Docket: IMM-3075-16
Citation:
2017 FC 83
Toronto, Ontario, January 23, 2017
PRESENT: The
Honourable Madam Justice Simpson
|
BETWEEN:
|
|
MAHMOUD SALEM
ABDELKHALEK ALNAGGER
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Background
[1]
Mahmoud Salem Abdelkhalek Alnagger [Applicant]
has applied for judicial review of a decision [Decision] of the Refugee
Protection Division [RPD or Board] dated June 21, 2016 finding that the
Applicant is not a Convention refugee or person in need of protection. This
application is brought pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
The Applicant is a 25 year old high-school
educated Palestinian man who was born in Kuwait City, Kuwait. Although he is of
Palestinian descent, he has never been to Palestine. He grew up in Kuwait and
has spent the majority of his life there. Stateless Palestinians residing in
Kuwait do not have citizenship rights; they have residency rights, which
require yearly sponsorship by a Kuwaiti national.
[3]
When Iraq invaded Kuwait in 1990, the
Palestinian Authority supported the invasion. As a result, although the
situation is improving and the embassy has reopened, there continues to be
animosity against Palestinians in Kuwait.
[4]
In November or December 2013, the Applicant
began work as a clerk with Al-Shualah Travels, a travel agency in Kuwait City.
[5]
In March 2014, the Applicant met and assisted a
young woman in her early 20’s by the name of Alaa Al Sabah [Alaa or the Princess]
with arrangements for travel to London. She was planning to travel unchaperoned
with a group of girlfriends. Alaa is a member of Kuwaiti royal family. Her
mother is a daughter of the Crown Prince, so she is a granddaughter to the Crown
Prince. He is the brother of the current Amir, and is his heir apparent.
[6]
Upon her return from London, Alaa brought the
Applicant a bottle of scent. Thereafter, they stayed in contact via telephone
and social media.
[7]
By March 2015, they were in a romantic
relationship, which they knew had to be kept secret. The Applicant’s sister was
the only person the Applicant told about the relationship.
[8]
During their relationship, which lasted one
year, the Applicant and Alaa went to parks for walks, to parties, and to places
of entertainment on the waterfront where they would take boat rides and water
ski. They also met for private time every 2 weeks in a rented room at a tourist
property outside Kuwait City.
[9]
In March 2016, Alaa stopped communicating with
the Applicant.
[10]
On or about March 13, 2016, the Applicant
received a phone call from an unidentified male caller threatening to kill the
Applicant for having dated Alaa. The Applicant later learned from his sister
(whom Alaa had called) that the caller was Prince Thamer Al Sabah [the Prince
or Thamer], Alaa’s brother. Fearing for his life, the Applicant went into
hiding at his friend Ahmad Sadek’s home [the Friend].
[11]
On March 16, 2016, the Prince and others entered
the Applicant’s mother’s house and looked for him. He was not present. The
Prince also looked for the Applicant at his office.
[12]
On or about March 28, 2016, the Applicant left
Kuwait without incident and traveled to the United States. He had already
obtained a US visa in relation to his work at the travel agency. He stayed with
relatives in Buffalo, where he arranged to travel to Canada. On or about April
6, 2016, the Applicant arrived in Canada as an exception to the Safe Third
Country Agreement and made a refugee claim.
II.
The RDP Decision
[13]
The RPD declined to undertake a s. 96 analysis
as it found that the Applicant’s fear had no nexus to an established Convention
ground.
[14]
The RPD then found the Applicant’s story to be
implausible as a whole, on the basis that Kuwait is a conservative Muslim
nation where women have little freedom and Palestinians are disliked.
Specifically, the Board took issue with the following aspects of the
Applicant’s narrative:
•
the Princess would personally retain the
services of a travel agent, as opposed to family staff;
•
the Princess would retain the services of a
Palestinian, as opposed to a Kuwaiti;
•
the Princess would travel to London without a
male chaperon;
•
the Princess would provide a gift to the
Applicant;
•
the Princess would be seen in public with the
Applicant;
•
the Prince would warn and seek revenge
personally on the Applicant;
•
the Applicant’s family would be left unaffected
by negative consequences; and
•
the Applicant was able to leave the country
without hindrance.
[15]
The Board also reviewed a genealogy document and
saw no mention of a Princess Alaa or Prince Thamer, thus drawing an adverse
inference about their existence.
[16]
The Board noted that the Applicant’s testimony
was at times vague and non-responsive.
[17]
Turning to the letters from his mother, friend
and sister [the Letters], the Board decided to give them little weight.
III.
The Issues
1.
Nexus
2.
The Plausibility Findings
3.
The Letters
4.
The Genealogy
IV.
The Standard of Review
[18]
For issues 1 – 3, the standard of review is
reasonableness. Issue 4 raises a question of natural justice, so the standard
is correctness.
V.
Discussion and Conclusions
1.
Nexus
[19]
The Applicant submits that the RPD’s
determination that there was no nexus between his fear and an established
convention ground was unreasonable. The Applicant correctly states that the
Board took no issue with his identity as a stateless Palestinian.
[20]
The Applicant argues that while his fear of
persecution is inextricably linked to Thamer’s threats, the motivating factor
for the Prince’s severe displeasure towards the Applicant’s relationship with
Alaa is the Applicant’s Palestinian nationality. In other words, he says that
his nationality was the reason Thamer made him a target.
[21]
The Applicant points to his amended Basis of
Claim form, where he stated that the royal “[…] family
would be angry if they discovered she was seeing a Palestinian who is not a
Kuwaiti”. He also testified that, had he been a boy from Kuwait, Alaa’s
family would have handled their relationship differently. Lastly, he points to
the documents which show that Palestinians are disliked in Kuwait.
[22]
In spite of the Applicant’s subjective belief, the
RPD did not accept that the Applicant was targeted because he was Palestinian.
The Board concluded that he was targeted by the Prince because he was dating
his sister unchaperoned and without the permission of her family. In my view,
this was a reasonable conclusion.
2.
Plausibility
[23]
The RPD relied on its expertise to conclude that
the Applicant’s story about a year long affair with a Kuwaiti Princess is not
plausible. The Board was aware that Kuwait is a conservative, traditional
Muslim nation in which women do not have unescorted freedom of movement. There
was no documentary evidence to suggest that the situation has changed or that
members of the Royal Family do not follow traditional norms. In these circumstances,
it was not plausible that for a year, the Applicant and the unescorted Princess
regularly appeared together in public places.
[24]
The Applicant testified that Alaa’s family was
non-traditional, but since her grandfather is in line to become the next Amir,
this was not accepted.
[25]
The Applicant’s explanations for the specific implausibility
findings were also rejected and in my view, the Board’s conclusions were
reasonable.
3.
The Letters
[26]
While it was unreasonable of the RPD to
criticize the Letters for not being sworn and for emanating from relatives and
a friend, these errors are, in my view, not material.
[27]
If there was no relationship with the Princess,
as the RPD concluded, it follows that there was no visit by the Prince to the
Applicant’s office or to his mother’s home, and while the Applicant may have
visited his friend Ahmad, he did not hide with him for fear of the Prince.
[28]
The implausibility of the relationship was the
underlying problem which caused the RPD to reject the Letters. The RPD did not
accept that the events they describe had occurred, and I have concluded that
this was reasonable.
4.
Genealogy
[29]
The Applicant provided the RPD with a 6 page
article from Wikipedia about the Kuwaiti Royal Family [the Article]. It
included 17 footnotes. Footnote 9 refers to a document titled “Royal Ark” and provides its internet address. It is a
lengthy genealogy of the rulers of Kuwait and their relatives from the 1700’s.
At paragraph 32 of the Decision, the RPD says it has reviewed a 14 page
genealogy of the Kuwaiti royal family, and found no reference to Princess Alaa
or Prince Thamer, who should appear as grandchildren of the Crown Prince.
[30]
I have the following concerns about this
conclusion:
i.
The genealogy is not in the Certified Tribunal
Record, nor is it attached to the Decision. Accordingly, while I think I have located
on the internet the material to which the RPD makes reference, I cannot be
sure.
ii.
I am further concerned because the relevant
material from the Royal Ark website is one page, not 14, as the Decision states.
However, it is the 14th document in the package of material, so that
may be what the Decision meant to say or it may have meant page 14 because 14
appears at the bottom of the page.
iii.
I have attached the page from the genealogy to
which I made reference as Annex “A”. It shows as item 6 that the Crown Prince
Shaikh Nawaf bin Ahmad Al-Jabir Al-Sabah had four sons and one daughter. The
sons are listed together with their children, who are the grandchildren of the
Crown Prince. However, the evidence is that Aala is a granddaughter of the
Crown Prince because she is the daughter of the Crown Prince’s daughter. His
daughter is Shaikha Shekha bint Nawaf Al-Sabah and her children, 3 sons and 1
daughter are mentioned, but not named in the genealogy. The note “see above”
beside the reference to the children is not helpful. This means that Alaa and
Thamer could well exist, but are not named.
[31]
I find that it was unreasonable of the RPD to
rely on the genealogy because the grandchildren of the Crown Prince’s daughter
were not listed by name.
[32]
In the alternative, if I have misunderstood or
misread the genealogy and the Board’s conclusion is correct, the Applicant also
said that it was unreasonable of the Board to consult footnote 9 in the Article
and conclude that Alaa and Thamer did not exist without giving him an
opportunity to respond.
[33]
In my view there was no breach of natural
justice. The Article was presented to the Board by the Applicant, and it was
reasonable to expect the Board to assess and verify its reliability by checking
the footnotes. The footnote was not “buried” as the Applicant suggests. There
were only 17 footnotes and both 9 and 10 refer to the genealogy. Further, the
Crown Prince’s grandchildren are listed on one page.
[34]
In these circumstances, if footnote 9 had in
fact shown all the Crown Prince’s grandchildren and had not listed Alaa and
Thamer, the Applicant should have known that in advance and should have been
prepared to explain the omission when the Article was presented to the Board.
VI.
Conclusion
[35]
The Decision is flawed in that some of the
reasons given for disregarding the Letters are errors, and it was not
reasonable to rely on the genealogy when the relevant children were not named.
However, these are peripheral matters and the basis for the Decision is
reasonable. It is simply not plausible that in a traditional Muslim country, a
Kuwaiti Princess who knew the relationship had to be kept secret would spend a
year taking walks in public parks, boating, water skiing, and going to parties
unescorted with a young man her family did not know.
[36]
For these reasons, the application will be
dismissed.
VII.
Certification
[37]
No question was certified for appeal.
Email this Content