Docket: IMM-4337-14
Citation:
2015 FC 589
Ottawa, Ontario, May 6, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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MANAL HINDAWI
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The risk of honour killings must be given every
measure of consideration as per the gender related guidelines, in regard to the
narrative of the Applicant, and, in addition, to ensure that the fulsome
backdrop of circumstances is understood in context in respect of the community
from which the Applicant originates.
[2]
The Court is not convinced that the evidence in
respect of the threat to life faced by the Applicant of falling victim to an “honour killing” was fully and adequately canvassed
and given reasonable consideration by the RPD (Kanthasamy v Canada (Minister
of Citizenship and Immigration), 2014 FCA 113 at para 99 [Kanthasamy]).
II.
Introduction
[3]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision rendered on May 9, 2014, by the Refugee
Protection Division [RPD] rejecting the Applicant’s refugee claim under
sections 96 and 97 of the IRPA.
[4]
The Applicant is a Arab Muslim woman and citizen
of Israel who claims refugee protection on the basis of her fear of persecution
at the hands of her abusive husband and her risk faced upon return of becoming
victim of an “honour killing” by members of her
extended family.
III.
Factual Background
[5]
The Applicant is from an Arab populated village
in northern Israel that she describes as a tight knit Arab community holding
traditional views about women, a woman’s role in life and the need to uphold
community values and “family honour”.
[6]
In 1998, the Applicant entered an arranged
marriage and shortly thereafter gave birth to two sons, in 2002 and 2004. After
the wedding, the Applicant’s husband became controlling and emotionally abusive
towards the Applicant. In August 2008, the Applicant’s husband started to
regularly rape her and subject her to degrading sexual acts that are considered
haram (sinful) according to Islamic law.
[7]
During a holiday trip to Egypt, the Applicant
befriended Mohamed, a Syrian Arab and they exchanged emails. The Applicant
occasionally communicated and confided in Mohamed via email and Facebook.
[8]
In May 2010, the Applicant’s husband accused the
Applicant of having an affair with Mohamed. The husband forced the Applicant to
delete her Facebook account and forbade her from contacting Mohamed again. The
Applicant asked her husband for a divorce but he refused to grant it.
[9]
The abuse of the Applicant’s husband towards the
Applicant increased.
[10]
The Applicant continued to communicate
periodically with Mohamed until 2012, when the Applicant’s husband learned that
the Applicant was still in contact with him, by finding Mohamed’s number in the
Applicant’s jacket.
[11]
The Applicant’s husband called Mohamed and
threatened him. Mohamed continued receiving threats of violence and death on
his phone and through Facebook from the Applicant’s husband, who used an alias.
[12]
Fearing for her life, the Applicant decided she
could not remain in Israel. On November 15, 2013, the Applicant fled to
Canada and traveled via Turkey, where she spent two days with Mohamed in
Istanbul, who himself had previously fled Syria in 2013.
[13]
Since the Applicant’s arrival in Canada, she and
Mohamed received repeated death threats from her husband and members of her
extended family, both directly and indirectly.
[14]
The Applicant claims that she is the target of a
probable “honour killing” by members of her
family who have threatened to avenge her acts of perceived defiance.
IV.
Impugned Decision
[15]
In a decision dated May 9, 2014, the RPD
concluded that the Applicant does not face a well-founded fear of persecution,
nor is she a person in need of protection, under sections 96 and 97 of the
IRPA.
[16]
The Applicant’s credibility was not at issue;
the RPD found that the Applicant testified in a straight forward manner, and
that her testimony was coherent and consistent.
[17]
Rather, the RPD’s finding of state protection
was determinative in rejecting the Applicant’s claim.
[18]
Relying on the documentary evidence contained in
the RPD’s National Documentation Package for Israel, and noting that Israel is
a multiparty parliamentary democracy, that holds free and fair elections, the
RPD identified the Applicant’s burden of rebutting state protection as a high
one.
[19]
The RPD found that the Applicant’s mere
subjective reluctance to seek protection, especially given her “level of sophistication and wherewithal”, is
insufficient to rebut the presumption of state protection (RPD Decision, at
para 59).
V.
Legislative Provisions
[20]
The following provisions of the IRPA apply to
the determination of a refugee claim:
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Convention refugee
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Définition de « réfugié »
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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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Person in need of protection
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Personne à protéger
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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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(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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(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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VI.
Issues
[21]
The central issues raised by the application is
the following:
a.
Did the RPD err in its state protection
analysis?
b.
Are the RPD’s findings in respect of the risk of
an “honour killing” faced by the Applicant
reasonable?
VII.
Standard of Review
[22]
The RPD’s assessment of the availability of
state protection is a finding of fact, which falls within the RPD’s expertise
with respect to country conditions. These issues are therefore reviewable on
the standard of reasonableness (Jabbour v Canada (Minister of Citizenship
and Immigration), 2009 FC 831 at paras 18 and 20 [Jabbour]; Baku
v Canada (Minister of Citizenship and Immigration), 2010 FC 1163 at para
9).
VIII.
Analysis
A.
Did the RPD err in its state protection
analysis?
[23]
This is a case that turns on its facts.
[24]
The onus rests upon the Applicant of providing
clear and convincing evidence that she cannot avail herself of adequate state
protection (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at p
724).
[25]
In its state protection analysis, it is
incumbent on the RPD to address not only a state’s willingness in providing
adequate state protection, but also the state’s capacity to implement those
measures, at the operational or practical level for the person concerned under
his or her circumstances (Zaatreh v Canada (Minister of Citizenship and Immigration),
2010 FC 211 at para 27).
[26]
As the burden of proof for rebutting the
presumption of state protection is correspondent with the level of democracy in
a state, the Applicant bears a heavy burden of proving that she has exhausted
the avenues available to her (Hinzman v Canada (Minister of Citizenship and
Immigration), 2007 FCA 171 at para 57 [Hinzman]; Jabbour,
above at para 27).
[27]
While social or community resources may exist to
assist victims of violence, these do not necessarily amount to state protection
in certain cases due to circumstances and context. As stated by Justice
Catherine M. Kane “the existence of other agencies and
resources is not a substitute for police protection” (L.D.M.F. v
Canada (Minister of Citizenship and Immigration), 2013 FC 938 at para 38).
[28]
In the case at bar, the RPD found that the
Applicant’s subjective reluctance in seeking state protection is insufficient
to rebut the presumption of state protection.
[29]
This Court has confirmed that refugee claimants
are not required to be courageous or risk their lives in seeking state
protection merely to demonstrate its ineffectiveness. Claimants can be exempted
from the obligation of exhausting all avenues of protection in the event of
exceptional circumstances (Rodriguez v Canada (Minister of Citizenship and
Immigration), 2012 FC 1291 at para 29; Gonsalves v Canada (Minister of
Citizenship and Immigration), 2008 FC 844 at para 16; Hinzman, above
at para 57).
[…] Moreover, it is not reasonable to
require refugee claimants to put their lives or the lives of their families in
danger. In the same way, claimants do not have to suffer greater persecution
(which may consist of repeated discriminatory acts amounting to persecution).
This Court pointed out recently in Shimokawa v. Canada (Minister of
Citizenship and Immigration), 2006 FC 445, [2006] F.C.J. No. 555 (QL), at
paragraph 21: "... in seeking state protection, refugee claimants are
not expected to be courageous or foolhardy. It is only incumbent upon them
to seek protection if it is seen as being reasonably forthcoming. If the
refugee claimants provide clear and convincing evidence that contacting the
authorities would be useless or would make things worse, they are not required
to take further steps." [My emphasis.] In short, it is unreasonable to
force refugee claimants to ask for protection that has little chance of
materializing or that will be a long time coming, simply to demonstrate that
state protection is ineffective.
(Chagoya v Canada (Minister of
Citizenship and Immigration), 2008 FC 721 at para 5)
[30]
This is consistent with the Chairperson
Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution,
which provides that decision-makers must be sensitive to the gendered nature of
a claim:
Decision-makers should consider evidence
indicating a failure of state protection if the state or its agents in the
claimant's country of origin are unwilling or unable to provide adequate
protection from gender-related persecution. If the claimant can demonstrate
that it was objectively unreasonable for her to seek the protection of her
state, then her failure to approach the state for protection will not defeat
her claim. Also, the fact that the claimant did or did not seek protection
from non-government groups is irrelevant to the assessment of the availability
of state protection.
When considering whether it is objectively
unreasonable for the claimant not to have sought the protection of the state,
the decision-maker should consider, among other relevant factors, the social,
cultural, religious, and economic context in which the claimant finds herself. If,
for example, a woman has suffered gender-related persecution in the form of
rape, she may be ostracized from her community for seeking protection from the
state. Decision-makers should consider this type of information when
determining if the claimant should reasonably have sought state protection.
[Emphasis added.]
[31]
As such, although the Applicant’s subjective
fear is not determinative in assessing the availability of state protection,
the jurisprudence requires that her perception be nonetheless considered by the
RPD, in light of the general country conditions (Aurelien v Canada (Minister
of Citizenship and Immigration), 2013 FC 707 at para 13 [Aurelien]).
As stated by Justice Donald J. Rennie in Aurelien, above:
[9] An applicant need not seek state
protection if the evidence indicates it would not reasonably have been
forthcoming. The Officer must consider whether seeking protection was a
reasonable option for the applicant, in her circumstances. When the
relevant circumstances include domestic abuse, the Supreme Court of Canada has
outlined specific considerations that must be taken into account, including the
psychological effects that abuse has on a victim. The issue as framed in R
v Lavallee, [1990] 1 S.C.R. 852, is what the applicant "reasonably
perceived, given her situation and her experience." The test is thus
subjective and objective. [Emphasis added.]
(Aurelien, above at para 9; see also:
R v Lavallee, [1990] 1 S.C.R. 852 [Lavallee])
[32]
The Applicant, whose testimony and evidence were
found wholly credible by the RPD, explained the reasons why she could not,
based on her circumstances, situation and context, approach the police for
state protection. The Applicant’s belief that police protection is not an
option based on her allegations in her particular circumstances is supported,
among others, by Dr. Abdo’s expert report, which can assist in “dispelling the myths and provide an explanation as to why a
battered woman remains in her situation, which amounts to a cycle of suffering”
(Abbasova, above at para 56).
Seeking protection from the police in
relation to the problems I faced in my marriage was out of the question. First,
as an Arab Israeli I have little trust in the police in general. Second, sexual
assault is a deeply personal matter, and was particularly so in my case, as the
sexual acts that my husband forced upon me are haram (or “sin”) in my
community, and were deeply shameful to me. Moreover, I could not reveal these
haram sexual acts to the police without also shaming my parents and my
siblings, as ours is a society in which the sins of a woman are seen as the
sins of her family as well. Moreover, because the sexual acts were haram had I
reveled what my husband was doing to me to the police, I had no knowing what my
husband would do to me to retaliate for humiliating him… if my life were
threatened I knew that I would not be able to rely on the police for protection
there have been numerous cases in which Muslim women have sought the protection
of the Israeli police in relation to the threat of an honour killing but
despite having sought state protection they have been murdered.
(Applicant’s Basis of Claim narrative,
Certified Tribunal Record, at p 29)
[33]
It is noted that the Applicant was recognized
by the RPD as credible and has been diagnosed as per the evidence with “a battered woman syndrome”. Therefore, as a woman who
has suffered cycles of abuse, and given her limited freedom and mobility in her
community which result from living in an abusive and controlling relationship
with her husband, the practicalities and realities faced by the Applicant in
accessing police protection outside of her village must be carefully canvassed
in light of the principles established by the Supreme Court in Lavallee,
above, in respect of “the battered woman syndrome”.
[34]
Such circumstances require that the RPD look
above and beyond the efforts made by the state to provide protection to its
citizens and canvass whether it was reasonable to expect in the Applicant’s
circumstances, situation and context, to seek such protection.
[35]
In light of the above, it was unreasonable for
the Board to find that the Applicant’s fear is a mere “subjective
reluctance” to engage state protection, without having first explored
the Applicant’s particular circumstances (Jimenez v Canada (Minister of
Citizenship and Immigration), 2012 FC 1407 at para 8).
B.
Are the RPD’s findings in respect of the risk of
an “honour killing” faced by the Applicant reasonable?
[36]
Furthermore, in respect of the Applicant’s risk
of falling victim to an “honour killing” at the
hands of members of her family, the RPD found that “no
one in [the Applicant’s] family has been killed in such a manner and no one has
been threatened with such a consequence” and “therefore,
there is no evidence in the personal circumstances of the claimant to suggest
that there is a serious possibility of an honour killing should the claimant
return to Israel” (RPD Decision, at paras 56 and 57).
[37]
This reasoning is problematic, in light of the
evidentiary record which demonstrates that the Applicant’s husband and family
members have threatened her with death and reprisals, whether directly or
indirectly (Hearing Transcript, CTR, at pp 315-354; Applicant’s Personal
Testimony, CTR, at p 38; Letter submitted by Mohamed, dated December 23,
2013, CTR, at pp 280-282).
[38]
As pointed out by the Applicant, without
evidence that another woman in the Applicant’s family had committed an act
perceived to be dishonourable or a breach of Islamic law, the RPD’s reasoning
cannot stand.
[39]
Moreover, the Applicant has put forward evidence
which demonstrates that similarly situated women face a real risk of being
murdered in the name of upholding family honour as per the objective evidence
below:
[…] Violence against women in the Arab
Palestinian society in Israel has not abated, if anything it has increased in
some places. During 2013 alone, Women Against Violence Organization (WAVO)
in Nazareth reported the murdering of 14 women on the basis of the so-called
“honour killing” (citation omitted).
The persistence of patriarchal control in
various sectors within the Arab community in Israel is partly responsible for
keeping the woman under the male patriarchal control, for considering her (her
body) as the site of “purity” and “shame”, resulting in silencing her and in
many cases pressuring her to not report her abuse. It is no surprise,
therefore that Palestinian women’s reluctance to report to the police is to
save the family from societal retribution, shunning and tarnished reputation.
Sexuality in general is a social taboo in
the Arab society, particularly when the matter relates to sexual assault or
rape. As Shalhoub-Kovorkian notes, despite the increase in cases of sexual
violence against Palestinian women, the victims are often blamed for the
violence against them. The victims in cases of “domestic violence” fail to
report their traumatic experience for cultural, and personal reasons including
the guilt feeling, blaming and the fear of retribution in addition to the lack
of social services available for their protection. These feelings enhance the
victim’s belief in the futility of reporting, and weaken her will to share her
experience with others especially with officials.
[…]
Violence in Israel and especially violence
against women has been in the increase in the past decade largely due to the
militarization of this country. According to Jewish Women’s Rights Activist’s
report in 2013, approximately 200,000 Israel women were victims of domestic
violence. The study also revealed that during 2012, 7,335 women were treated in
89 centers for domestic violence across the country.
[…]
A study conducted by Aida Touma-Suleiman
(2009), chair of WAVO in Nazareth concluded that a major part of the blame and
responsibility for the cases of honour killing ought to be placed on the state
and its institutions for failing to stop such crimes, or even curb such a
phenomenon. Evidence provided for such claims are based on the study of 25
cases of the so-called honour killing. According to the study, in most cases
the Police failed to pursue the cases further to find out if other family
members knew about the possibility of the crime or whether other family members
were involved and thus failing to punish all those responsible for the crime. Touma-Suleiman
(2009), like Shalhoub-Kevorkian (2003) documented cases where even when women
victims of violence reported their cases to the Police, they were still killed.
As Touma-Suleiman assert, even when the police were informed that if the perpetrator
is released from prison they can endanger the life of the victim, they still
release the perpetrator resulting in various cases in the killing of the victim.
[Emphasis added.]
[40]
Dr. Abdo’s Report refers explicitly to the
Applicant’s refugee claim:
The case of this woman [the Applicant] is
similar to other cases where women sacrifice their lives and happiness for the
family (especially children), after 14 years of an abusive relationship she
decided she had enough and needed to take her fate in her own hands. This
candidate decided to live a life of peace have a relationship based on love and
respect.
Judging from experience, knowledge of
similar cases and a close understanding of the general living conditions of
Arab women in Israel the claim made by this woman about her fears and
apprehension in terms of how her decision will be met if she was to go back to
her society are not out of line. Based on her story, this woman’s need to
protection seems to be grounded on objective and subjective conditions. This
applicant is weary of the possibility of going back to her community and face
the possible punishment of being killed based on what would be interpreted as
“shameful” nor “dishonouring” act. Her application for consideration as a
potential victim of “honour-killing” is not far-fetched from the reality of her
life. After all, this woman left her husband,
entered a new relationship, while officially married, and living
alone…behaviour deemed outside the norms of a traditional patriarchal culture
living under state racism, one which could threaten her life.
(Women, Patriarch and Violence in Israel:
A Witness Expert Report by Nahla Abdo, CTR, at pp 304-305 and 315-316)
For the last two years, Nasrin resided in a
shelter for battered Arab women due to concern that members of her husband’s
family would try to harm her or send mercenaries to do so.
[…]
[Nasrin] was murdered at the end of May in
the middle of the day, just outside the shelter in which she resided in the
village of Yasik in the north of the country. She is the 30th woman to be
murdered in the past six years in the Ramle-Lod region for the purpose of
“restoring family honour”.
(Maariv, Arab Women, Imam protest honour
killings in Israeli city, June 12, 2012, CTR, at p 131-132)
According to WAV, only 22 percent of women
who seek assistance from them will file a police complaint due to a general
distrust of the police.
[…]
Arab women are generally more reluctant
than Jewish women to seek assistance following a sexual assault, because there
is a tendency among portions of Arab society to view the woman as the guilty
party in such cases, and the women are concerned about damaging “what is termed
the family’s honour.” … Arab victims of sex crimes
do not enjoy the support of their society, and often, friends and relatives
will publicly deny that an attack took place when they know that it did … It is
particularly hard for Arab women to challenge sexual harassment in the work
place, because it is so difficult for them to find work.
(IRB Responses to Information Request
(ISR 102543.E), CTR, at pp 134 and 135)
[Emphasis added.]
[41]
The Court is not convinced that the evidence in
respect of the threat to life faced by the Applicant of falling victim to an “honour killing” was fully and adequately canvassed
and given reasonable consideration by the RPD (Kanthasamy, above at para
99).
[42]
While the RPD need not to refer to all the
evidence before it, in this case, it failed to reference evidence that was
pertinent to the threat to life and limb alleged by the Applicant.
IX.
Conclusion
[43]
The application is allowed and accordingly set
aside for determination anew by a differently constituted panel.
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