Alomari et al. v. Canada (Minister of Citizenship, Immigration and Multiculturalism), 2015 FC 573

• Judge: LeBlanc, J.
• Court: Federal Court (Canada)
• Case Date: October 23, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 573;(2015), 480 F.T.R. 110 (FC)

Alomari v. Can. (2015), 480 F.T.R. 110 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MY.058

Amro Alomari and Rula Mansour (applicants) v. Minister of Citizenship, Immigration and Multiculturalism (respondent)

(IMM-4621-13; 2015 FC 573)

Indexed As: Alomari et al. v. Canada (Minister of Citizenship, Immigration and Multiculturalism)

Federal Court

LeBlanc, J.

May 1, 2015.

Summary:

The applicants (Mr. Alomari and Ms. Mansour) were husband and wife. Alomari was a Palestinian with Jordanian citizenship and a resident of the West Bank. Mansour was a Palestinian with Israeli citizenship. The applicants made a joint claim for refugee protection. The Refugee Protection Division of the Immigration and Refugee Board of Canada dismissed the claim. The applicants applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 28

Definitions and general principles - Safe third country agreements or regulations (incl. "safe country" designation) - The applicants (Mr. Alomari and Ms. Mansour) were husband and wife - The Refugee Protection Division of the Immigration and Refugee Board of Canada (RPD) dismissed the applicants' claim for refugee protection - The applicants applied for judicial review - The Federal Court stated, inter alia, that " ... Applicants' counsel questioned, at the hearing, the fact that East Jerusalem, where Ms. Mansour is from, is actually part of Israel and therefore, Ms. Mansour is from a [Designated Country of Origin] DCO. It was put before me that the government of Canada does not recognize Israel's unilateral indexation of East Jerusalem. It is correct to say that Canada does not recognize permanent Israeli control over territories occupied in 1967 (the Golan Heights, the West Bank, East Jerusalem and the Gaza Strip). However, I cannot find that the RPD erred in finding that Ms. Mansour is from a DCO. In fact, it is not up to the RPD to decide if East Jerusalem should be part of the designation. The decision to designate a country as a DCO pertains to the Minister, pursuant to subsection 109.1(1) [of the Immigration and Refugee Protection Act]. The Minister deliberately decided to exclude the West Bank and Gaza from the designation of Israel as a DCO as established in the Government notice, Order amending the order designating countries of origin, which came into force on February 15, 2013, Canada Gazette, Vol. 147, No. 8, February 23, 2013, but not East Jerusalem. This is the law that was binding on the RPD at the time of the decision. The Court cannot intervene on this question as the Minister's decision cannot be reviewed by way of judicial review of the RPD's decision" - See paragraph 30.

Aliens - Topic 1315

Admission - Refugee protection, Convention refugees and persons in need of protection - Convention refugees - General (incl. definition and test) (IRPA, s. 96) - [See Aliens - Topic 1323.4 ].

Aliens - Topic 1322

Admission - Refugee protection - Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - [See Aliens - Topic 1323.4 ].

Aliens - Topic 1323.4

Admission - Refugee protection, Convention refugees and persons in need of protection - Credible basis for claim - The applicants (Mr. Alomari and Ms. Mansour) were husband and wife - Alomari was a Palestinian with Jordanian citizenship and a resident of the West Bank - Mansour was a Palestinian with Israeli citizenship - The applicants made a joint claim for refugee protection saying that they feared Alomari's family would physically harm them and their unborn child if they were to return to Palestine - The Refugee Protection Division of the Immigration and Refugee Board of Canada (RPD) dismissed the claim on the basis that the applicants had failed to establish, on sufficient and reliable evidence, the allegation of a well-founded fear of persecution - The RPD found that the evidence in areas crucial to the applicants' claim lacked credibility - The applicants applied for judicial review - The applicants submitted that the burden of proof on a refugee claimant was limited only to a demonstration that he or she faced more than "a mere possibility" of persecution if returned to his or her country of origin - The Federal Court dismissed the application - While refugee claimants need only establish that there was more than a mere possibility they would face persecution in their country of origin, the facts in support of that conclusion had to be established on a balance of probabilities - Thus, while the RPD may have incorrectly stated the legal test for persecution, that would not be determinative unless the RPD also erred in finding that the facts underlying the claim had not been credibly established on a balance of probabilities - The RPD's decision and the finding that the applicants had not credibly established their claims were reasonable in light of the facts and the law - See paragraphs 20 to 25.

Aliens - Topic 1323.7

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee "sur place" - The applicants (Mr. Alomari and Ms. Mansour) were husband and wife - Alomari was a Palestinian with Jordanian citizenship and a resident of the West Bank - Mansour was a Palestinian with Israeli citizenship - The applicants made a joint claim for refugee protection saying that they feared Alomari's family would physically harm them and their unborn child if they were to return to Palestine - The Refugee Protection Division of the Immigration and Refugee Board of Canada (RPD) dismissed the claim on the basis that the applicants had failed to establish the allegation of a well-founded fear of persecution - The applicants applied for judicial review - The applicants submitted, inter alia, that the RPD failed to consider the sur place aspect of their claim - The Federal Court dismissed the application - In conducting a sur place analysis, the RPD was entitled to import its negative credibility findings - While the RPD did not explicitly state that it was or was not conducting a sur place analysis, nor did it refer to country documentation evidence, it did have serious credibility concerns that tainted the applicant's credibility relating to their actions in Canada and the risk that allegedly followed - It was within reason for the RPD to disbelieve the applicants' story based on the inconsistencies revealed by their testimony and the lack of evidence adduced, particularly on the key aspect of their refugee protection claim - See paragraphs 26 to 29.

Aliens - Topic 1326.8

Admission - Refugee protection, Convention refugees and persons in need of protection - Joint processing of claims - [See first Aliens - Topic 1329.3 ].

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - The applicants (Mr. Alomari and Ms. Mansour) were husband and wife - They made a joint claim for refugee protection - For the purposes of the Immigration and Refugee Protection Act, Mansour was considered to be from a Designated Country of Origin (DCO) - The Refugee Protection Division of the Immigration and Refugee Board of Canada (RPD) dismissed the claim - The applicants applied for judicial review - Alomari contended that his right to procedural fairness was breached because the RPD proceeded in joining the two claims together, resulting in Alomari's claim being treated as one from a DCO country with a fast-tracked procedure and no right to appeal to the Refugee Appeal Division (RAD) and no access to a pre-removal risk assessment (PRRA) - The Federal Court dismissed the application - Rule 56(2) of the Refugee Protection Division Rules allowed a refugee claimant to apply to the RPD to separate claims - It was not used in this case - Furthermore, the fact that the joining of claims would have the practical effect of a hearing scheduled along the DCO timeline did not automatically affect the fairness of the process - Refugee claimants were entitled to a full oral hearing, but fundamental justice did not provide for a specific amount of time within which to prepare for a hearing - A breach of procedural fairness had to be material to the claim or result in a prejudice for the refugee claimant - If the applicants believed that the DCO timelines were unfair, they could request an adjournment or a rescheduling of the hearing (rule 54) - They did not do so - Moreover, there was no evidence that a different timeline would have impacted on the outcome of the decision or the fairness of the process - Finally, Alomari's argument, that he was being denied access to the RAD and to a PRRA simply because he was married to someone from a DCO country, could not stand - The reason he did not bring the RPD's decision to the RAD was not because he did not have a right of appeal, but because of confusion that surrounded that issue when the RPD released its decision - As for Alomari's right to a PRRA, it did not turn on his marital status but rather on what the Act said in that regard - See paragraphs 14 to 17.

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - The applicants (Mr. Alomari and Ms. Mansour) were husband and wife - They made a joint claim for refugee protection - The Refugee Protection Division of the Immigration and Refugee Board of Canada (RPD) dismissed the claim - The applicants applied for judicial review - Alomari contended that his right to procedural fairness was breached because the RPD refused to accept the documentation he attempted to file at the hearing - The Federal Court did not agree - The applicants had sought to submit various articles and reports pertaining to country conditions, two documents pertaining to Alomari's father's business, and an identification card indicating Alomari's status as a registered Palestinian refugee - The RPD reviewed the identification card and accepted two of the country condition documents into evidence, but did not accept the other documents on the basis that the Immigration and Refugee Board had its own information packages - A breach of procedural fairness had to be material to the claim or result in a prejudice for the applicants - The applicants had not explained how they were prejudiced by the RPD's decision not to accept the remainder - See paragraphs 18 to 19.

Aliens - Topic 4066

Practice - Judicial review and appeals - When available - [See Aliens - Topic 4066.1 ].

Aliens - Topic 4066.1

Practice - Judicial review and appeals - Bars - The applicants (Mr. Alomari and Ms. Mansour) were husband and wife - They made a joint claim for refugee protection which was dismissed by the Refugee Protection Division of the Immigration and Refugee Board of Canada (RPD) - The applicants applied for judicial review - The respondent submitted that Alomari was barred from seeking judicial review by s. 72(2)(a) of the Immigration and Refugee Protection Act, as he did not exhaust his internal appeal rights by appealing the RPD decision to the Refugee Appeal Division (RAD) pursuant to s. 110 of the Act - As a result, he should be struck from the application for judicial review - The Federal Court stated that Habtenkiel v. Canada (M.C.I.) (2014 FCA) clarified that Somodi v. Canada (M.C.I.) (2009 FCA) did not stand for the proposition that the mere existence of a statutory right of appeal necessarily barred judicial review in all cases - A certain flexibility existed for the court to assess whether an appeal on the issues in question was truly available to the applicant - In this case, what transpired from the facts and the tribunal record was that there was some confusion on both sides as to whether Alomari had access to an appeal before the RAD - The court stated that "In these peculiar circumstances, I will allow Mr. Alomari to remain as a party to this judicial review application" - See paragraphs 9 to 12.

Cases Noticed:

Khela v. Mission Institution (Warden) et al., [2014] 1 S.C.R. 502; 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 7].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 7].

Rezmuves v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 473; 2013 FC 973, refd to. [para. 7].

Tamas v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 722; 2012 FC 1361, refd to. [para. 7].

Rahal v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 163; 2012 FC 319, refd to. [para. 8].

Zhou v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 306; 2013 FC 619, refd to. [para. 8].

Lubana v. Canada (Minister of Citizenship and Immigration) (2003), 228 F.T.R. 43; 2003 FCT 116, refd to. [para. 8].

Shatirishvili et al. v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 173; 2014 FC 407, refd to. [para. 8].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 8].

Somodi v. Canada (Minister of Citizenship and Immigration) (2009) 395 N.R. 270; 2009 FCA 288, refd to. [para. 10].

Habtenkiel v. Canada (Minister of Citizenship and Immigration) (2014), 461 N.R. 240; 2014 FCA 180, refd to. [para. 10].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 15].

Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48; 2002 FCA 55, refd to. [para. 15].

Bema v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 564; 2007 FC 845, refd to. [para. 16].

Nemeth v. Canada (Minister of Citizenship and Immigration) (2003), 233 F.T.R. 301; 2003 FCT 590, refd to. [para. 18].

Lee et al. v. Canada (Minister of Citizenship and Immigration) (2012), 412 F.T.R. 290; 2012 FC 705, refd to. [para. 18].

Hinzman et al. v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 561; 290 F.T.R. 8; 2006 FC 420, affd. (2007), 362 N.R. 1; 2007 FCA 171, refd to. [para. 21].

Ahortor v. Minister of Employment and Immigration (1993), 65 F.T.R. 137 (T.D.), refd to. [para. 25].

Attakora v. Minister of Employment and Immigration (1989), 99 N.R. 168 (F.C.A.), refd to. [para. 25].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 26].

Jiang v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 654; 2012 FC 1067, refd to. [para. 27].

Sun v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 272; 2015 FC 387, refd to. [para. 27].

Sanaei v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 172; 2014 FC 402, refd to. [para. 27].

Jiang v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 749; 2012 FC 1511, refd to. [para. 28].

Chekroun v. Canada (Minister of Citizenship and Immigration) (2013), 436 F.T.R. 1; 2013 FC 737, refd to. [para. 28].

Negm v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 94; 2015 FC 272, refd to. [para. 28].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 72(2)(a) [para. 9]; sect. 96, sect. 97 [para. 2].

Immigration and Refugee Protection Act Regulations (Can.), Refugee Protection Division Rules, SOR/2012-256, rule 54 [para. 16]; rule 56(2) [para. 14].

Refugee Protection Division Rules - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Edward C. Corrigan, for the applicants;

Sharon Stewart Guthrie, for the respondent.

Solicitors of Record:

Edward C. Corrigan, London, Ontario, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on October 23, 2014, at Toronto, Ontario, before LeBlanc, J., of the Federal Court, who delivered the following decision on May 1, 2015.