Docket: IMM-2617-16
Citation:
2017 FC 282
Ottawa, Ontario, March 16, 2017
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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AHMAD CHEHADE
RAFIFA HAMOUD
IBRAHIM CHEHADE
YARA CHEHADE
MOHAMAD CHEHADE
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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]
This is an application for judicial review of
the decision of Refugee Protection Division (“RPD”) of the Immigration and
Refugee Board of Canada, dated June 6, 2016, which determined that the Applicants
were neither Convention refugees nor persons in need of protection pursuant to
ss 96 and 97, respectively, of the Immigration and Refugee Protection Act,
SC 2001, c 27 (“IRPA”).
Background
[2]
The Applicants are a family of five; they are
all stateless Palestinians holding Lebanese travel documents. The Principal
Applicant, Ahmed Chehade, and all three minor applicants were born in the
Kingdom of Saudi Arabia (“Saudi Arabia”). The female Applicant, Rafifa Hamoud,
was born in the United Arab Emirates (“UAE”) and moved to Saudi Arabia when she
married the Principal Applicant. The Applicants have lived in Saudi Arabia or
the UAE all of their lives.
[3]
The family would, on occasion, travel to Lebanon
for vacation or to visit family. They claim that during one such visit, in
June 2013, the Principal Applicant was attacked and stabbed by members of Jund
El Sham in the Ein El Helweh refugee camp where he was staying. He was
hospitalized for three days and claims that threats against him and his family
from the Jund El Sham were received during that time. The Applicants ended
their vacation early and returned to Saudi Arabia.
[4]
The Applicants claim that on November 15, 2015,
the Principal Applicant was given notice that his job in Saudi Arabia was
terminated. The Principal Applicant tried to find a new sponsor before
February 15, 2016, the date when he would be required to leave Saudi Arabia if
he could not find employment. As he was not successful, and fearing that they
would be removed to Lebanon where they would be at risk, the family obtained
visas for the United States and flew there on February 7, 2016. They entered
Canada on February 12, 2016 and claimed refugee protection at the port of
entry.
[5]
The Applicants allege a fear of persecution in
both Lebanon and in Saudi Arabia. They claim that they have no legal right of
return to Saudi Arabia as the Principal Applicant’s temporary residence there
was dependent on his employment. In the result, if returned there, they would
be deported to Lebanon where their lives are in danger.
Decision Under Review
[6]
The RPD identified four issues in the claim.
These were whether the Applicants established their identity; whether they were
credible; what was their country of former habitual residence; and, whether
they have a well-founded fear of persecution in the country of former habitual
residence.
[7]
With respect to identity, the Member was
satisfied that all of the Applicants were stateless Palestinians who travelled
on Lebanese documents.
[8]
With respect to credibility, the RPD cited some
concerns but found that the Principal Applicant was generally credible. Further,
that he had provided corroborating evidence with respect to the incident in
Lebanon. The RPD was satisfied that on a balance of probabilities the incident
did in fact occur.
[9]
The RPD noted, because the Applicants are
stateless, that it must determine their former habitual residence. This was
straightforward because the Applicants had only ever lived in Saudi Arabia or,
in the case of the female Applicant, in the UAE but she had been in Saudi
Arabia since marrying the Principal Applicant many years ago. The RPD noted
counsel’s argument that Lebanon should be considered the family’s former
habitual residence, however, determined that this was not the case given that
the Applicants had spent a limited amount of time there and had no long standing
or permanent intention to reside in Lebanon. It found that Saudi Arabia was
their country of former habitual residence.
[10]
The RPD noted that the Applicants’ Iqamas, being
their Saudi residence permits, indicated that they were valid until the end of
2016. This strongly suggested that the family could return to Saudi Arabia
which meant that the right of return was not relevant.
[11]
The RPD also noted the submission by counsel for
the Applicants that Palestinians in Saudi Arabia suffer discrimination on the
basis of their nationality. However, given the Principal Applicant’s success
and the family’s lack of problems in Saudi Arabia, the RPD did not accept that
they had been discriminated against.
[12]
The RPD concluded that Saudi Arabia was the
Applicants’ country of former habitual residence. The Principal Applicant had
indicated that the family had no problems there, other than the loss of his
job, and the RPD found that the Applicants had not established a well-founded
fear of persecution in Saudi Arabia nor are they persons in need of protection
on the basis of any issues faced in Saudi Arabia due to their Palestinian
ethnicity. Further, that their Iqamas were still valid until the end of the
year and they could, therefore, return to Saudi Arabia. Accordingly, their
claims were rejected.
Issues and Standard of Review
[13]
Although in their written submission the
Applicants listed a number of issues, in my view, these are all captured within
the question of whether the RPD’s decision was reasonable, thereby attracting
review on that standard (Rahman v Canada (Citizenship and Immigration),
2016 FC 1355 at paras 11-12; Choudry v Canada (Citizenship and Immigration),
2011 FC 1406 at para 18). In reviewing a decision for reasonableness, the
reviewing Court is mostly concerned with the existence of justification,
transparency and intelligibility within the decision making process but also
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47).
Positions of the Parties
Applicants’ Position
[14]
The Applicants submit that the RPD erred by
ignoring or misconstruing their evidence that their immigration status in Saudi
Arabia was always that of temporary residents, which had to be renewed
annually, and that they have no right of return to Saudi Arabia. This is
because the Principal Applicant’s temporary resident permit ceased to be valid
when his employment was terminated and he was unable to secure new employment
by February 15, 2016, being the date by which the Principal Applicant was
required to find a new employment sponsor, leave Saudi Arabia or face
deportation. Further, that the Applicants feared being harmed by Saudi
authorities if they tried to re-enter without an employer-sponsor.
[15]
The Applicants also submit that the RPD erred by
finding that Lebanon was not a country of former habitual residence for the
Applicants. Lebanon is a country of former habitual residence because the
Applicants have Lebanese travel documents for Palestinian refugees. The
Applicants cite Article 28 of the United Nations Convention Relating to the
Status of Refugees, Can TS 1969 No 6 in support of this position. They submit
that the RPD failed to consider their connection to Lebanon including their United
Nations recognition, family ties, time in Lebanon, and issuance of travel
documents. Lebanon has issued travel documents for Palestinian refugees,
presumably because it considers them to be refugees who are lawfully staying in
their territory with a legal obligation towards them. In that regard, the
Federal Court of Appeal in Thabet v Canada, [1998] 4 FC 21 (FCA) (“Thabet”)
at paragraph 28 acknowledged that there is a need to maintain symmetry between
citizens and stateless persons and the Applicants submit that one comprehensive
method of determining a country of reference is by the passport or travel
document one holds. In this case, the Applicants hold Lebanese travel
documents therefore it is logical to conclude that Lebanon is a country of
reference or country of former habitual residence. Lebanon is the only country
they may return to. Further, that if returned, the Applicants are in danger,
as the RPD found the Principal Applicant’s evidence as to the attack in Lebanon
to be credible.
Respondent’s Position
[16]
The Respondent submits that the onus was on the
Applicants to establish that they were outside of Saudi Arabia, their country
of former habitual residence, due to a well-founded fear of persecution based
on one of the Convention grounds (Maarouf v Canada (Minister of Employment
and Immigration), [1993] FCJ No 1329 (FCTD) at para 33 (“Maarouf”); Thabet
at para 16; Arafa v Canada (Minister of Employment and Immigration), [1993]
FCJ No 1286 (FCTD) at para 8 (“Arafa”)).
[17]
Further, that the RPD did not ignore the
Principal Applicant’s evidence that his job has been terminated, he was unable
to find new employment, and that because he was unemployed his family cannot
return to Saudi Arabia. Rather, the RPD noted that although the Principal
Applicant alleged that he looked for employment before coming to Canada, he
provided no documentation in support of this fact. Further, that the Applicants’
Iqamas were valid until the end of the year which strongly suggested that the
Applicants could return to Saudi Arabia. The Respondent also submits that Daghmash
v Canada (Minister of Citizenship and Immigration) (1998), 149 FTR 280
(FCTD) (“Daghmash”), a decision cited by the Applicants, is inapplicable
as in that case the applicant’s Iqama had expired. In any event, its reasoning
actually supports the RPD’s decision.
[18]
The Respondent submits that the RPD reasonably
concluded that Lebanon is not the Applicants’ country of former residence,
which finding is supported by jurisprudence of this Court. In Kadoura v
Canada (Minister of Citizenship and Immigration), 2003 FC 1057 (“Kadoura”),
this Court rejected a stateless Palestinian’s argument that Lebanon should be
considered his country of former habitual residence even though he had never
actually lived there. Further, the Applicants’ argument that the RPD should
have considered whether they could return to Saudi Arabia before finding that
it was their country of former habitual residence, is contrary to this Court’s
finding in Maarouf at paragraph 44 which held that a refugee claimant
does not have to be legally able to return to a country in order for it to be a
country of former habitual residence. As well, in Salah v Canada (Minister
of Citizenship and Immigration), 2005 FC 944 (“Salah”) the Court
observed that it was questionable for the RPD to assess a claim against a
country simply because a claimant carried a passport permitting him to live and
work in that country (at paras 1and 5).
Analysis
[19]
The IRPA defines Convention refugees and persons
in need of protection as follows:
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96 A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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96 A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
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a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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97 (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
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97 (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
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(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
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(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
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b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
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(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
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(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
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(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
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(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
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(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
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(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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[20]
This Court has previously held that it is clear
from the definition of a Convention refugee that stateless persons, being those
not having a country of nationality, may be Convention refugees. However, not
every stateless person is a Convention refugee. In order for a stateless
person who is outside the country of his or her former habitual residence and
who is unable to return to that country to be a Convention refugee, he or she
must find him or herself in that situation by reason of a well-founded fear of
persecution for one or more of the reasons cited in the Convention definition (Thabet
at para 16; Arafa at paras 7-8; Salah at paras 7-8). Further,
the denial of a right to return may be persecutory and, therefore, forms a part
of the RPD’s assessment of a well-founded fear of persecution (Thabet at
para 32; Daghmash at para 9). The burden is on the applicant to show on
the balance of probabilities that they are unable or unwilling to return to any
country of former habitual residence (Thabet at para 28).
[21]
The jurisprudence is also clear that the
determination of the country of habitual residence of a stateless person is
essentially a question of fact (Kruchkov v Canada (Solicitor General),
[1994] FCJ No 1264 (FCTD) at para 9; Marchoud v Canada (Minister of
Citizenship and Immigration), 2004 FC 1471 at para 10 (“Marchoud”), Salah
at para 5). And, in order to establish habitual residence, a claimant must
establish de facto residence for a significant period of time in the
country in question (Maarouf at para 44; Kadoura at paras 14 and
19). Further, travel documents issued by Lebanese authorities in similar
circumstances have been held not to be conclusive evidence of habitual
residence (Kaddoura v Canada (Citizenship and Immigration), 2016
FC 1101 at para 19; Kadoura at para 15).
[22]
In this matter the evidence before the RPD was
that the family had never lived in Lebanon. They visited on occasion for
vacation or to see family. The Principal Applicant and the minor Applicants were
born in Saudi Arabia and the female Applicant had lived there since her
marriage. As they had not established de facto residence in Lebanon for
a significant period of time, they failed to establish that it was a country of
habitual residence. The mere holding of Lebanese travel documents did not
overcome this. Accordingly, in my view, the RPD did not err in finding that
Saudi Arabia, not Lebanon, was the Applicants’ country of former habitual
residence.
[23]
The RPD also noted that the Principal
Applicant’s evidence was that he had no problems in Saudi Arabia, other than losing
his job. The RPD rejected the submission that the Applicants had been
discriminated against in Saudi Arabia because they are Palestinian given the
Principal Applicant’s success and his lack of problems there. In my view,
based on the record before it, the RPD’s finding that the Applicants had not
established a well-founded fear of persecution in Saudi Arabia, and that they
were not persons in need of protection, was reasonable.
[24]
The Applicants also submit that the RPD erred as
it was required to go further and consider whether the Applicants would be at
risk in Lebanon. However, in Marchoud this Court held that, because the
RPD determined that the UAE was the applicant’s only country of habitual former
residence, it was not required to assess the applicant’s fear in Lebanon (Marchoud
at paras 4 and 13, referencing Thabet at para 30). As in this case, the
applicant in Marchoud also asserted that the RPD erred in determining
that he could return to the UAE without assessing the possibility of a refoulement
by the UAE to Lebanon. Justice Tremblay-Lamer held that the RPD did not have
to conduct such an assessment based on the definitions contained in ss 96(b)
and 97(1)(a) of the IRPA (then named the Immigration and Refugee Act). Further,
such an analysis would be moot since the risk should be assessed on the day of
the hearing, not when such a refoulement by the UAE might later take place.
[25]
Accordingly, in my view, the only live issue
raised by the Applicants is that the RPD erred in not considering their right
to return to Saudi Arabia. On this point the RPD stated:
…These Iqamas, which are the claimant’s
Saudi residence permits, indicate that all of the claimants currently have a
valid residence permits in Saudi Arabia, and which are valid until [sic]
of this year. This strongly suggests to me that the family can return to Saudi
Arabia, so the right of return is not relevant in this case.
…
They had no problems there [Saudi Arabia].
Their Iqamas are still valid until the end of this year, and they can therefore
return to the Kingdom of Saudi Arabia. Therefore, I reject the claims of these
claimants for the foregoing reasons.
[26]
Copies of the Iqamas for all of the Applicants
were contained in the record before the RPD. They are issued by the Ministry
of Interior for Saudi Arabia and indicate an expiry date of September 24,
2016. This meant that, on their face, they were valid at the time of the
hearing and the rendering of the RPD’s decision. As the Principal Applicant’s
evidence was quite clear that the family had experienced no problems in Saudi
Arabia, which they have not disputed in the judicial review, and because Saudi
Arabia was their country of former habitual residence, the RPD could, on that
basis, reasonably refuse the claims without considering their right of return.
[27]
However, the Applicants assert that the RPD
failed to consider or misconstrued their evidence that, upon the termination of
the Principal Applicant’s employment, his Iqama was cancelled. Accordingly,
that the family had no right of return.
[28]
In Thabet, the Federal Court of Appeal
set out the test for establishing refugee status for stateless persons being
that (at para 30):
In order to be found to be a Convention
refugee, a stateless person must show that, on a balance of probabilities he or
she would suffer persecution in any country of former habitual residence, and
that he or she cannot return to any of his or her other countries of former
habitual residence.
[29]
The Federal Court of Appeal went on to deal with
the assertion that the trial judge erred by finding that the RPD had erred by
not asking itself, or discussing in any way, the fundamental question as to
whether the denial of the appellant’s (a stateless Palestinian) right of return
to Kuwait was in itself an act of persecution. The Federal Court of Appeal
stated that to ensure that a claimant properly qualifies for Convention refugee
status, the RPD was compelled to ask itself why the appellant was 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.
[30]
In this case, at the initial hearing date on
April 13, 2016, the RPD asked the Principal Applicant where the Iqamas were for
the family. The Principal Applicant testified that they did not have them, or
copies of them, as they were taken away when the family permanently exited
Saudi Arabia. The RPD adjourned the hearing to invite the Minister to
intervene on the issue of identity. The Minister declined to do so and, when
the hearing was reconvened on June 6, 2016, new documents had been submitted by
the Applicants. The Principal Applicant testified that he had asked his father
to look in the Principal Applicant’s belongings in his old house in Saudi
Arabia, his father had done so and had couriered some papers which included the
Iqamas. The status of these was then addressed at the hearing, the relevant
portions of the transcript being:
PRESIDING MEMBER: What’s the current status
of your iqama in Saudi?
THE INTERPRETER: Sorry?
PRESIDING MEMBER: What is the current status
of your iqama in Saudi?
CLAIMANT #1: Our status in Saudi Arabia was
canceled because they wanted us to leave. They wanted us to leave the country.
PRESIDING MEMBER: Okay. So – but your iqama
indicates that it’s still valid.
CLAIMANT #1: Because this status, iqamas
every year has to be renewed. When the person was – who sponsored you, once he
stop you from working, to prevent you from (inaudible) ask you to leave or you
have to leave the country period. You have to submit your iqama or
status and it would get canceled. And I have to submit that iqama or
status to my – to the person who sponsored me and it will cancel – get
cancelled.
PRESIDING MEMBER: Okay. So I looked it up
yesterday because you can look these things up online, and it’s still valid.
CLAIMANT #1: Yes, it is valid. It’s valid
for one year, could be up to December – I am not sure, December 23 or I’m not
sure to which day it is valid. But the person who sponsored you, it he will
terminate your services, it is done. He will pull your status from you and you
have no right to (inaudible). As long as you are a foreign person, you are
under the responsibility of the Saudis, the – I mean with Saudis, the company
that I was working at.
[31]
The RPD does not identify the source of the
online information that was referenced which indicated that the Principal
Applicant’s Iqama was valid. However, the Principal Applicant does not dispute
this and acknowledges that his Iqama was still valid, perhaps until the end of
the year, but seems to suggest that his employment sponsor is able to revoke or
cause his residence status to be revoked.
[32]
In that regard, the Principal Applicant also
provided an employment termination letter dated November 15, 2015, which states
that his employment had been terminated effective December 15th,
2015 and that “as per the Saudi Labor Law, you’re
requested to transfer your sponsorship to another company or leave the Country
not later than February 15th, 2016”. The RPD did not mention this
letter in its reasons but it was raised and discussed at the hearing.
[33]
The Principal Applicant also testified that he
had applied for “lots” of jobs in Saudi Arabia,
that he looked through his network, and that he was submitting his CV to companies
but did not have proof because “they don’t give you
anything when you submit the CV”. In its decision the RPD stated that,
while the Principal Applicant claimed to have looked for other employment in
Saudi Arabia upon his termination, there was no evidence before it to establish
this fact.
[34]
The RPD found the Principal Applicant to be
generally credible and made no adverse credibility findings concerning the
employer’s letter. In my view, there is a concern arising from the RPD’s
factual finding that the Applicants have a right of return to Saudi Arabia
based on the valid Iqamas which is, to an extent, contradicted by the Principal
Applicant’s testimony at the hearing and the termination letter. However, the
RPD does not address this in its reasons.
[35]
That being said, the burden was on the
Applicants to submit sufficient evidence to support their position and the
Principal Applicant’s testimony on this point is not particularly clear. In
any event, the evidence was clear that the Applicants cannot meet the
definition of Convention refugees or persons in need of protection and, therefore,
the RPD’s decision was ultimately reasonable. Put in the context of s 96(b),
they are not persons who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social group
or political opinion, are outside their country of former habitual residence, Saudi
Arabia, and unable to return to that country. Importantly, because the
Applicants did not leave Saudi Arabia as a result of a well-founded fear of
persecution, the fact that they claim that they cannot return there is not,
alone, sufficient to permit them to meet the Convention definition. Further,
they explained why they cannot return, being that their Iqamas were rendered
invalid because of the Principal Applicant’s loss of employment. Thus, even if
the Iqamas are not valid, their revocation was not, nor did the Applicants
assert, in and of itself, an act of persecution. Nor does the jurisprudence
support such a position (Daghmash at paras 9 and 11; Marchoud at
paras 16-17).
[36]
In the result, although the RPD stated that it
did not have to consider the right of return because the Iqamas were valid, it
had previously found that the Applicants did not have a well-founded fear of
persecution in Saudi Arabia, their country of former habitual residence.
Accordingly, even if it erred in not addressing the Applicants’ evidence
supporting their assertion that, because of the Principal Applicant’s loss of
employment the Iqamas were not valid, the decision is still reasonable as it
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
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