Date: 20030123
Docket: IMM-1044-02
Neutral citation: 2003 FCT 69
Ottawa, Ontario, this 23rd day of January, 2003
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
YOUSEF KUKHON and SAHAR KUKHON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division ("CRDD"), which determined on February 15, 2002 that the claimants were not Convention refugees.
ISSUES
[2] The applicants raise a number of issues but I will address only two issues which are sufficient to allow this application for judicial review:
a) Did the CRDD err in failing to consider or make any reference to the United Nations Relief and Works Agency ("UNRWA")?
b) Did the CRDD err in law in making negative credibility findings concerning the failure of both claimants to reveal to the visa officer in Tel Aviv that they intended to claim refugee status in Canada?
BACKGROUND
[3] The claimants, Yousef and Sahar, are father and daughter. They were aged 62 and 35 at the time of the hearing. The claimants are stateless Palestinians from Nablus, in Israeli-occupied West Bank. They arrived in Canada on April 11, 2001, and claimed refugee status on April 18, 2001. The claimants argued that they had a well-founded fear of persecution at the hands of the Israeli army.
THE CRDD DECISION
[4] The CRDD found that there was insufficient credible evidence before it to establish a well-founded fear of persecution and that there was not more than a mere possibility that they would suffer persecution if returned to the West Bank.
[5] The CRDD drew a number of negative inferences relating to the claimants' credibility. The male claimant testified that his son, Mohamed, was detained by the Israeli army for 18 days in 1991 or 1992, whereas the PIF of the claimant's son, Ahmed (introduced with consent at the hearing) revealed that the detainment had occurred in March 1995. When asked, the male claimant said that he could not recall the exact year, which the panel found not to be credible.
[6] The panel drew an adverse credibility finding concerning statements made by the male claimant during his application for a Canadian Visitor's Visa ("CVV") in Tel Aviv. The claimant had stated that he wanted to visit his son in Canada and did not mention that he intended to claim refugee status. In addition, the claimants did not make refugee claims on arrival in Canada on April 18, 2001, but did so only a week later. When asked about this omission at the hearing, the male claimant stated that he did not know how and that they did not speak English. The panel noted that the female claimant was reasonably fluent in English and that two of his sons had already claimed refugee status in Canada. The panel found the claimant's explanations to be unreasonable.
[7] The claimant was asked at the hearing whether he had experienced any problems during his trips to Tel Aviv to apply for his CVV in April 2000 and March 2001. He stated that his car was usually stopped by the Israeli military to check their identification. The male claimant stated that he had never participated in Palestinian reserve activities, protests, or demonstrations and he said no.
[8] The panel found that the female claimant also misrepresented her intention to claim refugee status when she applied for her CVV. She testified that, if she had told the visa officer that she wanted to go to Canada in order to preserve her life, it would have taken years to immigrate to Canada. The female claimant also testified that she had never taken part in demonstrations or protests against Israeli occupation.
[9] The panel noted that, according to the documentary evidence, the West Bank is divided into areas A, B, and C. The claimants lived in Area A. In Area C, Israel has complete responsibility for security and for some civil functions. In Area B, the Palestinian Authority has control over civilian functions, and shares security responsibilities with Israel. In Area A, the Palestinian Authority has control over civil affairs and security. The panel stated at page 7:
[...] Given the female claimant's evidence respecting her family's area of residence in the West Bank, the panel finds that the foregoing documentary evidence does not corroborate the male and female claimants' evidence that they fear constant shelling and bombing attacks by the Israeli armed forces. The panel prefers the reliability and impartiality of the foregoing documentary evidence to that of the male and female claimant.
[10] The panel referred to documentary evidence concerning the targeting of Palestinians by the Israeli military forces in 2000. According to this evidence, those targeted were mainly Palestinian Authority security officers or members of groups who had or would attack Israeli settlement or military groups. Since neither claimant has ever participated in these activities, the panel reasoned that they are not at risk according to the documentary evidence, which they preferred to the evidence of the claimants.
[11] Similarly, the panel did not believe the female applicant's evidence that she had difficulty getting to work in Area A, where, according to the documentary evidence, the Israeli military forces did not control security or place restrictions on travel. The panel noted that the claimants experienced no problems while travelling to Tel Aviv to obtain their CVVs in 2000 and 2001.
[12] Documentary evidence suggested that the maximum period of detention given to young Palestinian males in the Occupied Territories was 11 days. Since the claimants stated that Mohamed, the female claimant's brother, had been detained for 18 days, the panel did not rely on this evidence, but preferred the documentary evidence.
[13] The female claimant was asked whether any family members had experienced problems after the April 4, 2001 incident (in which her parents had to remain in a police station for protection from shelling by the Israeli army). She testified that, shortly after her arrival in Canada, her brother, Mohamed, was shot while out buying vegetables. When asked why she did not mention this incident in her PIF, she stated that it was because she forgot, that a lot of things had happened, and that the bullet had only gone through his pants and not hit him. The panel found this explanation to be not credible, but merely an attempt to embellish her refugee claim.
[14] The panel concluded that the claimants had not established, on a balance of probabilities, that they fear persecution from the Israeli army, nor that they faced more than a possibility of persecution if returned home. Consequently, the refugee claims were rejected.
ANALYSIS
[15] The relevance of a UNRWA registration card to refugee determination has been considered by the Federal Court Trial Division. In El-Bahisi v. Canada (Minister of Employment and Immigration) (1994), 72 F.T.R. 117 (T.D.), Denault J. held that the failure to specifically consider the existence of the UNRWA document recognizing the applicant as a refugee constituted a reviewable error.
[16] In El-Bahisi, supra, the CRDD had rejected the applicant's claim to refugee status without making any reference to his UNRWA registration card. The applicant was a stateless person born in the Gaza Strip. In granting the judicial review, Denault J. quoted from the United Nations High Commissioner for Refugees "Handbook on Procedures and Criteria for Determining Refugee Status", which stated that the fact that an applicant has qualified for refugee protection under the UN program is highly relevant to a determination of refugee status, providing the conditions that originally enabled qualification are shown to persist. Denault J. stated, at paragraph 5:
The first error is the tribunal's failure to specifically consider the existence of the UNRWA document. While the tribunal need not mention all of the documentary evidence submitted, it is my opinion that it should consider material evidence or evidence which specifically relates to the applicant's particular claim, especially when the document mentions the applicant by name and it recognizes him as a refugee. [...]
[17] In Markovskaia v. Canada (Minister of Citizenship and Immigration) (1994), 86 F.T.R. 74 (T.D.), Richard J. (as he then was) relied on El-Bahisi, supra, stating, at paragraph 11:
[...] While a failure to recite all of the evidence does not necessarily result in a reviewable error, the tribunal should address material evidence which specifically relates to the applicant's claim".
[18] The respondent cited Mohammadi v. Canada (Minister of Citizenship and Immigration), 2001 FCT 61, [2001] F.C.J. No. 203 (T.D.) (QL), wherein Lutfy A.C.J. distinguished El-Bahisi to Mohammadi, supra because in the case that he had to decide, the applicant was issued a certificate for six months by the United Nations High Commissioner for Refugees.
[19] In the case at bar, no delay is specified on the certificate. The CRDD did not make any reference to the applicants' UNRWA registration documents, thus there was no evidence that the UNRWA status had been considered. According to the case law, this constitutes a reviewable error.
[20] The applicants argue that the CRDD erred in law in making negative credibility findings concerning the failure of both claimants to reveal to the visa officer in Tel Aviv that they intended to claim refugee status in Canada.
[21] In Fajardo v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 392, the Federal Court of Appeal held that the failure to reveal an intention to claim refugee status when applying for a visa should not form the basis for an adverse credibility finding. The Court stated, at paragraph 5:
[...] Can it be seriously suggested that any but the most naive applicant for a visitor's visa would indicate to the visa officer that the purpose of going to Canada was not to visit but to seek asylum? The omission is no basis for the conclusion reached but the conclusion does suggest a determination on the part of the panel to find fault where none existed.
[22] In Bhatia v. Canada (Minister of Citizenship and Immigration), 2002 FCT 2010, [2002] F.C.J. No. 1656 (T.D.) (QL), Layden-Stevenson J. applied the above principle from Fajardo, supra, stating, at paragraph 16:
The failure of Mrs. Bhatia to inform the visa officer of her fear to the Punjab police was an important factor in the negative credibility determination of the CRDD. There are two areas of concern in this respect. First, a panel should not infer that an individual with a real fear of persecution will necessarily indicate such fear to a visa officer when seeking a visa: Fajardo v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 392 (F.C.A.). [...] [emphasis added]
[23] In the case at bar, the CRDD clearly stated that it had concerns about the subjective fear of both the male and female claimants as a result of the claimants' failure to reveal to the visa officer their intention to claim refugee status in Canada. Although the CRDD had other concerns regarding the credibility of the claimants, the omissions during the visa application process figure prominently in its decision concerning subjective fear.
[24] The application for judicial review shall be allowed.
[25] Neither party suggested the certification of a serious question of general importance. No question will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed.
2. The CRDD decision dated February 15, 2002 is set aside and the matter is referred back to the CRDD for redetermination by a differently constituted panel.
3. No serious question of general importance is certified.
_______________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1044-02
STYLE OF CAUSE: Yousef Kukhon & Sahar Kukhon v. The Minister of
Citizenship and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: January 16, 2003
AND ORDER BY : THE HONOURABLE MR. JUSTICE BEAUDRY
APPEARANCES:
Ms. Tina McKay FOR APPLICANT
Mr. W. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Goodwin Berlin McKay FOR APPLICANT
Calgary, Alberta
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada