2019 RLLR 93 – Refugee Law Lab

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.