2023 RLLR 62

Citation: 2023 RLLR 62
Tribunal: Refugee Protection Division
Date of Decision: November 15, 2023
Panel: Victoria Bragues
Counsel for the Claimant(s): Razgar Hasan
Country: Occupied Palestinian Territory
RPD Number: TB9-23146
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: So, this is the decision for XXXX XXXX XXXX XXXX, which is file TB9-T3 – sorry, 23146, who claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

DETERMINATION

[2]       I find that you are a Convention refugee for the following reasons.

ALLEGATIONS

[3]       So, you have alleged the following in your Basis of Claim form and the amendment made, which is in Exhibit 2 and 4, and you also made a slight amendment at the outset of the hearing today. You allege that you are a stateless Palestinian and you allege a fear of persecution in Gaza in the occupied Palestinian territories at the hands of Hamas because of your refusal to join them.

Identity

[4]       You have established both that you are stateless and also your personal identity, and that is through your testimony and the documents that you provided, and that namely includes copies of your Palestinian authority passport and copies of your Saudi Arabian residency card, and that is found in Exhibit 1.

Countries of Former Habitual Residence

[5]       So, according to the Federal Court of Appeal in Thabet, in order to be found a Convention refugee, a person — sorry — a stateless person must show on a balance of probabilities that they would suffer persecution in any country of former habitual residence, and that they cannot return to any of those other countries of former habitual residence.

[6]       In your case, you were born and lived much of your life in Saudi Arabia. You have also lived in Gaza, in the occupied Palestinian territory from around 1990 until 2000, and you were also in the United States from 2016 until coming to Canada in 2019. Though you were there on a student permit, you were ultimately — you did have the intention to remain there. In consideration of all of the evidence, I find that these three (3) countries are countries of former habitual residence for you.

[7]       You have also indicated that you lived in Yemen for some time and that was to complete your — to enroll in your university studies. You did not have the intention to remain there aside from completing these studies, and therefore, I find that this is not a country of former habitual residence for you.

[8]       So, in consideration of this evidence, further to the Thabet principle, I must first consider whether you face a 96 or 97 risk in at least one (1) of those countries, and whether you can return to any of the other countries.

Nexus

[9]       So, I find that the harm that you fear does have a nexus to the Convention grounds, and that is essentially your membership in a particular social group as a man who does not want to support Hamas and therefore I – also, your perceived political opinion in that case, and therefore, I have assessed your claim pursuant to section 96 of the IRPA, and I find that you have met the test under that section

Credibility

[10]     So, in terms of credibility, I have considered all of the evidence and that does include your medical documentation confirming that you are living with an XXXX XXXX XXXX and other XXXX XXXX which you are being treated for both by medication — sorry, both by medication, also in person treatment.

[11]     In terms of your credibility, your testimony today has been mostly consistent, credible and straightforward with your evidence. You were able to provide clear and detailed testimony in regards to your allegations. There were some issues which I will touch on later, but I find your explanations to these were either reasonable or otherwise, they were insufficient to render your entire claim not credible. And for all of these reasons, I find that generally you were a credible witness.

[12]     You have also provided a number of documents in support of your claim, and those are all in Exhibits 4 through 7. These do not only include the identity documents, they have — some of which I have already touched upon, but also documents confirming your status in Saudi Arabia, Yemen and the United States, and that those statuses were temporary and precarious.

[13]     You provided documents confirming your divorce in the United States and copies of the summons issued against yourself, your father and your brothers by the Palestinian authority or Hamas. Specifically, I find on a balance of probabilities that you have established that you are a stateless Palestinian man who lived between Saudi Arabia, Gaza and the United States. You lived in those countries on temporary precarious status.

[14]     In terms of the United States, you have indicated that you did not claim protection there because you were on an F1 student visa and you were not permitted to do so, and also, this was during the time of the Trump era and there was a halt on these sorts of claims and I find these explanations to be reasonable and that they do not negate your subjective fear.

[15]     In terms of Gaza, I did have some initial concerns considering that you admitted having lived there from all of your Basis of Claim forms. When this was put to you today in the hearing, you explained that you did tell your previous Counsel about this, you were not sure why it was omitted from your Basis of Claim form. I do not find that explanation to be reasonable, considering that you have confirmed a few times that you had the help of an interpreter to read and review your Basis of Claim form before it was signed and submitted, and the onus is on you to present your case.

[16]     I have also considered that you have retained new Counsel and I was concerned as to why an amendment was not submitted after retaining new Counsel in regards to this omission. However, you confirmed in testimony today that you only met with your current Counsel two (2) times, and that was shortly before the hearing today. And in light of this and also given your health conditions, I find that this is a reasonable explanation as to why this was not provided in the form of an amendment.

[17]     Notwithstanding the submission, I am aware that, of course, your Basis of Claim forms are entirely formed around your fear in Gaza. So, I do not think that this was a total omission in regards to your fears there. In consideration of all the evidence, I do find it strange that you would not indicate this period of residence in your Basis of Claim form. I do not draw any serious negative credibility inferences from this omission. So, I find that you have established that you lived in Gaza for that time between 1990 and around 2000, and you also returned there in 2006, and it was on that trip that you and your father were approached by Hamas. Your lives were threatened if you did not join them. You all left Gaza shortly thereafter and never returned there again.

[18]     In 2017, they issued warrants for you to present yourselves in the Palestinian authority, and these were sent to your father in Saudi Arabia, I believe. I also had concerns as to why this is not mentioned in your Basis of Claim form. However, you explained that you did provide the documents themselves and you were planning to indicate this information at the hearing. And though I do not find this to be reasonable explanation, I do not think that this issue alone is to render your whole claim not credible. So, based on all of the evidence before me, I find that you have established a subjective fear on a balance of probabilities.

Objective Basis

[19]     So, your fears in the occupied Palestinian territory is supported by the documentary evidence in the National Documentation Package. Specifically, my references will be from Items 2.1 and 14.2 — 14.20. All of these documents are clear that in Gaza, the designated terrorist organization, Hamas, is exercising de facto authority or control. They maintain a large military wing in Gaza, which was formed in 1992. In some instances, Hamas utilised its military wing to crack down on internal dissent, and public sector employees sometimes believe that there was pressure to show loyalty to Hamas and its military wing.

[20]     There are reports that members of Hamas security forces committed numerous abuses, and these are all outlined in these documents. And among these significant human rights abuses, it does include credible reports of unlawful and arbitrary killing by Hamas personnel, torture or cruel, inhuman or degrading treatment or punishment by Hamas, arbitrary arrest or detention, political prisoners and detainees, unlawful recruitment and the use of child soldiers. Essentially, the evidence is clear that Hamas does recruit and they do not leave any room for anyone to oppose their stance, and anyone who does is responded to with violence. So, based on all of the evidence before me, I find that you have established an objective basis for your fear and therefore a well-founded fear of persecution.

State Protection

[21]     So, I have also turned my mind towards this issue, and I find that it is not available to you. Again, Hamas is your agent of persecution. They have de facto control of the Gaza strip. Even generally speaking, the evidence confirms that state protection is nonexistent in the occupied Palestinian territory, and that is given the fragmentation of the region, and for all these reasons, I find that you have rebutted the presumption of state protection and that adequate state protection would not be available to you in your circumstances.

Internal Flight Alternative

[22]     So, I have also turned my mind towards this issue, Item such as 13 — sorry — 3.1 and 2.1 and 14.5, they all indicate that there are severe restrictions on the freedom of movement, internally and externally for Palestinians. Palestinians remain restricted based on a complex system and physical administrative barriers such as checkpoints, roadblocks and a permit system.

[23]     Further evidence confirms that freedom of movement between the West Bank and Gaza is nearly non-existent. I am also mindful that it is Gaza which is in control — sorry — it is Hamas which has control of Gaza, that is your agent of persecution, and also, I am mindful of the current conditions in Gaza today. For all of these reasons, I find that on a balance of probabilities, you do not have a viable internal flight alternative available to you in the occupied Palestinian territories.

[24]     So, for all of these reasons, I find that you have established a forward-facing serious possibility of persecution in the occupied Palestinian territories, and so, now I must consider whether you have the ability to return to your other countries of former habitual residence, which are Saudi Arabia and the United States. Again, you have established that your status there, in both of those countries was temporary and precarious. They have since expired and therefore, I am satisfied that you do not have the right to return to either of those countries. And therefore, for all of the reasons I have already mentioned, I find that you are a Convention refugee. I accept your claim.

——— REASONS CONCLUDED ———