Date:
20130423
Docket:
IMM-6607-12
Citation:
2013 FC 417
Ottawa, Ontario,
April 23, 2013
PRESENT: The
Honourable Madam Justice Simpson
BETWEEN:
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HOURYAH ELAKELE
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Applicant
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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
ORDER AND ORDER
[1]
Houryah
Elakele [the Applicant] seeks judicial review pursuant to subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board [the Board], dated June 7, 2012, wherein the Board determined that the
Applicant is neither a Convention refugee nor a person in need of protection
[the Decision].
[2]
For
the following reasons, the application will be allowed.
The Facts
[3]
The
Applicant is a 33 year-old female, a citizen of Israel and a member of a
Bedouin tribe. She fears that if returned to Israel, she will be targeted by
her brothers for “honour crimes” associated with her marriage to a Canadian
man.
[4]
In
her Personal Information Form [PIF], dated October 21, 2011, the Applicant
described her family as conservative and traditional. During her life in
Israel, the Applicant’s oldest brother exerted total control over the women in
the household and she was punished, sometimes physically, anytime she did not
follow his strict rules or acted in a way that flouted traditional gender
roles. Despite these circumstances, the Applicant managed to attend university
and become a teacher. In 2010, while online, she met a Canadian man named
Mohamed with whom she developed a relationship. Eventually, in June 2010, she
came to visit him in Canada using the pretence of a business trip. She married
Mohamed in Canada in July 2010 without her family’s knowledge. Since she had to
return to Israel for work, she and Mohamed decided to hide their marriage from
her family. Accordingly, in March 2011, Mohamed came to Israel and pretended to meet the Applicant. In due course, he obtained her family’s
approval and they married again in Israel seemingly for the first time.
[5]
The
Applicant arrived in Canada on June 30, 2011 to live with her husband. However,
she quickly learned that Mohamed expected her to abide by the conservative
religious norms which she thought she had left behind in Israel. He was also verbally abusive. In September 2011, the Applicant left her husband and
moved to a women’s shelter.
[6]
While
at the shelter, the Applicant heard that her brothers had discovered that her
marriage had failed and that she was being accused by her husband of being a
poor wife. They also learned about her first marriage in Canada and from their traditional perspective, because the Canadian wedding had taken place
without their permission, they believed that the Applicant had engaged in
pre-marital sex. There was contradictory evidence about how the brothers
learned about the events in Canada, but it was clear that rumors about
Mohamed’s accusations were circulating in the Applicant’s Bedouin community in Israel. She speculated in her PIF that the source of the gossip was likely a friend of hers
who was also her husband’s “friend” on Facebook. According to the Applicant,
the allegations leveled against her shame her family and require that she be
punished. Her elder sister has signed an affidavit saying that her brothers
have threatened to “slaughter” her should she return to Israel. For these reasons, she made her refugee claim on September 7, 2011.
The Decision
[7]
The
Board found that the Applicant lacked credibility because the evidence she
offered was inconsistent and contradictory. The Board also concluded that she
had not demonstrated that Israel could not provide adequate state protection.
Further, the Board found that she had a viable internal flight alternative [IFA]
in Jerusalem.
Discussion
[8]
In
my view the Decision was unreasonable for two reasons. First, the principal
credibility finding was based on a misapprehension of the contents of the
Applicant’s PIF. Second, the Decision shows that the Board failed to
adequately consider documents which corroborated the Applicant’s testimony both
in relation to state protection and in relation to the IFA. I will deal with
each matter in turn.
Credibility
[9]
One
of the principal reasons the Board doubted the Applicant’s credibility was its
belief that her PIF did not state that her alleged transgressions were revealed
to members of her community in Israel via Facebook and that it was the source
of the rumours heard by her brothers. At paragraph 25 of the Decision, the
Board said:
The claimant’s complete silence
on the rumours from Facebook in the narrative causes me to draw a negative
inference on the credibility of her allegations.
[10]
However,
the Board was mistaken. Paragraph 34 of the PIF narrative clearly states that
the Applicant suspected that someone in the community had learned of her
circumstances via Facebook. The relevant portion reads:
However, Mohamed must have
contacted someone else within the village because the whole community knew
about Mohamed’s allegations against me. Mohamed and I had one common friend on
Facebook who lived back home in my village. I believe he told her and she must
have informed other people. They like to talk a lot in my village, especially
when it’s about someone’s honour.
[11]
Although
the Board’s incorrect belief that the PIF didn’t mention Facebook [the
Omission] was not the only reason for the negative credibility finding, the
transcript of the hearing reveals that the Omission was a central matter for
the Board. The Applicant was questioned multiple times about the Omission and although
she tried to tell the Board that her PIF did address Facebook, the Board seemed
to ignore her testimony. In view of this fundamental misapprehension of the
Applicant’s evidence, I have concluded that her credibility must be reassessed.
Failure to
Address Documentary Evidence
[12]
The
Board dealt very briefly with the questions of a viable IFA in Jerusalem and the availability of adequate state protection. Four short paragraphs were
devoted to state protection while seven paragraphs, four of which were one
sentence in length, dealt with the IFA. Regarding both issues, the Board
criticised the Applicant for not adducing clear and convincing evidence to
rebut the presumption of state protection and to establish a serious
possibility that her brothers would find her in Jerusalem.
[13]
However,
the Board failed to address probative evidence from reliable sources which was
relevant to both issues. For example, the expert opinion of Professor Neve
Gordon, a professor in the Department of Politics and Government at Ben-Gurion University in Israel, addressed the lack of state protection for Bedouin women in Israel and explained that Israeli police allow the heads of Arab clans to decide the
outcome of so-called domestic disputes in the name of “cultural differences”.
Professor Gordon also opined that Arab women who have in some way “damaged” the
family honour are in danger in Israel and cannot trust the authorities.
[14]
Professor
Nitza Berkovitch, also of Ben-Gurion University, provided similar information
but also addressed whether Bedouin women could flee to other parts of Israel. She stated that it is impossible to “disappear” in a country as small as Israel. It was her opinion that a single Bedouin woman could not mingle in the larger
Jewish population and if she tried to join another Bedouin community, she would
attract attention. Further, because no community would want to have a
reputation of helping runaways, she would likely be returned to her own
community. Finally, a Response to Information Request dated February 11, 2010
showed that Israeli women’s rights activists believe that the state fails to
respond adequately to “honour” killings, which according to the materials, are
viewed by the police “as a part of Muslim culture”.
[15]
This
evidence corroborates the evidence provided by the Applicant at the hearing,
and in particular, her explanations about why she could not expect the police
to keep her safe and why she could not live in Jerusalem. Despite being exactly
on point, the Board provided no indication that it had specifically considered
these materials.
[16]
Counsel
for the Respondent argued at the hearing that the Board did in fact consider
this evidence because it said at paragraph 46 of the Decision that “although
state protection is not as satisfactory as wished with respect to potential
victims of honour killings in the Bedouin community as indicated by documentary
evidence from the claimant, she did not adduce clear and convincing evidence to
rebut the presumption.” In my view, this statement is inadequate because it is
vague. If the Board is going to disregard expert and documentary evidence that
is of direct relevance to the claim, it must give clear reasons for doing so
and should make a clear finding about whether it considers state protection in Israel to be adequate for Arab women in the Applicant’s situation.
[17]
For
these reasons, this matter must be redetermined.
[18]
No
question was posed for certification pursuant to section 74(d) of the Act.
ORDER
THIS
COURT ORDERS that
The Decision is
hereby set aside and this matter is referred back for redetermination by a
differently constituted panel of the Board.
“Sandra J. Simpson”
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