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