Date: 20110802
Docket: IMM-7407-10
Citation: 2011 FC 968
Ottawa, Ontario, August 2, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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NAWAL MUNER KHEDER ALCHARIC
FANAR HATEM ZAKARNAH
FADI HATEM ZAKARNAH
DAWOOD HATEM ZAKARNAH
and
DIANA HATEM ZAKARNAH
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial
review of the decision of the Refugee Protection Division (RPD) of the
Immigration and Refugee Board, dated 12 November 2010 (Decision), which refused
the Applicants’ applications to be deemed Convention refugees or persons in
need of protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Principal Applicant is a citizen of both Iraq and Jordan. The Minor Applicants, who are the Principal
Applicant’s children, are citizens of Jordan only. All are Christians.
[3]
The
Principal Applicant moved to Jordan from Iraq in 1993 and married a Jordanian Christian in
1994. The Minor Applicants are the children of that marriage. In 2000, the
family moved to Riyadh in Saudi Arabia, where the Principal Applicant’s
husband had taken a job. In January 2008, the husband got a new supervisor,
named Onayzi. He was a Muslim who, according to the Principal Applicant, held
extreme views against non-Muslims. He also belonged to the Al-Oneza tribe which,
according to the Principal Applicant, has strong ties to the royal families of
both Jordan and Saudi
Arabia.
This supervisor harassed and criticized the husband. In February 2008, they had
a heated confrontation.
[4]
On 20
May 2008, four uniformed members of the religious police and one uniformed member
of the regular police force invaded the Principal Applicant’s family home. They
ransacked the house, assaulted the husband and insulted the other family
members, using religious epithets. The Principal Applicant and her husband did
not believe that the police would help them because they are Christians and
because the agent of persecution was a member of the powerful Al-Oneza tribe. Therefore,
the Principal Applicant and her husband did not report the incident.
[5]
The Principal
Applicant and her husband decided that she and the Minor Applicants should leave
Saudi
Arabia.
They did not consider Jordan to be a haven because
the Al-Oneza tribe has influence there. The Applicants were unable to obtain
their passports immediately. It was not until 23 August 2008 that they fled Riyadh and travelled by air to
Canada, via Frankfurt. They arrived in
Canada on 24 August 2008 and
made their claims for refugee protection on 4 September 2008 based on their
fear of persecution by reason of their religion, nationality and membership in
a particular social group.
[6]
The
Principal Applicant has been trying, unsuccessfully, to contact her husband
since 14 September 2008. Her neighbours have told her that this is the last
date on which he was seen at their house in Riyadh. The house has subsequently been destroyed
by fire.
[7]
The
Applicants appeared before the RPD on 13 October 2010. They were represented by
counsel and an interpreter was present. The RPD determined that they did not
have a well-founded fear of persecution in Jordan based on any of the five Convention
grounds. In the alternative, they failed to rebut the presumption of state
protection in Jordan. This is the Decision
under review.
DECISION UNDER REVIEW
Credibility
[8]
The
RPD found that the Principal Applicant lacked credibility based on the
following testimony.
[9]
The
Principal Applicant testified that, although her husband is missing, she has
not asked the Saudi police to investigate his whereabouts because Onayzi has
influence with the police. Also, she claims that she cannot expect her family
members to investigate because, unless they have a work permit to enter Saudi Arabia, they will be turned
away at the border. The RPD found both explanations to be “inadequate” and
“likely … incorrect.”
[10]
The
Principal Applicant was unable to provide documentary evidence to corroborate her
allegations. She testified that she and her husband did not file a complaint
with the police following the May 2008 home invasion, so there was no police
report. She was unable to produce photos, insurance reports or bills for
replacements or repairs to the home, explaining that the family was so
frightened after the home invasion that they did not think to gather such
evidence. She has no evidence corroborating her testimony that their house in Riyadh has been burned. The
fire was not reported to the police, and her relatives did not provide any
evidence even though she asked them to do so. She stated that her neighbours
would have been too frightened to provide her with a letter attesting to the
fire. Although she has had no news of her husband since September 2008, she has
not contacted the Saudi police or visited Saudi Arabia herself. The RPD stopped short of making
an overall negative credibility finding but did note the Principal Applicant’s
loss of an opportunity to bolster her claim through corroboration.
[11]
The
Principal Applicant was unable to satisfy the RPD that the Al-Oneza tribe was
responsible for the home invasion. She testified that Onayzi had never threatened
her or her children directly. When the RPD suggested that other anti-Christian groups
in Saudi Arabia may have been responsible, she said that she was convinced that
Onayzi instigated the invasion because it happened after her husband confronted
him at work and because Onayzi was the worst of all those who target Christians.
In the absence of documentary evidence, the RPD found the former statement to
be “mere conjecture” and the latter statement to be a “gross exaggeration.”
[12]
The
Principal Applicant said that she feared being sent back to Jordan because she may not be
able to get citizenship there (a claim that was uncorroborated) and would be
vulnerable, both as a single mother and as the wife of a man targeted by Onayzi.
Although granted time after the hearing to provide documentary evidence that
Onayzi was both powerful and vindictive, the Principal Applicant was able only
to show that Onayzi existed. The RPD found that, if Onayzi was so powerful and
vindictive, he would have used his influence to deport her husband from Saudi
Arabia; he would not take his revenge by attacking the Principal Applicant and
her children were they to return to Jordan. The RPD concluded that the Applicants’ fears
were not well-founded. However, it declined to base its rejection of the
refugee claims on implausibilities. Rather, it based the Decision on state
protection.
State Protection
[13]
The
RPD relied on Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, [1993]
SCJ No 74 (QL), and Flores Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at paragraph 25, for the proposition that refugee
protection is available only after a claimant has unsuccessfully sought
protection in her own state, given that, in the absence of clear and convincing
evidence to the contrary, it is presumed that every state can protect its own
citizens. “[A] claimant seeking to rebut the presumption of state protection
must adduce relevant, reliable and convincing evidence which satisfies the
trier of fact on a balance of probabilities that the state protection is
inadequate.” See Flores Carrillo, above, at paragraph 30. A refugee claimant
bears a heavy burden when attempting to show that she should not have been
required to exhaust every avenue available domestically before seeking
protection elsewhere. See Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171 at paragraph 46.
[14]
In
the instant case, the RPD considered the availability of state protection for
the Applicants in Jordan and not in Saudi Arabia
(their country of residence prior to fleeing to Canada). The RPD did not accept the Applicants’
claim that state protection is not available to them in Jordan for the following
reasons.
[15]
Although
the Principal Applicant testified that the Al-Oneza tribe exerts considerable
influence over the police, the RPD noted that the Applicants “did not provide
any [documentation] directly related to this key issue,” despite a post-hearing
opportunity to do so. Moreover, the Applicants’ testimony is contradicted by the
U.S. DOS Report for 2009, which states that civilian authorities maintain
control over security forces and that the government investigates cases of
police abuse and corruption. The RPD concluded that the state of Jordan would be able to
provide adequate state protection to the Applicants with respect to any abuse
that may be threatened or perpetrated by the Al-Oneza tribe. The RPD also
recognized documentary evidence indicating that there is religious freedom in Jordan, so that the
Applicants, as Christians, would not be at risk on that ground.
ISSUES
[16]
The
Applicants formally raise the following issue:
Whether the RPD failed
to address relevant evidence in its assessment of state protection.
[17]
The
Applicants raise the following issues in their arguments:
a. Whether the RPD failed
to provide adequate reasons for the Decision.
b. Whether the RPD applied
the wrong standard of proof when reviewing the evidence on tribal control.
STATUTORY PROVISIONS
[18]
The
following provisions of the Act are applicable in these proceedings:
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Convention refugee
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,
(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
(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.
Person in need of protection
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
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(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,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Définition de « réfugié »
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 :
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;
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.
Personne à protéger
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 :
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;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(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,
(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,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la
personne qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
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STANDARD OF REVIEW
[19]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9, held that a standard of review analysis need not be conducted
in every instance. Instead, where the standard of review applicable to the
particular question before the court is well-settled by past jurisprudence, the
reviewing court may adopt that standard of review. Only where this search
proves fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[20]
Assessment
of the evidence is within the RPD’s areas of expertise and, therefore,
deserving of deference. It is reviewable on a standard of reasonableness. See Hassan
v Canada (Minister of Employment and Immigration) (1992), 147 NR 317, [1992] FCJ No 946 (QL) (FCA); and Ched
v Canada (Minister of
Citizenship and Immigration), 2010 FC 1338 at paragraph 11.
[21]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47; and Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
[22]
The
second issue concerns the adequacy of the RPD’s reasons for refusing the Applicants’
application for refugee protection. Adequacy of reasons is a procedural
fairness issue, which attracts the correctness standard. See Khosa,
above, at paragraph 43.
[23]
The
third issued concerns the applicable standard of proof. This is a question of
law, which is reviewable on the correctness standard. See Munoz v Canada (Minister of
Citizenship and Immigration), 2008 FC 995; and Ospina v Canada (Minister of
Citizenship and Immigration), 2011 FC 681 at paragraph 20.
ARGUMENTS
The Applicants
State Protection Is
Unavailable to Victims of Tribal Conflict
[24]
The
Applicants argue that state protection is unavailable to them because they are
being persecuted by a “very powerful Arab tribe which wields considerable
influence in Jordan, as well as in Saudi Arabia.” The Applicants submit that the police
generally do not get involved in tribal conflicts. In its Decision, the RPD
looked exclusively at whether the Al-Oneza tribe exerts influence over the
Jordanian police force. It failed utterly to assess an equally important part
of the analysis, namely whether state protection is generally available with
respect to tribal conflicts.
[25]
In
post-hearing submissions, the Applicants introduced evidence that was directly
on point and which demonstrated that Jordan is unable to protect persons who are targeted
during tribal conflict. For example, the current director of the General
Security Branch of the Jordan security apparatus is a
member of the Al-Majali tribe, which descends from the Al-Oneza tribe. In fact,
for eight of the past twenty-five years, each director of the Jordanian General
Security Branch has been affiliated with the Al-Oneza tribe which, the
Applicants submit, illustrates their strong tribal influence on police and
state security in that country.
[26]
The
Applicants submitted three news articles, one dated 2009 and two dated 2010, which
indicate that, in Jordanian society, there is increasing tribal conflict and
increasing reliance on the protection offered by one’s tribe rather than by the
law and state authorities. The 2009 U.S. DOS Report notes that many analysts
commented that the current electoral system creates a “weak, unrepresentative
parliament” that favours tribal interests.
[27]
The
Applicants submit that they are especially vulnerable in this political
environment because they belong to no tribe and therefore have no one to
protect them. This is exacerbated by the fact that, given the disappearance of
her husband, the Principal Applicant would be returning to Jordan as a single mother.
[28]
The
Applicants argue that the RPD failed to consider any of this evidence and to
balance it against evidence of the availability of state protection. The RPD thereby
failed in its duty to provide adequate reasons. See VIA Rail Canada Inc v Canada (National Transportation
Agency)
(2000), [2001] 2 FC 25, [2000] FCJ No 1685 (QL) (FCA) at paragraph 22.
[29]
Moreover,
the Applicants contend that the RPD imposed too high a standard upon their
state protection submissions by expecting them to provide direct evidence that
tribes have influence over the police force. The jurisprudence does not require
the Applicants to prove “with certainty” that state protection is unavailable.
It requires evidence that is “clear and convincing,” and the Applicants have
supplied such evidence. They submit that, in this proceeding, it is within the
Court’s jurisdiction to determine whether the RPD applied the appropriate
standard of proof and, if it did not, to determine whether a new hearing is
warranted. See Alam v Canada (Minister of Citizenship and Immigration), 2005 FC 4 at paragraph
11.
The Respondent
Preliminary
Matter
[30]
The
Respondent submits that paragraphs 12, 14 and 15 of the Affidavit of the
Principal Applicant contain argument and conclusions that are not within her
knowledge and, therefore, should be given no weight. See Canada (Minister of
Citizenship and Immigration) v Huntley, 2010 FC 1175 at paragraphs 261-74.
The Refugee Claims Were
Denied In Part Due to Lack of Objective Fear
[31]
The
Respondent submits that the RPD analyzed the objective basis for the claim and
found it to be speculative and based on conjecture. As the Applicants have failed
to challenge these findings, this application should be dismissed.
The Decision Was
Reasonable
[32]
The
Respondent submits that the RPD has recognized expertise in the weighing of
evidence and the drawing of conclusions regarding the Applicants’ credibility. See
Aguebor v Canada (Minister of Employment
and Immigration)
(1993), 160 NR 315, 42 ACWS (3d) 886 (FCA). The RPD need not mention every
piece of evidence but is presumed to have considered the evidence in its
entirety. The onus is on the Applicants to establish their claim on a balance
of probabilities through the provision of trustworthy evidence. Although their
testimony is presumed true, the RPD found that the presumption was rebutted by
evidence that was implausible.
[33]
The
Applicants failed to satisfy the RPD that there was a link between her
husband’s confrontation with Onayzi and the subsequent invasion of her home by
the religious police and that Onayzi or the Al-Oneza tribe has a continuing
interest in the Applicants if ever such an interest existed. They also failed
to rebut the presumption of state protection in Jordan, largely because they made no attempt to
access it. They did not file a police report following the home invasion, the
destruction of their home by fire or the disappearance of the Principal
Applicant’s husband. In the absence of corroborating evidence that these events
happened, the RPD was justified in rejecting the Applicants’ version of events
and in preferring documentary evidence attesting to the availability of state
protection and freedom of religion in Jordan.
The Applicants’ Reply
[34]
The Applicants
submit that paragraph 12 (with the exception of the Principal Applicant’s
interpretation of the Decision) and paragraph 14 should be given full weight,
as they contain facts or beliefs within the knowledge of the Principal
Applicant.
[35]
The
Applicants clarify their contention that the RPD failed to assess adequately
both state protection and objective fear. However, they do note that the RPD
was clear at paragraph 23 of the Decision that it rejected the Applicants’
claims not because of implausibilities in the testimony but because it found
that Jordan could offer them state
protection. The Applicants contend that, had the RPD given proper consideration
to all of the documentary evidence, particularly the post-hearing submissions,
it would have found an objective basis for the Applicants’ fear.
The Respondent’s Further
Memorandum
[36]
The
Applicants state that the Decision was based solely on the availability of
state protection. That is not accurate. The RPD also determined that the
Applicants’ fear was based on speculation; it was neither well-founded nor based
on objective evidence. The documentary evidence concerning tribal warfare and
honour codes on campus was irrelevant to the Applicants’ circumstances. When
the Decision is read as a whole, it is clear that the RPD’s analysis of the
evidence was both thorough and reasonable.
ANALYSIS
[37]
My
own analysis depends upon my interpretation of the basis for the Decision.
[38]
Counsel
for the Applicants has, quite correctly, cautioned the Court against inventing
its own version of the Decision and has reminded the Court that ambiguities should
be interpreted in the Applicants’ favour. On the other hand, counsel agreed
that the Decision must be read as a whole in order to ascertain the grounds upon
which it is based.
[39]
Following
counsel’s advice, we are told in paragraphs 5 and 6 of the Decision that the
issues are credibility, whether the Applicants’ alleged fear in Jordan is well-founded and the
availability of state protection.
[40]
At
paragraph 16 of the Decision, the RPD says, after analyzing the lack of
convincing evidence, that
[t]he
Panel will not make an overall negative credibility finding from the
above-noted implausibility and failure to corroborate issues. However, the
Panel does note them, and, with respect to the lack of corroboration, comments
that the claimant has lost an opportunity to bolster her claim by reason
thereof.
[41]
It
is not entirely clear what the RPD means by these comments. I think, however,
that the RPD is saying it will not dismiss the claim on the basis of “an
overall negative credibility finding” but that its findings are noted.
[42]
The
RPD then goes on to deal with the well-foundedness of the Applicants’ claim as
a separate ground. After reviewing the Applicants’ evidence on this point, the
RPD then makes the following findings at paragraph 22 of the Decision:
Considering
all of the above, the Panel finds it implausible that this Onayzi, if he
exists, would be motivated to, or find it necessary, to target the claimant and
her children in Jordan, because he did not approve of the
claimant’s husband being a Christian. For this reason, the Panel finds that any
fear the claimant says she has of Onayzi or his tribe is not well-founded.
[43]
There
is then some confusion in the Decision as a result of the wording of paragraph
23:
However,
again, the Panel is hesitant to base a negative decision on, to a large extent,
implausibilities. Thus, the Panel does base its negative decision herein on
state protection, as follows.
[44]
In
the context of the Decision as a whole, it would appear that the RPD is saying
that notwithstanding its findings on credibility and the absence of
well-founded fear, it has decided to base its negative Decision on adequate
state protection alone rather than rely upon implausibilities in the Applicants’
evidence. This would seem to be borne out by the RPD’s conclusions on state
protection:
However,
it is notable that the claimant indicated that the police were not called by
her relatives in Jordan after threats were allegedly made
against the claimant by this tribe in Jordan. Thus, while the claimant was not present
in Jordan and cannot be held responsible for what
her relatives did or did not do, it is noted that recourse to the police was
not attempted. The claimant herself, or her family, did not experience any
threats or attacks in Jordan. This thus becomes a hypothetical
discussion of whether adequate state protection would be available in what the
Panel has found to be the very unlikely event that the tribe would one day
threaten the claimant and her family if she were to hypothetically return to Jordan.
The
claimant was asked to provide any article, etc., which would indicate that this
tribe controls or has great influence over the police in Jordan. Counsel advised that in Exhibit C-7 there is documentation
that this tribe exists in Jordan, but the Panel notes that this did not
address the question asked. The claimant was given time after the hearing to
provide any desired documentation, but did not provide any directly relating to
this key issue. Thus, the Panel finds that this tribe does not exercise undue control
over the police in Jordan.
From
the above analysis the Panel finds that adequate state protection would be
available to the claimant in Jordan from any abuse as may be threatened or
perpetrated by this tribe in Jordan.
As
such, the claimant has failed to provide clear and convincing evidence that the
state would not be both willing and able to provide adequate protection for him
(sic) in the hypothetical event she returned to Jordan. Thus, the claimant has not successfully rebutted the
presumption of adequate state protection, and the Panel finds, on a balance of
probabilities, that it would be available for the claimant and her family.
[45]
I
think, then, that the Decision must be reviewed from the perspective of state
protection alone because the RPD has told us that it “is hesitant to base a
negative decision on, to a large extent, implausibilities” and prefers to base
its negative decision on state protection.
[46]
The
Applicants argue that the RPD should have looked at the evidence related to the
broader issues of tribal conflict in Jordan and at the issue of whether Onayzi and his
tribe could control police and state security in a way that would deprive the
Applicants of state protection in Jordan. The Applicants suggest that the evidence shows
that, in Jordan, the tribal mentality
leads people to seek protection from their own tribe rather than the state.
Because the Applicants do not belong to a tribe, they argue that they would
have no protection in Jordan against Onayzi and his tribe.
[47]
The
RPD addresses this point directly in paragraphs 29 and 32 of the Decision:
The
claimant has alleged that state protection would not be adequate. In that
regard, the Panel has examined Exhibit R/A-1, Item 2.1, the U.S. Department of
State 2009 Human Rights Report. On Page 7 of this document, it is set out in
the paragraph entitled “Role of the Police and Security Apparatus” that
“Civilian authorities maintained control over security forces. The government
uses mechanisms to investigate abuse and corruption, but some allegations of
impunity remained.” The report goes on to say that the government does
investigate cases of police abuse and corruption. The panel was unable to find
reference in any of the documentation before it in Exhibit R/A-1 that any
particular tribe or tribes exercise control over the Jordanian state protection
mechanism, nor was any such reference pointed out by counsel or the claimant at
the hearing. Counsel did provide additional articles on tribes in Jordan, in general, with her submissions, but they were not on
point in regard to this issue.
…
The
claimant was asked to provide any article, etc., which would indicate that this
tribe controls or has great influence over the police in Jordan. Counsel advised that in Exhibit C-7 there is documentation
that this tribe exists in Jordan, but the Panel notes that this did not
address the question asked. The claimant was given time after the hearing to
provide any desired documentation, but did not provide any directly relating to
this key issue. Thus, the Panel finds that this tribe does not exercise undue
control over the police in Jordan.
[48]
Having
reviewed the evidence in question which appears at pages 215 to 239 of the
Applicants’ Record and at pages 420 to 443of the Certified Tribunal Record, I
have to conclude that the evidence reveals that Mr. Onayzi is not mentioned in
this evidence, but the tribe to which he purportedly belongs—the Al-Oneza tribe
(a.k.a. Al-Anza)—is mentioned. The evidence supports the Applicants’ assertions
that Al-Oneza and its related tribes (particularly the Al-Majali tribe) have
held positions of power in Jordanian governments and security forces for the
past two centuries. These tribes are described as “very significant” and
“influential.” According to the evidence, they “controlled the parliament for
long time (sic)” and “occupied the majority of seats in the government,
with elite positions and the chair of the PASHA” (see page 433, CTR). Another
related tribe, Al-Edwan, is described as “the most prominent Tribe that control
the authorities and represent all other tribes in the area and they are the
most powerful tribes in Jordan which goes back to
years and years ago” (see page 427, CTR). There seems to be no doubt that this
conglomerate of tribes is very powerful.
[49]
The
RPD says at paragraph 32 of the Decision that the Applicant was asked to
provide evidence that the tribe controls or has great influence over the police
in Jordan but that she “did not address the question asked” or “provide any
[evidence] directly relating to this key issue.” It seems to me that she did
provide evidence that tribes related to Al-Oneza do have great influence over
the police. For example, page 433 of the CTR says that Al-Edwan controls the
authorities.
[50]
As
with so much of this Decision, it is not entirely clear what the RPD is basing
its findings on. The Decision appears to indicate that, on state protection,
the RPD rejected the Applicant’s evidence because she had failed to provide
anything which showed that the tribe to which Mr. Onayzi is related “controls
or has great influence over the police in Jordan.” If this was material to the state protection
finding then it seems to me that a reviewable error has occurred because the
Applicant did provide evidence of such power and influence.
[51]
The
Applicants complain further that the RPD did not apply the correct standard of
proof to the evidence adduced by the Applicants on tribal control and, in
effect, required “direct” evidence of tribal control.
[52]
I do
not see this when the Decision is read as a whole. The RPD simply notes that
the Applicant was asked if she had any documentation that would show that the
tribe in question could influence the police in Jordan, and that she was given
time after the hearing to provide “any desired documentation but did not
provide any directly relating to this issue.”
[53]
In
my view, the RPD is simply pointing out that the documentation produced by the
Applicants was not on point and did not directly address the issue. I cannot
read into this that the RPD required a higher standard of proof than a balance
of probabilities.
[54]
I am
also satisfied that the reasons are adequate.
[55]
Given
the evidence before the RPD, I have to say that the Decision was unreasonable
because the Applicant did provide evidence of the kind of tribal influence over
the police and the authorities that the RPD says was missing.
[56]
Counsel
agree that there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application is allowed. The Decision is quashed and returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James Russell”
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