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Khudeish v. Canada

Citizenship and Immigration

I. Introduction

[1] Ms. Khitam Khudeish, the Applicant, seeks judicial review of the decision rendered by the Refugee Appeal Division of the Immigration and Refugee Board of Canada [RAD] on November 14, 2019, which reversed a decision of the Refugee Protection Division [RPD] accepting Ms. Khudeish’s claim for refugee protection. 2020 FC 1124 (CanLII)

[2] The RAD allowed the appeal and substituted the RPD’s decision with its own. It found that given the evidence, there were serious reasons for considering that Ms. Khudeish should be excluded under section 98 of the Immigration and Refugee Protection Act (SC 2001, c 27) [the Immigration Act], which incorporates Article 1(F) of the Convention Relating to the Status of Refugees, 28 July 1951, Can TS 1969 No 6 [the Refugee Convention]. Consequently, the RAD found that Ms. Khudeish is neither a Convention refugee nor a person in need of protection.

[3] For the reasons set out below, Ms. Khudeish’s Application for judicial review [the Application] should be dismissed.

II. Relevant Background

[4] Ms. Khudeish is a stateless Palestinian (Applicant’s Memorandum at para 3). In 1948, her family was displaced from Haifa to Baghdad, Iraq, where she was born and lived until 2006. In 2006, she fled to Jordan after what she describes as a years-long pattern of religious persecution, which killed or injured multiple members of her family.

[5] In May 2016, Ms. Khudeish arrived to Canada with her daughter, both holding a valid visitor visa issued by the Canadian authorities in Pretoria, South Africa. Ms. Khudeish’s husband was then the Palestinian ambassador to Angola.

[6] In September 2016, Ms. Khudeish and her daughter claimed refugee protection in Canada, based on their religious and political opinions and their fear of persecution in Iraq. 2020 FC 1124 (CanLII)

[7] Central to the assessment of her claim is the fact that from 1984 to 2006, Ms. Khudeish worked for the Palestinian Liberation Organisation [PLO] in Baghdad.

[8] In her Basis of Claim Form, Ms. Khudeish indicated that she was educated in Iraq as an accountant and worked for the “PLO social services” from January 1984 to August 2006 (Certified Tribunal Record [CTR] at page 93). Her file before the RPD included a letter from the Embassy of the State of Palestine dated October 29, 2016, certifying that Ms. Khudeish worked at the Embassy in Iraq from 1984 to 2006 under the job title “Responsible on Palestine Martyr’s Families Foundation.”

[9] On November 4, 2016, the RPD notified Citizenship and Immigration Canada that it believed Article 1(F)(a)of the Refugee Convention may apply to Ms. Khudeish’s claim (CTR at page 51). The RPD highlighted the fact that she worked for the PLO from January 1984 to August 2006, a period that included the first “intifada” and the Lebanese civil war (CTR at pages 481-82). The Minister did not intervene, and the issues related to the Minister’s intervention, which were at play before the RAD, are not before the Court.

[10] Before the RPD heard the claim, in January 2018, Ms. Khudeish amended her Basis of Claim Form to explain discrepancies between the information she provided on her refugee and visa applications and, more importantly for this Application, to provide additional information on her work for the PLO. 2020 FC 1124 (CanLII)

[11] In said amendment, Ms. Khudeish added, regarding her work at the PLO: “My work at PLO was at the department of Palestine Marty’s [sic] Family, this department gave welfare/social assistant [sic] to families of deceased. It was an administrative part-time position. I worked only 10 days out of a month, I would receive a list of names of people to receive financial help, I would distribute the funds and check people’s names off the list who had appeared and received the money, these were usually older women, mainly widows” (CTR at page 124).

[12] At the hearing, the RPD member questioned Ms. Khudeish on her work for the PLO. She provided what can be described as evolving descriptions. She first indicated that her duties included investigating whether prospective aid recipients had financial needs. Subsequently, she stated that her duties were limited to verifying names on a list of prospective aid recipients.

[13] On January 15, 2018, at the conclusion of the hearing, the RPD rendered its decision (CTR at pages 85 and following) and allowed Ms. Khudeish’s claim for protection.

[14] Regarding Ms. Khudeish’s credibility, the RPD noted that “it was not perfect” (CTR at page 450). The RPD found that Ms. Khudeish had not been totally forthcoming about her work, and that she misrepresented herself in her visa application. In regards to the explanation she provided regarding her visa application, the RPD indicated: “So I am not sure I believe your testimony about that being a mistake. But, despite these concerns with regard to your credibility, I am satisfied that there is sufficient credible evidence to support [my] conclusions” (CTR at pages 450). 2020 FC 1124 (CanLII)

[15] The RPD dedicated five short paragraphs of its analysis to the exclusion issue (under article 1(F) of the Convention and section 98 of the Immigration Act). It found Ms. Khudeish evasive about the details of her work and outlined discrepancies between her testimony and the information contained in the letter from the Embassy of Iraq of October 2016. Ultimately relying on the letter, the RPD found that the payments Ms. Khudeish made in her role were most likely to the families of martyrs – not the families of people who needed social welfare. However, the RPD added that, even if that was the case, the act of providing such payments would not engage the exclusion clause, and that it had no evidence or information suggesting that the Foundation was involved in human rights abuses.

[16] The RPD made no mention of the framework set out by the Supreme Court of Canada in Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40 [Ezokola], and no explicit mention of the relevant factors that determine whether or not the exclusion applies. The RPD granted the protection sought.

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