Date: 20080526
Docket: IMM-4900-07
Citation: 2008 FC 662
Ottawa, Ontario, May 26,
2008
PRESENT: The Honourable Mr. Orville Frenette
BETWEEN:
SAMIR
MAMOOD MUHAMED ATIA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Samir
Mamood Muhamed Atia (the applicant) seeks Judicial Review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2002, c. 27 (the Act) of a decision made
October 24, 2007 (the Decision) by the Refugee Protection Division (RPD) that
he is neither a Convention refugee nor a person in need of protection.
I. Background
[2]
The
applicant is a 35 year old stateless Palestinian whose parents were originally
Palestinians and migrated to Iraq in 1948. He was born in Iraq and lived
there with residency status until 2006. He is married and a father to four
children who currently reside in Syria with their mother. He practises
Sunni-Islam religion.
II. Palestinians in Iraq generally
[3]
The
former regime of Saddam Hussein sheltered Palestinians in Iraq. In
particular, Palestinians such as the applicant and his family were provided free
accommodations in secure complexes. However, Palestinians, including
Palestinians born in Iraq, did not become citizens and did not have
the right to own property.
[4]
Following
the invasion in 2003, the situation deteriorated for Palestinians. The United
Nations High Commission for Refugees (UNHCR) noted that “[b]ecause segments of
the Iraqi population feel that Palestinians received favourable treatment under
the former regime, they have faced serious repercussions such as evictions,
threats and harassment.” A September 2006 report by Human Rights Watch also
noted that they had difficulty maintaining their residency status.
Where previously Palestinian refugees in Iraq had little trouble obtaining and
maintaining their residency status, the Ministry of Interior ordered
Palestinian refugees to obtain short-term residency permits, treating them as
non-resident foreigners instead of as recognized refugees. The residency
requirements are onerous, requiring Palestinian refugees to bring all members
of their families to Ministry of Interior offices to renew the permits, which
can take days or even weeks, and the new permits are only valid for one to two
months.
[5]
The
Human Rights Watch report noted that Palestinians have been targeted more than
other minorities. Militias, primarily Shiite, have attacked, threatened and
often murdered Palestinians. Leaflets have been scattered in Palestinian
neighbourhoods warning Palestinians to leave the country or face death. It is
also widely reported that Palestinians were subjected to various human rights
violations by government agents, including arbitrary arrest, detention,
harassment and house raids.
III. The applicant’s
history
[6]
The
applicant lived with his family in a Palestinian complex in Baghdad. He worked
in that complex as a mechanic and his children attended school there. He claims
that his residency permits expired and that the government refused to renew
them. However, since he did not have to leave the Palestinian complex, he
claims he was able to stay in Iraq. Unfortunately, while the travel document
which supported the applicant’s claims of residency status was shown at the RPD
hearing, two stamps on that document were not translated at that time (much of
the rest of the document was in both Arabic and English). The first of these
two stamps, dated 22 June 2005, requests the applicant to “Please report within
30 days”. The second of these two stamps states that “[t]he validity of this
document is valid for one year until 22 June 2006”.
[7]
The
applicant claimed that he witnessed the murder of his uncle by militants at the
end of April 2006. He did not, however, have a copy of the death certificate.
He claimed that Palestinians were the object of persecution and death threats
from radicals of both Shiite and Sunnis.
[8]
He
also claimed that he had been threatened on a number of occasions. He had also
received a leaflet that threatened to kill him and his family if he did not
leave within 72 hours. However, that document was not addressed to the applicant
specifically, but to all Palestinians.
[9]
As
a result, the applicant obtained a fraudulent travel document to get himself
and his family to Syria. After that, his sister-in-law, an American
citizen, came and flew with the applicant to Canada using his
brother’s passport (also an American citizen). He arrived August 15, 2006 and
made a claim for refugee status.
[10]
The
evidence only shows one other attempt by the applicant to leave Iraq. In 2005,
one of the applicant’s sons had been ill, apparently with emotional or
psychological problems caused by the violence. The applicant testified that his
brother had contacted a lawyer to see if the applicant’s son could go to the U.S.A. for
treatment “but not as a refugee or an asylum.” The applicant’s brother
determined that this would not work out and no application or claim was made as
a result.
[11]
The
applicant testified that none of his family remains in Iraq. The applicant’s
brother and father had gone to the U.S.A.; the former obtained
citizenship because he married an American and the latter was sponsored by the applicant’s
brother. The applicant’s mother was a Jordanian in Syria who, at the
time of the hearing, had just obtained her green card to go to the U.S.A. The rest of
the applicant’s family is still in Syria, some (including his
wife and children) illegally.
IV. The decision
[12]
The
RPD found that the applicant was not credible and that this was the
determinative issue. In the Decision, the RPD noted that the applicant had
specifically identified threats from Shiite militias in his Personal
Information Form (PIF) narrative. However, at the hearing, the applicant had
testified that he feared both radical Shiites and Sunnis. The applicant said
that while he was a Sunni, the radical Sunnis in Iraq wanted to
get rid of him not because of his religion but because he is Palestinian. The applicant
testified that he had not specifically mentioned Sunnis in his PIF narrative as
few Sunnis lived near his home and hence rarely caused problems for him.
[13]
The
Decision found that the applicant’s testimony regarding his uncle’s death was
not credible, noting that the applicant did not know the date of the incident.
The Decision noted that there was no corroborative evidence of this incident.
[14]
The
RPD also found the applicant’s testimony that he had no right of return to Iraq to be
implausible. The RPD described the applicant as “an Iraqi of a Palestinian
origin.”
[15]
The
RPD noted that all of the applicant’s family had fled Iraq. The
Decision held that “[t]he evidence states that the claimant has tried different
ways to leave Iraq for all his family had left for the US.” (This is
erroneous since his wife and children still remain in Syria).
[16]
Finally,
the RPD took into account the general conditions in Iraq. The
Decision notes the UNHCR Handbook which states that “persons compelled to leave
their country of origin as a result of international or national armed conflict
are not normally considered refugees”. Instead, “refugee status will depend
upon whether the applicant is able to show that he has a well-founded fear of
being persecuted in the occupied territory” and that there is no state
protection or equivalent. The RPD found that the applicant’s “concern is the
conditions in Iraq and his bid
to leave the war torn country for all his family has migrated to the U.S.”
V. Analysis
[17]
The
Respondent submits that the standard of review is patent unreasonableness. In
light of the Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, the standard of review is that of reasonableness simpliciter.
[18]
In
my view, the RPD made a number of reversible errors in the Decision.
[19]
First,
the RPD found that the applicant was inconsistent in testifying that he feared
both radical Sunnis and Shiites when he had only specifically mentioned Shiite
militias in his PIF narrative. However, it is clear from the PIF narrative that
the references to Shiite militias are specific examples of the applicant’s
fears. The applicant put greater emphasis on his fears of the Shiite militias
simply because the Palestinian complex was in a predominantly Shiite area.
[20]
Second,
the evidence does not support the RPD’s conclusion that the applicant did not
know the date of his uncle’s murder. The applicant testified that his uncle was
killed “[a]bout the end of April 2006.” The applicant was never asked whether
he knew the exact date much less what that date was. The RPD’s statement that
“[t]he claimant testified that his uncle was killed in 2006” mischaracterizes
the applicant’s testimony by suggesting it was much less precise than it
actually had been.
[21]
Third,
both the applicant’s own evidence as well as the documentary evidence show that
the applicant was not an Iraqi but a stateless Palestinian without definite
residency rights in Iraq. The evidence strongly supports the applicant’s
testimony that he has no right of return to Iraq and that he
may be detained if he returns there.
[22]
Fourth,
the RPD clearly erred in suggesting that the applicant’s family had all left
for the U.S. with the suggestion that the applicant’s true purpose was to
rejoin them rather than to flee persecution. Only the applicant’s brother,
father and mother were able to reside in the U.S.A. Moreover,
the applicant had come to Canada and not the U.S.A. where he did
not have any family.
[23]
Finally,
the RPD makes no mention of the documentary evidence, some of which is noted
above, which shows extensive persecution of Palestinians in Iraq. Members of
that nationality are not simply compelled to leave their country of origin as a
result of international or national armed conflict. Instead, they clearly face
persecution based on their nationality and/or membership in a particular social
group and hence are eligible to be Convention refugees. The failure in this
case to mention this documentary evidence is a clear error in this case.
VI. Conclusion
[24]
The
applicant testified and provided some evidence that showed he had subjective
fear of persecution in Iraq. There were no major inconsistencies in
his testimony to ground a finding that the applicant lacked credibility.
Moreover, the applicant’s testimony was well supported by the documentary
evidence. For these reasons, I have concluded that the RPD erred in making the
Decision and that this matter should be referred back to a new panel.
JUDGMENT
UPON reviewing the material
filed and hearing the submissions of counsel for both parties in Toronto on Tuesday, May 13,
2008;
AND UPON being advised that
no questions are posed for certification;
NOW THEREFORE THIS COURT
ORDERS AND ADJUDGES that for the reasons given
above the Application is granted.
"Orville
Frenette"
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