Haj Khalil v. Canada

Haj Khalil v. Canada
Court (s) Database
Federal Court Decisions
Date
2007-09-18
Neutral citation
2007 FC 923
File numbers
T-2066-03
Notes
Reported Decision
Decision Content
Date: 20070918
Docket: T-2066-03
Citation: 2007 FC 923
Ottawa, Ontario, September 18, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
Nawal haj khalil,
ANMAR EL HASSEN, and ACIL EL HASSEN,
by her Litigation Guardian, NAWAL HAJ KHALIL
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] This matter is about delay in the processing of an application for permanent residence in Canada. When a determination of the plaintiffs’ application was delayed, they sued.
[2] Nawal Haj Khalil is the primary plaintiff. She is the mother of the plaintiffs Anmar El Hassen and Acil El Hassen. Born in Syria, she is 57 years old and a stateless Palestinian. Her husband, Riyad El Hassen, resides in Gaza. Ms. Haj Khalil is a Convention refugee.
[3] Anmar El Hassen is the 23-year-old son of Ms. Haj Khalil. He is a university graduate and is entering medical school in Dubai this semester. He was granted permanent resident status in Canada on February 2, 2007.
[4] Acil El Hassen is Ms. Haj Khalil’s 18-year-old daughter. Acil graduated from high school in 2007 and is attending university this fall. She was granted permanent resident status in Canada on December 21, 2006.
[5] In this action, the plaintiffs allege that the defendant’s delay in processing their applications for permanent residence caused them harm for which they claim damages. They assert that their entitlement to damages arises from the defendant’s negligence and the infringement of their sections 7 and 15 rights under the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II No. 44] (the Charter). For this infringement, they claim a remedy under subsection 24(1) of the Charter.
[6] More specifically, Ms. Haj Khalil claims damages for: psychological distress (depression); economic loss; loss of guidance, care and companionship of her husband; and punitive damages. Anmar and Acil claim damages for the loss of guidance, care and companionship of their father and punitive damages. Anmar also claims unspecified special damages for the loss of a summer job.
[7] Relying on sections 2 and 15 of the Charter, the plaintiffs also seek a declaration that, under subsection 52(1) of the Constitution Act, 1982, paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) is unconstitutional and of no force and effect.
[8] I conclude that the plaintiffs’ action must fail. Although they have established that there was unreasonable and inordinate delay in the processing of their applications for permanent residence, delay is not a free-standing cause of action.
[9] There is insufficient proximity between the plaintiffs and the defendant to found a private law duty of care. Additionally, there are compelling policy reasons that militate against the imposition of such a duty. Even if it were otherwise, causation has not been established. Consequently, the plaintiffs cannot succeed in negligence.
[10] The plaintiffs have not established that their liberty interests under section 7 of the Charter are engaged on the facts of this matter. The section 7 security of the person interests are not engaged because the alleged harm is not state imposed. The primary plaintiff’s allegation of infringement of her equality rights under section 15 of the Charter was not seriously advanced. Consequently, I am unable to address it.
[11] The plaintiffs’ attack on the constitutionality of paragraph 34(1)(f) of the IRPA on the premise that it contravenes section 2 of the Charter has been authoritatively determined by the
Supreme Court of Canada. The challenge on the basis of section 15 of the Charter fails because the primary plaintiff has not demonstrated that she was treated differentially by virtue of her nature as a stateless Palestinian. The allegation that the provision is unconstitutional because the remedy under subsection 34(2) of the IRPA is illusory fails because it constitutes an attack on the manner in which the legislation is administered rather than the validity of the legislation itself. No subsection 34(2) determination has been made regarding the primary plaintiff. Should the decision be negative, it may be judicially reviewed on the basis that the provision was applied unconstitutionally.
Preliminary Observations
[12] My discussion of the issues in this action is detailed. It is important to note at the outset that the merits of Ms. Haj Khalil’s admissibility (or inadmissibility) to Canada or her suitability for ministerial exemption (if inadmissible) are not in issue here. Consequently, my commentary should not be seen as an expression of opinion on such matters.
[13] The table of contents below identifies the topics addressed in these reasons and their location.
TABLE OF CONTENTS Paragraph
Number
1. The Legislative Context 14
2. The Chronology 25
3. The Departmental Protocol 35
4. The Evidence 48
5. Delay 72
(i) Stage One 74
(ii) Stage Two 100
6. The Issues 126
(i) The Threshold Issue 127
(a) Res judicata 133
(b) Grenier 137
(ii) The Allegation of Negligence 154
(a) Duty of care 170
(b) Causation 209
(iii) Section 7 of the Charter 258
(a) Liberty Interests 263
(b) Security of the Person Interests 285
(iv) Section 15 of the Charter 296
(v) The Constitutionality of paragraph 34(1)(f) of the IRPA 300
(a) Section 2 of the Charter 301
(b) Section 15 of the Charter 312
(c) Subsection 34(2) 330
7. Miscellaneous Issues 348
8. Costs 351
The Legislative Context
[14] The legislative context underlying this matter is important. Ms. Haj Khalil was found to be a Convention refugee under the provisions of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act). Her application for permanent residence was submitted under the former Act. On June 28, 2002, the IRPA came into force. By virtue of section 190 of the IRPA, Ms. Haj Khalil’s application for permanent residence, after June 28, 2002, was to be determined in accordance with the provisions of the IRPA.
[15] Although the IRPA introduced a number of changes in many respects, the substance of the legislative provisions relevant to Ms. Haj Khalil’s application for permanent residence remains the same as that under the former Act. Therefore, I propose to refer only to the provisions contained in the IRPA. The full text of all statutory provisions referenced in these reasons is set out in the attached Schedule “A”.
[16] Subsection 21(2) of the IRPA, subject to one exception that is not relevant here, provides that a Convention refugee who applies for permanent residence becomes a permanent resident if the application has been made in accordance with the regulations (within 180 days of the Convention refugee determination) and the Convention refugee is not inadmissible on any ground referred to in sections 34 or 35, subsection 36(1) or sections 37 or 38 of the IRPA. Section 34 is the material provision in this matter.
[17] Subsection 34(1) of the IRPA sets out the conditions regarding inadmissibility on “security grounds”. In Ms. Haj Khalil’s case, we are concerned with paragraphs 34(1)(c) and (f). Those paragraphs, together, provide that a permanent resident or a foreign national is inadmissible on security grounds for being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism.
[18] A finding of inadmissibility can be overcome if an individual satisfies the Minister that the person’s presence in Canada would not be detrimental to the national interest. This process is referred to as “ministerial exemption” or “ministerial relief” and is provided for in subsection 34(2). The terms “ministerial exemption” and “ministerial relief” are used interchangeably throughout these reasons. Although the IRPA permits the Minister to delegate authority in favour of another person (to act in the Minister’s stead), the Minister may not delegate authority with respect to subsection 34(2). The ministerial exemption power is non-delegable.
[19] Under subsection 44(1) of the IRPA, when an immigration officer determines that a permanent resident or a foreign national is inadmissible, the officer may prepare a report on inadmissibility. Such a report is to be provided to the Minister. If in the Minister’s opinion the report is well-founded, pursuant to subsection 44(2) the matter may be referred to the Immigration Division for an admissibility hearing. Except in relation to a Convention refugee, the admissibility hearing can result in a removal order. Canada’s international obligations under the Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137, Can. T.S. 1969 No. 6 (entered into force 22 April 1954) (the Refugee Convention) require Canada to respect the principle of non-refoulement. Section 115 of the IRPA prohibits the removal of a Convention refugee to a country where the person would be at risk of persecution for any of the grounds set out in the Refugee Convention or at risk of torture or cruel and unusual treatment or punishment. An exception is provided for in circumstances where the person is determined to be a danger to the security of Canada. The debate in relation to this provision has no application in this matter because Ms. Haj Khalil is not considered to be a danger to the security of Canada.
[20] One significant change in the IRPA is the transfer of enumerated powers from the Minister of Citizenship and Immigration (traditionally responsible for the administration of the Act) to the Minister of Public Safety and Emergency Preparedness. Under subsection 4(2) of the IRPA, the Minister of Public Safety and Emergency Preparedness is responsible for the administration of the IRPA in relation to: examinations at ports of entry; the enforcement of the IRPA, including arrest, detention and removal; the establishment of policies respecting the enforcement of the IRPA and inadmissibility on grounds of security, organized criminality or violating human or international rights; and determinations under any of subsections 34(2), 35(2) and 37(2) of the IRPA.
[21] This change resulted from the Prime Minister’s creation of the portfolio of Public Safety and Emergency Preparedness Canada (PSEPC) in December of 2003. The structure of the PSEPC is complex. For present purposes, it is sufficient to say that the PSEPC is an umbrella department with many components. In conjunction with the creation of PSEPC, the Canada Border Services Agency (CBSA) was created and forms part of the PSEPC. The Citizenship and Immigration Canada (CIC) Security Review Department (I will refer to CIC Security Review in more detail later) was moved to the CBSA and became the Counter-Terrorism Branch of the CBSA. Subsequently, the IRPA was amended to vest responsibility for the above-noted sections with the Minister of Public Safety and Emergency Preparedness. I note parenthetically that the title of this department has recently been changed to Public Safety Canada. Given that the new title is less cumbersome, I will refer henceforth to this department as the Department of Public Safety (PS).
[22] Consequently, while under the former Act, Ms. Haj Khalil’s case (as it has unfolded) would have been the responsibility of the Minister of Citizenship and Immigration, it now falls under the authority of both the Minister of Citizenship and Immigration and the Minister of Public Safety.
[23] Subsection 95(2) of the IRPA provides that a Convention refugee is a protected person. A protected person, determined to be inadmissible, may request judicial review in the Federal Court. Section 72 permits judicial review with respect to any matter under the IRPA, with leave of the Court.
[24] The Federal Courts Act, R.S.C. 1985, c. F-7 (the Federal Courts Act), specifically section 18, outlines the remedies available on applications for judicial review. They include: an injunction; writs of certiorari, prohibition, mandamus and quo warranto; and declaratory relief. Judicial review of any matter under the IRPA is subject to the time limits prescribed in section 72 of the IRPA and is to be disposed of without delay and in a summary way. Under paragraph 74(d), an appeal to the Federal Court of Appeal can be initiated only if a Federal Court judge certifies that a serious question of general importance is involved and states the question.
The Chronology
[25] Ms. Haj Khalil and her children arrived in Canada, via the United States, in March of 1994. Upon arrival, Ms. Haj Khalil claimed refugee status. In April, she was determined eligible to make a refugee claim. The hearing (to determine whether she was a Convention refugee) was conducted over two days in October and December of 1994. She and her children were granted refugee status on December 21, 1994. In January of 1995, Ms. Haj Khalil applied for permanent residence and included her children and her husband as dependents on her application. She received provisional approval of her application shortly thereafter. Requests for screening action regarding Ms. Haj Khalil and her “dependant husband abroad” were dated January 11, 1995.
[26] In April of 1996, Ms. Haj Khalil received a call-in notice to appear for an interview in May. Ms. Haj Khalil was interviewed, as scheduled, by a representative of the Canadian Security and Intelligence Service (CSIS). CSIS generated a report dated July 31, 1997. This report was forwarded to CIC Security Review where further investigations were conducted. A Security Review report was prepared and sent to the CIC regional office in Toronto for transfer to the CIC local office in Windsor. In June of 1998, the file was assigned to Windsor senior immigration officer, Kelly White.
[27] Ms. White interviewed Ms. Haj Khalil in November of 1998 and prepared a report (the White Report) with respect to Ms. Haj Khalil’s inadmissibility. The White report was sent to CIC Security Review in February of 1999. By August of 1999, Security Review had examined and approved the White Report. In November of 1999, Ms. White drafted a refusal letter with respect to Ms. Haj Khalil’s application and forwarded the draft to CIC Security Review. Ms. White’s letter, with minor modifications, was approved in January of 2000. Approximately one month later, Ms. Haj Khalil received notice of the refusal.
[28] In March of 2000, Ms. Haj Khalil applied for leave and judicial review of the inadmissibility determination. She requested that the decision be quashed on various grounds  including non-compliance with the Charter  and that an order for mandamus issue. Leave was granted and the matter was scheduled for hearing on May 15, 2001. For reasons that are not apparent from the record, the date was twice rescheduled, presumably at the request of the Minister. In July of 2001, the Minister consented to the application for judicial review and in October, under Rule 369 of the Federal Courts Rules, SOR/98-106 (the Federal Courts Rules), the Minister requested judgment. Ms. Haj Khalil opposed the motion and asked that the matter proceed to a hearing in January of 2002. By order dated November 16, 2001, Mr. Justice Gibson allowed the application for judicial review, quashed the inadmissibility decision and remitted the matter for determination on the basis of “open source information”. He denied Ms. Haj Khalil’s request for a hearing because the matter was moot.
[29] Shortly thereafter, Ms. Haj Khalil’s counsel wrote to CIC counsel requesting that the re-determination of her client’s admissibility be completed within two weeks. CIC counsel, in response, indicated that the two-week time frame was not possible, but the file would be handled expeditiously.
[30] Ms. Haj Khalil was interviewed by Windsor senior immigration officer John Swizawski in March of 2002. Her counsel specifically requested that Ms. Haj Khalil, if found inadmissible, be considered for ministerial exemption. Mr. Swizawski determined that Ms. Haj Khalil was inadmissible. He submitted his report (the Swizawski Report) to CIC Security Review in the summer of 2002. Ms. Haj Khalil did not receive a copy of the Swizawski Report although she learned of its existence and obtained a copy of it through the disclosure process in relation to this action.
[31] In October of 2002, CIC Security Review analyst, Roseanne Da Costa, prepared a memorandum recommending against the granting of ministerial relief. Although this memorandum was forwarded to the Director of Security Review, it did not make its way to the Minister because ministerial relief cases were suspended pending review of the ministerial relief process and the formatting of memoranda in relation to that process. In May of 2003, a departmental decision  to “park” 120 ministerial relief cases until CIC Security Review cleared its backlog  was taken. The backlog was comprised of more than 1000 cases (600 cases involving individuals where there was insufficient information to find them inadmissible and 400 cases involving individuals where CIC Security Review would recommend inadmissibility).
[32] In October of 2003, CIC Security Review erroneously informed Ms. Haj Khalil that her file was before the Minister. In November of that year, another memorandum (recommending that ministerial relief be refused) was authored by analyst Lara Oldford. As noted earlier, in December of 2003, CIC Security Review became the Counter-Terrorism Branch of the newly-created CBSA.
[33] The plaintiffs filed their statement of claim in November of 2003. One month later, the defendant Crown moved to strike the action. Prothonotary Milczynski dismissed the motion. On May 19, 2004, Madam Justice Heneghan dismissed the Crown’s appeal of Prothonotary Milczynski’s order. The plaintiffs filed an amended statement of claim less than one month after Justice Heneghan’s order.
[34] In June of 2004, analyst Lara (Oldford) Armit prepared a further memorandum wherein she recommended against the granting of ministerial relief. Ms. Haj Khalil received disclosure of this “CBSA recommendation” in January of 2006. Ms. Haj Khalil provided reply submissions with respect to the CBSA recommendation. Correspondence between CBSA and Ms. Haj Khalil continued for another year. In view of the time lapse since the preparation of the Swizawski Report, CBSA Counter-Terrorism recommended the preparation of a new admissibility decision. Ms. Haj Khalil received a call-in notice to appear for an interview in March of 2007. The resulting negative decision was withdrawn because the immigration officer had failed to consider Ms. Haj Khalil’s reply submissions. At the end of the trial, the admissibility decision remained outstanding as did the request for ministerial relief.
The Departmental Protocol
[35] It is important to properly situate the chronology within the context of the CIC administration. The composition and structure of government departments change over time. So it was in this case. An assessment of Ms. Haj Khalil’s allegation of delay requires an appreciation of the nature of CIC Security Review as well as its interaction with other CIC departments and external agencies. In my recitation of the department’s policies and practices, I have relied on the evidence of Ian Taylor, Kathleen O’Brien and Louis Dumas. Detail has been omitted in favour of an overview. While some of the background is generic, for the most part I am speaking of admissibility cases where it appears that an individual applying for permanent residence has been a member of an organization that engaged in terrorist acts.
[36] During the 1980s, CIC Security Review was primarily concerned with counter-intelligence and counter-surveillance due to the activities of the Soviet Bloc. In 1985, the Security Review unit was comprised of six people. In the late 1980s, it became part of the CIC Enforcement Branch and in 1991, it was transferred to the CIC Case Management Branch. During the 1990s, coincident with the fall of the Soviet Bloc and the influx of refugees claiming asylum in Canada, the unit’s focus shifted to increased emphasis on counter-terrorism. It was staffed by ten people and was responsible for handling the files for both Security Review and War Crimes.
[37] Applications for permanent residence were sent first to the centralized processing centre (CPC) in Vegreville, Alberta, and from there, to other departments or agencies as required. Security screening was conducted by CSIS and its screening briefs, once completed, were forwarded to CIC Security Review. Security Review did not consider the contents of the CSIS screening briefs to be determinative. An analyst was assigned responsibility for reviewing each file in greater depth and arriving at a recommendation to be submitted to the Director of Security Review. Once the Director approved and signed the recommendation, the Security Review memo was sent, along with the CSIS brief and information on the “terrorist” organization in question, to the CIC local office via the CIC regional office.
[38] A local office immigration officer was responsible for making both an admissibility determination and a recommendation with respect to ministerial relief (the latter was made only if the individual was determined inadmissible). The immigration officer’s report required the concurrence of the CIC local office supervisor. After the concurrence was obtained, the officer’s report was forwarded to Security Review where an analyst considered the viability of ministerial exemption. At the time, reports of inadmissibility determinations were not provided to applicants until the ministerial relief process had been completed. If CIC Security Review recommended relief, the required documentation was sent up the chain of command to the Minister for determination. Accordingly, some applicants would never know they had been found inadmissible because permanent residence was granted through the ministerial exemption process.
[39] Those applicants for whom ministerial relief was not recommended were provided with the immigration officer’s report containing the inadmissibility finding and the recommendation with respect to ministerial relief. During this period, absent a specific request for ministerial relief at the time of the application (for permanent residence), only those cases where a positive recommendation for ministerial relief had been rendered made their way up the chain of command. Although the admissibility decisions were made by a CIC local office immigration officer, Security Review was not bound by the immigration officer’s recommendation regarding ministerial relief. The rule of thumb dictated that individuals who merited relief were those who had no personal history of violent activity (and could therefore not be considered true terrorists) and who generally would have been in Canada at least three to five years (to allow for an informed assessment of any security risk). The files of persons not recommended for ministerial relief, whom it was thought might merit ministerial relief in the future, were “BF’d” (brought forward) to a future date.
[40] The events of September 11th in 2001 and the case of Ahmed Ressam led the government to alter its approach to admissibility and screening. In November of 2001, front-end screening was introduced. Unlike the former method whereby individuals were screened after they filed their applications for permanent residence, this process enabled immigration officers to identify potentially inadmissible persons at the first port of entry (POE).
[41] Additionally, the protocol surrounding the ministerial exemption process became somewhat more formalized. In the absence of a specific request for relief, inadmissible applicants were refused permanent residence by the immigration officer. That is, CIC Security Review no longer unilaterally identified potential meritorious candidates for ministerial exemption. However, Security Review recommended that where local immigration officers perceived that applications contained “an indirect request” for ministerial relief, the officers were encouraged to refer the matter to Security Review in the same manner as a direct request.
[42] Immigration officers were not required to inform applicants of the availability of the ministerial relief. Cases forwarded for assessment of a ministerial exemption went up the chain of command. The practice – that inadmissibility determinations and the immigration officers’ reports were not provided to applicants until such time as the ministerial relief applications had been assessed and, then, only if the decisions were negative – remained the same. I should also note that departmental policy dictated that applicants who wished to obtain their inadmissibility reports could do so through a “formal privacy request”.
[43] In March of 2002, CIC created the Intelligence Branch. This branch incorporated Security Review, Organized Crime, War Crimes, Research and Intelligence Co-ordination and the “more traditional” intelligence area (review of trends and analysis of improperly documented arrivals). At this time, an analyst’s recommendation memorandum wended its way through a chain of command which included the: Director; Senior Director; Director-General; Assistant Deputy Minister; Minister’s Executive Services; Deputy Minister; Minister’s Chief of Staff; and, ultimately, the Minister.
[44] Also during this time-frame, “border pressure” and the events of 9/11 resulted in an increased focus on national security. By 2002, the Security Review unit employed 20 people. At some point following the creation of the Intelligence Branch (the record is not clear as to the precise timing), a directive was issued from the Minister’s office regarding the necessity of achieving uniformity in the format of the ministerial exemption memoranda emanating from three of the units within the CIC Intelligence Branch (Security Review, Organized Crime and War Crimes). As a result of the directive, a review was conducted. As earlier noted, during the review ministerial exemption memoranda to the Minister were held in abeyance.
[45] By May of 2003, the CIC Intelligence Branch staff numbered 20 to 25 persons. In December of that year, the Intelligence Branch was transferred to CBSA jurisdiction. As a result, the Intelligence Branch became part of a larger organization with a broader mandate including immigration intelligence, immigration enforcement, Canada Customs, and other border activities. As a result of this change, Security Review reported to the Minister of Public Safety. From roughly May of 2003 until May of 2004 new guidelines regarding the processing of ministerial exemption applications were developed and encapsulated in the CIC Inland-Processing Manual (IP10).
[46] Although not made “formal” until February of 2005, the IP10 guidelines were implemented in their draft form. The guidelines introduced a new disclosure process whereby the security analysts’ ministerial relief memoranda were disclosed to applicants before the files were presented to the Minister for consideration. Additionally, the IP10 guidelines discouraged immigration officers from providing recommendations with respect to ministerial relief. Immigration officers, henceforth, were to determine admissibility and forward applicants’ submissions on ministerial exemption to Security Review where analysts would be charged with preparing recommendations for the Minister. The chain of command changed dramatically and is best left to be described by the chart depicting it which is attached to these reasons as Schedule “B” (Exhibit D113).
[47] In early 2005, Security Review was renamed the “Counter-Terrorism” unit within CBSA. The Director of Security Review became the Manager of Counter-Terrorism. Although the unit retained responsibility for matters pertaining to espionage and subversion, it was, and is, highly focussed on “membership in terrorist groups”.
The Evidence
[48] Twenty-one witnesses testified at the trial. I do not intend to delineate their evidence here. Rather, it will be reviewed, as required, in my analysis of the issues. Ms. Haj Khalil’s evidence was lengthy. The summary provided below is an overview of the evidence that is necessary for an understanding of the issues that are relevant to this action. Her evidence also will be referenced, as necessary, elsewhere. Anmar and Acil El Hassen’s testimony will be mentioned here and in my discussion of specific issues. Unfortunately, Mr. Riyad El Hassen did not testify. Consequently, many questions surrounding his intentions and actions remain unanswered, except as perceived by Ms. Haj Khalil.
[49] Ms. Haj Khalil was raised in Syria. In 1978, during her third year of university (faculty of engineering), following a referendum regarding the re-election of President Hafez Assad, she was arrested by the Syrian Intelligence Forces in connection with the distribution of pamphlets. She was suspected of being a member of the Syrian Communist Party and a member of the political bureau of the Communist Party. She was detained, beaten and tortured for a period of four months. She was repeatedly questioned about her fiancé’s affiliations with the Communist Party, the political bureau and Fatah. She was eventually released when her father paid a bribe.
[50] Upon her release, she joined her fiancé, Mr. El Hassen, in Lebanon. They were married in July of 1978 in Beirut. In terms of obtaining employment in Lebanon, Ms. Haj Khalil’s recollection at the trial was somewhat confused (Transcript, pp. 270-271). However, the Request to Admit Facts and the Reply indicate that at the end of 1978, Ms. Haj Khalil began to write small local affairs pieces for the Palestine Liberation Organization (PLO) papers in Beirut. Her husband had already been writing for the PLO “Al-Quaeda” (the base) and “Sout Falestine” (voice of Palestine). On June 1, 1979, Ms. Haj Khalil and her husband became full-time writers for Filastin al Thawra (Palestine, the Revolution).
[51] The Filastin al Thawra (FAT) was the official publication of the PLO. It consisted of a daily newspaper and a weekly magazine. The couple wrote for FAT in Lebanon from 1979 until 1982. Ms. Haj Khalil used the name “Amal Ghanem” both for writing and for all other purposes. She was known as Amal Ghanem. Ms. Haj Khalil testified that her function was to report events or news. This task consisted of condensing information provided to her. There was no opportunity for the expression of personal opinion. Occasionally, some analysis of the events was provided, but it had to be within the scope provided by the editor-in-chief of FAT.
[52] In 1982, they had to leave Lebanon. Mr. El Hassen left for Tunisia and Ms. Haj Khalil returned to Syria where she remained for one month before joining her husband in Tunisia. The couple’s children were born in Tunisia. While there, Ms. Haj Khalil continued doing the same work for the FAT magazine. At that time, she wrote about one article per week. When she was in Lebanon and Tunisia, Ms. Haj Khalil returned to Syria to visit her parents. From Lebanon, she would borrow a friend’s ID and cross the border. From Tunisia, she used her Syrian travel document. She ceased visiting her parents in 1990 when her father-in-law received a “summons” requiring her presence for questioning at the security office in Damascus in relation to her smuggling, out of Syria of the names of imprisoned persons.
[53] In 1993, after the Oslo Accords, Ms. Haj Khalil was to return to Syria. When she objected, she was offered a position writing for FAT in Iraq. She declined and her employment was terminated. The family applied for visitor visas for the United States. Mr. El Hassen’s application was rejected. Ms. Haj Khalil and the children travelled to the United States and then to Canada. When they arrived in Canada and made refugee claims, her claim was assessed in relation to persecution in Syria.
[54] In her personal information form (PIF), and at her refugee hearing, Ms. Haj Khalil described the torture she had sustained during her detention in Syria. She also relied on the “continuing criticism” in her writing “of the Syrians in Lebanon, and as the rift between the PLO Fatah and the Syrian government deepened, of Syria itself”. She claimed that if it “has been discovered, or ever was discovered, that [she] was ‘Amal Ghanem’, [she] would be imprisoned indefinitely in Syria”. The final paragraph of her PIF stated:
I believe that I cannot return to Syria because of my past experiences there. I have further participated in the collection of human rights details which have probably been used to embarrass the Syrian government further complicating the issue. And further still, I believe that I have now caused offence to the Syrian authorities by failing to acknowledge their summons and surrender and for all of these reasons I believe I will suffer long term detention in Syria where my death may either result from purposeful torture or from the conditions and treatment in Syrian prisons. Furthermore I cannot predict or otherwise know whether my employment and membership in the PLO-Fatah has been discovered but I have no doubt that I would be apprehended immediately upon entering Syria for having smuggled human rights material from Syria. As a detainee I would undergo great pressure to admit to my errors and under torture might reveal my own culpability as a former anti-Syrian writer for the PLO faction Fatah.
[55] To support her claim, Ms. Haj Khalil submitted three articles that she claimed to have written. As earlier noted, she was successful before the Immigration and Refugee Board. She and the children were determined to be Convention refugees.
[56] Ms. Haj Khalil testified that when she applied for permanent residence, she listed her husband and her children as dependants. She denied that her husband told immigration officials that he did not want to come to Canada. She referred to her affidavit (sworn following the first inadmissibility determination) exhibiting the first page of his application for permanent residence date-stamped as being received in the Canadian Embassy, in Tel Aviv, Israel. Ms. Haj Khalil’s evidence regarding her husband’s current position was confusing. She stated first that she did not think he is the deputy minister [of the Palestinian Authority]. After some discussion regarding the correlation between rank and salary, she said, “He is, if he is a deputy minister, and it’s a great possibility he is, it’s the employment ranking” (Transcript, p. 948). She claimed that if the newspapers say that her husband was a campaign manager for Fatah, “it means that it is true” (Transcript, p. 946).
[57] Regarding her plans, Ms. Haj Khalil stated that when she arrived in Canada she did not speak English. She began attending a program for language but when she learned of the Adult Learning Centre, where she could obtain her high school equivalency diploma, she combined the two programs and received her Ontario high school diploma in the summer of 1996. She intended to enter St. Clair College to take business and then find a part-time job. However, as a Convention refugee, she did not qualify for the Ontario Student Assistance Program (OSAP) and she said that she could not attend. Instead, she began a program at the Women’s Enterprise Skills Training of Windsor (WEST), which she described as “a school for language, also for LINC program and computer programs” (Transcript, p.582). My understanding is that this program involved some hands-on training. Ms. Haj Khalil was assigned to the CIBC Bank on Walker Road. She testified that she was discriminated against when she was not hired as a teller (upon the completion of her training program) on the basis of her Social Insurance Number (SIN) 900 series number and her status as a refugee.
[58] Following this experience, she applied at the Toronto School of Business but was again unable to attend because of her inability to qualify for OSAP. Eventually, she did take courses at St. Clair College which she completed just prior to her move from Windsor to Ottawa. She stated that she sought out jobs of every kind but was never called for an interview. She believed this was the result of her 900 series SIN. She volunteered in various capacities and ultimately obtained part-time employment at an accounting firm. She has not worked since she moved to Ottawa in August of 2003.
[59] Ms. Haj Khalil stated that her life was in limbo. Referring to her affidavit sworn in support of her application for judicial review of the first inadmissibility decision, she claimed that every year she had to go through the “renewal of the student authorization, renewal of health card, and lately renewal of social insurance number”. She maintained that “[she] kept busy with going after these things” and she felt that it consumed “a lot of [her] mind”. She viewed it as “disgraceful that [her] life [was] going around renewing papers, for what reason [she didn’t] know”. She feels that she does not have “ownership of [her] own destiny”. She asked “what is the future? One week, two weeks, my life…50 years, 100 years? It is inhumane to leave people like that” (Transcript, p. 479-480).
[60] When asked about the effect of the physical separation of her husband from the family, Ms. Haj Khalil stated:
Actually, it’s…it is hard for all of us, not my children, because I can watch my children growing up in Canada, and, whether they have the papers or not, they actually, they are Canadian. It’s not a paper. It’s how you have been raised. They grow up in this country. They think the Canadian way. Their mind is Canadian.
To watch your kids growing up without a dad, have to take care of every single thing. Every single thing. Take them to doctors. Take them to labs, for doing, whether it’s blood test, urine tests, whatever. Take them to go with them to school, for either interview with teacher or…This is too much for me by myself. Too much. It’s not only too much for me, because I am by myself. (Transcript, pp. 535, 536).
[61] She testified that, initially, telephone contact with her husband was once a week and she often made the calls. When Acil began to experience migraine headaches, Ms. Haj Khalil and her husband decided that he would call each morning to wake Acil for school. Consequently, the calls are now made on a daily basis. Ms. Haj Khalil stated that her husband “plays a big, big role in their life. Every problem we have, we talk to him about it” (Transcript, p. 538).
[62] In discussing her medical condition, Ms. Haj Khalil was unable to say when she first felt depressed. She suggested “maybe six years, maybe seven years, maybe five years” (Transcript, p. 657). She consulted a psychiatrist, Dr. Ross, in Windsor in either 2001 or 2002. She spoke of suicide with her Ottawa psychiatrist, Dr. Dimmock, but stated that she will not do it because she believes that her children still need her. She resisted taking medication because it was useless. She felt that she needed counselling, but the Ontario Health Insurance Plan (OHIP) does not cover psychologists. She said that she had been diagnosed with fibromyalgia. Her understanding was that her fibromyalgia and arthritis were the result of her stress and depression. She did not believe that there was any treatment for fibromyalgia, but the arthritis medication “gets [her] better” (Transcript, p. 1366). She also said that she suffered from severe migraine headaches and did not know what brought them on. She endured panic attacks and stated that they were precipitated by interviews with immigration officers. She also had memory problems that come and go.
[63] Anmar testified that he ha