Category: Palestine

Categories
All Countries Palestine

2020 RLLR 122

Citation: 2020 RLLR 122
Tribunal: Refugee Protection Division
Date of Decision: February 18, 2020
Panel: Arash Banakar
Counsel for the Claimant(s):
Country: Palestine
RPD Number: MB9-15304
Associated RPD Number(s): MB9-15315, MB9-15342, MB9-15345, MB9-15346
ATIP Number: A-2021-01106
ATIP Pages: 000025-000038

[1]       MEMBER:    This is the decision of the Refugee Protection Division in the claims of [XXX], his wife, [XXX], and their children, [XXX] and [XXX]. Principal file number MB9-15304.

[2]       The claimants are stateless Palestinians with the exception of [XXX], who is a citizen of the United States.

[3]       They all claim refugee protection m Canada pursuant to sections 96 and 97(1) of the

Immigration and Refugee Protection Act.

[4]       Prior to the start of the hearing, [XXX] was named as the designated representative for his three children, who are minors.

Determination

[5]       I have considered your testimony and the other evidence in the case and I am prepared to render my decision orally.

[6]       A written version of these reasons will be provided to you by mail at a later date.

[7]       I find that [XXX] and [XXX] have established on a balance of probabilities that they face a well-founded fear of persecution in their country of former habitual residence due to their nationality or ethnicity as stateless Palestinians.

[8]       Your claims are therefore accepted.

[9]       With respect to the claim of [XXX], it has not been established that she faces a serious possibility of persecution, or on a balance of probabilities, a risk to her life, or risk of cruel or unusual treatment or punishment, or danger of torture, in the United States.

[10]     Her claim is therefore denied.

Allegations

[11]     Your allegations are detailed in your Basis of Claim forms.

[12]     In summary, [XXX] was born in a refugee camp in South Lebanon in [XXX] to Palestinian parents.

[13]     After completing his university studies in Turkey, [XXX] went back to Lebanon to find work, but was refused several opportunities on account of his status as a Palestinian refugee.

[14]     In [XXX] 2000, he obtained a visa to travel to the U.A.E. Once there, he found a job and remained in the U.A.E. until his final departure in [XXX] of 2019.

[15]     [XXX] was born in Lebanon in [XXX] to Palestinian parents.

[16]     In 1987 she and her family fled Lebanon and travelled to the U.A.E.

[17]     [XXX] and [XXX] met in the U.A.E. and they married in 2003.

[18]     In 2014, [XXX] became friends with a work colleague by the name of [XXX] (Ph.).

[19]     In [XXX] of 2016, [XXX] travelled to Lebanon in order to renew his Lebanese travel document.

[20]     He was to go for an interview with a Lebanese official and members of the Hezbollah.

[21]     Considering that [XXX] worked in the field of [XXX] for nearly two decades in the U.A.E. and was familiar with various military bases, he was told to provide information about military sites in the U.A.E. to [XXX], who had ties with the Hezbollah.

[22]     [XXX] returned to the U.A.E. with the intention of not cooperating with the Lebanese authorities and never going back to Lebanon.

[23]     In [XXX] of 2019, [XXX] was summoned by the [XXX] Services.

[24]     He was questioned about his relationship with [XXX].

[25]     [XXX] was told that he was no longer welcome in the U.A.E. and that he and his family had to leave.

[26]     On [XXX] 2019, [XXX] along with his wife and children, travelled from the U.A.E. to the U.S.A.

[27]     On [XXX] 2019, the claimants crossed the Canada/U.S. border and applied for refugee status upon entry.

Identity

[28]     The personal and national identity of [XXX], as a citizen of the U.S., is established on a balance of probabilities by her birth certificate from the State of Hawaii, her U.S. passport, and her U.A.E. resident visa that are on file.

[29]     I find that the other claimants have established their personal and national identities as stateless Palestinians based on their UNRWA Family Registration Card, their Palestinian refugee cards, as well as the birth certificates of [XXX] and [XXX].

Countries of Former Habitual Residence

[30]     In cases where a claimant is stateless, an examination of the claimant’s countries of formal habitual residence is required.

[31]     As far as to finding what constitutes a country of former habitual residence, established jurisprudence states that:

[32]     “While claimants — a claimant needs to have established a significant period of de facto residence in a country of former habitual residence, the term implies a situation where a stateless person was admitted to a given country with a view to a continuing residence of some duration.”

[33]     With this in mind, I have considered whether Lebanon and the U.A.E. may qualify as countries of former habitual residence for the stateless claimants.

[34]     Both the adult claimants were born in Lebanon.

[35]     [XXX] spent approximately 20 years in Lebanon and has a variety of documents from the Lebanese authorities which confirms that he was admitted to Lebanon with the view of continuing residence.

[36]     From 2000 to 2019, he lived and worked in the U.A.E. And although he alleges he can no longer return there, the fact remains that he did establish de facto residence in the U.A.E. and was admitted with a view to continue residence there.

[37]     I therefore consider both the U.A.E. and Lebanon as countries of former habitual residence for [XXX].

[38]     As for [XXX], while she was born in Lebanon, she only spent four years there.

[39]     Nevertheless, the Federal Court, in the decision Al-Khateeb, stated that:

[40]     “Significant period of de facto residence can mean something other than a substantial period of time and a short period can be significant.”

[50]     I’ve considered [XXX] period of time in Lebanon to be significant, considering that she continues to have official ties to Lebanon as a resident of that country and a recognized refugee by the Lebanese Republic.

[51]     I therefore consider Lebanon to be a country of former habitual residence for [XXX].

[52]     I also considered the U.A.E. to be a country of former habitual residence for [XXX], given that she lived there for approximately three decades.

[53]     As for [XXX] and [XXX], I also find that their countries of former habitual residence are Lebanon and the U.A.E.

[54]     While they did not reside in Lebanon for an extended period of time, as their parents did, they have spent time there and they are recognized as residents of Lebanon by the Lebanese authorities, as indicated in the Lebanese refugee cards and their UNRWA Family Registration Cards.

[55]     Given the two identified countries of former habitual residence in this case, I will examine if the claimants, other than [XXX], would suffer persecution in Lebanon, and if so, whether they have the right to return to the United Arab Emirates.

Credibility

[56]     Testimony provided under oath is presumed to be truthful, unless there is a reason for doubting its truthfulness.

[57]     The adult claimants were each genuine, sincere, and candid  in their testimony. There was no attempt to embellish or exaggerate their claims.

[58]     Although [XXX]–[XXX] testified as to the harassment and discrimination he suffered in Lebanon.

[59]     He also explained the fears that he has for his wife and children should they accompany him to Lebanon.

[60]     The allegations regarding the harassment and discrimination suffered by Palestinians in Lebanon and their limited to access to employment, education, and health care is consistent with the documentary evidence in the National Documentation Package for Lebanon. I refer to the documents in section 13 of the National Documentation Package for Lebanon.

[61]     I also note that [XXX] has provided a variety of documents regarding his work experience in the U.A.E.

[62]     For these reasons, I find the claimants have established their allegations on a balance of probabilities.

Section 96 Analysis for the Stateless Claimants

[63]     The determinative issue for me in these claims is whether, as stateless Palestinian refugees in Lebanon, the claimants face a forward-looking serious possibility of persecution on the basis of their Palestinian nationality. This includes a serious possibility of cumulative discrimination amounting to persecution.

[64]     For the reasons outlined above, I find that you have established your identities as stateless Palestinians whose former habitual residence is Lebanon.

[65]     I find that based on the objective country evidence regarding the treatment of stateless Palestinians in Lebanon, you all face a serious possibility of cumulative discrimination amounting to persecution.

[67]     Item 13.1 of the National Documentation Package for Lebanon is a Response to Information Request which cites the U.S. Department of State Report in saying that:

[68]     “There is widespread and systematic discrimination against Palestinian refugees in Lebanon.”

[69]     The same document cites sources which state that:

[70]     “Palestinians in Lebanon are more at risk of arbitrary detention, torture, and kidnapping.”

[71]     And that:

[72]     “Palestinians lack basic social, economic, political, and civil rights.”

[73]     Item 13.4 of the National Documentation Package, another Response to Information Request, reports that:

[74]     “Discriminatory policies against Palestinians in Lebanon are systematic and Palestinians have been discriminated against by the Lebanese state for decades.  There are few signs that this will improve. Palestinian refugees are characterized as poor or often live in extreme poverty and are economically disadvantaged.”

[75]     Item 13.2 in the National Documentation Package for Lebanon, a more recent UNHCR report states that:

[76]     “Palestinian refugees in Lebanon reportedly continued to face acute socioeconomic

deprivation and legal barriers to their full enjoyment of a broad range of human rights.

[77]     Palestinian refugees in Lebanon are reported to have historically been marginalized and excluded from key aspects of social, political, and economic life, with no right to own immovable property, severely curtailed access to public services such as health and education, and restrictions regarding specific professions and limited job opportunities.”

[78]     Finally, Item 13.7 of the National Documentation Package for Lebanon, a Danish Immigration Service Reports cites an international organization at page 28 of the report, stating that:

[79]     “The situation of Palestinian refugees in Lebanon, with regard to the access to public education, health care, and employment was not changed in recent years and Palestinians remain excluded from access to public services in Lebanon.”

[80]     On the basis of this evidence, I find that the treatment of Palestinian refugees in Lebanon and restrictions to employment, property rights, and movement, and their denial of access to healthcare and education by the Lebanese State constitutes cumulative discrimination amounting to persecution.

[81]     Given my conclusion, I have not analyzed the allegations of [XXX] being threatened by the Lebanese authorities. However, I did note that I find these allegations to also be credible.

State Protection and Internal Flight Alternative for the Stateless Claimants in Lebanon

[82]     A number of human rights abuses persist within the Palestinian camps in in Lebanon in

general.

[83]     These include arbitrary arrest and detention of Palestinians by state security forces and by autonomous Palestinian security groups.

[84]     Lebanon is not a signatory to the 1951 UN Refugee Convention and Palestinian refugees who live in Lebanon are denied citizenship rights in that country.

[85]     Lebanon does not recognize the UN’s 1967 Protocol and does not recognize the basic rights and legal obligations to people with refugee status.

[86]     Information from the Danish Immigration Services sets out the social discrimination against Palestinians in Lebanon and notes that:

[87]     “They are less protected and often linked in the Lebanese media to insecurities, civil war, and radical groups.”

[88]     The former Minister of Lebanon has stated that:

[89]     “Palestinians in Lebanon are in complete misery and a very dire situation.”

[90]     [XXX] testimony and the documentary evidence referenced above make it clear that state protection and relocation within Lebanon are not options for the claimants.

[91]     The U.S. Department of State Report sets out that:

[92]     “Severe discrimination against Palestinians is widespread and systematic throughout all areas of Lebanon, particularly outside of refugee camps.

[93]     Legislation in Lebanon prohibits Palestinian refugees from owning property in the country.”

[94]     For all these reasons, I find on a balance of probabilism that adequate state protection is not available to the claimants and that an internal flight alternative is also not available, as they would not be able to reasonably relocate within Lebanon.

Inability to Return to the U.A.E.

[95]     The claimants maintain in their testimony that they cannot return to the U.A.E., where they had temporary residence.

[96]     [XXX] was ordered to leave the country by the Emirate Security Officials and subsequently had his employment terminated.

[97]     He maintains that neither he, nor his family, can return to the U.A.E. at this point.

[98]     In addition to [XXX] testimony, I have also considered the Response to Information Requests at Tabs 14.1 and 14.2 of the U.A.E. National Documentation Package.

[99]     Tab 14.1 indicates that after a six-month absence, a resident of the U.A.E. cannot re-enter the country without having to obtain a new visa.

[100]   Given [XXX] credible allegations, it is unlikely that [XXX], or his family, could obtain a new visa and re-enter the U.A.E.

[101]   As a result of the above, I find that the stateless claimants cannot return to the U.A.E. as a country of formal habitual residence.

Refugee Claim of [XXX], Citizen of the U.S.

[102]   Under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, a refugee claimant — a refugee claim must be established in regards to the claimant’s country of nationality.

[103]   As mentioned earlier, [XXX] is an American citizen.

[104]   Consequently, I considered the possibility of persecution and the risk of harm that she would face in the U.S.

[105]   When questioned on the risks to [XXX] stated that he had no fears for his daughter in the U.S., other than the fact that she would be separated from her parents.

[106]   Counsel for his part had no argument regarding any potential persecution or risk of harm to [XXX] in the U.S.

[107]   In order to be considered refugees, claimants must face a well-founded fear of persecution based on a Convention ground.

[108]   In my view, the claimants have not established that [XXX] would face persecution for a ground stated under the Convention.

[109]   With neither a link to the Convention, nor a fear of persecution, I conclude that she is not a refugee, as per section 96 of the Immigration and Refugee Protection Act.

[110]   Furthermore, the claimants have not made any allegations that [XXX] faces a danger of torture in the U.S., as per section 97(1)(a) of the Immigration and Refugee Protection Act, or a risk to her life, as per section 97(1)(b) of the Immigration and Refugee Protection Act.

[111]   Regarding cruel and unusual treatment, I do not find that [XXX] could find herself separated from her parents upon return to the U.S., on a balance of probabilities.

[112]   There are provisions under the Canadian Immigration and Refugee Protection Act that will more likely than not allow [XXX] to remain in Canada with her parents, given their soon to be status of Convention refugees.

[113]   The claimants have therefore not demonstrated that [XXX] would face harm as described under paragraph 97(1)(b) on a balance of probabilities.

Conclusion

[114]   Having considered all the evidence, including your testimony, I find that [XXX] and [XXX] are Convention refugees pursuant to section 96 of the Act and I therefore accept your claims.

[115]   I find that [XXX] has not established that she faces a serious possibility of persecution or, on a balance of probabilities, a risk to her life, or a risk of cruel and unusual treatment or punishment, or danger of torture in the United States. Her claim is therefore denied.

[116]   I want to thank you for your testimony today and I wish you and your children all the best.

[117]   — Upon concluding

Categories
All Countries Palestine

2020 RLLR 50

Citation: 2020 RLLR 50
Tribunal: Refugee Protection Division
Date of Decision: January 20, 2020
Panel: Kerry Cundal
Counsel for the Claimant(s): N/A
Country: Palestine
RPD Number: VB9-04099
Associated RPD Number(s): VB9-04100, VB9-04101, VB9-04102, VB9-04103, VB9-04104, VB9-04105
ATIP Number: A-2021-00655
ATIP Pages: 000132-000138

— DECISION AND REASONS BY THE MEMBER

PRESIDING MEMBER:

Reasons for the decision

[1]       This is the decision of the Refugee protection Division in the claims of the principal claimant, [XXX] and the joint claimants, his [XXX] and their children [XXX] and the two American-born twin boys, [XXX].

[2]       The claimants are seeking refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       Your identities have been established by copies of your passports for each of the claimants.

[4]       As I’ve indicated, the two twin boys [XXX] are citizens of the United States and the other five claimants are from the Palestinian Occupied Territories, Specifically Gaza and your former habitual residences for the principal claimant are Libya, Oman and Gaza. The former habitual residences for the other claimants is Oman as well as Gaza..

Allegations

[5]       You fear return to Gaza because you fear political persecution at the hands of Hamas. You’ve been involved with the [XXX] in the past when you lived in Gaza and you were subjected to a militia attack against the radio station in which you were physically harmed, including on your right leg and right arm.

[6]       You were also detained twice by Hamas forces and during which time you were physically and psychologically abused during both of those detentions.

[7]       You’ve also given testimony regarding your status in Libya and Oman as the principal claimant, that you were a child when you left Libya, when Khadafi forced out the Palestinians and you’ve also testified that more recently you were forced to leave Oman when you were terminated from your work as a [XXX] in Oman.

[8]       Further details are found in your Basis of Claims forms, some of which I will highlight in this decision.

[9]       I also note that I have applied the Chairperson’s Guideline Number 4 with respect to victims of gender-based persecution, specifically for the joint claimant [XXX] and the three joint minor claimants which are girls.

Determination

[10]     I find for the principal claimant, [XXX], the joint claimants, [XXX] that you are Convention refugees pursuant to section 96 of the Act for the reasons that follow.

[11]     With respect to the two joint minor claimants [XXX], I find that they are neither Convention refugees pursuant to section 96 nor persons in need of protection pursuant to section 97 because there is not sufficient evidence with respect to the claim against the United States.

[12]     You testified today as their designated representative. The principal claimant you were the designated representative for all of your children and you testified that with respect to the United States your concern was family separation, that you did not want to be separated from your two minor sons who were born in the United States.

[13]     When I asked you for more examples or details or asked you directly about either persecution for your two boys in the United States or a risk to their lives in the United States, you testified that you did not have those concerns against the United States for your boys and it was more about family separation.

[14]     Accordingly, I find that their claims are not established either as a serious possibility of persecution in the United States or on a balance of probabilities that they face a person risk to their lives, or cruel and unusual treatment or punishment in the United States.

[15]     As I’ve indicated earlier, identity has been established by copies of your passports.

[16]     With respect to credibility, you both testified in a straightforward and consistent manner today and I find that you are both credible witnesses.

[17]     You also provided corroborative documentation in support of your claim at Exhibit 4 and this included a number of item, including letters from the [XXX] and human rights organizations supporting the attack as well as the summons that you’ve received in 2007, in 2010 and further summons from Hamas authorities in 2016 and 2018.

[18]     You also submitted a medical report from [XXX] 2010 as well as – as I’ve indicated – a letter from the [XXX] supporting your work with the [XXX].

[19]     You’ve also provided the termination letter from your employer in Oman and I find that your corroborative evidence also supports your testimony today and supports your credibility.

[20]     For you, the principal claimant, you gave testimony regarding your time in Gaza as a young man, your time with the [XXX]. You also gave testimony regarding engaging in peaceful demonstrations against the human rights abuses by Hamas. You were around 25 years at that time.

[21]     You also gave consistent testimony about the physical abuse that you suffered while you were in detention – and psychological abuse – hitting, beatings, being forces to sit on small chair for extended periods of time, also including psychological abuse during that time.

[22]     You also testified that you did receive some medical help including medication and at least five sessions of counselling after you were released that time from detention.

[23]     Based on the totality of the evidence before me, I find that you have established a nexus to political opinion with respect to your fears of Hamas in Gaza.

[24]     The international law and the refugee law as adopted here in Canada for Stateless Palestinians requires that you must demonstrate that you have a well-founded fear of persecution in one of the former habitual residences and that you are unable to return to any of the former habitual residences, and I find that you have met this legal test.

[25]     You have demonstrated through reliable evidence that you have a serious possibility, a well-founded fear of persecution in Gaza if you were to return today and you’ve also given sufficient evidence that you have no right of return either in Libya or Oman which are also former habitual residences for you.

[26]     Accordingly, I find that you have established your case under section 96.

[27]     Now, for your spouse, [XXX] and your three daughters – your three daughters [XXX] I find that they have also a nexus under a Convention ground, specifically membership in a particular social group, not only as family members to you, a victim of political persecution, but also because of gender.

[28]     Your wife and you both gave credible testimony with respect to your fears for your daughters because they are girls. It’s not just because they’re Palestinian, it’ s also because of the different treatment that girls and women receive both in Oman and in Gaza; so restrictions on travel, restrictions on their freedom of movement – not being able to leave the home without males or permission, also not able to dress how they wish. As you testified, even as children, young girls are forced to wear the hijab in Gaza and you’ve testified that you do not wish to have your young girls forced to wear the hijab, that they may not have the understanding of religion until they’re a little bit older and that you’re against this mandatory rule by some of the authorities both in Oman and in Gaza.

[29]     Accordingly, I find that the joint female claimants also have a nexus to gender, membership in a particular social group and that you would face a serious possibility of persecution if you return to Gaza today.

[30]     The test is the same for you and your daughters as stateless Palestinians; that you must have a well-founded fear in one of the former habitual residences and be unable to return to any of the former habitual residences.

[31]     For you, you lived in Gaza, that is a former habitual residence for you and I find that you have established a well-founded fear if you were to return to Gaza today.

[32]     For your daughters, I also find that they have established a well-founded fear in Oman, as young girls, as Palestinian young girls, who would not have freedom of movement, who would face ongoing discrimination not only because of their heritage as Palestinians, but also because of their gender and would not have freedom of movement or even freedom to control their own bodies or wear what they wish in Oman as well.

[33]     They would also face a forward-looking serious possibility of persecution and based on the totality of the evidence I find that you’ve each established that also do not have a right of return, to return to either Oman or, of course, we’ve indicated already the persecution in Palestine due to your husband’s detentions and the threats that were made by Haas authorities directly against his family members to intimidate him during detention as well.

[34]     With respect to state protection and internal flight alternative, the objective evidence in the National Documentation Package also supports your testimonies today. For example, the National Documentation Package item 2.1 which is a US Department of State Report with respect to Gaza and the Palestinian-occupied territories indicates that Hamas is responsible for unlawful and arbitrary killings, reports of systematic torture, reports of arbitrary detention, political prisoners, arbitrary unlawful interference with privacy, family and home, undue restrictions on freedom of expression, undue restrictions on freedom of the press and journalists and radio, substantial interference with rights to peaceful assembly and freedom of association, significant restrictions on freedom of movement, restrictions on political participation — there has been no national election since 2006 — corruption, unlawful recruitment of child soldiers, threats of violence motivated by anti-Semitism, violence or threats also targeting women, and women are also discriminated further with respect to their dress and even further restrictions on their freedom of movement as well in the Hamas-controlled Gaza.

[35]     National Documentation Package item 10.6, a Human Rights Watch Report 2018 reiterates much of the same evidence and gives more specific details with respect to the kind of physical and psychological persecution that the Hamas authorities mete out against their detainees which is consistent with your testimony.

[36]     This report indicates that the Hamas authorities in Gaza will blindfold detainees. They’ll force them stand or they force them to sit in small chairs for extended periods of time, usually during interrogations, to pressure them to confess. Detainees cannot speak, move, take medicine, sleep or eat without the permission of the guards.

[37]     The torture as practiced by the Palestinian Authority as well as Hamas may amount to crimes against humanity given its systemic practice over many years.

[38]     The National Documentation Package with respect to Oman – and this is somewhat dated in the National Documentation Package but you’ve also given credible testimony which is more recent given your previous residence in Oman. Nonetheless, it is somewhat dated. This is a document from 2014 unfortunately. It’s also a United States Department of State Report, also indicates the restrictions on women’ s freedom of movement and restrictions on women’s dress by authorities in Oman.

[39]     It also indicates that the government does not protect refugees in Oman, tight control over the entry of foreigners, limited access to protection for refugees in Oman. The authorities apprehend and deport hundreds of presumed economic migrants. It also will deport people if they don’t have authorized status by the employer, all consistent with your testimony today.

[40]     Also, it indicates a lack of access to basic services, so without an official sponsor – which is what you testified to with respect to an employer – it’ s very difficult for foreigners to have any access to basic services and this is somewhat dated but there were deportations as well as those who voluntarily chose to leave because of the conditions and treatment by the authorities in Oman.

[41]     So, I find that this evidence also supports not only the objective basis for your fears of return to Gaza and the kinds of persecution will suffer there if you return to Gaza today, but it also supports the lack of operationally effective state protection in Gaza for you as well.

[42]     With respect to internal flight alternative, as you’ve testified and as the objective evidence indicates, Gaza is a very small area controlled by Hamas at this time and very difficult – any kind of movement out or in is under the control of Hamas at this time and given that Hamas is the group that you fear and the group that has targeted you directly and has also made threats against your family members I find that it is neither safe nor objectively reasonable in all of the circumstances, including your particular circumstances to expect you to try to relocate somewhere within Gaza which is a very small, tightly-controlled area by Hamas and accordingly there is no internal flight alternative available to you in your particular circumstances.

Conclusion

[43]     For the foregoing reasons, I determine that principal claimant, [XXX], the joint claimant, [XXX] the joint claimants [XXX] are Convention refugees pursuant to section 96 and the Board therefore accepts your claim.

[44]     This is a split decision and I also find that with respect to the joined minor claimants [XXX] they are not Convention refugees pursuant to section 96 of the Act nor are they persons in need of protection pursuant to section 97(1) of the Act as US citizens.

[45]     As I’ve indicated there’s not sufficient evidence to make out that claim today against the United States of America. Accordingly, the Board rejects their claims.

[46]     Thank you very much. I wish you and your family all of the best. Thank you counsel. Have a good day everyone. Thank you very much.

—PROCEEDINGS CONCLUDED

Categories
All Countries Palestine

2020 RLLR 9

Citation: 2020 RLLR 9
Tribunal: Refugee Protection Division
Date of Decision: September 22, 2020
Panel: Linda Doutre
Counsel for the Claimant(s): Me Jessica Lipes 
Country: Palestine
RPD Number: MB9-20414
ATIP Number: A-2021-00540
ATIP Pages: 000060-000065

REASONS FOR DECISION

[1]       The refugee protection claimant, [XXX], is a citizen of Palestine (Occupied Palestinian Territories), specifically living in the Gaza Strip. He is claiming refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2]       The claimant fears Hamas. He lived in the Gaza Strip and was the subject of false accusations made by Hamas. In addition to the insecurity in the region, his apartment was destroyed in the war. Because of that group, the claimant stopped going to the mosque. There is no freedom of expression there, and he does not subscribe to their way of practising Islam.

[3]       The claimant’s problems began in 2008, when he was dating a girl who had brothers in Hamas.

[4]       In [XXX] 2010, the brothers found out about their relationship and disapproved of it. That was when the claimant’s problems began. His girlfriend’s brothers tried to keep her and the claimant from seeing each other. However, one year later, they continued to be in touch with each other.

[5]       In [XXX] 2012, the claimant received a notice to appear from the police in relation to accusations of illicit relations with women in the community. His girlfriend’s brothers were behind the accusations. The claimant was released.

[6]       On [XXX], 2012, some men attacked the claimant after he was tricked by one of his girlfriend’s brothers.

[7]       Because of the constant harassment, the claimant stopped speaking to his girlfriend.

[8]       In [XXX] 2016, he received a call from his ex-girlfriend, who told him that she still loved him and that she did not want to marry the man that her parents had introduced her to.

[9]       Her brothers held this against him and blamed him for the breakdown of their sister’ s marriage.

[10]     On [XXX], 2016, the claimant received a notice to appear from the police, in which he was accused of trying to turn his ex-girlfriend against her family. He was released and went to the hospital to receive treatment.

[11]     On [XXX], 2017, the claimant had to report to the police station, where several accusations were discussed. He began to consider fleeing the country.

[12]     In [XXX] 2017, he applied for a Chinese visa. He was granted the visa, but he realized that Hamas had forbidden him from leaving the country.

[13]     On [XXX], 2018, the claimant was attacked. He managed to flee Gaza via Egypt with the help of an uncle.

[14]     He took steps to obtain a Chinese visa. However, in order to obtain the document, he had to apply for it in Gaza, which forced him to go back. He was arrested upon his arrival in Gaza.

[15]     The claimant then obtained his Chinese visa and again fled with the help of his uncle.

DETERMINATION

[16]     Having analyzed all the evidence on the record, the panel determines that the claimant is a “Convention refugee” under section 96 of the IRPA by reason of his imputed political opinion and religion.

ANALYSIS

Identity

[17]     The panel is satisfied as to the claimant’s identity, which was established by means of the photocopy of the travel document he was issued by the Palestinian authorities1 and his testimony.

Credibility

[18]     The claimant testified relatively well at the hearing. His testimony was spontaneous and forthright. He explained the reasons for his problems with his ex-girlfriend’s brothers. Relationships between men and women are difficult to maintain in Palestine. He gave a good account of the problems that this caused him. He clearly explained the situation he would find himself in if he returned to the Gaza Strip. He made several clarifications for the panel and did not seek to embellish his story. No contradictions were noted between the testimony he gave at the hearing, the statements he made to the immigration authorities, and the documents he filed. The panel is of the opinion that the claimant’s testimony was credible.

[19]     Furthermore, the documentary evidence, including that contained in the package on the Occupied Territories2 and the documents filed by the claimant, namely, the medical certificates,3 notices to appear issued by the authorities4 and emails,5 and the objective documentation on the Islamist radicalization of Gaza and honour crimes,6 corroborate the claimant’s allegations:

2.1

In Gaza the terrorist organization Hamas exercised de facto authority. The security apparatus of the Hamas de facto government in Gaza largely mirrored the West Bank. [… ] In some instances the Hamas de facto “civilian” authorities utilized the Hamas movement’ s military wing to crack clown on internal dissent.7

4.8

Hamas’ primary base of operation is in the Gaza Strip, the coastal enclave of 1.7 million Palestinians, where it has remained the de facto authority since shortly after Israel’s unilateral withdrawal in 2005.8

State protection

[20]     The claimant sought to obtain the help of a lawyer to defend himself against the state, to no avail. Given that the agents of persecution are also potentially members of the security forces, it is understandable that the claimant had difficulty obtaining state protection:

2.1

With respect to Hamas: reports of unlawful or arbitrary killings, systematic torture, and arbitrary detention by Hamas officials; political prisoners; arbitrary or unlawful interference with privacy; restrictions on free expression, the press, and the internet, including violence, threats of violence, …9

[21]     Considering the evidence in this case, the panel is of the opinion that the claimant would be unable to obtain assistance from the authorities, and therefore concludes that the state would be unable to provide him with adequate protection.

Internal flight alternative

[22]     The panel assessed whether a viable internal flight alternative is available to the claimant, that is, whether there is another part of the country where he would not face a reasonable fear of persecution; then, if the first prong is not satisfied, the panel must assess whether it is objectively unreasonable for the claimant to seek refuge by moving to another part of the country.

[23]     Given the documentary evidence indicating all the problems experienced by Palestinians fearing Hamas and given the claimant’s particular circumstances, the panel concludes that no internal flight alternative would be available to him should he return there.

[24]     The panel is of the opinion that the claimant would face a serious possibility of persecution if he returned to the Gaza Strip.

CONCLUSION

[25]     The panel allows the refugee protection claim and determines that the claimant is a “Convention refugee.”

DECISION

[26]     The refugee protection claim filed by [XXX] is allowed.

(signed)           Linda Doutre

September 22, 2020

1 Document 1 – Information package provided by the Canada Border Services Agency / Immigration, Refugees and Citizenship Canada.
2 Document 3 – National Documentation Package on the Occupied Palestinian Territory, March 31, 2020.
3 Document 4- Exhibits E-1, E-2 and E-4.
4 Document 4 – Exhibits E-3, E-7 and E-8.
5 Document 4 – Exhibit E-24.
6 Document 4- Exhibits E-14 and E-20.
7 Document 3, Tab 2.1: United States, Department of State, March 11, 2020, Israel, West Bank, and Gaza – West Bank and Gaza. Country Reports on Human Rights Practices for 2019.
8 Document 3, Tab 4.8: Council on Foreign Relations, August 1, 2014, CFR Backgrounders: Hamas.
9 Supra, footnote 7.

Categories
All Countries Palestine

2019 RLLR 116

Citation: 2019 RLLR 116
Tribunal: Refugee Protection Division
Date of Decision: July 31, 2019
Panel: Chad Prowse
Country: Palestine
RPD Number: VB8-02564
ATIP Number: A-2020-01459
ATIP Pages: 000221-000227

— DECISION

[1]       PRESIDING MEMBER: Mr. [XXX], I’ve considered your testimony and the other evidence in your case, I’m ready to render my decision orally. I would like to add that in the event that written reasons are issued they will reflect those that I’m giving you know.

[2]       Mr. [XXX] and his spouse Mrs. [XXX] and their child [XXX] are stateless persons from Gaza in the occupied Palestinian territory, who claim refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       Mr. [XXX] is the designated representative for his daughter [XXX].

[4]       The claimants’ complete allegations are contained in the principal claimant’s basis of claim form and narrative. In brief, they allege the following: The principal claimant was raised Muslim but has considered himself to be an atheist or agnostic for the past four to five years.

[5]       In June 2010, the principal claimant completed his undergraduate degree in Gaza graduating at the top of his class. Although it is a long-standing tradition in Palestine that the top graduate of each class goes on to work for the government. He was told that he was not ethically fit to work for the government as he did not attend mosque or answer their questions about his religion appropriately. The principal claimant went on to work in the non-profit sector including at the [XXX] from June 2012 to June 2013, and for the [XXX]. He worked as a [XXX].

[6]       Around February or March 2013, the claimant received his first threat, a neighbour associated with Hamas approached him and politely advised him to stop taking a position as part of his work that abusers of disabled women should be prosecuted. A neighbour told him that Hamas would otherwise take action against him. As a result of this threat, the claimant kept a lower profile at work. He left his employment a few months later.

[7]       In February 2014, the claimant was kidnapped the day after discussing his UNESCO project with youth during which he had inadvertently spoke about the problem of military recruitment of children by Hamas, and expressed his view that the problems in Palestinian are due to land seizure and are not about religion or ethnicity, and that children should not be taught to hate Jews. The claimant was beaten and told that what he said at the round table discussion with youth was inappropriate that Jews were the enemy, and that those who had kidnapped were angry with him or angry with him. He was dropped off at night a long ways from his house. The claimant believes that he was kidnapped by the internal security wing of Hamas.

[8]       September 2015, the claimant received a letter from Hamas at his home informing him that he was required to attend the Hamas police station on 7th September 2015. He attended this meeting. The Hamas police officer told him that he was disturbing the public calm for having voiced his opinion about a schoolgirl who was dismissed from class for refusing to wear a headscarf. His opinion was that persons should be free to wear whatever they wish. While he was being interviewed by the police his phone was searched, they found a conversation with other secular atheists there and discovered that he was working as a volunteer with a human rights organization called [XXX]. The officer was angry and threatened to kill him and tell everyone after he was an Israeli spy if he peeped one peep.

[9]       The claimant became ostracized in his community and decided to leave Gaza permanently as he feared for his life. He applied for and obtained a Fulbright scholarship which allowed him to obtain all four permits required to leave Gaza. On [XXX] 2016, the claimants departed Gaza. The principal claimant was questioned for three hours at Erez cross point by Hamas security forces. The officer told him that he would do well not to return to Gaza.

[10]     The principal claimant completed his graduate studies in Kansas on 10th May 2018. He considered making an asylum claim in the US but did not do so because of what he refers to as the US president’s bigoted and racist comments towards Muslims, and personal encounters with racism in the US. The claimants decided to seek asylum in Canada and entered Canada on [XXX] 2018, shortly before the expiry of their status in the US.

[11]     The principal claimant fears that he will be killed or harmed by Hamas as a secular western educated liberal who values freedom of thought and speech. Particularly as he has been critical of Hamas already and he’s experienced threats and violence from them or persons allegedly acting in concert with them.

[12]     In order to find that the claimants are Convention refugees or persons in need of protection, I must find if there’s sufficient credible or trustworthy evidence to determine that there is a serious possibility that they would be persecuted on Convention ground, or that on a balance of probabilities there is substantial grounds to believe they would be tortured or at risk of losing their life or being subjected to cruel and unusual treatment or punishment if they return to the Palestinian occupied territory.

[13]     Additionally, there must be clear and convincing evidence that state authorities there cannot adequately protect them from this persecution or risk. Furthermore, there must not be another place within the Palestinian occupied territory where they could live safely and where it would be reasonable to do so under the circumstances. I find that the claimants are Convention refugees on the grounds of political opinion as perceived traitors or enemies of Hamas.

[14]     The determinative issues, in this case, are identity and credibility. Where stateless persons of multiple countries of former habitual residence they must demonstrate on a balance of probabilities that there is a serious possibility that they would be persecuted than any country of former habitual residence, and that they cannot return to any other country of former habitual residence where they would not face persecution.

[15]     The claimants’ identity as stateless former habitual residents of Gaza is established by their testimony, and the supporting documentation filed including their Palestinian authority passports, certified copies of which are on file.

[16]     Although the claimant resided in the US for one to two years while the principal claimant completed his graduate studies there, and the principal claimant also briefly studied in Egypt prior to marriage, I find that neither country is a country of former habitual residence for the purpose of this analysis. Notwithstanding this, the claimants are unable to return to either the US or Egypt where the claimants only possessed temporary status that has since expired.

[17]     When a claimant swears to the truth of certain allegations this creates a presumption that those allegations are true unless there’s a reason to doubt their truthfulness. I found the principal claimant to be a credible witness. He testified in a straightforward manner and there were no material inconstancies in his testimony or contradictions between his testimony and the other evidence before me that have not been explained. He provided a spontaneous and detailed account of his former employment in Gaza on community and youth development issues, and was able to articulate his thoughts on the Hamas lead government in Gaza, Hamas affiliated military camps for youth and children and related challenges and obstacles affecting youth in Gaza in a manner that suggested that these were deeply held and considered views.

[18]     The claimants supported their claim with considerable probative and reliable documents including but not limited to documentary evidence of the principal claimant’s employment and volunteer experience with non-profit and human rights originations in Gaza. Evidence of his social media posts on Facebook in which he is clearly criticizing Hamas and personal letters of support.

[19]     Although the claimants did not make a refugee claim in the US, I do not draw a negative inference from this. The claimants did not delay in leaving Gaza considering that logistical difficulties involved in exiting the territory. The claimants maintained valid temporary resident status in the US for the duration of their stay. They applied for refugee protection promptly upon their arrival in Canada. Moreover, as per case law, the mere fact that the claimant failed to seek asylum in the US is not fatal to their claim.

[20]     The claimants’ fear of persecution in the Palestinian occupied territory is supported by the objective evidence. Firstly, on the issue of the treatment of perceived or actual political opponents of Hamas, according to a report by Human Rights Watch in the NDP:

Since it seized control of Gaza in June 2007, Hamas authorities have harassed critics and abused those in its custody. Hamas authorities have also carried out 25 executions since they took control in Gaza in June 2017 including six in 2017. Following trials that lacked appropriate due process protections and courts in Gaza have sentenced 117 people to death according to the Palestinian Centre for Human Rights.

[21]     Similarly, according to the United States Department of State report on Israel, Golan Heights, West Bank, and Gaza for 2018:

Human right issues with respect to Hamas include: reports of unlawful or arbitrary killings, reports of systematic torture, reports of arbitrary detention, political prisoners, arbitrary or unlawful interference with privacy, family and home, undue restrictions on free expression the press and the internet, including the detention of journalists, censorship and site blocking, substantial inference with the rights of peaceful assembly and freedom of association. Significant restrictions on freedom of movement including the requirement of exit permits, restrictions on political participation as there has been no national election since 2006. Corruption unlawful recruitment or use of child soldiers, threats of violence motivated by anti-systematism and the use of forced or compulsory child labour.

[22]     Similarly, according to the 2018 Freedom House report for the Gaza Strip:

Hamas continues to persecute critical journalists and other perceived opponents during the year and persisted in its application of the death penalty without due process.

[23]     On the issue of the forced recruitment and mistreatment of children, according to a report from the Australian Department of Foreign Affairs and Trade titled, “DFAT Thematic Report: Palestinian Territories” for March 2017:

Statistics on forced recruitment in Gaza are not available and it is difficult to build a complete picture of the prevalence and nature of this practice. However, Hamas runs summer camps for schoolchildren and based on various reports, these camps involve some level of militant training, including weapons handling and lessons on Hamas doctrine but do not result in forced recruitment. About 100,000 children attend Hamas’ summer camps; 50,000 attend the alternative camps run by Palestinian Islamic Jihad, but the majority, around 250,000, attend the more popular UNRWA summer camps.

[24]     However, according to the latest US DOS report already referenced:

There are reports Hamas trained children as combatants as recently as 2018. Hamas reportedly did not enforce child labour laws in Gaza either and reportedly encouraged children to work gathering gravel and scrap metal from bombed sites to sell to recycling merchants and increased recruitment of youth for tunnel digging activities.

[25]     During the hearing, the principal claimant also expressed his fear that his daughter will face discrimination accumulatively amounting to persecution or gender-based violence as a female in Gaza.

[26]     According to a UN report titled, “Gaza Ten Years Later”:

Over the past decade, Gaza has also seen rising levels of gender­ based violence, and child protection violations. While accurate reporting on these issues remains difficult, a recent report suggests that more than 148,000 women in Gaza are exposed to gender­ based violence. Between 2011 and 2014 UNRWA identified 3,160 survivors of gender-based violence in Gaza and provided a range of different services. Moreover, the Women’s Centre for Legal Aid and Counselling has documented 27 killings of women and girls in 2014, 15 cases in 2015 and 18 cases in the first eight months of 2016.

[27]     On a balance of probabilities, I find that the principal claimant genuinely holds views and has undertaken paid or unpaid activities that make him a perceived political opponent of Hamas. Including his opposition to the recruitment of children and youth by Hamas that on the basis of his testimony which I have found to be reliable. He has already been the target of both official and unofficial targeting by Hamas and its affiliates as a result of these views and actions. Country documents show that he faces more than a mere possibility of persecution on the basis of a Convention ground on this basis.

[28]     Leaving aside the question of whether or not his wife and daughter have a well-founded fear of persecution solely on the basis of gender-based violence and discrimination in Gaza an allegation that finds some support in the country documents, I find that they too have a well-founded fear of persecution by virtue of their dependence on the principal claimant. The principal claimant’s daughter is a five-year-old girl.

[29]     I find that there’s no — there is no adequate expectation of state protection for the claimants and they have rebutted the presumption of state protection. In this case, the agent of harm is the de facto state in Gaza which is effectively run by Hamas.

[30]     Additionally, I find that the claimants do not have a viable flight alternative — internal flight alternative as relocation is effectively impossible without alerting the de facto authorities in Gaza. Furthermore, the current severe restrictions on the movement of Palestinians in the Gaza Strip in the West Bank will make internal relocation extremely difficult for many. I find that it would not be possible for the claimants to safely relocate to the West Bank or within the Palestinian territory.

[31]     Therefore, having considered all of the evidence before me, I determine that the claimants are Convention refugees on the basis of the grounds enumerated above. Your claims are approved. Congratulations.

— DECISION CONCLUDED

Categories
All Countries Palestine

2019 RLLR 93

Citation: 2019 RLLR 93
Tribunal: Refugee Protection Division
Date of Decision: July 17, 2019
Panel: S.S. Kular
Counsel for the claimant(s): Ronald Yacoub
Country: Palestine
RPD Number: TB8-01922
Associated RPD Numbers: TB8-01933, TB8-01961, TB8-01962, TB8-01963
ATIP Number: A-2020-01459
ATIP Pages: 000066-000079

REASONS FOR DECISION

[1]       The claimants [XXX] (the principal claimant) and [XXX] (the associate claimant), and their children (the minor claimants): [XXX] (the eldest son), [XXX] (the middle son) and [XXX] (the younger son) seek refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The principal claimant was born in Iraq of Palestinian parents and the associate claimant was born in Iraq of Iraqi parents. The eldest son and the middle son were born in Baghdad, Iraq; the younger son was born in Abu Dhabi, the United Arab Emirates (UAE). These claimants lived in Iraq and in the UAE.

[3]       The principal claimant and the associate claimant were married in 2003. After the fall of the secular, but Sunni-dominated regime of Saddam Hussein in 2003, the claimants started to have problems. Their problems arose due to the principal claimant’s Palestinian origin and his Sunni Muslim religion, and their mixed marriage. The associate claimant is an Iraqi woman, of Shiite sect of Islam. Their marriage added exasperation to the associate claimant’s Shiite family, friends and acquaintances, and the community. In fear of his life, in 2006, the principal claimant fled Iraq and went to the UAE. He managed to get a job in the UAE, and was therefore, able to get a temporary residence permit. He then had his family join him in the UAE. Thereafter, the claimants resided in the UAE, until they came to Canada.

[4]       In November 2017, the principal claimant’s employment in the UAE was terminated. He looked for another job, but was unsuccessful in finding any.

[5]       In search of a permanent solution to their problems, the claimants decided to come to Canada and seek refugee protection.

[6]       At the time these claimants left the UAE, they were already in possession of visitor visas for the United States of America (U.S.) and Canada. On [XXX], 2017, the claimants arrived in the U.S. On [XXX] 2017, they arrived in Canada. They filed their claims at an inland office of the Immigration, Refugees and Citizenship Canada (IRCC) on January 24, 2018.2

[7]       The claimants allege that they cannot return to Iraq. The principal claimant alleges that he cannot return to Gaza in Palestine, because he would not be allowed to enter Gaza. The principal claimant alleges that he cannot return to the UAE because he has no job there and therefore, would not be allowed to return to reside there.

DETERMINATION

[8]       The panel finds that the claimants are Convention refugees pursuant to s. 96 of the IRPA.3

ANALYSIS

[9]       The claimants fear persecution in Iraq, primarily on account of the principal claimant’s Palestinian origin and his Sunni Muslim religion, and because he married a Shiite Iraqi woman. The associate claimant fears persecution in Iraq because she married a Palestinian Sunni Muslim. All claimants, including the minor claimants, fear persecution in Iraq as members of the principal claimant’s family.

Determinative Issues

[10]     The panel first determines each claimant’s country or countries of nationality, or if determined to be stateless, the country or countries of former habitual residence (CFHR).

[11]     Thereafter, the panel assesses if these claimants’ alleged fear of persecution in any of their respective country or countries of reference is well founded. If their fear of persecution is determined to be well-founded, then the panel assesses if they can return to their respective country or countries of reference.

Credibility

[12]     Credibility is an issue in every refugee protection claim. The panel finds that the claimants’ testimonies were generally consistent with their written evidence. The panel has assessed the claimants’ credibility with regard to their evidence relating to their allegations of persecution or risk of harm pursuant to s. 96 and ss. 97(1) of the IRPA.4

[13]     The principal claimant and the associate claimant provided testimony at their hearing. The panel finds these claimants to be credible witnesses.

Claimants’ personal and national identities

The principal claimant’s personal and national identity

[14]     The principal claimant was born in Baghdad, Iraq, to Palestinian parents. He is in possession of his Palestine travel documents that are issued to stateless Palestinians. Based on these claimants’ testimonies and the documents in evidence, the panel accepts that the principal claimant is who he says he is, and that he is a stateless Palestinian.5

Defining Country of Former Habitual Residence (CFHR)

[15]     The panel finds that the principal claimant is a stateless Palestinian, therefore, his claim must be assessed on the basis of his CFHR. As stated by the Court of Appeal in Thabet, “a person is not a refugee solely by virtue of statelessness”.

[16]     According to the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (UNHCR Handbook),6 for someone who is stateless to be considered a refugee, he or she must be outside of his or her country of habitual residence for one of the reasons set out in the definition of a “Convention refugee.” Paragraph 102 states the following:7

102. It will be noted that not all stateless persons are refugees. They must be outside the country of their former habitual residence for the reasons indicated in the definition. Where these reasons do not exist, the stateless person is not a refugee.

[17]     Furthermore, paragraph 104 of the UNHCR Handbook states the following:8

104. A stateless person may have more than one country of former habitual residence, and he may have a fear of persecution in relation to more than one of them. The definition does not require that he satisfies the criteria in relation to all of them.

[18]     In terms of case law, in Maarouf,9 the Federal Court indicates that “[t]he claimant must have established a significant period of de facto residence in the country in question.” According to those terms, a claimant must have been admitted to a given country and have had the intention of settling there for a certain period:10

… [A] “country of former habitual residence” should not be limited to the country where the claimant initially feared persecution. Finally, the claimant does not have to be legally able to return to a country of former habitual residence as denial of a right of return may in itself constitute an act of persecution by the state. The claimant must, however, have established a significant period of de facto residence in the country in question.

[19]     The Federal Court in Marchaud,11 found that studying for several years in a third country, such as the USA, is not sufficient for a CFHR. The Court indicated that the analysis should also include the connection of claimants to these countries.

[20]     More recently, the Federal Court in Al-Khateeb has provided a more fulsome test to discern what can be considered a CFHR:12

•           There can be more than one CFHR;

•           The Applicant’s birth in Gaza gives him status akin to nationality;

•           His rights of return and residence are also akin to the rights associated with citizenship;

•           There is no minimum period for residence to establish a CFHR;

•           CFHR’s are “former”. The fact that he was a habitual resident of Gaza many years ago is not a bar to it being a CFHR; and

•           He has family in Gaza and he is a Palestinian.

[21]     According to Al-Khateeb,13 a significant period of de facto residence is not restricted to the length of the residence.

[22]     The panel considers the totality of the claimants’ evidence, and the connections they have had in the country or countries of the principal claimant’s former habitual residence.

Is Gaza a CFHR for the principal claimant?

[23]     The evidence shows that the principal claimant was born to Palestinian parents in Iraq. His parents moved to Gaza in 1995, but he stayed in Iraq. The principal claimant has never visited Gaza. He is in possession of his Palestinian travel documents, which are issued to persons of Palestinian origin for the purposes of travel. The principal claimant acquired these documents in 2005 to go to the UAE.

[24]     Based on the claimants’ testimonies and the legal parameters of what is considered to be a country of former habitual residence, the panel finds that Gaza is not a country of former habitual residence for the principal claimant.

Is Iraq a CFHR for the principal claimant?

[25]     As mentioned above, the principal claimant was born to Palestinian parents in Iraq. His parents moved to Gaza in 1995, but he stayed in Iraq. The principal claimant and the associate claimant were married in 2003. Their eldest and middle sons were born in Baghdad, Iraq. Since these claimants’ problems in Iraq continued, in fear of their lives, in 2006, the principal claimant fled Iraq and went to the UAE. Later his family joined him in the UAE.

[26]     The totality of the evidence in this case shows that the principal claimant has established a significant period of de facto residence in Iraq.

[27]     Based on the claimants’ evidence, and the legal parameters of what is considered to be a country of former habitual residence, the panel finds that Iraq is a country of former habitual residence for the principal claimant.

Is the UAE a CFHR for the principal claimant?

[28]     The principal claimant has lived and worked in the UAE for a number of years. During his residency there, the evidence shows that he was able to enter and exit the UAE, without any significant difficulty. The principal claimant went to the UAE in 2006, secured a job, and thereafter, had his family join him there. The children have received formal schooling in the UAE. The evidence demonstrates that these claimants have significant personal, social or contractual connections in the UAE. The claimants have spent many years living in the UAE. They left the UAE to come to Canada.

[29]     The totality of the evidence in this case shows that the principal claimant has established a significant period of de facto residence in the UAE.

[30]     Based on the claimants’ evidence, and the legal parameters of what is considered to be a country of former habitual residence, the panel finds that the UAE is a country of former habitual residence for the principal claimant.

Personal and national identities of the associate claimant and the minor claimants

[31]     The associate claimant was born in Baghdad, Iraq, to Iraqi parents; she is an Iraqi citizen. The minor claimants, the eldest son and the middle son, were born in Baghdad, Iraq, to a Palestinian father and Iraqi mother; they are citizens of Iraq. The minor claimant, the younger son, was born in Abu Dhabi, UAE to a Palestinian father and Iraqi mother; he is a citizen of Iraq. Based on the totality of the evidence in this case, including certified true copies of their Iraqi passports in evidence, the panel finds that the associate claimant and the minor claimants are citizens of Iraq and no other country. Therefore, the panel finds that in their cases, the country of reference is Iraq only.

Claim of the principal claimant against Iraq

[32]     In Thabet,14 Justice Linden of the Federal Court of Appeal provides this answer to the question of how a stateless person who has habitually resided in more than one country could establish the merits of his or her claim for Convention refugee status:

In order to be found to be a Convention refugee, a stateless person must show that, on a balance of probabilities, he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any of his or her other countries of former habitual residence.

[33]     The principal claimant is a stateless Palestinian; however, Gaza is not a country of former habitual residence in his case. He has lived in Iraq and the UAE; these are the two countries of former habitual residence for the principal claimant. The claimants allege that the principal claimant cannot return to Iraq or the UAE in his particular situation and circumstances.

[34]     The principal claimant was born in Baghdad, Iraq, to Palestinian parents. He lived in Iraq until 2006, when he was 29 years of age and moved to the UAE.

[35]     After the fall of the secular, but Sunni-dominated regime of Saddam Hussein in 2003, the claimants started to have problems. The Institute for Internal Law and Human Right report at item 2.4 of the National Documentation Package (NDP) for Iraq confirms this allegation, stating:15

After 2003, Palestinians were targeted by security forces and armed militant groups-mainly Shia’h. This persecution forced many to flee Iraq, go into hiding, or move to refugee camps such as Al Waleed. Of the estimated 35,000 in Iraq before 2003, only about 11,000 to 15,000 remain.

[36]     These claimants’ problems arose primarily due to the principal claimant’s Palestinian origin and his Sunni Muslim religion.

[37]     In respect to the Palestinians in Iraq, the documentary evidence from the UNHCR states the following:16

Palestinian refugees in Iraq, who arrived in the country during several waves of displacement since 1948, were never formally recognized as refugees by former Iraqi governments; however, they enjoyed a favourable protection environment in Iraq in line with key resolutions of the League of Arab States and the 1965 Protocol for the Treatment of Palestinians in Arab States (“Casablanca Protocol”). Although they could not obtain Iraqi nationality, were not permitted to vote, and were not required to perform military service, their socio-economic circumstances were on par with Iraqi nationals. However, following the fall of the former government of Saddam Hussein in April 2003, the situation of Palestinian refugees was reported to change dramatically as they became the target of hostility and harassment by segments of the Iraqi population, particularly armed militias, on account of their perceived association with and preferential treatment by the former regime, as well as their perceived support for Sunni militant groups. They were reported to be subjected to targeted attacks, including arbitrary arrest and detention, torture, kidnappings, extra-judicial killings, bombings and mortar attacks in Al­ Baladiyat, the main Palestinian residential area in Baghdad, as well as discrimination, dismissal from employment, denial of education, and forced eviction from government and rented housing. By 2007, thousands of Palestinians had fled Iraq, mainly to Syria and Jordan. [footnotes omitted]

[38]     The principal claimant fled Iraq in 2006. At the hearing, the principal claimant also narrated the situation and circumstances of similarity-situated colleagues who have fled Iraq in fear for their lives.

[39]     In 2003, the principal claimant, a Palestinian Sunni Muslim, married the associate claimant, an Iraqi woman of the Shiite sect of Islam. Their marriage led to additional problems for him, as the associate claimant’s Shiite family, friends and acquaintances disapproved of their marriage. The documentary evidence does not clearly state any significant risks to mixed­ marriage couples; however, in these claimants’ particular circumstances, it became a real issue.

[40]     The claimants testified that the situation in Iraq today is the same as it was when the principal claimant fled Iraq in 2006. In this respect, the documentary evidence supports the claimants’ allegations. According to the “UNHCR Position on Returns to Iraq” report:17

… Since 2014, Palestinian refugees in Baghdad have increasingly been subjected to targeted attacks based on nationality and perceived affiliation with ISIS, including harassment, threats, arbitrary arrest and prolonged detention under the Anti­Terrorism Law, physical abuse, kidnapping, extortion, killings as well as house-to­house searches at the hands of both state and non-state actors. [footnotes omitted]

[41]     The aforementioned Institute for Internal Law and Human Right report indicates:18

The persecution of Palestinians was coupled with forcible evictions from government and privately owned housing, the destruction of Palestinian businesses and property, bombings and mortar attacks in Palestinian neighborhoods, and the termination of large numbers of Palestinian workers.

[42]     A report about Iraq from the European Asylum Support Office (EASO) states that “[t]he Palestinians in Baghdad were targeted as allies of Saddam Hussein in the past, and now they are targeted as allies of the IS.”19

[43]     The documentary evidence in the Internal Law and Human Right report further shows:

… Palestinians in Iraq suffer from uncertain legal status, onerous challenges to updating and maintaining identity documents, and discrimination in access to basic services, housing, and employment. They continue to be arbitrarily arrested and detained, and apartment complexes in Al Baladiyat neighborhood in Baghdad are regularly raided by police and army.20

…

Palestinians report being terminated from work, forced from their homes, and face ongoing discrimination and arbitrary arrest.21

…

The treatment of Palestinians and the risks the community faces are ostensibly similar in the Kurdish region, in Baghdad, and in the south. The Palestinian community is highly visible and faces security risks from armed groups which can access community members virtually anywhere in Iraq. Given this, many Palestinians who were able to leave the country have tried to do so.22

[44]     The principal claimant fears persecution upon return to Iraq. Based on the totality of the evidence, including the country documentation, the panel accepts the principal claimant’s alleged fear of persecution upon return to Iraq today.

[45]     The panel finds that the claimants have met the burden of establishing that, on a balance of probabilities, there is more than a mere possibility that the principal claimant would face the alleged persecution upon return to Iraq today.

Can the principal claimant return to the UAE?

[46]     Regarding the principal claimant’s return to the UAE, the other country of his former habitual residence, the evidence shows that the principal claimant has no permit to legally return to the UAE. As such, he would not be allowed to enter the UAE to reside there, in his particular situation and circumstances today. The principal claimant’s residency in the UAE was tied to his employment there. The principal claimant has no job in the UAE at the present time. The evidence shows that the principal claimant looked for employment in the UAE in 2017, but was unable to secure any jobs. The panel accepts the principal claimant’s explanation in failing to secure a job in the UAE in 2017 as alleged. The panel finds that the principal claimant, in his particular situation and circumstances, would not be allowed to enter the UAE to reside there today.

[47]     Based on these reasons, the panel finds that the principal claimant, a stateless Palestinian person, would face persecution upon return to Iraq, and that he cannot legally return to the UAE, his other country of former habitual residence.

Claims of the associate claimant and the minor claimants against Iraq

[48]     The associate claimant and the minor claimants are citizens of Iraq and no other country.

[49]     These claimants fear persecution upon return to Iraq on account of the principal claimant’s Palestinian origin and his Sunni Muslim religion, and because the associate claimant, a Shiite Iraqi woman, has married a Palestinian Sunni Muslim. Due to the dire situation of Palestinians in Iraq, and these claimants being members of the principal claimant’s family, the panel finds that these claimants would face more than a mere possibility of persecution upon return to Iraq.

[50]     These claimants would have to use their personal identity documentation at various places, in order for them to live their lives in Iraq. For example, for the minor claimants to be registered for school, the associate claimant would be required to confirm her identity as their mother, by showing the authorities her marriage certificate and the minor claimants’ birth certificates. These documents clearly indicate these claimants’ link to the principal claimant, a Palestinian Sunni Muslim. Hence, they would be seen as having significant, practical associations with a Palestinian Sunni Muslim. Therefore, the panel finds that these claimants would also face persecution upon return to Iraq, as alleged in their particular situation and circumstances.

State protection in Iraq for these claimants

[51]     The panel finds that the claimants have rebutted the presumption of state protection, in their case. The principal claimant is a Palestinian Sunni, and the associate claimant is an Iraqi Shiite woman who has married a Palestinian Sunni. The associate claimant and the minor claimants, their children, face risk by familial association. The principal claimant testified that should he or any member of his family run into problems with Shia militias in Iraq, they could not expect adequate state protection because the police are often affiliated with the Shia militias.

[52]     The documents show that the state of Iraq is still struggling to optimally function, in the midst of continued sectarian conflict. Moreover, the evidence also shows that, particularly outside of Kurdistan, a culture of impunity exists for state actors and corruption is prevalent among government agencies.23

[53]     In general, the authorities in Baghdad are unable, and in the case of Sunni complainants, are likely to be unwilling to provide adequate state protection.

Internal flight alternative in Iraq for these claimants

[54]     With respect to an IFA, the evidence shows that the principal claimant and his family would not be safe anywhere in Iraq because he is a Palestinian Sunni, and the associate claimant is an Iraqi Shite woman who has married a Palestinian Sunni. The associate claimant’s relatives have never accepted their marriage. The associate claimant and the minor claimants, their children, face risk by familial association.

[55]     The panel finds that the risk these claimants face is the same everywhere in Iraq.

[56]     A United Nations High Commissioner for Refugees (UNHCR) report entitled “UNHCR Position on Returns to Iraq” published on November 14, 2016, states the following:24

Where decision-makers consider the availability of an internal flight or relocation alternative, the burden is on the decision-maker to identify a particular area of relocation and to show that in respect of this location the requirements for the relevance and reasonableness of the proposed relocation alternative are met. In the current circumstances, with large-scale internal displacement, a serious humanitarian crisis, mounting intercommunal tensions, access/residency restrictions in virtually all parts of the country and increasing pressure exercised on IDPs [internally displaced persons] to prematurely return to their areas of origin following the retaking of these areas from ISIS, UNHCR does not consider it appropriate for States to deny persons from Iraq international protection on the basis of the applicability of an internal flight or relocation alternative. [footnotes omitted]

[57]     Given all of the circumstances and the situation as a whole for these claimants and in consideration of the “UNHCR Position on Returns to Iraq”, the panel finds that, at this time, these claimants do not have a viable IFA in Iraq.

CONCLUSION

[58]     The panel determines that the principal claimant is a Convention refugee pursuant to s. 96 of the IRPA.25 Accordingly, the Refugee Protection Division accepts his claim.

[59]     The panel determines that the associate claimant and the minor claimants are Convention refugees pursuant to s. 96 of the IRPA.26 Accordingly, the Refugee Protection Division accepts their claims.

(signed)           S.S. Kular

July 17, 2019

1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Exhibit 1, Package of information from the referring CBSA/IRCC, received January 26, 2018.
3 IRPA, supra, section 96.
4 Ibid., sections 96 and 97(1).
5 Exhibit 1, Package of information from the referring CBSA/IRCC, received January 26, 2018.
6 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR Handbook), NCR/IP/4/REV.l, Reedited, Geneva, January 1992, UNHCR 1979.
7 Ibid., at para 102.
8 Ibid., at para 104.
9 Maarouf, Ayman v. M.E.I. (F.C.T.D., no. 93-A-343), Cullen, December 13, 1993. Reported: Maarouf v. Canada (Minister of Employment and Immigration), [1994] I F.C. 723 (T.D.); (1993), 23 Imm. L.R. (2d) 163 (F.C.T.D.).
10 Ibid.
11 Marchoud, Bilal v. M.C.I. (F.C., no. IMM-10120-03), Tremblay-Lamer, October 22, 2004, 2004 FC 1471.
12 Al-Khateeb, Mahmoud Issa Ahmad v. M.C.I. (F.C., no. IMM-2962-16), Simpson, January 11, 2017, 2017 FC 31, at para 18.
13 Ibid.
14 Thabet, Marwan Youssef v. M.C.I. (F.C.A., no. A-20-96), Linden, McDonald, Henry, May 11, 1998. Reported: Thabet v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 21 (C.A.); (1998), 48 Imm. L.R. (2d) 195 (F.C.A.).
15 Exhibit 7, National Documentation Package (NDP) for Iraq (March 29, 2019), item 2.4, pp.120-121.
16 United Nations High Commissioner for Refugees (UNHCR), Relevant COI on the Situation of Palestinian Refugees in Baghdad (March 30, 2017), available at: https://www.refworld.org/docid/58de48l04.html, p. l.
17 Exhibit 7, NDP for Iraq (March 29, 2019), item 1.12, pp.15-16, para 29.
18 Ibid., item 2.4, p.121.
19 Ibid., item 1.23, p.12.
20 Ibid., item 2.4, p.122.
21 Ibid., p.123.
22 Ibid., p.124.
23 Ibid., item 2.1.
24 Ibid., item 1.12, p.23, para 48.
25 IRPA, supra, section 96.
26 Ibid.

Categories
All Countries Palestine

2019 RLLR 92

Citation: 2019 RLLR 92
Tribunal: Refugee Protection Division
Date of Decision: March 6, 2019
Panel: A. Green
Counsel for the claimant(s): M. Mary Akhbari
Country: Palestine
RPD Number: TB8-01656
ATIP Number: A-2020-01459
ATIP Pages: 000062-000065

[1]       MEMBER: I have had an opportunity to consider the evidence before me, and I will now render a decision orally.

[2]       Sir, you will be provided with a transcript of my decision, which I reserve the right to edit.

[3]       The Claimant, [XXX], is claiming refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act. In assessing your claim, I have considered your oral testimony, the documentary evidence filed by your counsel on your behalf, and the information in the Board’s National Documentation Package on the occupied Palestinian territory.

[4]       In summary, the Claimant is a 40-year old man who was born in Saudi Arabia on the [XXX] 1978. The Claimant held temporary residence status in Saudi Arabia and was not entitled to citizenship. In 1995, when the Claimant was approximately 17 years old, he relocated to Gaza with his parents; however, the situation in Gaza turned out to be less than ideal. The Claimant’s family, like many Gazans, faced problems due to nearby Israeli settlements, who had the protection of the Israeli Army. The Claimant alleges that he was abused on several occasions by Israeli soldiers at checkpoints. Further, the Claimant and his family faced intimidation by Hamas. The Claimant himself was asked to join Hamas on a number of occasions but would tell them that he was not interested. Hamas perceived him as a traitor or a supporter of Israel. Due to the problems in Gaza, the family eventually returned to Saudi Arabia in 2001; however, the Claimant and his family would visit Gaza occasionally.

[5]       In 2009, the Claimant travelled to Gaza to check on relatives, and the family home. The Claimant was stopped at an Egyptian checkpoint and detained. While in detention, he was interrogated, physically assaulted, and sustained multiple injuries, including a broken shoulder. His interrogators wanted to know about his relationship with militants in Gaza. After approximately six months, the Claimant was released from Egyptian detention. In 2012, the Claimant returned to Gaza. While there, he was summoned by Hamas and asked why he had been arrested by the Egyptian Government in 2009. The Claimant was interrogated and ordered by Hamas to report for further questioning on three occasions. After the third reporting, the Claimant became concerned and left Gaza. He has not returned to Gaza since 2012. In 2016, the Claimant was terminated or was advised that he would be terminated from his employment in Saudi Arabia; however, he was able to transfer his sponsorship to a Saudi citizen for a limited period of time but had to pay a bribe to do so. The Claimant was unable to find work and feared deportation to Gaza. Therefore, on [XXX] 2017, the Claimant left Saudi Arabia, entering Canada on [XXX], 2017, where he filed a refugee claim.

[6]       The Panel finds that you have established that you face a serious possibility of persecution for a Convention ground pursuant to section 96 of the Immigration and Refugee Protection Act.

[7]       In regards to your identity, I find on a balance of probabilities that you are a stateless Palestinian who was born in Saudi Arabia and who lived in the occupied Palestinian territories, specifically Gaza for a number of years. This was established by your sworn testimony and the supporting documentation you provided, including your Palestinian Authority-issued travel document, and your UNHCR Family Registration card.

[8]       I find that both Saudi Arabia and Palestine are countries or places of former habitual residence; however, you cannot return to Saudi Arabia due to the loss of employment. Therefore, your claim has been assessed against Gaza.

[9]       In regards to credibility, I find you to be a very credible witness, who testified in a straightforward manner about your experiences in Gaza, specifically, your encounters with Hamas. You also provided ample supporting documentation found in Exhibits 8, 9 and 10.

[10]     In regards to subjective fear, the Panel considered your delay in leaving Saudi Arabia considering that you only had temporary status there, and also because you had encountered very serious problems in 2009 and 2012, but you only left Saudi Arabia in 2017. However, I found your explanation to the Panel’s questioning to be quite credible, and I draw no negative inference. Likewise, I conQuebec doinsider that you travelled to the United States in [XXX] of 2017 with your wife and daughter but returned to Saudi Arabia. When asked about that, you also gave a very plausible explanation, and so I draw no negative inference in that regard.

[11]     Regarding the objective basis for your fear, the National Documentation Package on the occupied Palestinian territory, which in this case is Exhibit 3, talks about the situation in Gaza. It says that “In 2007…”, and this is Item 2.1, “…Hamas staged a violent takeover of [the Palestinian Authority] government…in the Gaza Strip and has since maintained a de facto government in the territory.” Item 2.1 of Exhibit 3 states that there were “…significant human rights abuses under Hamas…included unlawful and arbitrary killings, disappearances, torture, arbitrary arrest and detention…”. Item 1.12 of Exhibit 3 states as well that there were serious human rights abuses under Hamas authorities in Gaza, which again includes arbitrary arrests, lent to detention and widespread use of torture, and the use of the death penalty. It says specifically that Hamas Security Forces continue to kill, torture, and kidnap, as well as arbitrarily detain or otherwise harass Palestinians, who they view as Fatah supporters. And that is consistent with your testimony here today. Item 2.1 further speaks about the harassment of people who oppose Hamas, and you testified that on several occasions Hamas did ask you to join and you refused to do so, and that people who are not with Hamas are viewed as opposing Hamas. And I find that that is the circumstance in your case. So I find that your fear of persecution has an objective basis.

[12]     In regards to state protection, I consider that, as I stated, the documentary evidence indicates Hamas is the governing authority in the Gaza Strip. They have considerable power and influence, and Item 2.1, indicates that impunity was a major problem under Hamas. Having found that you have established a well-founded fear of persecution from Hamas, I find that you would not be able to obtain adequate state protection; therefore, you have rebutted the presumption of state protection.

[13]     Likewise, I find that you have no viable internal flight alternative given that Hamas is the governing authority in Gaza, and even though the occupied Palestinian territory also includes the West Bank, I find that you would not be able to relocate to the West Bank. According to Item 1.14 of the documentary evidence, Item — sorry — Exhibit 3, Palestinian movement throughout the West Bank remains restricted by a complex system of physical and administrative barriers, checkpoints, roadblocks, and a permit system. Item 14.5 states that “freedom of movement between Gaza and the West Bank is nearly ‘non-existent”‘. In any event, I find that you face a serious possibility of risk in all of the occupied Palestinian territory.

[14]     In conclusion, then, having established the presence of subjective fear and an objective basis for that fear, I find that you face a serious possibility of prosecution, that adequate state protection does not exist, and you do not have a viable internal flight alternative. I therefore accept your claim pursuant to section 96 of the Immigration and Refugee Protection Act, and I wish you the very best of luck.

– – – DECISION CONCLUDED – – –