Docket: IMM-1687-19
Citation: 2019 FC 1629
Ottawa, Ontario, December 18, 2019
PRESENT: The Honourable Madam Justice Fuhrer
| BETWEEN:
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| WH and LA
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| Applicants
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| and
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| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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| Respondent
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AMENDED JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of the February 12, 2019 decision of the Refugee Protection Division [RPD] concluding the Applicants were not Convention refugees or persons in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
As a preliminary matter, the decision was received by the Applicants on February 22, 2019 (deemed received February 26, 2019: Refugee Protection Division Rules, SOR/2012-256 [RPD Rules], Rule 41(2)). The Applicants filed for judicial review on March 13, 2019, which is outside the statutory timeline: IRPA s 72(2)(b). In their request for an extension of time, they explained they were not given notice of the applicable deadline, and had taken expeditious steps to explore their options. The Minister did not oppose granting leave, nor did the Minister pursue this issue in written and oral submissions. Leave was granted by Justice Grammond of this Court.
[3]
As a further preliminary matter, at the outset of the hearing before this Court the Applicants’ counsel requested anonymization of the Applicants’ identities. As the Minister did not object, I confirm my grant of this request; hence, the male and female Applicants are referred to as WH and LA, together or separately as the case may be, or simply as the Applicant(s), and the style of cause is amended immediately to identify the Applicants as WH and LA.
[4]
For the reasons that follow, this judicial review application is dismissed.
II.
Background
[5]
The Applicants, WH and LA, are citizens of Iraq and former residents of Baghdad. They are married and have three adult children, all residing in countries outside Iraq.
[6]
WH is an engineer. In early 2000s, he left Iraq for work, moving first to Qatar and later to the United Arab Emirates [UAE]. LA originally remained in Iraq with their children.
[7]
In 2003, Iraq descended into a sectarian war between Sunni and Shi’a militias. The Applicants allege that as a result, their Sunni family members and friends began experiencing violent persecution at the hands of extremist Shi’a militias. In 2003, LA’s brother was mugged violently by Shi’a militia members while driving in New Baghdad; the muggers stole his car and struck him in the head with the butt of a gun. Shortly after, LA’s neighbour was threatened violently by Shi’a militia.
[8]
The Applicants assert they are easily identifiable as Sunnis because of their surnames and LA’s birthplace, a Sunni-majority city. Fearing the above incidents and how close they were to home, LA left Iraq with her children in late 2003, and joined WH in the UAE. They remained long-term on temporary residence permits, which were contingent on WH’s ongoing employment.
[9]
The Applicants assert their Sunni relatives who remained in Iraq continued to be subjected to violence. They allege the following occurred in their absence:
- Later in 2003, the aforementioned neighbour was kidnapped for ransom and subsequently killed;
- In 2004, WH’s nephew was attacked, kidnapped, and tortured by armed men as he exited a mosque in New Baghdad. WH and LA believe a Shi’a militia with government ties was behind the kidnapping as they were active in the area at the time. As a result, WH’s family fled to a different part of Iraq;
- In early 2006, a Shi’a shrine in Samara, Iraq was bombed. WH and LA explain that in retaliation, militias undertook an extermination campaign against Sunni residents in several districts in Baghdad, including their own;
- In late 2006, the same Shi’a militia with government ties kidnapped LA’s cousin from his home. He has not been seen since. The Applicants allege LA’s cousin had worked for the Ministry of Electricity and had government-assigned guards; hence their belief the Shi’a militias have government ties;
- In 2010, LA’s cousin was shot and killed in her home. WH and LA believe she was shot accidentally and that LA’s sister, who was standing for election as a Sunni candidate, was the true target;
- In 2015, WH’s late brother’s family was threatened and told if they sought assistance from the authorities they would be killed. WH and LA believe these threats emanated from a Shi’a militia because the area where the late brother’s family resided is close to a predominantly Shi’a neighbourhood. The family continues to move residences to avoid detection from militia;
- In early 2017, a Shi’a militia known to be involved with the National Security Service stormed LA’s brother’s home. The militia robbed everyone and threatened to kill anyone who alerted the authorities. When later filing a police report, the police only wrote down a one-sentence description and took the numbers for the stolen mobile phones, but did not conduct any follow-up. Since this time, the family has kept out of the public eye and continued to change residences. The only exceptions are LA’s elderly mother, who remains in the home because of her old age and LA’s sister-in-law, who takes care of her.
[10]
As indicated above, WH and LA were able to stay in the UAE for several years because WH’s employment status allowed the family to secure temporary residence permits. In early 2018, however, WH’s employment was terminated. WH explains he knew that as an older man, he would not be able to secure future employment and thus renew their temporary residence statuses, which were set to expire later in 2018. WH and LA therefore obtained visas to the United States of America [USA] , and flew to the USA in the spring of 2018.
[11]
WH and LA wanted to be with their eldest child who lived in Mississauga, and believed anti-Muslim attitudes in the USA would impact their claims negatively. As such, they continued to Canada, arriving at the border near Niagara Falls about one week after they flew to the USA. They entered based on an exception to the Canada-US Safe Third Country Agreement [STCA], which permits refugee claimants who have family already in Canada to enter and make a claim: STCA, Article 4(2)(a); Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR] s 159.5(b)(ii).
[12]
Within weeks, they applied for refugee protection status based on fear of kidnapping, torture, rape/sexual slavery (in the case of LA) or death by one of the various Shi’a or Sunni extremist groups. They alleged they would be targeted as moderate Sunni Muslims, as educated professionals, for their political beliefs as Sunnis, and LA as a woman. Their hearing was held on February 1, 2019.
III.
Impugned Decision
[13]
The RPD found the main issues in both claims were credibility, whether the objective evidence supported their claims, and whether there was a sufficient nexus to the Convention in relation to their alleged risk from residence outside Iraq. The RPD addressed each of the alleged risks:
[14]
Risk as Sunnis: The RPD found WH and LA were Sunnis and likely would live in predominantly Sunni neighbourhoods. Nonetheless, the RPD found the events allegedly suffered by their family members were distinguishable from any risks the Applicants themselves would face, as the Applicants had no known political profiles (unlike LA’s cousin) and were not young. Conceding the early 2017 attack may be relevant to forward-looking risk, the RPD found the motive for this attack (robbery, sect-related, or other) was unclear from the evidence. Noting some family members had stayed in the home since that time without further incident, and a lack of continued targeting in the interceding two years, the RPD found there was “no more than a mere possibility that the claimants’ families [were] being targeted by militias in Baghdad.”
The RPD proceeded to consider the objective evidence and found that while being a Sunni would likely lead to incidents of discrimination and harassment, a Sunni identity alone was insufficient to find someone faced serious harm in Baghdad as violence against Sunnis was not so widespread.
[15]
Risk as Moderate Sunnis: Noting LA’s practice of wearing a hijab rather than a niqab, WH’s practice of not wearing a beard, and that both were tolerant of other religions and attended Mosque “with a frequency that would signify them as moderate”
, the RPD nonetheless concluded their actions and activities were not likely to attract the attention of militias based on the objective evidence, as they were “not taking actions to disrupt religious norms or activities”
.
[16]
Risk as Engineers: The RPD found LA had not been working as a professional for the last ten years and as such it would be unlikely she would be targeted as either a professional or as a female professional. The RPD drew a negative inference from WH’s assertion he did not have a pension and would thus have to work as an engineer in Iraq to support them. The RPD found it unlikely that he would not have made plans to care for himself and his spouse financially into their retirement given his decades as a professional. The RPD further found there was insufficient evidence that WH would have to work as an engineer, and thus assume the risk of working as a professional. The RPD concluded there was insufficient objective evidence to show retired or former professionals who had left their fields for upwards of a year continued to be targeted.
[17]
Risk Related to Time Overseas: The RPD noted the Applicants alleged they would be at a higher risk of being targeted for theft, extortion, or kidnapping because of their time abroad. The RPD found, however, this was not a proper Convention ground. With respect to personalized risk, the RPD found insufficient objective evidence to support they would be targeted upon return; the documentary evidence referred to perceived active collaborators, not returnees or individuals who had spent time abroad in the Gulf or a short amount of time in the West. The RPD further found the general country documentation did not contain evidence that persons returning from working abroad were subject to harm.
[18]
Risk Related to Use of English: Conceding WH had used English occasionally in the RPD hearing, the RPD found there was nothing to suggest he would “slip”
and use English if he were speaking to other Iraqis in Arabic. Similarly, although WH used English professionally, the RPD concluded it was unlikely he would return to his professional work. Finally, the RPD found the objective documentary evidence did not support that occasional use of English was a cause of harm for individuals in the country.
[19]
Risk Related to Gender: The RPD reiterated LA was not at risk from being perceived as a professional or as too moderate. The RPD found LA was not at risk, and not subject to targeted violence, as a woman because she was married and enjoyed the support of her spouse and family members.
[20]
Cumulative Risk: Finally, the RPD found the above factors, when considered cumulatively, would not result in the Applicants facing a serious possibility of persecution. The RPD reiterated those with the Applicants’ profiles were not at risk in Iraq, and even where some risks may materialize, they were so minimal they would not - individually nor cumulatively -rise to the level of persecution, introduce a risk to their lives, or otherwise expose them to cruel and unusual punishment or a danger of torture.
IV.
Issues
a. fail to consider critical evidence in assessing the Applicants’ claim;
b. rely on uncorroborated speculation to refuse the Applicants’ claim;
c. fail to complete an analysis of whether the cumulative incidents of alleged discrimination faced by the Applicants amounted to persecution?
V.
Standard of Review
[21]
The RPD is a specialized administrative body applying its home statute to questions of fact and mixed fact and law. Both parties agree, as do I, the RPD’s decision is subject to the reasonableness standard of review: Kulasingam v Canada (Citizenship and Immigration), 2012 FC 543 at paras 22-25; Al-Abayechi v Canada (Citizenship and Immigration), 2018 FC 360 at para 11; Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at para 27.
VI.
Relevant Provisions
[22]
Part 2 of the IRPA governs Canada’s refugee regime. Canada confers refugee protection upon individuals who are found to be Convention refugees or persons in need of protection: IRPA ss 95-97.
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[23]
At first instance, the RPD is the authorized decision maker in respect of a refugee claim: IRPA s 107(1).
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[24]
Individuals who enter under an exception to the STCA do not have an appeal to the Refugee Appeal Division. Their only recourse lies in judicial review at the Federal Court: IRPA ss 72(1), 110(2)(d):
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VII.
Analysis
A.
Was the RPD’s decision reasonable?
[25]
The parties disagree as to whether the RPD must refer to specific testimonial evidence in order for its decision to be justified, transparent, and reasonable: Cepeda-Gutierrez v Canada (Citizenship and Immigration), [1998] FCJ No 1425 (QL) [Cepeda-Gutierrez] at para 17. This included:
(i) The 2003 attack on LA’s brother;
(ii) The 2003 killing of the Applicants’ former neighbour;
(iii) The 2006 extermination campaign against Sunni residents in their former neighbourhood;
(iv) The 2006 kidnapping and eventual killing of LA’s cousin;
(v) The 2015 threats against WH’s extended family;
(vi) That WH and LA both have easily identifiable Sunni names; and
(vii) That it was the Shi’a militia group known to be tied with the Iraqi National Security Service who attacked LA’s family in 2017.
[26]
It is not the case that the RPD disregarded or ignored the above alleged events. Rather, the RPD referenced them in a summary way as follows at paras 6-7 of its decision:
[6] They outlined several experiences of family members in Iraq in their BOCs and in testimony, most that can be distinguished from the claimants, such as the cousin who was killed in what appeared to have been an attempt on the life of another family member who was a candidate for election in 2010 (the claimants have no known political profile), and a nephew targeted in 2004 (many years ago, as a young man, unlike the claimants).
[7] The most relevant experience for assessing forward-looking risk of the claimants is the experience of various members of the associate claimant’s family, whose home was broken into in ... 2017 by a militia group who physically and verbally assaulted and robbed them. While the claimants testified that a brother-in-law has moved back and forth between locations since then, various other family members have remained in the home and no further incidents have occurred. ...
[27]
Cepeda-Gutierrez does not demand every piece of apparently contradictory evidence be addressed explicitly. A decision will not be considered unreasonable so long as the decision maker’s reasons, read in context with the evidence, allow this Court to understand why the decision maker made their decision. Decision makers are not required to refer to all evidence, nor must their decisions be perfect: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 12, 16-18; Herrera Andrade v Canada (Citizenship and Immigration), 2012 FC 1490 at paras 9-14. Rather, this Court must determine whether the piece of evidence was so crucial to the decision (in either fact or law) that it was unreasonable for the decision maker not to consider or engage with it expressly. As alluded, such exercise is context-dependant.
[28]
With this in mind, I find failure to reference all the above are not fatal errors. It is clear the RPD properly assessed whether the Applicants faced a risk of persecution because of their identities as Sunnis in Iraq. The first five incidents were all examples of the violence some Sunnis, including family members, in Iraq experienced at various points in time and no doubt contributed to the Applicants’ subjective fear of return. The above instances, however, were dated and did not involve the Applicants directly. Further, there was no suggestion the above victims were targeted for any reason other than because they were Sunni, for example because of their relationships to one another. The RPD therefore reasonably could weigh these experiences against documentary evidence of the current experiences of Sunnis in Iraq (that Sunni identity alone is not sufficient to find someone faces serious harm in Baghdad), and prefer the latter over the former. On this point, the RPD concluded, “simply being Sunni in Baghdad, particularly if living in a Sunni-majority area is likely to lead to discrimination and harassment, but violence against Sunnis is not so widespread that there is more than a mere possibility of facing serious harm.”
[29]
I note the RPD accepted the Applicants are Sunni and their families remaining in Iraq live in predominantly Sunni neighbourhoods in Baghdad. It therefore was reasonable for the RPD to find the couple likely would resettle in a Sunni-majority area should they return to Baghdad, and thus lower their risk profile below what is required to attract refugee protection. That they were publically identifiable as Sunni would seem to put them at no more risk than living in a Sunni-majority area or any of the other factors the RPD addressed specifically, such as being moderate Sunnis.
[30]
In my view, the RPD’s failure to reference the specific Shi’a militia group known to be tied with the Iraqi National Security Service did not render unreasonable its conclusion that there was a mere possibility the Applicants’ families currently are being targeted by militias in Baghdad. Absent supportable inference, the militia’s motives for the 2017 attack/break-in were not clear from the evidence (such as for the purpose of robbery, reasons related to sect or other factors), and further, there was no evidence of any continuing targeting of the family or home in the interceding two years. In the circumstances, it was open for the RPD to conclude the motive for the attack was unclear enough that, when combined with the lack of follow-up incidents, this did not support the Applicants’ claims sufficiently. I note in the hearing, the RPD asked if WH was aware of the motive for this attack and he said “no”
.
[31]
The Applicants submit the objective country documentation did not support the RPD’s conclusion that Sunnis were not at risk of persecution. In my view, based on the documentary evidence, the RPD did not err in concluding “violence against Sunnis is not so widespread that there is more than a mere possibility of facing serious harm.”
Though the documentary evidence also could support a different conclusion more favourable to the Applicants, under the reasonableness standard this Court will uphold any reasonable interpretation of the evidence, not necessarily the preferred interpretation: McLean v British Columbia (Securities Commission), 2013 SCC 67 at para 40. Despite numerous references to risks Sunnis face as a result of sectarian and inter-sect violence, these same articles also support the RPD’s conclusion that being Sunni was not a prima facie ground of persecution, and the risk to Sunnis fluctuates depending on the geographic area and the personal circumstances of the claimant. The RPD determined the Applicants would likely relocate to a Sunni-majority geographic area and, as discussed below, had no further personalized risk factors. This Court will not reweigh evidence where there is a rational basis for the RPD’s conclusion: KK v Canada (Citizenship and Immigration), 2014 FC 78 at para 44.
[32]
The Applicants argue the RPD’s conclusion that moderate Sunnis are only at risk if their activities “disrupt religious norms or activities”
was unclear and speculative. It is worth replicating the RPD’s finding on this point:
[13] The panel finds that, while the claimants describe themselves as moderate, their actions and activities are not likely to attract the attention of militias such that they would face harm as alleged. Simply not discriminating against other religions and attending mosque on a regular rather than frequent basis, and wearing moderate attire (hijab, no beard) is not described in the documentation as being problematic for persons in Baghdad. The claimants appear to be regular practicing Muslims, and are not taking actions to disrupt religious norms or activities. As thus, their “moderate” religious beliefs and activities would not, in the panel’s view, result in them facing a serious possibility of persecution.
[33]
In my view, though the RPD did not define “religious norms and activities”
, a fair reading of the decision, taken with the Applicants’ own evidence, suggest the phrase includes attending mosque frequently, wearing a niqab rather hijab (for women) and having a beard rather than clean shaven (for men). The RPD’s conclusion the Applicants’ moderate activities were unlikely to attract risk was reasonable, as there was insufficient evidence moderates were targeted expressly for being moderates.
[34]
The Applicants submit it was unreasonable for the RPD to distinguish the 2004 attack on WH’s nephew and the 2010 shooting of LA’s cousin on the basis that they were not young men nor politically active. I find, however, these were logical conclusions to draw. While the RPD may have relied on specialized knowledge to conclude young men in active warzones face increased risks, it nonetheless also supported its conclusion by noting this event occurred 14 years prior. Similarly, the RPD found LA’s cousin was killed in error, and the true target was LA’s politically-active sister. This finding was based on WH’s own narrative:
“We believe that the militia was targeting my sister-in-law, ..., who had been a candidate for election and believe that it must have been a Shi’a militia because she was Sunni.”
It was not unreasonable for the RPD to conclude, therefore, political activism is what increases risk – a profile neither Applicant fits.
[35]
Finally, the Applicants submit the RPD failed to conduct a sufficient cumulative assessment. I agree it is an error to analyze IRPA s 96 risks in independent vacuums without considering how they may intersect and generate new risks: Canada (Citizenship and Immigration) v Munderere, 2008 FCA 84 at para 42; Ban v Canada (Citizenship and Immigration), 2018 FC 987 at paras 28-29. This is not what occurred, however. The RPD’s reasons must be read as a whole. I note the RPD concluded, in other segments of its reasons, LA did not face persecution as a women (she was married and had a support system), as a professional (she had not been working for the past 10 years), nor as a woman professional (given it was unlikely she would work again). Similarly, the RPD found WH was unlikely to work again as a professional engineer; thus, his identity as a Sunni engineer was irrelevant. Absent any further particularized arguments on what intersections the RPD overlooked, in my view the RPD’s assessment on cumulative risk falls within the margins of appreciation for what is reasonable.
VIII.
Conclusion
[36]
This judicial review application is dismissed. The RPD’s reasons were justifiable, transparent, and intelligible, based on the documentary evidence. As neither party proposed one, there is no serious question of general importance for certification.
JUDGMENT in IMM-1687-19
THIS COURT’S JUDGMENT is that: the style of cause is amended immediately to identify the Applicants as WH and LA; this judicial review application is dismissed; and there is no serious question of general importance for certification.
“Janet M. Fuhrer”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
| DOCKET:
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IMM-1687-19
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| STYLE OF CAUSE:
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WH and LA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
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| PLACE OF HEARING:
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Toronto, Ontario
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| DATE OF HEARING:
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November 7, 2019
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| AMENDED JUDGMENT AND REASONS:
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FUHRER J.
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| DATED:
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December 18, 2019
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APPEARANCES:
| Justin Toh
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For The ApplicantS
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| Christopher Ezrin
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For The Respondent
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SOLICITORS OF RECORD:
| Bellisimo Law Group PC
Barristers and Solicitors
Toronto, Ontario
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For The ApplicantS
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| Deputy Attorney General of Canada
Toronto, Ontario
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For The Respondent
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