Docket: IMM-3326-17
Citation:
2018 FC 98
Ottawa, Ontario, January 30, 2018
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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KHETAM MAHMOUD
ALI ALHAJ
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ZAINA A S
ALHADDAD
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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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JUDGMENT AND REASONS
[1]
The applicants, Ms Khetam Mahmoud Ali Alhaj [the
principal applicant] and her daughter Zaina A S Alhaddad, which she represents
[the minor applicant], seek the judicial review of a decision of the Refugee
Protection Division [RPD] of the Immigration and Refugee Board.
[2]
The RPD determined that the applicants were not
Convention Refugees or persons in need of protection in Canada, pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA]. It concluded that the principal applicant’s fear of being
stripped of her Jordanian nationality was only speculative and did not amount
to a serious possibility of persecution. Likewise, it concluded that the minor
applicant did not face persecution because of her Palestinian ethnicity, nor
was there sufficient evidence to conclude that she faced a personalized risk of
persecution under section 97 of the IRPA.
[3]
The only issue before this Court is whether the
RPD’s decision to deny the applicants’ refugee claims is reasonable (see e.g. Angel
Gonzalez v Canada (Citizenship and Immigration), 2010 FC 1292 at para 10; Duran
Mejia v Canada (Citizenship and Immigration), 2009 FC 354 at para 29).
For the following reasons, I find that the RPD’s decision was reasonable with
respect to the principal applicant, but unreasonable with respect to the minor
applicant.
Background
[4]
The principal applicant is a Jordanian citizen
of Palestinian descent. The five-year-old minor applicant is a stateless
Palestinian. Before coming to Canada, the applicants resided in Saudi Arabia. The
principal applicant moved to Saudi Arabia after her Palestinian husband
obtained work there. The minor applicant was born in Saudi Arabia, but does not
possess Saudi citizenship since an individual born in that country from a
foreign father retains his nationality.
[5]
In March 2017, the applicants landed in Jordan
on a stopover en route to the United States. The principal applicant
allegedly received a phone call from the Jordanian Intelligence Services to
attend an interview. No date or reasons for the interview were specified. Since
her two sisters were allegedly stripped of their Jordanian citizenships, the
principal applicant feared this would happen to her as well. For that reason,
she decided not to attend the interview and travel to the US. On April 6, 2017,
she claimed refugee protection in Canada.
[6]
In their basis of claim form [BOC], the
applicants claimed fears in different countries. They first claimed fearing the
Hamas in Gaza which perceived them as informants of the Palestinian Authority.
Various members of their family were allegedly threatened by the Hamas. In
addition, they also claimed fearing being harassed in Saudi Arabia because of
their gender and because of their Palestinian ethnicity. Last but not least,
the principal applicant fears being stripped of her Jordanian citizenship, as
she received a call from the Jordanian Intelligence, and because it allegedly
happened to her sisters.
[7]
On July 5, 2017, the RPD dismissed the asylum
claim.
The impugned decision
[8]
The RPD first had to determine both applicants’
countries of reference. Jordan was the principal applicant’s country of
reference, as she held Jordanian citizenship. The minor applicant’s country of
reference was Saudi Arabia. She is a stateless person, since Canada does not
recognize the Palestinian Authority – her passport’s issuing “State”. In that case, the country of formal habitual
residence becomes the country of reference. The RPD therefore only assessed the
applicants’ stories with respect to the given country of reference. The choice
made by the RPD with respect to country of reference is not an issue in this
application.
[9]
The RPD concluded that the principal applicant
failed to establish a serious possibility of persecution in her country of
nationality, Jordan. The RPD found that her story was not credible based on various
implausibility findings:
•
The Jordanian Intelligence did not give a reason
for the call, or a date to report back;
•
The RPD does not see why it would have been up
to her to decide when to report to the Jordanian Intelligence Services;
•
The authorities could easily have stopped her
when she entered Jordan a few days earlier;
•
Her passport was renewed the year before for a
period of five years, and was always renewed in the past; and
•
She was also able to leave Jordan with her
Jordanian passport to go to the US, shortly after allegedly receiving the call
and being sought by Jordanian Intelligence Services. The authorities could have
easily stopped her then, if they indeed wanted to revoke her citizenship.
[10]
The RPD nonetheless acknowledged that the
documentary evidence indicated that the Jordanian government had, at times,
revoked the citizenship of Jordanian citizens of Palestinian descent. Yet, it
usually concerned Palestinians returning from Kuwait after the Gulf War, and
those entering Jordan from Gaza – which was not the applicant’s case. In
addition, the applicant did not submit any corroborative evidence to support
her allegations that her sisters were stripped of their Jordanian citizenship.
The RPD therefore concluded that the principal applicant did not establish a
serious possibility of persecution in Jordan, nor did she provide sufficient
evidence for a positive decision under section 97 of the IRPA.
[11]
The RPD then analyzed the principal applicant’s
fears for her five-year-old daughter in Saudi Arabia. The RPD first tried to
understand the nature of those fears. Essentially, the principal applicant
seems to be claiming refugee status on the minor applicant’s behalf because:
her other children were bullied and sexually harassed at school; the two
applicants were almost kidnapped by a cab driver; she has to send the minor
applicant to private schools and hospitals since Palestinians are not allowed
access to public services; and finally because the minor applicant does not
attend kindergarten as the principal applicant is scared she will be sexually
harassed. When asked about who would harass Zaina specifically, the principal
applicant responded “anybody”. The RPD found
that the principal applicant’s explanations were vague and general. She failed
to establish how the other children – the RPD refers to their “bullying” by schoolmates – suffered problems
specifically because of their Palestinian origins. The RPD concluded that
having to send children to private schools and hospitals does not amount to
persecution in the sense of section 96, nor has the applicant established that
such services were denied specifically because of their Palestinian origins.
The RPD also concluded that fears that Zaina would be sexually harassed are
speculative: there is not enough evidence to find a risk in the sense of
section 97.
Dismissal of the principal
applicant’s claim not unreasonable
[12]
The applicants submit that the RPD rejected the
principal applicant’s claim solely based on unreasonable implausibility
findings. Relying on Valtchev v Canada (Minister of Citizenship and Immigration),
2001 FCT 776 [Valtchev], the principal applicant claims implausibility
findings can only be made in the clearest situations, which is not the case
here. The documentary evidence’s analysis with respect to Palestinians’
citizenship revocation is insufficient. The RPD does not rely on any evidence
related to the process of revoking citizenship in Jordan, but is rather only
speculating. The facts presented by the applicant are not outside of what can
be reasonably expected. In addition, the applicant’s sisters’ citizenships were
revoked, and evidence shows that Jordanians of Palestinian origin have been
arbitrarily stripped of their Jordanian citizenship in the past. Finally, the
RPD does not raise any omissions or contradictions in her story. As such, the
implausibility findings are insufficient to reasonably uphold a negative
credibility conclusion.
[13]
The respondent replies that the principal
applicant failed to establish a serious possibility of persecution or that she
could be subject to a risk to her life or to a risk of cruel and unusual
punishment in Jordan. Her fear of losing her citizenship is speculative and
does not make her a Convention refugee or a person in need of protection. It
was reasonable for the RPD not to believe that a single phone call with no
reasons given meant that she would be stripped of her citizenship. The
respondent essentially argues that the RPD’s implausibility findings were
reasonable: there was no reason for the call or any date to report back; the
authorities had several other opportunities to stop the principal applicant;
and she did not provide any other corroborative evidence that her citizenship
may in be jeopardy. Moreover, the documentary evidence alone was insufficient
to establish the risk, as she did not fit in any of the categories listed of
other Palestinians who lost their Jordanian citizenship. The risk is only
speculative, and clearly insufficient to justify refugee protection.
[14]
I agree with the respondent that the issue was
properly treated by the RPD and that its decision was reasonable. Unlike what
the principal applicant contends, the RPD did not dismiss her claim solely
based on implausibility findings, but rather, and more importantly, on the
general lack of evidence supporting it. Of course, the RPD did first assess the
plausibility of her story. Let’s recall that the RPD can very well make
negative credibility findings based on implausibilities (see especially Lubana
v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at para 9
[Lubana]). Of course, this can only be done in the clearest of cases
(see Valtchev at para 7). In doing so, the RPD has to show sensitivity
to cultural differences, provide clear and unmistakable reasons, and the
inferences have to be reasonable (see generally Lubana at para 9; Rahal
v Canada (Citizenship and Immigration), 2012 FC 319 at para 44).
[15]
In the case at bar, the RPD’s implausibility
findings were made in clear and unmistakable terms, and were reasonable given
the evidence on file. They are supported by rational reasons: the principal
applicant admitted not being given a specific reason for the call; the caller
did not tell her specifically when to report; the Jordanian Intelligence
Services would have had various easy opportunities to stop her when she entered
and left the country only several days before and after the call, but did not;
her passport was just renewed; etc. The fact that the applicant admitted not
being given a reason for the call was determinative. This mysterious call is
the applicant’s only basis for fearing persecution or ill-treatment in Jordan.
It was therefore reasonable for the RPD to first assess the applicant’s
credibility, but then to also stress the lack of corroborating evidence.
Indeed, the principal applicant solely bases her allegations on the fact that her
sisters were themselves stripped of their Jordanian nationality, but does not
submit any evidence to support this.
[16]
The RPD also considered her more “generalized” risk as a Palestinian. While some
Palestinians had been stripped of their Jordanian citizenship in the past –
usually when returning from Kuwait or when entering Jordan from the Gaza strip
– the principal applicant did not fit in any of these categories. She could
therefore not fear persecution simply because she is Palestinian. While there
is documentary evidence suggesting that the revocation of citizenship includes
other cases, considering the implausibility of the main applicant’s allegations,
it was nevertheless reasonable for the RPD to find that there was not a serious
possibility of persecution in Jordan because of her Palestinian origin.
Dismissal of the minor applicant’s claim unreasonable
[17]
The applicants submit that the RPD’s assessment
of the minor applicant’s claim is unreasonable since it did not take into
account the Chairperson’s Guidelines 4: Women Refugee Claimants Fearing
Gender-Related Persecution [Gender Guidelines], and because it did
not assess how the minor applicant may fear persecution because of her gender.
A simple reference to the Gender Guidelines is not enough: the RPD needed to
consider the Guidelines in a meaningful way (see Odia v Canada (Citizenship
and Immigration), 2014 FC 663 at para 9 [Odia]). The RPD never tied
the risk of persecution to the minor applicant’s gender, but only examined the
risk she is facing as a Palestinian. Moreover, the Guidelines state that “a gender-related claim cannot be rejected simply because the
claimant comes from a country where women face generalized oppression and
violence and the claimant’s fear of persecution is not identifiable to her on
the basis on an individualized set of facts”. Relying on Salibian v
Canada (Minister of Employment & Immigration, [1990] 3 FC 250,
73 DLR (4th) 551 (FCA) [Salibian cited to DLR], the applicants submit
that asylum seekers do not have to show that they themselves have been
persecuted in the past or would be persecuted in the future. They have to show
fear resulting from acts committed or likely to be committed against members of
a group to which they belong. There has to be a reasonable possibility that the
applicant will be persecuted if she returns to her country. As such, the
situation of women in Saudi Arabia was relevant and should have been assessed
by the RPD, rather than only looking at the family’s situation. This is
sufficient to make the decision unreasonable.
[18]
The respondent replies that the principal
applicant did not establish that the minor applicant faces a serious
possibility of persecution in Saudi Arabia by reason of her Palestinian origin
or gender. The alleged difficulties faced by other siblings are not sufficient
to demonstrate that the applicant is a refugee or a person in need of
protection. The principal applicant’s testimony is too vague and general to
substantiate a serious risk: the minor applicant’s fear is speculative.
Moreover, the respondent interprets the BOC as stating that Palestinian
nationality, not gender, was the main ground from which to claim protection.
The need to consider the Gender Guidelines does not change the nature of the
claim: women may fear persecution on the same grounds as men, in which cases
the risk factor is not their gender but rather their particular identity. Moreover,
Odia does not apply to this case, since it had to do with how an RPD
member lacked gender sensitivity when assessing an applicant’s testimony during
the hearing. Finally, Salibian is also inapplicable because there was insufficient
evidence that the minor applicant could be persecuted as a Palestinian woman.
The RPD clearly referred to the Gender Guidelines and was well aware of the
allegations of sexual harassment and found the evidence inconclusive. There was
no reviewable error despite the fact the applicants disagree with the result.
In sum, the applicants failed to demonstrate how the RPD’s decision was
unreasonable.
[19]
I agree with the applicants that the impugned
decision lacks transparency and intelligibility. The decision to dismiss the
minor applicant’s claim was unreasonable, as it not clear that the RPD
effectively conducted an assessment of the linkage between gender and the
feared persecution in Saudi Arabia, as prescribed by the Gender Guidelines. Simply
mentioning the Gender Guidelines and repeating the allegation that the
principal applicant’s children were sexually harassed in Saudi Arabia was not
enough to overcome a clearly defective analysis in this case.
[20]
While gender is not an enumerated ground for a
well-founded fear of persecution under section 96 of the IRPA, the Gender
Guidelines state that:
[…] it has been
more widely recognized that gender-related persecution is a form of
persecution which can and should be assessed by the Refugee Division panel hearing
the claim. Where a woman claims to have a gender-related fear of persecution,
the central issue is thus the need to determine the linkage between
gender, the feared persecution and one or more of the definition grounds.
[21]
I cannot agree with the respondent’s argument
that the minor applicant’s section 96 claim was only based on her Palestinian
ethnicity, and not on her gender. The BOC starts with the sentence: “my daughter and I are seeking refugee protection of Canada on
account of our gender in Saudi Arabia” [emphasis added]. The
narrative then describes various incidents which had to do both with the minor
applicant’s gender, and with her Palestinian ethnicity. Indeed, the narrative recounts
incidents of violence directed towards the principal applicant’s sons, most
likely due to their Palestinian ethnicity, and their family’s exclusion from
various services due to their Palestinian descent. Yet, it also reports incidents
of sexual harassment of her daughter, and the avoided kidnapping incident by a taxi
driver which could be gender-related as well. Instead of conducting a complete
analysis, the RPD only looked at whether the minor applicant was personally in
danger (section 97), and whether she risked being persecuted because of her
Palestinian ethnicity (section 96).
[22]
At the risk of repeating myself, the RPD had to
analyze the linkage between the minor applicant’s gender, the feared
persecution in Saudi Arabia and her Palestinian nationality, an assessment
which is clearly defective. Under section 96, an applicant has to show that
there are good grounds to believe that, if she returned to her country of
nationality or habitual residence, she would be persecuted. The applicant has
to show that the fear results from reprehensible acts committed or likely to be
committed not directly against her, but against members of a group to which she
belongs: in this case, it would be Palestinian girls in Saudi Arabia (see Salibian
at 558). Yet, the RPD only addressed whether reprehensible acts would be
committed directly against her, and concluded negatively. It should however
have conducted a broader analysis of general country conditions in Saudi
Arabia, particularly the situation of Palestinian women and girls, in order to
comply with requirements of the IRPA and the Guidelines (see especially Joseph
v Canada (Solicitor General), 2006 FC 165 at paras 1, 17-19; Zolotova v
Canada (Minister of Citizenship and Immigration), 2011 FC 193 at paras 2-3).
Its failure to do so renders the decision unreasonable.
[23]
Indeed, the RPD’s decision shows no
consideration of the gender issue in light of the particular identity and
sexual status of women in Saudi Arabia and other women in the same category as
the minor applicant. While female and male Palestinian applicants may be
subjected to the same forms of harm, they may also face forms of persecution
specific to their sex which may include sexual harassment. I cannot accept the
argument made by the respondent’s learned counsel that the matter should not be
remitted to another panel because the allegations are too general. In this
respect, the principal applicant explained to the RPD that her daughter Dalida
was sexually harassed by two of her classmates in 2017, and despite the fact
that this awful harassment was reported to the school administration, nothing
was done to protect her. In the impugned decision, the RPD simply treats the
daughter’s situation as “problems” which did not
prevent her and her other sisters to “do well in
school”. This shows a total lack of sensitivity. Consequently, if the
applicants’ story is credible, the issue is whether any such gender-related
behaviour directed to young girls amounts to persecution, and whether adequate
State protection is available.
Conclusion
[24]
For the above reasons, the present judicial review
application is allowed in part. The RPD’s decision is upheld with respect to
the principal applicant’s claim. The decision is set aside with respect to the
minor applicant’s claim and the matter sent for redetermination by another
panel. No question of general importance has been raised.
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