SUHEILA QAYYEM ABDUL KHALEK KAYEM FADEL KAYEM HALA KAYEM DIYALA QAYYEM Applicants v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2020 FC 601

Date: 20200508 Docket: IMM-1291-19 Citation: 2020 FC 601 Ottawa, Ontario, May 8, 2020 PRESENT: Mr. Justice McHaffie BETWEEN:SUHEILA QAYYEM ABDUL KHALEK KAYEM FADEL KAYEM HALA KAYEM DIYALA QAYYEMApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS I. Overview [1] Abdul Khalek Kayem lived with his family in the Ain al-Hilweh refugee camp in Lebanon and ran a grocery store in Al-Ghazieh,outside the camp. In October 2017, a man he believes to be a member of a fundamentalist group asked him to transport a bag out of thecamp. He refused.

In the following weeks, he started receiving unidentified calls that he did not answer. Three weeks after the refusal,unseen individuals fired gunshots near Mr. Kayem as he was on his way to work. Mr. Kayem believes the shots were directed at himbecause he refused the group’s demands to transport the bag. Mr. Kayem, his wife, and three of their children fled Lebanon. They seekrefuge in Canada, fearing that, if they return, they will be targeted by the group, and will face persecution throughout Lebanon asstateless Palestinians. [2] The Refugee Protection Division (RPD) rejected the family’s refugee claims.

While believing Mr. Kayem’s evidence, the RPDfound that he had not demonstrated that the men who asked him to transport the bag were members of a fundamentalist group, that theywould retaliate for such a refusal by killing him, or that the shooting incident was related to the refusal. The RPD also found that thefamily had an Internal Flight Alternative (IFA) in Beirut.

The applicants believe the decision was unreasonable, and seek judicial review. [3] While the evidence showed that stateless Palestinians face hardship and discrimination in Lebanon, such hardship and discriminationwill not always be sufficient to establish a serious possibility of persecution or that relocation within Lebanon is unreasonable. Theassessment depends on the country condition evidence, the claimants’ personal circumstances, and the officer’s evaluation of each. IFAfindings with respect to other refugee claimants—even other stateless Palestinians in Lebanon—cannot be automatically applied.

TheRPD’s conclusion that the applicants failed to show they would be at risk from the fundamentalist group or otherwise subject topersecution in Beirut, or that it would be unreasonable for them to relocate there, was reasonable on the evidence before it, and isdeterminative of this application. [4] The application for judicial review is therefore dismissed. II. Issues and Standard of Review [5] The determinative issue on this application is whether the RPD’s conclusion that the applicants had a viable IFA in Beirut wasreasonable.

If a claimant may safely and reasonably relocate within their country of nationality—or, if stateless, country of habitualresidence—they are expected to do so rather than seek refugee protection in Canada. The concept of an IFA is inherent in the definitionof a Convention refugee under

section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]: Thirunavukkarasu vCanada (Minister of Employment and Immigration), (FCA), [1994] 1 FC 589 at pp 592–593. Similarly, the purposeof the IFA test is helpful in assessing risk of harm under

section 97 since a person in need of protection must face the identified risk "“inevery part of that country”": Sanchez v Canada (Citizenship and Immigration), 2007 FCA 99 at para 16; IRPA, s 97(1)(b)(ii). [6] The RPD’s determinations on the availability of an IFA are reviewed on the reasonableness standard: Tariq v Canada (Citizenshipand Immigration), 2017 FC 1017 at paras 13–14.

The Supreme Court of Canada’s decision in Vavilov, decided after this case wasargued, simply confirms that the reasonableness standard applies: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019SCC 65 at paras 16–17, 23–25. Reasonableness review recognizes Parliament’s intention to have the RPD determine the facts, applytheir expertise and judgment, and evaluate whether a claimant meets the

definitions of a Convention refugee or a person in need ofprotection: Tariq at para 14; Vavilov at para 30. This Court will not substitute its own view of a preferable outcome; rather, it will onlyinterfere with the RPD’s determination if it is not justified, transparent and intelligible: Tariq at paras 13–14.

III. The RPD’s Determination of a Viable Internal FlightAlternative was Reasonable [7] In assessing whether there is a viable IFA, the RPD must be satisfied, on a balance of probabilities, that (1) the claimant will not besubject to persecution (on a "“serious possibility”" standard), or a

section 97 danger or risk (on a "“more likely than not”" standard) inthe proposed IFA; and (2) in all the circumstances, including circumstances particular to the claimant, conditions in the IFA are such thatit would not be unreasonable for the claimant to seek refuge there: Thirunavukkarasu at pp 595–597; Hamdan v Canada (Citizenship andImmigration), 2017 FC 643 at paras 10–12.

Once the potential for an IFA is raised, the claimant bears the onus of establishing that anIFA is not viable: Thirunavukkarasu at pp 594–595. [8] The RPD’s analysis addressed these two prongs of the IFA test as they related to the claimed persecution by the members of thefundamentalist group. It also addressed separately the applicants’ fears of persecution as stateless Palestinians in Lebanon. [9] With respect to the first prong of the analysis, the RPD was not satisfied that the applicants had shown that the man who asked Mr.Kayem to transport the bag belonged to a fundamentalist group.

They nonetheless assessed the risk to them in Beirut even if he was amember of such a group, and found that Mr.

Kayem did not fit the profile of someone the group would be motivated to seek out in Beirut.The RPD referred to evidence regarding a "“turf war”" between armed groups in the Ain al-Hilweh camp, but concluded that since Mr.Kayem had not been part of a conflict in the camp and was not part of a rival group, he had not demonstrated that the groups wouldpursue him or his family in Beirut. [10] The applicants argue that those who live inside the camp and work outside are seen as "“assets”" to violent groups in the camp asthey can move packages in and out of the camp and can be used to deliver messages.

This is certainly consistent with Mr. Kayem’saccount of the demand made of him. However, the applicants did not identify evidence showing that such a group would pursue a non-member throughout Lebanon for refusing to cooperate, beyond Mr. Kayem’s own statement of his expectations. [11] The applicants assert that there was no evidence that Mr. Kayem or the other applicants would be safe from the group and that itwas speculative for the RPD to conclude that they would be. However, this is not the relevant question.

The applicants bear the onus ofestablishing that they would be at risk from the identified persecutors in the proposed IFA. Given the lack of evidence on the issuebeyond the applicants’ arguments and Mr. Kayem’s statement, the RPD’s conclusion that they had not met that onus was a reasonableone. [12] The applicants similarly brand as speculation the RPD’s observation that the applicants’ family members still in Lebanon had notbeen threatened despite the passage of time since their departure.

Again, however, the onus was on them to file any evidence of threatsthat might be relevant to the men’s continued interest in them, and they pointed to no evidence of any such threats. The evidence that thetwo daughters of the family who remained in Lebanon were in hiding in the storage area of the store does not counter the RPD’sstatement, particularly in light of Mr. Kayem’s evidence that his brother continued to work in the same grocery store where he worked.The RPD’s reference to the lack of threats as being relevant to assessing whether the group was motivated to find and harm Mr.

Kayemwas reasonable. [13] With respect to the second prong of the analysis, the RPD recognized that there was "“much information about high levels ofpoverty and discrimination amongst stateless Palestinians in Lebanon.”" However, the RPD also considered the particular circumstancesof the applicants, a necessary part of the second prong of the IFA analysis: Thirunavukkarasu at p 597. The RPD noted that Mr. Kayem’soccupation as manager of a grocery store is one that could be continued elsewhere, and noted his brother’s ability to relocate outside therefugee camp a number of years prior without significant problems.

The RPD also noted that the family’s vacations in Thailand, Jordan,Saudi Arabia, and the United Arab Emirates suggested that their situation was different from those stateless Palestinians described in theevidence as "“living in poverty.”" The RPD therefore found that relocation to Beirut would not be unreasonable for the applicants, andthat it was therefore a viable IFA. [14] The applicants assert that it would be unreasonable for a stateless Palestinian to relocate to Beirut, as legal and social discriminationagainst stateless Palestinians exists throughout Lebanon and amounts to persecution.

The applicants’ argument on this issue thus alsoengages their claim as Convention refugees based on their profile as stateless Palestinians, which was rejected by the RPD for similarreasons.

While acknowledging the "“abundance of evidence”" that stateless Palestinians suffer discrimination and racism in Lebanon, theRPD noted the applicants’ particular circumstances—including their ability to secure jobs and schooling, and even travel outside thecountry for leisure—and concluded that they had not demonstrated that they would face persecution on return to Lebanon. [15] The applicants point out, quite fairly, that the evidence indicates that comparative wealth does not exempt stateless Palestinians inLebanon from discrimination. To the contrary, a recent news

article on which the applicants relied noted that "“even the most privilegedamong them endure discrimination,”" and that the influx of war refugees from Syria made the situation even more difficult. [16] However, the RPD was not called upon to simply assess whether the applicants would suffer discrimination, which the RPDacknowledged was the case. In assessing whether Beirut was a viable IFA, the RPD had to determine whether the applicants hadestablished that it would be unreasonable for them to move to Beirut.

As the Minister notes, this inquiry engages a high standard,requiring "“actual and concrete evidence”" of conditions that would jeopardize the applicants’ lives and safety in travelling ortemporarily relocating to a safe area: Ranganathan v Canada (Minister of Citizenship and Immigration), (FCA),[2001] 2 FC 164 (CA) at para 15. Evidence of widespread discrimination, including in areas of healthcare, education and employment, iscertainly relevant to an assessment of the reasonableness of an IFA, and the RPD considered this evidence.

But on the general evidenceregarding the treatment of stateless Palestinians in Lebanon and the evidence of the applicants’ circumstances in particular, I am unableto say that it was unreasonable for the RPD to find that the applicants had not met the high threshold under the second prong of the IFAtest. [17] The applicants refer to other decisions of the RPD that found other stateless Palestinians from Lebanon to have no IFA in that

country, notably Re WZ (5 July 2017), MB6-08236 (CA IRB), and Re X, (CA IRB). The applicants submit that theImmigration and Refugee Board must be consistent with its decisions, and that it was unreasonable for the RPD to find that theapplicants had an IFA in Beirut.

While I appreciate that it may be difficult for the applicants to understand why other statelessPalestinians from Lebanon are granted refugee protection and they are not, I cannot agree with the applicants’ submission for thefollowing three reasons. [18] First and foremost, as in every case, the RPD was called upon to decide whether the applicants had established that they themselveswere Convention refugees or persons in need of protection. That decision had to be made on the merits of the applicants’ own case, basedon both the personal and country condition evidence filed.

Neither the RPD nor the Court can know the full extent and nature of theevidence put forward and considered in other cases, even when some of the evidence is referred to in the decision, and those decisionsare not binding on the RPD: Ruszo v Canada (Citizenship and Immigration), 2019 FC 296 at para 11. It would be an error for the RPD toneglect its fact-finding and discretionary mandate by simply adopting the conclusions arising in different cases. [19] Second, the IFA decisions cited by the applicants bear significant differences to their own situation.

In Re WZ, the principalclaimant gave considerable evidence that he had been coerced and threatened by a named individual, known to be linked with extremists,for a period of several months, and was assaulted by them after refusing to assist them. Although the RPD found it difficult to determinethe extremists’ ability to pursue the claimant, they were satisfied based on this history and the claimant’s testimony that the persecutorcould find them throughout the country.

In Re X, the appellant had been living in a Hezbollah controlled suburb south of Beirut, andfeared persecution by Hezbollah as a result of having aided anti-Assad Syrian refugees. The Refugee Appeal Division considered thepossibility of the appellants moving from the Beirut area to a refugee camp and found this would be unreasonable as it would put theirsafety in jeopardy.

Thus, while there are some parallels, neither of these situations fully describes the applicants’ situation in this case, orsets out a general rule that no stateless Palestinian can ever be found to have a viable IFA in Lebanon. [20] Third, the applicants’ basic submission—that the RPD must be consistent—cannot be accepted as an absolute principle.

Even if thedecisions highlighted by the applicants showed a true inconsistency, which I do not believe is the case, Canadian administrative law haslong recognized that inconsistency in an administrative tribunal’s decisions is not a stand-alone ground of review: Domtar Inc v Quebec(Commission d’appel en matière de lésions professionnelles), (SCC), [1993] 2 SCR 756 at pp 796–801; Vavilov atparas 72, 129–132. Consistency and the value of treating like cases alike are important goals that promote the rule of law.

However,administrative decision-making also has other goals, including timeliness, effectiveness, and accessibility, which are reflected in thereasonableness standard. That standard recognizes that different decision-makers may reach different outcomes that are each reasonableand justifiable, even in cases that may have similarities. This is particularly so in areas of fact-finding. One decision-maker’sappreciation of the evidence of discrimination faced by a group in a country may differ from that of another, particularly as it relates tothe specific context of an applicant.

As long as that appreciation is based on a "“justified, transparent and intelligible”" assessment of theevidence, it will be reasonable. [21] I find that the RPD appropriately and intelligibly reviewed the evidence and reached a coherent conclusion on whether it would bereasonable for the applicants to relocate to Beirut. Its finding was open to it on the record and the applicants have not satisfied me thatthe RPD ignored any material evidence or was otherwise unreasonable in its analysis. I therefore conclude that the RPD’s assessmentthat the applicants have a viable IFA in Beirut was reasonable. IV.

Conclusion [22] As the RPD’s finding that there was a viable IFA for the applicants in Beirut was reasonable, the conclusion that the applicantswere not Convention refugees nor persons in need of protection was similarly reasonable, and the rejection of their refugee claims mustbe upheld.

The application for judicial review is therefore dismissed. [23] Neither party asked that a question be certified and I agree that no certifiable question arises in the matter. [24] Finally, in the interests of consistency and in accordance with subsection 4(1) of the IRPA and subsection 5(2) of the FederalCourts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, the style of cause is amended to name the respondent as theMinister of Citizenship and Immigration. JUDGMENT IN IMM-1291-19 THIS COURT’S JUDGMENT is that 1. The application for judicial review is dismissed. 2.

The style of cause is amended to name the respondent as the Minister of Citizenship and Immigration. “Nicholas McHaffie” Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: IMM-1291-19 STYLE OF CAUSE: SUHEILA QAYYEM ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: OTtAWA, Ontario DATE OF HEARING: October 16, 2019 JUDGMENT AND REASONS: MCHAFFIE J. DATED: May 8, 2020 APPEARANCES : Aylin Berberian For The ApplicantS Meg Jones For The Respondent SOLICITORS OF RECORD : A&C Law Firm LLP Ottawa, Ontario For The ApplicantS Attorney General of Canada Ottawa, Ontario For The Respondent