Canada

Refugee claimant from Gaza ‘horrified’ when asked why Hamas wouldn’t protect her

Rewand Almobayed wiped away tears as she recalled the morning she said Hamas security forces raided her home in the Gaza Strip, blindfolded her, and tore her from the arms of her one-year-old son.

“I still remember (the sound of) their feet running up the stairs,” she said. “My brother was screaming, ‘There are children and women in the home.’”

Almobayed is a human rights lawyer and mother of three young children, including two Canadian-born daughters.

Read more: Canadian refugee adjudicators asked ‘offensive’ and ‘insensitive’ questions: report

She made a refugee claim in Canada in January 2018, alleging that she was unlawfully arrested, tortured, threatened with rape, and held against her will by Hamas for more than a week in July 2016.

Almobayed said the abuse was retaliation for reporting the rape of a 12-year-old girl by a senior Hamas militant, who she claimed was angry after he was demoted as punishment for his crime.

But nothing, Almobayed said, could have prepared her for the way she was treated during a hearing at the Immigration and Refugee Board of Canada (IRB).

“It’s one of the worst experiences I will ever have,” she said. “It created a trauma in my life. It almost destroyed me.“

Masked Hamas gunmen display weapons during a rally to commemorate the 27th anniversary of the Hamas militant group, in Gaza City, Dec. 2014.

In February 2020, while presiding over her case, IRB adjudicator Paul Ariemma repeatedly asked Almobayed to explain why she didn’t ask Hamas to protect her from the man she said she reported for rape. Ariemma asked these questions even though he knew Almobayed said she was tortured by Hamas.

Ariemma also said he wasn’t going to comment on the “habits, mores or desires” of how a person should live their life in response to Almobayed’s claim that she experienced gender-based persecution and never felt safe living in Gaza.

“That individual (you reported for rape) was punished harshly, maybe not as harsh as he should be, but he was demoted,” Ariemma said during the hearing.

“There was an authority there that listened to you and punished the person who was guilty of the crime. So why not go to that authority and say, ‘I’m still getting problems with this person?’”

Read more: Calls for change at refugee board after woman asked why husband didn’t ‘just kill’ her

Canada, the United States, and the European Union have designated Hamas a terrorist organization. The group has a well-documented history of human rights abuses, including attacks against civilians, summary executions of political opponents, and the oppression of women.

Joshua Blum, a Toronto immigration lawyer who represents Almobayed, said Ariemma’s questions about Hamas and his remarks about gender-based persecution violate the IRB’s guidelines for cases involving women, including women who allege sexual violence.

He said it’s “indefensible” that the IRB allows adjudicators to treat claimants this way.

“Even if you ultimately do succeed on appeal, there’s still a real harm of having gone through a hearing experience like this … where you were so demeaned and treated with so much disrespect,” Blum said.

Global News has spent more than three years reporting on allegations of misconduct against IRB adjudicators. This includes claims made by prominent refugee lawyers who say adjudicators routinely re-traumatize vulnerable claimants by failing to adhere to the board’s guidelines.

These reports have resulted in at least two internal investigations conducted by the IRB, changes to the way the board adjudicates gender-based cases, a promise to review and change the current gender guidelines, plus a parliamentary investigation into the IRB’s hiring and complaints procedures.

Read more: Lawyers allege ‘sexist,’ ‘aggressive’ behaviour by powerful immigration, refugee judges

Despite assurances from the board that things are getting better for female claimants, adjudicators continue to face allegations of misconduct in gender-based cases.

A report released by the IRB on May 4 found that eight adjudicators breached the board’s code of conduct over the past two years. The report includes findings of wrongdoing against an adjudicator who asked a claimant if she was “sure” she was raped and another adjudicator who ignored a claimant who was having a seizure during a hearing.

Global News has also reported on an adjudicator who said a woman’s choice to keep a baby conceived by rape meant the rape never happened. In another case, an adjudicator asked a female claimant, who said she was beaten by her husband for years, why he didn’t “just kill” her if he really wanted her dead.

Refugee judge asks woman why husband didn’t ‘just kill’ her – Nov 27, 2019

Almobayed filed a complaint against Ariemma, alleging he violated the board’s code of conduct when questioning her. She’s also appealed his decision to the Federal Court, claiming he deprived her of her right to a fair hearing and that he didn’t assess all the risks she faces if sent back to Gaza.

On June 11, government lawyers sent a letter to the Federal Court saying they’re in talks with Blum to settle Almobayed’s case. This means her claim would go back to the IRB to be heard by a different adjudicator.

Meanwhile, a letter from IRB Chairperson Richard Wex sent to Almobayed on June 8 said 12 of the allegations contained in her complaint have been referred to an external investigator. This includes allegations that Ariemma acted in a “demeaning and dismissive manner” during the hearing, that he said being demoted in military rank was a “harsh” punishment for the crime of rape, and that he cut off Almobayed and prevented her from testifying about an alleged incident of sexual harassment.

In an interview with Global News, Ariemma denied any wrongdoing in the case and said his personal and ethical beliefs prevent him from acting in a way that would cause anyone the kind of harm Almobayed said she experienced as a result of the hearing. He also said his questioning did not violate the board’s gender guidelines.

“In 30 years in my work at the board, I have never acted improperly, and neither did (I) this time,” Ariemma said.

Read more: Refugee judge asks woman why her husband wouldn’t ‘just kill’ her

Ariemma also said that if there are concerns about the way he evaluated evidence during the hearing — including his questions about Hamas and his remarks about not wanting to comment on the “habits, mores, or desires” of how someone should live their life — the appropriate place to air those concerns is in an appeal to the Federal Court.

“This person is unhappy because her claim was rejected and is trying to find whatever angle she can find, true or imaginary, to state her case,” Ariemma said.

Ariemma, who’s worked at the board on and off since 1986, left the IRB on March 31, 2021 after his contract expired. He said that he’s read Almobayed’s complaint and that he will cooperate with any investigation, but maintains he did nothing wrong.

“If there is evidence to the contrary, well, let’s see what the ombudsman says,” Ariemma said.

Almobayed's claim rejected

Ariemma rejected Almobayed’s claim for refugee status because he didn’t believe her story. In his written decision, he said that she “fabricated” the case of the 12-year-old girl being raped and that her subsequent arrest by Hamas was a fiction created for the purpose of gaining refugee protection.

He also wrote that she provided “vague” testimony when asked about the specifics of her detention and that she didn’t submit any independent corroborating evidence to support her claim.

Read more: Refugee adjudicator says woman’s choice to keep baby means rape never happened

But a review of the audio recording of the hearing shows Ariemma instructed Almobayed not to repeat specific details about her case that were previously disclosed as part of her pre-hearing submissions — known as a “basis of claim” form. The form asks claimants to write down “everything that is important” to their case.

“I know you are anxious to tell your story, but first I already read it, and you are pretty well repeating what you already wrote down,” Areimma said during the hearing.

“My questions have to clarify certain points and fill certain voids. That’s why if you just tell me the story all over again, it doesn’t do much.”

Blum said it was unfair for Ariemma to instruct Almobayed not to discuss important details about her case, and to then turn around and say she was “vague” and unable to answer questions directly in his written decision.

Blum also takes issue with Ariemma’s assessment that Almobayed didn’t provide any independent, corroborating evidence.

Read more: Man nicknamed ‘Dr. No’ because he denied so many refugees, rehired to decide asylum claims

Documents submitted by Almobayed to the IRB prior to her hearing included letters from several family members that described many of the same details contained in her written submissions and oral testimony.

Almobayed also gave the IRB a letter written by a former colleague at the human rights organization where she worked in Gaza. The letter included specific details about the rape of the 12-year-old girl and said the man who committed the crime came to the organization’s offices searching for Almobayed.

Ariemma also had an original “summons to appear” issued by Palestinian police two days before Almobayed said she was arrested in July 2016.

Copy of the “Summons to Appear” issued by Palestinian police requiring Rewand Almobayed to appear for questioning on July 5, 2016.
Copy of the “Summons to Appear” issued by Palestinian police requiring Rewand Almobayed to appear for questioning on July 5, 2016. Federal Court Application

But Ariemma either dismissed or didn’t mention these documents in his written decision.

The letters from Almobayed’s family were, according to Ariemma’s decision, created for the purpose of bolstering her claim.

The letter from her former colleague didn’t have “sufficient probative value” to overcome credibility concerns, Ariemma wrote in his decision. This means it wasn’t enough to convince him that Almobayed was telling the truth.

Board's gender guidelines

Hilary Evans Cameron, an administrative law professor at Ryerson University in Toronto, said Ariemma’s decision in this case is an example of what not to do as an adjudicator.

“I think this claimant didn’t have a chance to present her case,” Cameron said. “She was shut down in the first moments of the hearing, and I think it is a paradigm example of a procedurally unfair decision.”

Cameron reviewed Ariemma’s decision, plus other documents submitted by Almobayed to the Federal Court. She said that Ariemma failed to assess all of the risks Almobayed might face if sent back to Gaza to live under such a repressive regime.

Read more: Refugee judge who asked woman why husband didn’t ‘just kill’ her to face internal review

Even if Ariemma believed Almobayed’s story about the rape was a lie, he still had a legal obligation to assess what, if any, risks she faces if sent back to Gaza because of her profile as a female human rights advocate, Cameron said, but this risk assessment doesn’t appear anywhere in Ariemma’s decision.

Cameron also said she thinks both Ariemma’s questioning during the hearing and his decision do not live up to the board’s gender guidelines. This includes his remarks about not wanting to comment on the “habits, mores or desires” of how a person ought to live their life in response to Almobayed’s claim that she never felt safe in Gaza, plus the fact that his decision made no reference to the gender guidelines or how they were applied.

“The problems with this decision are many and varied,” Cameron said.

Law professor explains why judges are supposed to presume asylum seekers are telling the truth – Feb 5, 2019

Refugee adjudicators are free to decide cases as they see fit, but they must adhere to the board’s guidelines when questioning claimants and when writing their decisions. If an adjudicator decides to deviate from these guidelines, they must provide a reasonable explanation why in their decisions.

The gender guidelines also state that women who experience gender-based violence may have difficulty recalling past events due to the traumatic nature of the memories. Adjudicators are instructed to act with extreme sensitivity when questioning female claimants.

Read more: Refugee adjudicator says woman’s choice to keep baby means rape never happened

The Federal Court has ruled that failing to properly apply the board’s guidelines is a reviewable error that can result in decisions being overturned.

Federal Court judges have also warned IRB adjudicators not to discount psychological evaluations when considering the effects trauma has on a claimant’s ability to testify.

“The (adjudicator) was wrong to conclude that the principal claimant was not credible without taking into account and without discussing the content of the psychological report which found severe post-traumatic stress disorder and the plaintiff’s difficulties relating the traumatizing events,” wrote Justice James Russell in a 2003 decision in an unrelated case.

Lawyer calls for independent panel to discipline IRB judges – Jan 28, 2020

In Almobayed’s case, Ariemma said he reviewed two psychological reports — one completed by a registered psychotherapist and another completed by a psychiatrist. He said the reports weren’t useful because neither expert questioned Almobayed to “assess her credibility” and because their findings were “largely conditioned by her story.”

Ariemma then asserted that “except for in the claimant’s statements” the reports contained no mention of the torture she endured. He concluded that if Almobayed really was tortured, it’s reasonable to expect that this would have appeared more prominently in the psychological reports.

“After an attentive and careful consideration of the report and the letter, the panel finds that the inability of the claimant to relate matters connected with her alleged arrest, interrogation and torture was due to the fact that her story is not true,” Ariemma wrote in his decision.

Read more: Immigration board ‘revamping’ complaint process after Global News investigation

But Almobayed insists neither report was submitted to reinforce her story. The reports, she said, were meant to give the IRB important details about her mental health status.

The psychological assessment specifically mentioned that she was referred for treatment by her family doctor because of symptoms of post-traumatic stress disorder. It also said she had difficulty answering questions about past trauma.

“I observed significant distress in response to the interview questions regarding the hardship she experienced in Palestine and her ongoing fear and worry of deportation to Gaza,” wrote registered psychotherapist Eden Mebrathu.

The letter written by Dr. Mohmad Elfakhani, a psychiatrist with a certificate in refugee trauma from Harvard, said Almobayed was experiencing major depression and general anxiety. He said the effects of these conditions were “considerably debilitating and have prevented her from living life fully thus far.”

“(Almobayed) has personally suffered significant emotional trauma as a result of this situation,” Elfakhani wrote.

But instead of listening to these experts, Ariemma drew his own conclusions about Almobayed’s mental health status and her capacity to testify.

“There was nothing in the behaviour of the principal claimant, suggesting that the absence of such acts in her mind was the result of a physical or psychological trauma,” he wrote in his decision. “She appeared to be perfectly in control, although unable to give direct answers.”

Right to be heard

In her appeal to the Federal Court, Almobayed argues that Ariemma’s questioning was confusing and that his misrepresentation of the facts of her case during the hearing deprived her of the “right to be heard.”

A review of audio from the hearing reveals that during one exchange, Ariemma repeatedly put false premises to Almobayed and expected her to answer questions rooted in his own misunderstanding of the facts.

Ariemma spent more than 10 minutes asking Almobayed about where she was arrested in 2016 because he misheard the interpreter. This line of questioning continued even after Ariemma was corrected by the interpreter and after Almobayed clearly explained where she was before, during and after her arrest.

Ariemma also appears to have made up one of the questions and answers that he included in his written decision and that he used to decide Almobayed was not telling the truth.

In his decision, Ariemma said Almobayed was asked to explain how people in Gaza knew about the rape of the 12-year-old girl if there were no media reports about the incident. He said Almobayed “remained silent” when questioned further about this topic.

But a review of the audio from the hearing shows Almobayed was never asked to explain how people in Gaza knew about the rape if there wasn’t any media coverage. At one point in the hearing, Ariemma said he simply wanted to know if there was any media coverage about the rape, adding that he didn’t think there necessarily should have been anything published.

Still, Ariemma used the absence of any media reports about the rape as a reason why he thought Almobayed wasn’t credible.

Of the eight different reasons Ariemma used to decide Almobayed couldn’t be trusted, only one of them was actually raised as a potential issue during the hearing, Almobayed said.

This deprived her of her basic right to know the case against her and to defend against or clarify any potential issues, she said.

“He was unfair and unjust,” she said. “I hope I will get justice.”

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