TB9-08323

RAD File / Dossier de la SAR : TB9-08323 TB9-08324 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 2, 2020 Date de la décision Panel James Sloan Tribunal Counsel for the persons who are the subject of the appeal Ali Dakakni Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] This is an appeal of a February 28, 2019 decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (Board) denying the Appellants' claim for refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).1 [2] XXXX XXXX XXXX (the principal Appellant) and his wife, XXXX XXXX XXXX XXXX (the co-Appellant) were born in the Gaza Strip in the Occupied Palestinian Territories in 1943. By 1968, each had left the Gaza Strip, moving to Libya, and subsequently Dubai. They visited Gaza several times over the years. During a visit in 1971, they claim that Israeli forces confiscated the co-Appellant's residency permit and temporarily detained the principal Appellant for questioning. Also during this stay, they claim that the principal Appellant's cousin was arrested, tortured, and sentenced to four years' imprisonment on false charges. [3] During a visit to Gaza in 1982, they claim that Israeli soldiers forced their way into the home where they were staying and arrested the co-Appellant's nephew on false charges, resulting in him being sentenced to two years' imprisonment. The nephew's two brothers were also arrested, with one being arrested in May 1989 and sentenced to two years' imprisonment and the other being arrested in 1991 and sentenced to one year in jail. In 1993, each of the nephew's brothers was again arrested-apparently for illegal border crossing-and placed in custody without charge for four months. [4] The principal Appellant retired from his work in 2003 but continued to have residency status in Dubai. In XXXX 2017, the Appellants came to Canada where three of their daughters live. After 75 days in Canada, they returned to Dubai. They were concerned about their residency status in Dubai in view of the fact that the principal Appellant was no longer working there and on XXXX XXXX, 2018 they left Dubai, arriving in Canada on XXXX XXXX, 2018. They signed their Basis of Claim (BOC) forms on August 20, 2018, claiming they fear persecution from Israeli soldiers if they return to Gaza. [5] For the reasons that follow I deny this appeal. REQUEST FOR THE ADMISSION OF NEW EVIDENCE [6] The Appellants seek the admission of 1) a report by the Research Directorate of the Board, dated February 1, 1999; 2) an article from Haaretz, dated June 12, 2012, entitled "Israel Admits it Revoked Residency Rights of a Quarter Million Palestinians"; and 3) a July 21, 2013 report from the Israeli Information Centre for Human Rights in the Occupied Territories. [7] Subsection 110(4) of the IRPA limits the admission of evidence in an appeal before the Refugee Appeal Division (RAD) to evidence that: 1) arose after the RPD's rejection of the claim; 2) was not reasonably available at the time of the RPD's rejection of the claim; or 3) an appellant could not reasonably have been expected in the circumstances to have presented at the time of the RPD's rejection of the claim. The Federal Court of Appeal has held that, while I have "the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case," the subsection is "written in an unambiguous manner and does not grant any discretion to the RAD."2 [8] RAD Rule 3(3)(g)(iii)3 provides that an appellant seeking the admission of new evidence must provide full and detailed submissions regarding how the evidence meets the requirements of subsection 110(4) and how that evidence relates to the appellant. The Appellants in this case have not done so. Their counsel has quoted passages from documents 2) and 3); however, their counsel has given no indication of how they might comply with the requirements of subsection 110(4). As to document 1), counsel merely refers to the title of the document4 and states: "This article explains the types of identity cards Israel issues to stateless Palestinians and whether they have the right to return to Palestine."5 [9] Based on the findings of the Federal Court of Appeal in Singh, the Federal Court recently held: "It is now firmly established that an appellant's memorandum on appeal to the RAD must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of subsection 110(4), but also how that evidence relates to the appellant...".6 In the Pajarillo case, where the appellant's arguments were described by the Federal Court as "paltry" and "generic" in nature, it held: The burden of establishing the admissibility of new evidence lies on the appellant, necessitating full and detailed submissions on its admissibility and relevance. Aside from the statement to the RAD that the evidence either "arose after the refugee hearing or it was not reasonably available earlier", the Applicant did not provide any further or more detailed submissions on the admissibility and relevance of the new evidence. Once again, the RAD cannot be faulted for failing to decide an issue that was not properly argued.7 [10] Based on my review-and in the total absence of guidance regarding the proposed new evidence's compliance with subsection 110(4)-I can see no basis upon which the documents, each of which pre-dates the rejection of the claim by the RPD, could be said to meet the requirements of subsection 110(4). They are inadmissible. HEARING [11] Because the Appellants' proposed new evidence has been found inadmissible, their request for a hearing must be denied. DETERMINATIVE ISSUES [12] The determinative issues in this case are the objective basis of the claim and the existence of a forward-looking risk. STANDARD OF REVIEW [13] In my review of the RPD's decision, I will apply a standard of correctness.8 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.9 ANALYSIS Findings of the RPD [14] First, the RPD noted that the Appellants' inability to acquire an Israeli-issued identification and return to the Gaza Strip was not linked to a Convention ground. (With the principal Appellant, the inability was because he was not present on the territory when Israel created the population registry and, with the co-Appellant, it was because she had had her identity card confiscated because she had lived outside Gaza for over a year). [15] Second, it found that the basis upon which they claim they are at risk in the Gaza Strip-because they were questioned in 1971 and because members of the co-Appellant's family were mistreated in the 1980s and early 1990s-did not provide an objective basis for their claim because the risk was no longer in existence. It noted that the Appellants had not personally experienced problems while visiting Gaza after their 1971 visit and had presented no evidence that they were wanted by either the Israeli or Palestinian authorities in Gaza. As to the problems experienced in the past by the co-Appellant's family members, it noted that the evidence was not clear as regards the basis upon which they were arrested and there was no evidence that the problems continued. Appellants' arguments [16] As regards the basis for their denial of residency in Gaza, the Appellants argue: i) that because Israel is occupying the Gaza Strip and has a policy of uprooting Palestinians from Gaza so that it can establish a purely Jewish state, they have been persecuted based on their Palestinian nationality and their religion and ii) that it is unimaginable that someone in the co-Appellant's position could be denied residency based solely on her having not resided in Gaza for "a few years." Second, they argue that "Therefore, there is a danger of torture if the claimants are sent back to the Gaza Strip pursuant to section 97(1)(a) of the IRPA."10 Third, they argue that the RPD engaged "in a microscopic, biased and unfounded analysis by not linking the persecution the claimants faced at the hands of the Israeli occupation forces...to their claim to Convention grounds; nationality and religion."11 My findings [17] The representation that the Appellants have received by their counsel in this matter is woefully inadequate. No reasoned or supported arguments are made, as would be expected by a competent advocate for the Appellants and as is required by RAD Rule 3(3)(g).12 [18] As to their argument that Israel has denied the Appellants residence in Gaza, or has a policy of denying residence to Palestinians generally based on their religion or their nationality, this is unsupported by the evidence-including the objective evidence in the National Documentation Package (NDP) and the objective evidence submitted by the Appellants to the RPD. The claim that it is unimaginable that a system whereby individuals lose their residency status due to their having resided outside Gaza does not amount to a reasoned argument. [19] The claim that the Appellants will be tortured if sent back to Gaza is entirely without support-whether by documentation or reasoned argument. It is not clear what the word "Therefore" in the sentence quoted above is referring to or how any argument preceding the sentence could support a claim of torture. [20] Finally, the statement that the RPD was microscopic, biased, etc., is, again, not supported by reasoned argument. Nor, based on my review of the RPD's decision, is there any basis for such an assertion. [21] In apparent support of the above arguments the Appellants posit extracts from the new documents they have requested the admission of at appeal. As noted, after reproducing the title of one of the documents, they stated: "This article explains the types of identity cards Israel issues to stateless Palestinians and whether they have the right to return to Palestine."13 Even if I was willing to attempt to find an argument based on these extracts-despite the Appellants' non-compliance with RAD Rules 3(3)(g)-because I have found the documents to be inadmissible at appeal, I am unable to consider them. CONCLUSION [22] I find that the Appellants are neither Convention refugees nor persons in need of protection. The appeal is denied. (signed) James Sloan James Sloan September 2, 2020 Date 1 The RPD's decision also rejected the refugee claims of the Appellants' daughter and her husband on the basis that that claim lacked credibility. This part of the RPD's decision is not before me. 2 Canada (Minister of Citizenship and Immigration) v. Singh, Parminder, 2016 FCA 96, at paras 64 and 54. 3 Refugee Appeal Division Rules (SOR/2012-257). 4 "Palestine: 1) Whether a Palestinian formerly residing in East Jerusalem who had his Israeli identity card revoked is able to live in the West Bank or the Gaza Strip; 1.1) if so, whether s/he needs prior approval from the Israeli government and/or Palestinian Authority; 1.2) how one obtains such approval and whether there are documents that must be provided; 2) the rights and obligations attached to a West Bank/Gaza Strip identity card issued by the Palestinian Authority; 2.1) whether this card entitles the bearer to live, work, vote, and freely enter and leave the Occupied Territory; 3) the circumstances under which the Palestinian Authority issues identity cards; 3.1) whether identity cards can be issued to a Palestinian former resident of East Jerusalem whose Israeli identity card has been confiscated." 5 Exhibit P-2, Appellants' Record, at p. 8. 6 Tiodunmo v. Canada (Citizenship and Immigration), 2019 FC 1489 at para. 15, relying on Singh supra note 2, at para 45. See also God v. Canada (Citizenship and Immigration), 2019 FC 1483 (CanLII), at para 20 and Tejuoso v. Canada (Citizenship and Immigration), 2019 FC 903 at para. 29. 7 Pajarillo v. Canada (Citizenship and Immigration), 2019 FC 1654 at para. 18. 8 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar, 2016 FCA 93, at para 103. 9 Ibid., at paras 69-74. See also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 10 Exhibit P-2, Appellant's Record, at p. 6. 11 Ibid., at p. 6. 12 Rule 3(3)(g) obliges an Appellant to provide "full and detailed submissions regarding...the errors that are the grounds of the appeal...." (Refugee Appeal Division Rules, SOR/2012-257). The Federal Court, in addressing the application Rule 3(3)(g), held: "The RAD cannot be faulted for failing to consider arguments that were never raised." (Hoch v. Canada (Citizenship and Immigration), 2018 FC 580 (CanLII), at para 8). Elsewhere, it held: "RAD Rules 3(3)(g) places the onus on the appellant to identify in their Memorandum the errors that are the grounds of the appeal and the location of the errors in the RPD's decision or in the audio or other electronic recording of the RPD hearing....[A]ppellants before the RAD that fail to specify where and how the RPD erred do so at their own peril". (Ghauri v Canada (Citizenship and Immigration), 2016 FC 548 at para 34). 13 Exhibit P-2, Appellants' Record, at p. 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-08323 TB9-08324 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français