A 34 year old Gaza-born man, registered with UNRWA (United Nations Relief and Works Agency) and in possession of Palestinian Authority passport, lodged a protection claim in Canada in July 2014.
He alleged that if forced to return to Gaza, he will be facing treatment and situation that could be considered a persecution. Appellant stated that his family home in Gaza was destroyed and his remaining relatives live in “danger of being killed by Israeli military activity.”
Refugee Protection Division (RPD) determined that the applicant failed to provide sufficient evidence that he will be facing “persecution or a personalized risk” upon his return to Gaza. Refugee Appeal Division (RAD) confirmed this decision concluding that the applicant is “neither a ‘Convention Refugee’ pursuant to s. 96 of IRPA nor a ‘person in need of protection’ pursuant to s. 97 of IRPA.”
The applicant filed an appeal, claiming that RPD erred in its analysis of the situation in Gaza, and argued that Israel’s military action in Gaza constitutes a form of persecution of Palestinians living in Gaza and that the RPD did not: “…appreciate the legal standing of the actors involved, Israel in particular, her misapplication of the Chairperson’s Guideline 1 for those in fear of persecution in a civil war conflict in what is clearly an international conflict in which Israel is an occupying power who owes rights to Gazans under the Geneva Convention, to her failure to appreciate that Israel’s blockade and military actions in Gaza are not measured responses in limited hostilities but contraventions of international law that amount to collective punishment, and her findings that Gaza has in effect gained self-determination.”
After reviewing the claim and subsequent RPD and RAD decisions, judge Stephen J. Gallagher confirmed that the analysis of the appellant’s situation was comprehensive and that the “situation in Gaza is such that there is a generalized risk for non-combatants in Gaza including the Appellant”.
He determined that the argument that the state of Israel is specifically persecuting Palestinian people living in Gaza is invalid: “This is a conflict coupled with a security issue which has been and continues to be closely studied by an extensive range of international observers and human right organizations. In addition, this conflict is of very long standing. There are certainly arguments that Israel’s treatment of the population Gaza constitutes persecution but this is not the position of a range of authoritative experts and human rights groups.”
He also referred to the UK Operational Guidance Note for the Occupied Palestinian Territories , which concludes that “There is a generalised state of insecurity in the OPT, but current reports of tension and security breaches do not indicate that there would be a consistent pattern of gross and systematic violation of rights under Article 3 of the ECHR.”
On October 2, 2015, Judge Gallagher asserted that it’s illogical to claim that Israeli government is targeting all Palestinians, when in truth Israel has been defending itself for years and “It is not a ‘political opinion’ to demand and work towards the destruction of another country and countries in international law have the right to defend themselves.” Due to the political situation, residents of Gaza are at constant risk of being caught in the crossfire of efforts to destroy Israel by Hamas and armed militants. Thus, the Applicant is simply an individual who “would be caught in the crossfire of various dangerous and destructive policies pursued by the leadership of several political organizations in the region including Hamas” and not someone who will be sought or targeted by anyone in Gaza.
*This commentary is also posted on cijnews.com