Date: 19980619
Docket: IMM-4302-97
OTTAWA, ONTARIO, THIS 19th DAY OF JUNE 1998
PRESENT: THE HONOURABLE MR. JUSTICE LUTFY
BETWEEN:
MOHAMED HUSSEIN MOUSTAPHA DAGHMASH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON the hearing of this application for judicial review in Toronto, Ontario on May 14, 1998;
IT IS ORDERED THAT the application for judicial review is dismissed.
Judge
Date: 19980619
Docket: IMM-4302-97
BETWEEN:
MOHAMED HUSSEIN MOUSTAPHA DAGHMASH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant and his family members are stateless Palestinians. It is common ground that Saudi Arabia, where the applicant was born and has lived all his life prior to his arrival in Canada, is his country of former habitual residence within the meaning of the definition of the Convention refugee in subsection 2(1) of the Immigration Act.[1] His parents, spouse, three children and all but one of his several siblings also reside in Saudi Arabia.
[2] The applicant grounds his claim of fear of persecution by reason of his Palestinian nationality in his country of former habitual residence, Saudi Arabia.
[3] During the Gulf War, the applicant and three friends were sitting on the bank of a river, within a fenced-in restricted area. They had in their possession a telescope or binoculars, a camera, a recorder and a radio. The applicant was arrested by coastal guard personnel, detained and questioned intensively for four days under suspicions of spying. The tribunal concluded that this was not an act of persecution:
We have little doubt that in most, if not all, countries of the world, a person who trespasses into a restricted military area, particularly during wartime conditions, and is caught with a radio and binoculars, will face arrest. The fact that the claimant was released after only four days and was not charged with any offence represents to our minds very lenient treatment, and is certainly not persecutory.
[4] During 1993-94, the applicant also had three encounters with the Saudi religious police who, in his view, targeted him as a Palestinian for failing to attend prayers and for not being appropriately dressed. His punishment increased after each incident. His head was shaved, then he was detained twenty-four hours without food and on the third occasion, he states that he was given eighty lashes on his back and the soles of his feet. The tribunal noted that the applicant "was given lashes", without identifying the number, and concluded that this punishment, even if characterized as persecutory, was not connected to any of the applicable Convention reasons for persecution:
These incidents as well do not constitute acts of persecution. It would appear to be enforcement of the prevailing cultural norms in Saudi Arabia, and the panel is loathe to engage in cultural imperialism. It would appear to be a law of general application applied to citizens and non-citizens alike, and therefore is not singling out Palestinians. Certainly, the concept of lashing may be abhorrent to Canadian sensibilities, but we cannot make the sweeping finding that corporal punishment is automatically persecutory. Even if we could, the fact remains that the punishment is not selectively applied to Palestinians, and is therefore not connected to any Convention reason.
[5] The applicant also related the treatment of Palestinians in Saudi Arabia in the immediate aftermath of the Gulf War. His formal schooling was terminated by the state in 1990. Privileges enjoyed by the Palestinians were abolished. In the words of the applicant in his personal information form:
The situation for Palestinians like myself in Saudi Arabia is very difficult. Our problems and difficulties have only increased over the last number of years. While prior to the Gulf War of 1990 Palestinians were exempted from the strict rules applied to other foreigners living in Saudi Arabia, all of this changed with the outbreak of the war. The Saudi government abolished all of the privileges accorded to Palestinians in the country. Palestinians like myself and my father who has been in the country for 47 years began to be treated like illegal aliens with the threat of deportation constantly looming. After the war, I could not continue to attend school and was forced to try and find a sponsor ("kafil") in order to be able to work and stay in the country. In addition, as Palestinians, we are not allowed to own businesses or to even travel within the country without permission from our sponsors. As for my children, my 3 sons have never been to school and have no hope of an education nor of any real life in Saudi Arabia. [Emphasis added.]
[6] The tribunal concluded that the post-war treatment of Palestinians was not persecution and that they are now treated as other foreigners in Saudi Arabia:
Accordingly, the changes imposed on Palestinians in Saudi Arabia in the wake of the Gulf War do not represent acts of persecution. The changes merely removed privileges previously enjoyed by Palestinians, privileges not granted to other foreign residents. This discrimination in favour of Palestinians has now been removed, and they are treated equally with other foreigners.
For the tribunal, the treatment of foreigners, including stateless Palestinians, in Saudi Arabia is not persecution because "states do not owe the same duties to stateless residents that they do to citizens." The tribunal noted that the documentary evidence included no reference to generalized persecution of Palestinians in Saudi Arabia and, accordingly, determined that the applicant was not a Convention refugee.
[7] The plight of stateless Palestinians is, to say the least, an uncertain one. The applicant's personal experience in Saudi Arabia during and shortly after the Gulf War was difficult and cruel. The applicant had the burden of establishing before the tribunal that he came within the definition of Convention refugee. Not all stateless persons, however, are refugees. He based his claim on his Palestinian nationality and no other ground. The tribunal made a negative determination. Even if another panel may have concluded differently, particularly in view of the form of the last punishment, it was open to this tribunal, in view of the documentary evidence, to decide as it did. I have carefully reviewed the documentary evidence which was before the tribunal. Flogging and amputations are punishments often imposed for a variety of crimes such as theft, consumption of alcohol and sexual offences for both Saudi nationals and foreigners alike.[2] The documentary evidence discloses no special persecutory treatment aimed specifically at Palestinians, other than noting the suspension of many of their privileges during and immediately after the Gulf War. The tribunal found that the punishment described by the applicant was not imposed upon him because of his Palestinian nationality and therefore was not connected to any Convention reason. There exists no reviewable error in this conclusion.
[8] The applicant's argument that his cumulative experience constitutes persecution must also fail in view of the tribunal's finding that the incidents were not linked to his Palestinian nationality, the only ground claimed for his well-founded fear of persecution.
[9] The tribunal also considered the applicant's right to return to Saudi Arabia as part of its consideration of his claim of a well-founded fear of persecution. The denial of a right to return may be persecutory[3] and, in my view, properly forms part of the tribunal's assessment of the claim of a well-founded fear of persecution. In this case, I do not agree with the suggestion of the applicant's counsel that the tribunal ought to have identified the denial of a right to return as a specific issue.
[10] In Thabet v. Minister of Citizenship and Immigration,[4] the Court of Appeal considered the duty of the tribunal to ask itself why the claimant is being denied the right to return to the country of former habitual residence:
To ensure that a claimant properly qualifies for convention refugee status, the Board is compelled to ask itself why the Applicant is being denied entry to a country of former habitual residence because the reason for the denial may, in certain circumstances, constitute an act of persecution by the state. The issue, therefore, is whether the Board asked itself this question.[5]
[11] In this case, the tribunal found that the applicant "no longer has the right to return to, reside and work in, Saudi Arabia" because his lapsed sponsorship had not been replaced. The applicant's employment sponsorship of some six years terminated in 1996 when the sponsor demanded a payment which the applicant found excessive. The applicant does not appear to complain of his inability to return to Saudi Arabia either in his personal information form or in his testimony. Rather, his concern relates to the consequences of his inability to obtain an employment sponsor upon his return to his country of habitual residence. In this regard, the tribunal concluded that the denial of the applicant's rights of residence and of employment is not directly related to his Palestinian nationality but rather to the termination of his sponsorship and his apparent inability to find a new sponsor. In my view, the tribunal's conclusion is consistent with the decision in Alusta v. Canada (Minister of Employment & Immigration)[6] where Mr. Justice Denault found that the requirement of an employment contract to maintain one's residency status in Morocco is unrelated to the grounds set out in the definition of a Convention refugee.
[12] Finally, the applicant challenges the tribunal's post-hearing request that the evidence of two "individuals in Canada who have previously resided in Saudi Arabia" be received. The request did not specifically identify the intended witnesses nor did it describe in detail the evidence which would be proffered, other than to note that it was related to the treatment accorded to Palestinians in Saudi Arabia. In refusing to hear this supplementary evidence, the tribunal stated:
It is quite clear to us that the central matter in this claim is the claimant's inability to return to Saudi Arabia. This is made clear both by the evidence before us and the fact that counsel emphasized this aspect in his written submissions. The fact remains that it is the expiry of the claimant's sponsorship, and not the general treatment of Palestinians in Saudi Arabia that prompted his flight from that country. Accordingly, the panel does not deem it advisable to reopen the hearing to hear anecdotal evidence on an issue that is peripheral to the central issue, that of the right of return.
[13] In assessing the applicant's well-founded fear of persecution, the tribunal identified as the central issue the applicant's right or ability to return to Saudi Arabia. It noted that counsel for the applicant addressed this issue in his written representations. This is the relevant extract from the counsel's submissions to the tribunal:
... the question here is to assess whether he would face a reasonable chance of persecution should he return to the country. In other words, the definition is forward looking in nature. Whether he can ever return is a point to keep in mind ...[7]
[14] In my view, it was open to the tribunal to refuse the post-hearing request for supplementary testimony. The facts here are substantially different than those in Iossifov v. Minister of Employment and Immigration[8] where it was held that the panel members "were not interested, constantly interrupted and prevented counsel from proceeding in an orderly fashion". There is no suggestion that this occurred here. In this case, the tribunal linked the applicant's ability to return to Saudi Arabia to the difficulties he encountered with his sponsorship and concluded that this was unrelated to his Palestinian nationality. I do not accept the argument that the tribunal's statement that "... the central matter in this claim is the claimant's inability to return to Saudi Arabia" was confusing the issue of the objective component of the test. The applicant's right or ability to return to Saudi Arabia was, in the tribunal's view, an important part of the objective test. Very little detail was provided concerning the substance of the testimony of the two proposed witnesses. In concluding that it did not want to hear their "anecdotal evidence", the tribunal neither exceeded its jurisdiction nor breached the principles of natural justice.
[15] For these reasons, the application for judicial review is dismissed. However, I concur with the tribunal's recommendation that the applicant may well have good grounds for humanitarian and compassionate consideration by the respondent.
[16] Counsel were provided with an opportunity to make representations concerning the certification of a serious question. None will be certified.
Judge
Ottawa, Ontario
June 19, 1998
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-4302-97
STYLE OF CAUSE:Mohamed Hussein Moustapha Daghmash v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 14, 1998
REASONS FOR ORDER BY: The Honourable Mr. Justice Lutfy
DATED: June 19, 1998
APPEARANCES:
Mr. Michael Kormanfor the Applicant
Ms. Bridget O'Learyfor the Respondent
SOLICITORS OF RECORD:
Otis and Korman
Toronto, Ontariofor the Applicant
Mr. George Thomson
Deputy Attorney General of Canadafor the Respondent
[1] R.S.C. 1985, c. I-2. Subsection 2(1) provides in part:
|
2. (1) In this Act,
... "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
... (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, ... |
2. (1) Les définitions qui suivent s'appliquent à la présente loi. ... « réfugié au sens de la Convention » Toute personne:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: ... (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; ... |
[3] Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723, 23 Imm. L.R. (2d) 163 (F.C.T.D.); and Abdel Kalik v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 262 (F.C.T.D.).