Date: 20030908
Docket: IMM-4101-02
Citation: 2003 FC 1044
Ottawa, Ontario, September 8, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
MAHMOUD BKHITAN ALI KHALIFEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Roger Houde (the panel) of the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated August 8, 2002, that Mahmoud Bkhitan Ali Khalifeh (the applicant) is not a Convention refugee under section 96 of the Immigration and Refugee Protection Act (the Act) or a person in need of protection under section 97 of the Act.
FACTS
[2] According to his Personal Information Form (PIF), the applicant was born on January 11, 1963, and always lived in Jericho. At the time, the West Bank was under Jordanian jurisdiction.
[3] The applicant is a member of the Ghrouf clan. He is stateless and has never had any citizenship.
[4] The applicant is a gardener by trade. Since 1985, he practised his trade working for the Franciscan and Benedictine religious communities, which owned monasteries in Jericho and Jerusalem. The applicant also worked for the Italian consulate in Jerusalem.
[5] In order to work, the applicant had to travel between Jericho and Jerusalem every day.
[6] Over the years, the trips were made easier by the fact that he was accompanied by Father Victor Dionne, a Franciscan from Quebec, who was in charge of his work in Jericho.
[7] The applicant claims, however, that he was the victim of the Israeli army's attitude at the checkpoints leading into Israel. According to his PIF, the harassment was constant and systematic, making him feel hounded and persecuted, perceived as a second-class human being by the Israeli army; this degrading conduct, he says, violated his human dignity.
[8] Moreover, the applicant submits that his constant trips from one territory to the other were the sole cause of the army's suspicions, making him liable to arbitrary arrest and unjustified detention without the right to trial before a court.
[9] Also, because of the retaliatory shooting by the Israeli army and the proximity of his home to the demarcation line, he feared for his safety and for the safety of his family.
[10] When the situation deteriorated to the point that he was not allowed to go to work at the Mount of Olives because of the complete closure of the access roads by the Israeli army, the applicant decided to come to Canada.
[11] He left Jericho on July 10, 2001, and arrived in Canada on July 14, 2001. The applicant did not claim refugee status, however, until September 16, 2001, alleging fear of persecution by reason of his nationality, his membership in a social group or his perceived political opinion.
[12] The applicant now lives in Châteauguay with Father Dionne, who was kind enough to host him in the rectory where he is presently the parish priest.
[13] Since his arrival in Canada, the situation in the West Bank has deteriorated to the point where he fears for his family if he were to return.
[14] In his PIF, the applicant describes various events in this war and concludes that the Palestinian army cannot guarantee his protection because his home is situated at the heart of the districts between the Israeli army and the Palestinian groups.
- On September 13, 2001, his wife told him that 30 of the Israeli army's armoured vehicles entered Jericho and were stationed near their home;
- On September 20, 2001, the Israeli army fired real bullets in the direction of the car in which his wife was seated while driving in Jericho;
- On October 6, 2001, the applicant learned on the CBC news that a father and son were killed in their own car while they were driving near his home;
- On October 20, 2001, the Israeli's army's armoured vehicles again intruded near his house; shots hit his house.
[15] The applicant claims that he is living and has always lived with the prospect of death simply because he is a Palestinian and the victim of a conflict that is not his own.
[16] On August 1, 2002, the hearing of the applicant's refugee claim was held before the Refugee Protection Division of the IRB.
[17] On August 8, 2002, the panel dismissed the applicant's claim.
[18] It is this decision that is now the subject of this application for judicial review.
ISSUE
[19] Did the panel make an error warranting the intervention of the Court in finding that the applicant is not a Convention refugee?
ANALYSIS
Standard of review
[20] In Ding v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1643, Madam Justice Layden-Stevenson reiterates that the applicable standard of review for questions of assessment of the facts is patent unreasonableness.
[5] The standard of review with respect to the CRDD, a specialized tribunal, is patent unreasonableness, except with respect to statutory interpretation where the standard is correctness: Pushpanathan v. Canada, [1998] 1 S.C.R. 982. The CRDD has complete jurisdiction to determine the plausibility of testimony and as long as its inferences are not so unreasonable as to warrant the Court's intervention, the findings are not open to judicial review: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). The CRDD is not obliged to confront an applicant with its implausibility findings: Matarage v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 460; Sarker v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 209; Kahandani v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1769.
[21] This Court has also held on many occasions that the Refugee Protection Division is in a privileged position in assessing the credibility of a claimant. This was emphasized in Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800, (confirmed by the Federal Court of Appeal, [2002] 3 C.F. 537):
[38] It is trite law that the Board has the discretion, and indeed is in the best position, to assess the credibility of an applicant: Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.).
Did the panel make an error warranting the intervention of the Court in finding that the applicant is not a Convention refugee?
[22] In Rajudeen v. Canada (Minister of Employment and Immigration), (1984), 55 N.R. 129, [1984] F.C.J. No. 601 (F.C.A.), Mr. Justice Heald points to the necessary components to satisfy the definition of Convention refugee:
. . . This Court as well as the Supreme Court of Canada has made reference in a number of cases to the subjective and objective components necessary to satisfy the definition of Convention Refugee. The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear. . . .
[23] With respect to the political context, Heald J.A. notes:
I have quoted from the evidence at some length because it establishes beyond doubt a lengthy period of systematic infliction of threats and of personal injury. The applicant was not mistreated because of civil unrest in Sri Lanka but because he was a Tamil and a Muslim. He committed no overt acts entitling any one to invoke counter-measures against him. He was not a member of any political party or group nor was he a member or supporter of any revolutionary group. Accordingly, in my view, the Board ignored the evidence of the applicant in this regard, notwithstanding its finding that he was a credible witness, and, in so doing, erred in law.
[24] I have carefully reviewed the file, particularly the applicant's testimony. There is no doubt that he was inconvenienced repeatedly when travelling between Jericho and Jerusalem.
[25] The applicant has not persuaded me, however, that the more or less constant harassment at the checkpoints between Jericho and Jerusalem and the incidents where the applicant had to tolerate many delays and, occasionally, embarrassing situations as a result of the untimely interventions of the Israeli forces, amounts to persecution.
[26] The applicant has never been detained or arrested. The findings of the panel that the inconveniences he suffered were as a whole insufficient to give rise to an objective fear for his life and that he was not faced with a real danger of torture or unusual treatment, were not unreasonable under the circumstances.
[27] It is not easy to draw the line between unfortunate and troubling incidents and those that truly amount to persecution within the meaning of the Convention.
[28] In Sagharichi v. Minister of Employment and Immigration, (1993), 182 N.R. 398, Marceau J. states:
The incidents recited by the appellant in her testimony were no doubt unfortunate as they constituted in all appearances incidents of discrimination or even possibly harassment; but both members, in their respective reasons, make it clear that for them they were not serious or systematic enough to be characterized as persecution, or to lead to a conclusion that there was a serious possibility of persecution in the future.
It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.
[29] Nor was it unreasonable for the panel to wonder about the fact that the applicant's wife returned to Jericho (September, 2001) to liquidate the family's assets when he himself believed his own life would be in danger if he returned to Jericho.
[30] The fact that the panel did not find the applicant's explanations for the delay in filing his refugee claim credible was not unreasonable, either.
[31] When we refer to the documentary evidence, it is undoubtedly true that a certain number of Palestinians living in the occupied territories are singled out for security checks and harassment by the Israeli authorities which, in the long run, could be construed as persecution within the meaning of the Convention. The applicant has not, however, satisfied me that he is a member of this particular group.
[32] The panel also discussed with the applicant, at length, the primary reasons for his arrival in Canada and the applicant candidly admitted that his financial situation and the loss of his jobs were determinative factors in his decision.
[33] While we may be sympathetic to the applicant's circumstances, the Court has no choice but to conclude that the findings of the panel, on the whole, were not unreasonable and that the Court's intervention is not warranted.
ORDER
[1] Consequently, this application for judicial review is dismissed.
[2] No question for certification.
"Pierre Blais"
Judge
Certified True Translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4101-02
STYLE OF CAUSE:
BETWEEN:
MAHMOUD BKHITAN ALI KHALIFEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 6, 2003
DATE OF REASONS: September 8, 2003
APPEARANCES:
Jacques Beauchemin FOR THE APPLICANT
Christine Bernard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Alarie, Legault & Associés FOR THE APPLICANT
Federal Department of Justice FOR THE RESPONDENT