3.1.
Legal Definition of “Refugee” in Canada[1]
Section 3(2)(b) of the Immigration and Refugee Protection Act
states that one objective of that Act is to “affirm Canada’s commitment to
international efforts to provide assistance to those in need of resettlement.”
The Refugee Protection Division (RPD)
of the Immigration and Refugee Board (IRB) is responsible for deciding claims
for refugee protection made by persons from within Canada. Canada has an
obligation to grant protection to refugees and other persons in need of
protection under a number of United Nations Conventions, including:
·
The 1951 Convention
Relating to the Status of Refugees,
·
The 1966
International Covenant on Civil and Political Rights, and;
·
The 1984 Convention
Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
The Refugee Protection Division of
the
IRB
determines
whether people who appear before it are "Convention refugees"
or “Persons in need of protection”.
The decisions are now usually made by a single board member – referred to in
this document as an IRB member.
The Immigration and Refugee Protection Act,
s. 96, states that:
96. A Convention refugee is a person
who by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, is unwilling
to avail themselves of the protection of each of those countries, or
(b) not having a country of
nationality, is outside their country of former habitual residence and is unable
or, by reason of that fear, unwilling to return to that country.
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3.2.
Country of Persecution in the case of Palestinian refugee claimants
Once in Canada, the Palestinian refugee claimants
are outside their country of former habitual residence as they are in
fact stateless, be it in Lebanon or in the Occupied Territories.
According to the case law in Canada:
…former habitual residence implies a situation where a stateless person was
admitted to a country with a view to enjoying a period of continuing residence
of some duration. […] The claimant must, however, have established a
significant period of de facto residence in the country in question.
Palestinian refugee claimants coming from
Lebanon have clearly ‘established a significant period of de facto residence’ as
they have resided in refugee camps in Lebanon since birth, camps which have
existed for over 56 years.
Similarly, Palestinian refugee claimants from the
Occupied Territories have resided in cities, villages and refugee camps in their
homeland – which is under Israeli military occupation.
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3.3.
Persecution faced by Palestinian refugee claimants
As stated by the case law,
“to be considered persecution, the mistreatment suffered or anticipated must be
serious, i.e. it must constitute a key denial of a core human right.”
In determining what is considered persecution the Supreme Court said in Ward
v. Canada:[8]
Underlying the Convention is the international
community’s commitment to the assurance of basic human rights without
discrimination. This is indicated in the preamble to the treaty as follows:
CONSIDERING that the Charter of the United
Nations and the Universal Declaration of Human Rights…have affirmed the
principle that human beings shall enjoy fundamental rights and freedoms
without discrimination.
…
Hathaway,…at p.108, thus explains the impact of
this general tone on the treaty of refugee law:
The dominant view, however, is that refugee law
ought to concern itself with actions which deny human dignity in any key way and
that the sustained or systemic denial of core human rights is the
appropriate standard.
Moreover, the court continues to hold that “what constitutes a basic human right
is determined by the international community, not by any one country. At the
same time, in determining whether anticipated actions would constitute
fundamental violations of basic human rights, it is acceptable to consider
Canadian law.”
As such, the violations committed against the Palestinian refugee claimants, as
will be shown in this section, undoubtedly constitute persecution.
Furthermore, it is well noted in the case law that “the claimant may be subject
to a number of discriminatory or harassing acts. While these acts may
individually not be serious enough to constitute persecution, they may
cumulatively amount to persecution.”
Many of the acts committed against the Palestinian refugee claimants, when
investigated individually, amount to persecution and there is also no doubt that
the totality of these violations amount to persecution.
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3.3.1.
Palestinian refugees in Lebanon[11]
Palestinian refugees in Lebanon are the descendents of Palestinian families who
were expelled from their homes in Palestine in 1948. For the past 56 years,
Palestinian refugees in Lebanon have continued to live in horrific conditions
inside refugee camps. Their right to return to the homes they fled in 1948
continues to be completely denied by Israel, in direct violation of the
following international legal instruments:
·
UN General Assembly Resolution 194,
re-affirmed over 110 times by the United Nations General Assembly since 1948;
·
UN General Assembly Resolution 3236
and 52/62;
·
The 4th Geneva
Convention;
·
The Universal Declaration of Human
Rights;
·
The International Covenant on Civil
and Political Rights, and;
·
The International Convention on the
Elimination of All Forms of Racial Discrimination.
The denial of this individual and inalienable right has led stateless
Palestinian refugees into a life of misery in refugee camps throughout
neighboring host countries, and particularly in Lebanon.
It is recognized that Lebanon is in violation of a plethora of basic human
rights. In 2003, Amnesty International reported that the treatment of stateless
Palestinians in Lebanon is in clear violation of:
·
The International Covenant on
Economic, Social, and Cultural Rights;
·
The International Covenant on the
Elimination of All Forms of Racial Discrimination;
·
The Convention on the Rights of
the Child;
·
The International Covenant on
Civil and Political Rights;
·
The Convention on the Elimination
of All Forms of Discrimination Against Women, and;
·
The Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.
Canada has either ratified or acceded to each of these instruments.
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These violations are the result of
the systematic discrimination and persecution of Palestinian refugees in
Lebanon, best illustrated by the following:[13]
·
No right to
employment or social security:
Palestinian refugees are
restricted from working in over 70 professions; they are barred de jure
from practicing several professions such as law, medicine, pharmacy, and
journalism. Furthermore,
only 1% of the Palestinians in
Lebanon
manage to secure the mandatory work permit required by the Lebanese government,
in order to benefit from regular jobs.
Palestinians are also prohibited
from obtaining social security when they are able to secure a job. [See Appendix
I, page iii]
·
No right of
ownership and no right to adequate housing:
Palestinians are restricted
from rebuilding or redeveloping refugee camps and are forbidden from owning or
inheriting property. [See Appendix I, page iv]
·
No freedom of
expression and no political rights:
Palestinian refugees have no
political rights and, for fear of reprisal, they are often afraid to express
their opinions. [See
Appendix I, page v]
·
No freedom of
association:
Palestinians are not
permitted to organize and form associations unless done through a Lebanese
citizen. [See Appendix I, page vi]
·
Restricted
freedom of movement:
Palestinians are subjected to
regular identity checks at military checkpoints at the entrance and exit of the
refugee camps. [See Appendix I, page vi]
·
Restricted access
to public education:
Lebanese schools and universities operate
on quota-systems that restrict access to Palestinian refugees; only 20% of the
Palestinian refugees who apply are able to have access to Lebanese education.
[See Appendix I, page vii]
·
Limited access to
public healthcare:
Public hospitals are largely
insufficient, and the majority of the population relies on private hospitals
that are too costly for most Palestinians.
UNRWA has only been able to provide basic medical services as
subsidies
for hospitalization have declined due to UNRWA’s financial constraints.
[See Appendix I, page viii]
·
No legal
protection & statelessness:
Due to their particular situation as
stateless people, Palestinian refugees in Lebanon have been denied virtually
every available means of securing their basic rights.
UNRWA’s mandate does
not provide protection for Palestinian refugees nor can they appeal to the
assistance of UNHCR whose mandate specifically exempts Palestinians from its
protection. [See Appendix I, page ix]
·
Arbitrary arrest, detention, and
harassment:
Palestinians are often victims of arbitrary
arrest, detention, and harassment by the state security forces and rival
militias in the refugee camps.
[See Appendix I, page vi]
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3.3.2.
Palestinian refugees from the Occupied Territories[14]
As for the Palestinian refugee
claimants from the Occupied Territories, they continue to live under the illegal
and brutal Israeli military occupation.
The Israeli government, its military occupation, and all actions that derive
from such an occupation, are in violation of many U.N. resolutions and
International conventions such as:
·
UN resolutions 194, 242, 338,
1397, 1402, and many more;
·
The 4th Geneva
Convention;
·
The Hague Regulations (Hague II,
Hague IV…);
·
UN Code of Conduct for Law
Enforcement Officials;
·
The International Covenant on
Civil and Political Rights;
·
The International Covenant of
Economic, Social, and Cultural Rights;
·
The Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment;
·
The International Covenant on the
Elimination of All Forms of Racial Discrimination, and;
·
The Convention on the Rights of
the Child.
Canada has ratified or acceded to each of the listed international covenants and
conventions.
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The violations committed by the
Israeli authorities have systematically discriminated against, persecuted, and
shattered the lives of the Palestinians whose fundamental human rights continue
to be utterly denied. These violations include:
·
Injuries,
killings and the use of lethal gunfire:
Between September 2000 and
November 2003, over 2,755 Palestinians were killed – of which 460 were children
- and 28,000 were injured, the majority of whom are civilians. The principal
reason for most deaths is the deliberate policy of allowing lethal gunfire in
situations where Israeli soldiers are not in danger. [See Appendix II, page i]
·
Shelling,
shooting, aerial bombardment and indiscriminate use of violence:
Palestinian communities are
frequently subjected to indiscriminate shelling and shooting in residential
areas, in some places every night. The indiscriminate use of violence is also
illustrated by the use of flechette
shells in densely
populated areas such as
Gaza. [See
Appendix II, page ii]
·
Extra-judicial
assassinations:
From October 2000 to April
2003, the Israeli occupation forces killed more than 230 Palestinians, including
80 children, women and innocent bystanders, in assassination actions. [See
Appendix II, page ii]
·
The use of
Palestinians as human shields:
Israeli soldiers commonly use
Palestinians as human shields i.e. civilians are placed in front of Israeli
soldiers as they move toward a target. [See
Appendix II, page ii]
·
The demolition of
hundreds of houses and the destruction of thousands of trees and thousands of
acres of agricultural land:
The Israeli army has
destroyed an estimated 4000 homes over the past three years, leaving thousands
of people homeless, many of whom are women, children and the elderly.
Israel has also uprooted thousands of trees, and
destroyed thousands of acres of land in the Gaza Strip. In almost all the cases
of demolition, the houses were occupied and the residents fled when the
bulldozers appeared at their doorsteps.
[See
Appendix II, page iii]
·
Land confiscation
& the wall:
Israel is presently building a wall that, when
completed, will be over 450 kilometers in length. This is a clear act of
territorial annexation which has serious implications as it violates the
prohibition on the forcible acquisition of territory and the right to
self-determination. [See Appendix II, page
iv]
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·
Checkpoints:
There are 300 checkpoints or
roadblocks in the occupied West Bank. Every day, thousands of Palestinians must
pass through checkpoints in order to travel from home to work, to reach schools
and hospitals and to visit friends. Accounts of rudeness, humiliation and
brutality at the checkpoints are legion. When at all possible, traveling even a
short distance between West Bank towns and villages usually entails a lengthy,
costly and potentially dangerous journey for Palestinians. [See
Appendix II, page iv]
·
Sieges, curfews
and closures:
Since September 2000, Israel
has imposed a total closure on the Occupied Territories. West Bank towns and
villages are placed under 24-hour curfew much too often and for prolonged
periods. [See Appendix II, page v]
·
Imprisonment,
administrative detentions and torture:
28,000 Palestinians have been
detained by the Israeli army since the outbreak of the Intifada. Presently,
there are approximately 5700 prisoners. There are 66 women prisoners detained in
Al-Ramleh prison and about 200 boys under the age of 18 who live under very
difficult conditions of detention. Moreover, it is common practice for Israeli
security forces to torture Palestinians during interrogation. [See
Appendix II, page vi]
·
Attacks on
medical personnel:
The Israeli army often denies
access to ambulances, which often come under attack, and are forced to leave the
scene. Between September 2000 and June 2003, the Palestine Red Crescent Society
recorded 255 Israeli attacks on ambulances. 118 ambulances have been damaged,
some more than once. [See Appendix II,
page viii]
·
Restricting
access to food, causing malnutrition:
The already restricted access
to humanitarian aid is worsening and has caused a dramatic decline in the
standard of living among Palestinians in the Occupied Territories. 60% of the
Palestinian population is living below the poverty level, 22% of Palestinian
children under 5 are suffering from malnutrition and 9.3% from acute
malnutrition. [See Appendix II, page x]
It is important to emphasize that
the conflict is not between two states or two armies but between an occupying
army and an unprotected population that continues to live under this illegal
occupation. Furthermore, all of these violations have been committed against a
population of just over 3 million people, a size close to that of the Greater
Montreal area.
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3.3.3.
Repetitive and Persistent persecution
In order to assess that the mistreatment is actually persecutory for the
purposes of refugee determination, “the second criterion is that, generally, the
mistreatment must be repetitive and persistent.”
In the case of the Palestinian
refugees in Lebanon, the persecution is clearly repetitive and persistent and
has been for many years. The denial of the fundamental human rights of the
Palestinian refugees in Lebanon is not only a result of the actions of state
authorities but has been an inherent part of the country’s legislation. “The
harsh discriminatory practices by the Lebanese government and the incapacity of
UNRWA to fulfill its mandate have driven Palestinian refugees into a situation
characterized by abject poverty, isolation, and persecution”.
As it is a basic element of Lebanese state policy, the persecution is repetitive
and persistent.
The persecution of the Palestinian refugee claimants is clearly recurring and
persistent in the Occupied Territories. Palestinians have lived under Israeli
military occupation in the West Bank and the Gaza Strip for over 36 years and,
as such, have been subjected to many atrocities and human rights violations at
the hands of the Israeli military forces. These violations have reached an
alarming level since the outbreak of the second Intifada on September 28th
2000. As noted by the latest reports of renowned international human rights
organizations, the situation continues to worsen.
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3.3.4.
Canadian acknowledgment of danger & persecution
There
is clear Canadian acknowledgement of the danger and persecution faced by
Palestinians in the areas they fled. This acknowledgment is outlined by the
travel advisory issued by the Department of Foreign Affairs and International
Trade:
Canadians
should not travel to the West Bank or Gaza Strip, which continue to be affected
by serious violence. Canadians in the West Bank and
Gaza
Strip should leave as they are at high risk.
They may, however, encounter difficulties departing these territories during
times of Israeli closures or curfew, which are frequent. Crossing points into
the West Bank and Gaza and other checkpoints generally remain open, although
frequent and unannounced closures and other restrictions are being imposed.
Canadians
should not visit Palestinian refugee camps (in Lebanon), where the
security situation is often tense.
Moreover, this
acknowledgment is confirmed by the following Canadian statements at the United
Nations:
The humanitarian situation
in the Palestinian territories continues to deteriorate…We
have raised serious concerns regarding the humanitarian situation in the
Palestinian Territories with the Israeli authorities, and have consistently
called on Israel to honour its obligations under international law, including
those set out in the Fourth Geneva Convention.
…the dire humanitarian and economic situation in the Palestinian territories
must be meaningfully addressed. Deepening poverty and malnutrition, particularly
among Palestinian women and children, are chilling indications of the
seriousness of the current situation. Besides becoming a grinding, daily routine
for millions of Palestinians, widespread curfews and closures have impeded
humanitarian access to those in need. In accordance with its obligations
under international law, Israel must facilitate the delivery of humanitarian aid
and ensure that Palestinians have full and unhindered access to basic needs
including food, water and medical supplies.
Furthermore,
Canada chairs the Refugee Working Group of the Multilateral Peace Process on the
question of the Palestinian refugees. In May 1997,
Canada led a mission to report on the situation of Palestinian refugees in
Lebanon. In its final report, the mission concluded:
…the
Palestinian refugees in
Lebanon have the most serious problems… They face problems related to obtaining education beyond the
primary level, inadequate access to hospitalization, difficulties in respect of
shelter improvement, serious limitations on their access to employment in
Lebanon, and restrictions on their ability to return to Lebanon if they travel
abroad.
Since 1997, according to extensive documentation, the conditions of the
Palestinian refugees in Lebanon continued to deteriorate dramatically.
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3.4.
Grounds of Persecution of Palestinian refugee claimants
“For the claim to succeed, the persecution must be linked to a Convention
ground, in other words, there must be a nexus.”[25]
More precisely:
… a claimant's fear of persecution must be by
reason of one of the five grounds
enumerated in the definition of Convention refugee - race, religion,
nationality, membership in a particular social group and political opinion.
There must be a link between the fear of persecution and one of the five
grounds.
The Palestinian refugee claimants
are persecuted due to their nationality and their particular social group. As
stated by the Supreme Court of Canada in Ward,
one of the categories that defines ‘particular social groups’ is the existence
of an “innate or unchangeable characteristic”. In Lebanon and in the Occupied
Territories, the Palestinian refugee claimants are persecuted solely because
they are Palestinian.
In fact, “Palestinians in Lebanon
are de jure and de facto discriminated against in relation to
other non-citizens with regards to the right to work and the right to social
security (and) with regards to the rights to own and inherit property”.
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3.5.
Palestinian refugee claimants have a well-founded fear of persecution
The next criterion for refugee determination is the existence of a well-founded
fear of persecution. “The claimant must establish, on a balance of
probabilities, that there are "good grounds" for fearing persecution. This may
also be stated as a "reasonable" or even a "serious possibility" as opposed to a
mere possibility that the claimant would be persecuted if returned to the
country of origin.”
Furthermore, “[a] claimant may have a subjective fear that he or she will be
persecuted if returned to his or her country, but the fear must be assessed
objectively in light of the situation in the country to determine whether it
is well founded.”
Extensive documentation on the
persecution faced by Palestinian refugee claimants in Lebanon and the Occupied
Territories clearly proves that their subjective fear is well founded and
justified considering the objective situation on the ground.
Additionally, “the availability of national protection forms part of the
analysis of whether the claimant's fear is well founded.”[32]
In the case of the Palestinian refugee claimants, the complete absence of state
protection - as shown in the next section - contributes to establishing that
their fear is well founded.
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3.6.
State Protection absent in the case of Palestinian refugee claimants
Although, “according to paragraph 101 of the UNHCR Handbook, stateless claimants
need not avail themselves of state protection since there is no duty on the
state to provide protection,”
it is nevertheless clear in the case of stateless Palestinian refugee claimants
that state protection is completely absent.
In Lebanon, because of their unique situation, Palestinian refugees have been
denied virtually every available means of securing their basic rights:
The exceptional condition of Palestinian
statelessness and Palestinian dispersal extends itself to all political,
economic, social and humanitarian spheres. UNRWA's mandate does not provide
protection for Palestinian refugees nor can they appeal to the assistance of
UNHCR whose mandate specifically exempts them from its protection. This
aberration is particularly significant, not only for refugees living under
Israeli occupation in the West Bank and Gaza, but also for those Palestinian
refugees who are temporary residents in various countries, mainly Lebanon, Syria
and Jordan (1). Thus, UNRWA's operations in these countries, the refugees'
legal status and their rights are subject to host government policies without
recourse to international agreements delineating refugee rights.
Furthermore, Palestinian refugee claimants from the West Bank and the Gaza Strip
continue to live under Israeli military occupation and are therefore denied any
form of legal protection. The international community, including Canada,
recognizes the illegality of the continued occupation of Palestinian
territories.
[35]
In both cases, there is “clear and convincing” evidence of the state’s inability
to protect the claimants.
In fact, the state is not only unwilling to provide protection but is an agent
of persecution against the Palestinians. Thus, the absence of protection from
the state is not a contentious issue in the case of Palestinian refugee
claimants as they are deprived of all their fundamental rights by the state in
question, and have no state of their own providing protection.
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3.7.
Palestinian refugee claimants do not have an Internal Flight Alternative
(IFA)
As indicated by the Federal Court in Rasaratnam
and Thirunavukkarasu,
the test to be applied in determining whether there is an IFA is two-fold:
(1)
…the Board must be satisfied on a
balance of probabilities that there is no serious possibility of the claimant
being persecuted in the part of the country to which it finds an IFA exists.
(2)
Moreover, conditions in the part of
the country considered to be an IFA must be such that it would not be
unreasonable, in all the circumstances, including those particular to the
claimant, for him to seek refuge there.
Both of these conditions must be satisfied for a finding that the claimant has
an IFA.
As such, Palestinian refugee
claimants do not have an internal flight alternative as they are persecuted by
the persecuting states in all parts of their territory. In
the West Bank and the Gaza Strip, the claimants are under military occupation
and are persecuted on the entire Territory. Similarly
in Lebanon, the claimants face systematic discrimination on all the
territory. In fact, Amnesty International has made the following unequivocal
observations:
Palestinians in Lebanon are de
jure and de facto discriminated against as compared with other
non-citizens with regards to the rights to own and inherit property, as well as
to the right to work and the right to social security…Discrimination levied against Palestinians in relation to the
rights to own and inherit property and the right to work, creates conditions
where Palestinians refugees cannot enjoy an adequate standard of living.
[40]
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[25]
Immigration and Refugee Board, Interpretation of the Convention Refugee
definition in the case law (Legal Services,
December 31, 2002), at page 3-1.
[26]
Ward, supra note 13.
[31]
Supra note 17; see also supra note 20.
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