2023 RLLR 80

Citation: 2023 RLLR 80
Tribunal: Refugee Protection Division
Date of Decision: November 28, 2023
Panel: Victoria Bragues
Counsel for the Claimant(s): Hart A. Kaminker
Country: Occupied Palestinian Territory
RPD Number: TC3-15116
Associated RPD Number(s): TC3-08410
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: So, this is the decision for XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, which is file number TC3-15116. You both claim refugee protection pursuant to pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I have heard your claims together as required by the Rules, and I have considered and applied the Gender Guidelines in coming to this decision today.

DETERMINATION

[2]       I find that you are both Convention refugees for the following reasons.

ALLEGATIONS

[3]       You have alleged the following in your Basis of Claim forms, which are at Exhibits 2.1 and 2.2. You are stateless Palestinians and you allege a fear of persecution at the hands of Hamas due to your opposition to them, and because you are women who essentially do not abide to their strict Islamic interpretations of what’s expected of women in society.

Identity

[4]       You have established that you are both stateless, and your personal identity is established, and that is through your testimony and the documents that you have provided, and that does include copies of your Palestinian Authority travel document, which is in Exhibit 1.

Country of Reference

[5]       So, I know I did not raise this as a specific issue in the hearing, but I will touch upon it very briefly. This is in the case of XXXX. You testified today that your husband is in the process of applying for his Indonesian citizenship. And though he did mention that he expects to be successful with this in the coming months, he has not actually confirmed that. And at the time of this hearing, he does not have Indonesian citizenship. And therefore, I find that you do not have access to citizenship there at the time of this hearing. And therefore, a country of reference is not an issue in your case.

Countries of Former Habitual Residence

[6]       So according to the Federal Court of Appeal in Thabet, it was held that in order to be found a Convention refugee, a stateless person must show that on a balance of probabilities they would suffer persecution in any country of former habitual residence, and that they cannot return to one (1) of their other countries, a former habitual residence.

[7]       You were both born and raised in Gaza and spent much of your lives there. You also went to Egypt in 2018 with the intention to remain there, though you only stayed for, I think it was, under one (1) year. From there, you went to Türkiye also with the intention to remain there, though again, you only stayed there for about four (4) years and finally you went to Indonesia with the intent to stay there, though it did not transpire, and you are only there for about four (4) or five (5) months. Considering your intent in going to these countries was to remain there, though, that did not actually play out, I find that these are countries of former habitual residence for you. You also went to the United States, however you never wanted to stay there. You only went there to translate into Canada, and also to visit your sister very briefly. So, I do not think that this is a country of former habitual residence for you.

[8]       So, further to the Thabet principle, I must consider whether you face a 96 or 97 risk in one of these countries, and if you are able to return to the other countries.

Nexus

[9]       So, I find that there is a nexus between the harms that you fear and the Convention grounds, and that is your perceived political opinion in your membership in a particular social group, as women who are not — or do not wish to adhere to the strict Islamic interpretation that Hamas carries, and possibly even religion. And therefore, I have assessed your claim pursuant to section 96 of the IRPA, and I find that you met the test under that section.

Credibility

[10]     In terms of credibility, your testimony today has been entirely consistent, credible, and straightforward with your evidence. There were no major omissions or contradictions. And therefore, I find that you are both credible witnesses, and I believe what you have alleged in support of your claim.

[11]     I have also considered the documents that you have submitted, and those are in Exhibits 1, 5, 6, and 7. These documents include copies of your Turkish, Indonesian, and Saudi Arabian identity — sorry, visas or residency permits, confirming that your status there was temporary and precarious, and they have since expired. You have provided letters of support from your father and friends, all confirming the issues that you faced in Gaza and your attempts to live elsewhere. And you have also provided copies of your sister’s United States documents confirming the claim that she made in the United States.

[12]     Specifically, I find that on a balance of probabilities, you have established that you were both stateless Palestinian women were born and raised in Gaza, where you face continual and serious harassment at the hands of Hamas since they took control of the area. I will not go into all the details, but very briefly, you were harassed and threatened into wearing hijabs. They attempted to recruit your brother. They attempted to target and extort your family due to the work they were doing with the XXXX, which is an international organization. Your home was used as a home base for Hamas. And when you or your family tried to oppose any of these things, your lives were threatened.

[13]     Your entire family has since left Gaza and they are living in different places around the world, including here in Canada. You yourselves attempted to live in Egypt, Türkiye, and Indonesia, however, were ultimately unable to stay there due to your status expiring and/or your inability to renew that status, based in Türkiye, specifically, on discrimination on account of your Palestinian identity. You ultimately were able to secure visas to the United States, which you use to transit into Canada and you claim protection here.

[14]     I find that you have established a subjective fear on a balance of probabilities.

Objective Basis

[15]     So, I find that your subjective fear is supported by the objective documentary evidence in that it supports that the discrimination — or the fear of you — the harm you fear in Gaza is supported by the NDP. The evidence at Items 2.1 and 14.20 are clear that in Gaza, the designated terrorist organization, Hamas, does exercise effective authority. They maintain a large military wing in Gaza, which was formed in 1992. And in some instances, Hamas utilizes its military wing to crack down on internal dissent. Public sector employees sometimes believe that they were pressured to show loyalty towards Hamas and its military wing, and there are reports that members of Hamas security forces committed numerous abuses.

[16]     These documents outline a number of significant human rights abuses that are being committed by Hamas, and these do include credible reports of unlawful and arbitrary killing by Hamas; torture and cruel, inhuman, or degrading treatment or punishment; arbitrary arrest or detention; political prisoners and detainees; unlawful recruitment, and that does include the use of child soldiers; serious restrictions on freedom of expression, including violence, threats of violence and arbitrary arrest on or prosecutions on journalists, censorship and criminalization of libel and slander; serious restrictions on freedom of Internet. And really, this list goes on and on.

[17]     Essentially, there is no room to oppose Hamas, and anyone who does is responded to with violence. And in your cases, you have established that your family has been viewed as an opponent by Hamas due to your refusal to wear hijabs, the refusal of your brother to join them, your family’s work, and your vocal opposition to them — to being in your home, and so forth.

[18]     The evidence also confirms that you would be at a heightened risk or the occupied Palestinian territory because you are women. The Evidence at Items 2.1, and also all of section five of the NDP, confirms that there is widespread discrimination and harassment against women in society generally, but also at the hands of Hamas. Item 2.1 specifically notes that Hamas enforced a conservative interpretation of Islam in Gaza that discriminated against women. Hamas authorities pressured women to conform to an interpretation of Islamic norms that generally restricted women’s movement. According to press and NGO reports, some women students in Gaza reported being forced by school personnel to wear hijab or other conservative dress, and in some instances, teachers in Hamas-run schools in Gaza send girls home for not wearing conservative attire, although enforcement was not entirely systematic.

[19]     In Gaza, discrimination against women, including married women, reportedly took place in all sectors, and that includes banks, NGOs, daycare centres, schools, and was practiced by the de facto government as well in private sectors.

[20]     So, for all of these reasons, 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 turned my mind to the ability of state protection in the occupied Palestinian territories. And I find that this is not available to you. I note that in your case, it is Hamas who is — governs the Gaza Strip, and your agent of persecution in this case. Even generally speaking, the evidence confirms that state protection is nonexistent in the area, given the fragmentation of the region. And for these reasons, I find on a balance of probabilities, you have rebutted the presumption of state protection and that adequate state protection would not be reasonably available to you in Gaza or the occupied Palestinian territory.

Internal Flight Alternative

[22]     So, I have also turned my mind towards this issue, and I find that it is not available to you again. First and foremost, your agent of persecution is Hamas, which has de facto control over Gaza, and therefore I find that you would not be able to relocate within that region in order to escape the harm that you faced. Secondly, Items such as 3.1, 2.1, and 14.5 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 of physical and 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 nonexistent. And for these reasons, I find that on a balance of probabilities, you have established that you do not have a viable internal flight alternative available to anywhere in the occupied Palestinian territory.

[24]     Now, I must assess. Since you have established a forward-facing serious possibility of persecution in the occupied Palestinian territory, I will consider whether you can return to any of your other countries of former habitual residence. The Federal Court of Appeal, in Thabet, has found that an individual could be considered returnable to a country only if the evidence establishes that there is nothing preventing a claimant from reacquiring status.

[25]     So, in the case of Egypt, your status there was temporary and precarious. You left in XXXX of 2018 and have not returned since. The evidence in the NDP indicates that you would need to obtain an entry permit in order to return to Egypt, and the granting of that permit is up to the discretion of Egyptian authorities. And therefore, I find on a balance of probabilities, you do not have the right to return to Egypt.

[26]     Your status in Türkiye was also temporary and precarious. And based on the visas you have provided, they have since expired, you have not returned there since XXXX of 2022. The evidence again confirms that the granting of any visa is up to the discretion of authorities, and therefore I find that you also do not have the right to return to Türkiye.

[27]     And finally, in the case of Indonesia, again, your status there was temporary and precarious. Your documents indicate that your status there has expired and any granting of a new visa up to the discretion of authorities again. And so therefore, I find that you also cannot return to Indonesia today.

[28]     And therefore, you established that you cannot return to any of your countries of former habitual residence. Based on all the evidence before me, I find that you are both Convention refugees. I accept both of your claims, and I do wish you the best of luck here in Canada.

——— REASONS CONCLUDED ———