunsmuir, nor can I find any
basis by which it can be saved through the application of Newfoundland and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at para 26, [2011] 3 S.C.R. 708. I would allow the application for judicial
review, and remit the matter to a differently constituted panel for re-determination.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application for judicial review is allowed without costs. The matter is
referred to differently constituted panel for re-determination. No question is
certified for appeal.
“B. Richard Bell”
Email this Content