2023 RLLR 72
Citation: 2023 RLLR 72
Tribunal: Refugee Protection Division
Date of Decision: November 3, 2023
Panel: Uchenna Okoronkwo
Counsel for the Claimant(s): Harkamal Singh
Country: Occupied Palestinian Territory
RPD Number: TC2-35010
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: Today is 2023, November 3rd.
INTRODUCTION
[2] This is the decision of the Refugee Protection Division for the following claimant. XXXX XXXX, file number TC2‑35010, a 38-year-old male. I am going to be giving you the reasons for the decision orally, but you and your Counsel will be provided with these reasons in writing shortly. The written reasons that you will receive will reflect those that I am giving you now. They may, however, be edited for general readability or to add references to legal citations or contrary documents. The claimants claim to be a stateless Palestinian from the Gaza Strip and seeking refugee protection in Canada pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act. In the decided case of Adjei v. Canada, the Federal Court held that the duty of the RPD Panel is to determine whether there is sufficient, credible, or trustworthy evidence to determine that there is more than a mere possibility that you would be persecuted if you are returned to your own country or country of former habitual residence in your case. This also means that it must not be possible to get protection from this persecution in your own country or control of former habitual residence. And further that that there is no other place in your country of former habitual residence or country where you could live safely and that it would not be reasonable to do so in your own circumstances. In coming to my decision today, I have considered the whole evidence before me.
DECISION
[3] Based on the totality of the evidence presented, I find that you are a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act on the basis of imputed political opinion in Gaza Strip pursuant to section 96 of the Immigration and Refugee Protection Act. My reasons are as follows.
ALLEGATIONS
[4] Your allegations are fully set out in your answer to question two (2) of the Basis of Claim form filed at Exhibit 2.1, as well as the updated narratives on Exhibit 2.2 of the consolidated list of documents. There is no need to repeat them here in detail. In summary, you alleged that having been deported by the United Arab Emirates authorities, UAE, because you are a stateless Palestinian, you are fearful of a return to Gaza Strip. Your other country of former habitual residence due to persecutions at the hands of the Hamas regime on the basis of imputed political opinion.
Identity and Country of Reference
[5] Your identity as a stateless Palestinian in the UAE and Gaza have been established on a balance of probabilities by your testimony and the supporting documents filed under Exhibits 1 and 4, as well as Exhibit 6 of the consolidated list of documents. This document includes your Palestinian authority passport. Your current Palestinian authority passport, and translated identity card. Your birth certificate. Your temporary residence permit. And driver’s licence all issued by the United Arab Emirates authorities, as well as your family registration card issued by the United Nations Relief and Works Agency for Palestinian refugees. The test for stateless individuals to be considered refugees under the Act is that stateless individuals are required to show on a balance of probabilities that they face persecution in at least one (1) country of former habitual residence and that they cannot return to the other or any other country of former habitual residence if applicable. On the matter of what is the claimant’s country of former habitual residence. The evidence adduced before the Panel establishes that the claimant is a stateless Palestinian who was born in the United Arab Emirates, where he lived for about 29 years of his life based on renewable resident status who moved between United Arab Emirates, UAE, and Gaza Strip until he was deported from UAE to Gaza by the UAE authorities in XXXX 2021, where his appeal was pending against XXXX XXXX purchase charges which he was fined for 7000 (inaudible). The claimant explained that he bought the XXXX — the pharmaceutical from Europe where he travelled to for his XXXX treatment and that he was unaware that it was prohibited in the UAE. You furnished copies of both the public prosecution document and Dubai court deportation order from the UAE. Regarding the claimant’s status in the Exhibit 3.2, which is a National Documentation Package for UAE, Item 3.9 at page 8 indicate that only children born to UAE fathers can acquire UAE citizenship at birth. Since you are a stateless Palestinian, since you have no permanent status in the UAE and do not have a right to return to that country by the NDP for UAE, I find that article 1E is not engaged in this claim.
[6] I also know that this same NDP, Item 14.2 at page 8 referenced the United Nations Human Rights Commission. United Nations High Commission for Refugees Report, which stated that hundreds of Palestinians were deported from the UAE and that those expelled were provided no explanations or opportunities for appeal. I further note that there is a written notation on the claimant’s residence permit indicating that his residency is invalidated if he is absent from UAE for more than six (6) months. The objective and documentary evidence before me indicate that a deportee from UAE has no right to return to that country. Since the claimant was deported from Gaza, from UAE to Gaza, where he lived until he came to Canada in XXXX 2022 and has no right to return to the UAE, the Panel will assess his claim against Gaza only, which is his next country of former habitual residence.
Nexus
[7] I find that there is a link between the persecution you have suffered and fear in Gaza and imputed political opinion, which is one (1) of the five (5) enumerated Convention grounds for refugee claim. Therefore, the claim is assessed under section 96 of the Act.
The Determinative Issue in the Claim
[8] The determinative issue in this claim is credibility. The court ruled in Maldonado and Canada that the sworn testimony of the claimant is presumed to be true unless there is a valid reason to doubt its truthfulness. I find you to be a credible witness. I find your testimony to be genuine. There were no material consistencies, submissions, or contradiction between your testimony and the other evidence in this claim that we are not reasonably explained. Your testimony was also consistent with the other evidence on the central aspect of your claim. Therefore, I believe what you have alleged in your Basis of Claim form and oral testimony. You testified in a consistent and organic detail about the persecutory incident you faced at the hands of Hamas organization and its affiliated officials in Gaza. First, as an XXXX student at XXXX XXXX in 2007, during which there was a conflict between Hamas and Fatah organization or movement of the Palestinian authorities.
[9] You stated that her that your cousin, S, Mr. S was a member of Fatah (ph) movement and that he sustained injuries while fighting against Hamas. It was your credible testimony that Hamas (inaudible) targeted you because you took care of your cousin and that they suspected that you were also against Hamas. You stated that you denied any involvement with either side of the conflict and that you visited your cousin Mr. S, because of his familial relationship with you. However, according to you, the Hamas and the student Counsel did not believe you. They want you to terminate your admission if you ever visited your cousin or act in any way against Hamas. You also talked about another incident in 2008 when you worked as a XXXX XXXX XXXX in XXXX XXXX in Gaza and were denied your salary because you refused to support Hamas like other students. You testified that on XXXX XXXX and XXXX, you were summoned to appear before the XXXX XXXX XXXX XXXX for interrogation and was interrogated about your visit to the United States of America Embassy in Jerusalem for visa and your relationship with your cousin Mr. S.
[10] You stated that you were detained in a room, assaulted, your phone searched, you were tortured and interrogated about Mr. S and your aunt who worked for a Fatah movement organization, XXXX XXXX XXXX XXXX XXXX. Furthermore, you spoke about how the Hamas authorities and officers questioned you about your social media post and your liberal views about religion, which they interpreted to be Islamic, to be against Islamic religious belief. You explained that the social media post related to atheism post posted by someone else which you shared on your Facebook. According to you, the Hamas officer who warned you to avoid making similar posts in the future or you risk being jailed. You also described how your consistent refusal to be part of Hamas violent organizations exposed you to physical assault. According to you, the interrogating officer also demanded that you work for Hamas to which you refused and was threatened. When I asked you, you explained how the assault and harassment made you feel insecure and made you intensify on your plans to escape the Gaza Strip. And you arrived in Canada in XXXX 2022 and reached the United States of America, then claimed refugee protection to save your life. When asked what will happen if you are returned to Gaza in 2023, you stated and explained that you are frightened and would be incarcerated or killed by Hamas authorities, which are now more powerful.
Supporting Documents
[11] I note that you corroborated your claim with the personal documents which were entered into evidence under Exhibit 4 and 6 of the consolidated lists of documents. The supportive document you provided includes a translated copy of the notice of attendance from the Hamas, dated XXXX XXXX 2022, which corroborates your claim that you were summoned and interrogated on the basis of perceived political opinion. You also furnished a copy of your XXXX XXXX XXXX XXXX from XXXX XXXX XXXX XXXX, which corroborates your claim that you were a student in that university and the university authorities harassed you based on their perception that you supported Palestinian Authority against the Hamas during the 2007 conflict between them and Fatah.
[12] There is also a letter of support from XXXX XXXX XXXX, the XXXX of XXXX XXXX in confirming your work with them as a XXXX XXXX at XXXX XXXX, Gaza, which — during which you helped in providing XXXX XXXX XXXX support to the XXXX XXXX. But they you are not paid. And experienced discrimination because you did not support Hamas like your colleagues did. Also, in evidence before me, pages of a screenshot of a Facebook post, you testified (inaudible) which Hamas officers interrogated you on XXXX XXXX, 2022, and that they accused you of sharing articles contrary to Shariah law. I have considered and found the supporting documents to be credible and trustworthy. I have found no reasons to doubt the genuineness of this document. I assign full weight to them as they corroborate your allegations.
[13] On a balance of probabilities, I find that you were targeted in the past and faces continuing serious possibility of persecution at the hands of Hamas authorities based on imputed political opinion because of your refusal to work for them and their suspicion that you had connection with the Fatah movement. Considering your reliable testimony and compelling documentary evidence, on a balance of probabilities, I find that you were persecuted by Hamas authorities based on perceived political opinion. I further find that should you be returned to Gaza you will more likely than not face serious possibility of persecution based on imputed political opinion. Based on the totality of the evidence provided I also find on a balance of probabilities that you have established your subjective fear of persecution and the existence of the possibility of persecution on a forward-looking basis. I further find that your subjective faith fear is supported by Palestinian country conditions.
Country Conditions
[14] Further to the reasons I have already given above, the next duty of the Panel is to determine whether there is sufficient, credible, or trustworthy evidence to determine that there is a serious possibility that this claimant will face a risk to his life or would be persecuted if he is to return to Gaza Strip, which is his next country of former habitual residence. Exhibit 3.1, which is the National Documentation Package, NDP for Palestinian makes it clear that Hamas does not tolerate dissent or opposition and that those who are perceived as opposing Hamas face arrest and detention. This is content on the NDP 1.16. As it is well known, Hamas violently took over control of Gaza from Palestine in 2007. Since then, Hamas has maintained a large military wing in Gaza. (inaudible) brigades. In some instances, according to NDP Item 2.1, Hamas utilized its military wing to crack down on internal dissent. The same sources contain credible reports that Hamas security forces committed numerous human rights abuses. Also, with respect to Hamas, the same NDP at Item 2.1 contains reports of unlawful arbitrary killings by Hamas personnel. Torture or cruel, inhuman, or degrading treatment or punishment by Hamas personnel, unjust detention, political prisoners, or detainees, serious problems with independence of the judiciary. Hamas detained an unknown number of Palestinians due to political affiliation, public criticism of Hamas or suspected collaboration with Israel and held them for various period of time, according to human rights groups.
[15] There is also a problem with the Hamas justice system. The NDP states that Hamas military courts tried civilians and many people we are unfairly treated, tried, convicted, and held on order by the military courts. This is contained on the agenda Item 1.16. Based upon the objective documentation from the NDP as well as the claimant’s oral and documentary evidence, the Panel is satisfied on the balance of probabilities that this subjective perception is well-founded. On a forward-looking basis, the Panel further finds that the claimant faces the possibility of persecution from Hamas authorities should he return to Gaza Strip, Palestine.
State Protection and Internal Flight Alternative
[16] In terms of whether the claimant would have adequate state protection, given that Hamas is the governing authority of the Gaza Strip and has considerable power and influence in the Gaza Strip, the Panel finds that that adequate state protection would not be reasonably forthcoming to this claimant. This is because Gaza is — Gaza, Palestine, governed by Hamas, is the place where he fears persecution. And Hamas is his main agent of persecution. Furthermore, objective evidence indicate that the Palestinian Authority itself has very little authority in the Gaza Strip, where Hamas is de facto control. According to NDP at 2.1. All though Israeli authorities control some of the Palestinian Authority and territory, the same NDP sources say that Israeli authorities have retook control in the Gaza Strip itself. Therefore, I find that the claimant has rebutted the presumption of state protection.
[17] With respect to internal flight alternatives. Unfortunately, considering the totality of the evidence adduced, the Panel found that the risk the claimant faces is common in Gaza as a whole. The objective evidence indicate that there are severe, limited limitation on freedom of movement in the occupied Palestinian territory. NDP Item 1.14 indicate that Israeli authorities control or restrict all movement into Israel and the West Bank from Gaza Strip. Furthermore, the NDP, Item 2.1 and Item 14.5 state that Israeli military incursions and successive military campaigns by the Israeli Defence Forces, combined with the use of force in ISIS restricted areas, can add to the difficulty of entering or exiting or traveling within Gaza. In addition, Hamas traditionally operates their own restrictions and the limitations on the movement in and out of Gaza. As such, the Panel find that there is no viable internal flight alternative for this claimant in Gaza.
CONCLUSION
[18] Based upon the totality of evidence before me, the Panel finds that the harm that the claimant fear is based on a Convention ground. Consequently, for the reasons given and upon a constitution of the whole of the evidence, the Refugee Protection Division determines that XXXX XXXX is a Convention refugee as defined in section 96 of the Act.
——— REASONS CONCLUDED ———