PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ULFAT ABU HANNA
MINA ABU HANNA
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O'KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (the Board), dated July 6, 2005, which determined that the applicants are neither Convention refugees nor persons in need of protection.
[2] The applicants seek an order quashing the Board's decision and referring the matter for re-determination by another Board member.
Background
[3] The principal applicant, Zuheir Abu Hanna, and his wife Ulfat and their daughter, Mina (collectively the applicants) are Arab Christians and citizens of Israel. They claim refugee protection based on their fear of persecution at the hands of Muslim extremists in Israel.
[4] The applicants state that in December 1997, the Israeli government approved the construction of a mosque in front of the Basilica of Annunciation. This led to increasing tensions and clashes between Muslims and Christians.
[5] On Easter Sunday in 1998, the applicants attended a service at the Basilica of Annunciation. Muslims insulted them as they left the church. As well, Muslims smashed the windshields of the cars which had crosses hanging from the mirrors, and burned shops, cars and houses belonging to Christians.
[6] After that, anti-Christian slogans were written on the outside walls of the applicants' home every now and then.
[7] In October 2002, the principal applicant's wife was accosted while returning from shopping and was told not to wear the cross around her neck.
[8] A month later, the family received anonymous threatening phone calls. The principal applicant said that he received six to seven such calls in 2003, and he did not believe that he received any such calls in 2004. He stated that he did not report the threats to the police because he thought they would not do anything, or it would have created a more dangerous situation because the family members of his harassers would go after him.
[9] On April 28, 2004, the principal applicant was attacked as he was getting into his parked car, which had a cross hanging from the mirror. His assailants smashed the car window and the glass wounded his hand. He called the police station in Nazareth, but the police did not do anything and said that they cannot protect everybody in the city. He went to see a doctor about the wound on his hand. The doctor called the police to report the incident, but the police did not respond.
[10] In June 2004, the principal applicant was harassed again.
[11] The applicants arrived in Canada on July 6, 2004 and made a refugee claim two days later.
[12] On June 21, 2005, the Board heard the applicants' claim for refugee protection. The Board denied the applicants' claim, as it found that there was adequate state protection in Israel. This is the judicial review of the Board's decision.
Reasons for the Board's Decision
[13] The Board accepted that the applicants are citizens of Israel and Arab Christians.
[14] At the hearing, the principal applicant was asked about the current status of the religious conflict. The applicant stated that in 2004 the government ordered the Muslims to cease construction of the mosque. The Board found that this fact was supported by the documentary evidence.
[15] The Board referred to the principal applicant's oral testimony that the government had acted too late because there was increased tension between Islamists and Christians after the Muslims were ordered to stop building the mosque. The Board also referred to the principal applicant's failure to report the anonymous phone threats to the police and the fact that he had only approached the police once for help, after the attack of April 28, 2004.
[16] The Board cited from a report by the International Christian Concern, dated May 5, 2004, stating that there was no evidence that prisoners were being held for their Christian beliefs. The report stated that a Christian Arab was elected as a Supreme Court Judge in May 2004 for the first time in Israeli history. The Board also cited from the U.S. Department of State International Religious Freedom Report 2004 for Israel, which revealed that most of the Christians who left their homes in the Bethlehem area did so for economic and security reasons and not due to religious discrimination. The Board stated that it preferred this documentary evidence concerning the current situation for Christians in Israel.
[17] Because of irregularities in the medical report, the Board decided to give little weight to the medical report which the principal applicant submitted as evidence of his visit to a doctor following the attack on April 28, 2004. The report did not reflect the date on which he saw the doctor. Further, the report was written half in Hebrew and half in English. When asked at the hearing about this, the principal applicant stated that the report should normally be written all in either Hebrew or English.
[18] The Board cited from a Federal Court of Appeal decision, Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.), which held that when the state in question is a democratic state, the applicant must do more than simply show that he or she approached the police and that his or her efforts were unsuccessful. The burden of proof that rests on the applicant in rebutting the presumption of state protection is directly proportional to the level of democracy in the state in question.
[19] The Board stated that while protection against the random and unpredictable attacks by Muslim extremists may not be perfect, the state of Israel is nevertheless making serious efforts to protect its citizens, including Christians. The Board therefore found that there is adequate state protection available to the applicants should they return to Israel.
Issues
[20] In the applicants' further memorandum of argument, the following issues were submitted for consideration:
1. The Board did not make clear and unmistakeable findings that the applicants were not credible;
2. Failure to provide the applicants with disclosure in compliance with Rule 29(4) of the Refugee Protection Division Rules constitutes an error;
3. The Board erred in its assessment of the availability of state protection for the applicants in Israel.
Applicants' Submissions
[21] The applicants submitted that the standard of review of decisions of the Board is generally patent unreasonableness, except for questions involving the interpretation of a statute when the standard becomes correctness (see Conkova v. Canada(Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 at paragraph 5 (T.D.) (QL)).
[22] The applicants submitted that the Board is required to make findings of credibility in clear and unmistakable terms (see Hilo v. Canada(Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.)). It was submitted that the Board in the case at bar did not make a clear and unmistakable finding that the applicants were not credible, therefore, the Court must limit its judicial review to the issues of state protection and the Board's reliance on extrinsic evidence.
[23] The applicants submitted that the Board erred by failing to provide the May 2005 documents, 20 days in advance of the hearing as required by Rule 29(4) of the Refugee Protection Division Rules, SOR/2002-228. The documents were provided 18 days before the hearing.
[24] Further, the applicants submitted that the Board erred in its assessment of state protection. It was submitted that the Board must consider the particular circumstances of an applicant and cannot merely rely on the efforts of the authorities to provide protection or the fact that in general, the authorities have been successful in providing protection (see Mendivil v. Canada (Secretary of State) (1994), 167 N.R. 91 (F.C.A.); Torres v. Canada (Minister of Citizenship and Immigration), 2005 FC 660; and Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 951). Moreover, Justice Gibson for the Federal Court stated in Elcock v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 116 at paragraph 15 that the "ability of a state to protect must be seen to comprehend not only the existence of an effective legislative and procedural framework but the capacity and the will to effectively implement that framework".
[25] The applicants submitted that the Board did not take into consideration their particular circumstances, namely, that they were not ordinary citizens of Israel, but Arab Israelis. It was submitted that there was objective evidence before the Board that Arab Israelis face discrimination and ill-treatment in Israel. It was submitted that there was also evidence that the state did not protect the applicants when they sought protection. It was submitted that the Board cited articles by the International Christian Concern and by the U.S. Department of State, which do not state that the Israeli government is willing or able to protect its Christian citizens.
Respondent's Submissions
[28] In response to the applicants' arguments on state protection, the respondent submitted that the applicants must exhaust all courses of action in Israel prior to claiming refugee status in Canada. The respondent submitted that the Board is entitled to weigh the applicants' testimony against the documentary evidence, and, having found major inconsistencies between the two, to rely on the latter (see Zhou v. Canada (Minister of Employment and Immigration),[1994] F.C.J. No. 1087 (C.A.) (QL)).
[29] The respondent submitted that the applicants have failed to show that the Board's finding was patently unreasonable or made without regard to the evidence before it.
Analysis and Decision
[30] I propose to address the following issues:
1. Did the failure to disclose the new list of documents 20 days in advance of the hearing amount to a breach of procedural fairness?
2. Did the Board err in its finding on the adequacy of state protection?
[31] Issue 1
Did the failure to disclose the new list of documents 20 days in advance of the hearing amount to a breach of procedural fairness?
At the hearing, the applicants advanced an argument that the documents were not filed 20 days before the hearing and the transcript did not show that the Board considered the factors contained in Refugee Protection Division Rules, Rule 30, to determine whether the respondent should be permitted to use the documents. I agree that the record does not disclose this process, but the applicants were represented at that hearing and their representative could and should have objected at that point if there was a problem. There is no indication of such an objection. I am not satisfied that there was a breach of the duty of procedural fairness because of the late disclosure of the documents. The documents were disclosed 18 days before the hearing instead of the required 20 days. I am also not satisfied that the Board made any error with respect to Rule 30.
[32] Issue 2
Did the Board err in its finding on the adequacy of state protection?
Standard of Review
A determination as to whether there is adequate state protection, a question of mixed fact and law, is reviewable on a standard of reasonableness simpliciter. However, the underlying factual findings, which are assessed against the legal test for state protection, are reviewable on a standard of patent unreasonableness (see O.O.M.R. v. Canada(Minister of Citizenship and Immigration), 2005 FC 1618 at paragraphs 7 to 8.)
[33] In Kadenko v. Canada(Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.) at page 534, the Court stated:
When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. . . .
[34] The evidence discloses that Israel has a high level of democracy and an independent judiciary. This places a higher burden on the applicants to show that they have exhausted all available courses of action and still were not able to avail themselves of the state's protection.
[35] The concept of the availability of state protection does not assure protection at all times. In Canada(Minister of Employment and Immigration) v. Villafranca (1992), 99 D.L.R. (4th) 334 (F.C.A.), the Federal Court of Appeal stated:
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. . . .
[36] In the present case, the principal applicant only approached the police once concerning one of the incidents. The other incidents were not reported to the police as the principal applicant believed the police would not help. When the principal applicant reported the first incident, the police said they had many calls and could not protect everyone in the city.
[37] The applicants submitted that the Board failed to address the issue of state protection for Arab Christians. A review of the Board's decision shows that it commenced with the statement that the applicants were Arab Christians. It is against this background that the Board concluded, after considering the documentary evidence, that state protection was available to the applicants if they were returned to Israel.
[38] The applicants referred me to various passages in the documentary evidence to show me that state protection was not available for Arab Christians. I cannot come to that conclusion based on that evidence and the other evidence before the Board.
[39] Based on all of the evidence, I am of the opinion that the Board's decision was reasonable. The application for judicial review is therefore dismissed.
[40] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[41] IT IS ORDERED that the application for judicial review is dismissed.
ANNEX
Relevant Legislation
Paragraph 95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides that refugee protection is conferred on a person who is determined by the Board to be a Convention refugee or a person in need of protection.
| 95. (1) Refugee protection is conferred on a person when
. . .
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or
. . . |
95. (1) L'asile est la protection conférée à toute personne dès lors que, selon le cas:
. . .
b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger;
. . . |
Section 96 and subsection 97(1) define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
The relevant provisions of the Refugee Protection Division Rules, SOR 2002-228 concerning the disclosure of documents are set out below.
| 29. (1) If a party wants to use a document at a hearing, the party must provide one copy to any other party and two copies to the Division, unless these Rules require a different number of copies.
(2) If the Division wants to use a document at a hearing, the Division must provide a copy to each party.
(3) Together with the copies provided to the Division, the party must provide a written statement of how and when a copy was provided to any other party.
(4) Documents provided under this rule must be received by the Division or a party, as the case may be, no later than
(a) 20 days before the hearing; or
(b) five days before the hearing if the document is provided to respond to another document provided by a party or the Division. 30. A party who does not provide a document as required by rule 29 may not use the document at the hearing unless allowed by the Division. In deciding whether to allow its use, the Division must consider any relevant factors, including
(a) the document's relevance and probative value;
(b) any new evidence it brings to the hearing; and
(c) whether the party, with reasonable effort, could have provided the document as required by rule 29.
30. A party who does not provide a document as required by rule 29 may not use the document at the hearing unless allowed by the Division. In deciding whether to allow its use, the Division must consider any relevant factors, including
(a) the document's relevance and probative value;
(b) any new evidence it brings to the hearing; and
(c) whether the party, with reasonable effort, could have provided the document as required by rule 29. |
29. (1) Pour utiliser un document à l'audience, la partie en transmet une copie à l'autre partie, le cas échéant, et deux copies à la Section, sauf si les présentes règles exigent un nombre différent de copies.
(2) Pour utiliser un document à l'audience, la Section en transmet une copie aux parties.
(3) En même temps qu'elle transmet les copies à la Section, la partie lui transmet également une déclaration écrite indiquant à quel moment et de quelle façon elle en a transmis une copie à l'autre partie, le cas échéant.
(4) Tout document transmis selon la présente règle doit être reçu par son destinataire au plus tard:
a) soit vingt jours avant l'audience;
b) soit, dans le cas où il s'agit d'un document transmis en réponse à un document reçu de l'autre partie ou de la Section, cinq jours avant l'audience. 30. La partie qui ne transmet pas un document selon la règle 29 ne peut utiliser celui-ci à l'audience, sauf autorisation de la Section. Pour décider si elle autorise l'utilisation du document à l'audience, la Section prend en considération tout élément pertinent. Elle examine notamment:
a) la pertinence et la valeur probante du document;
b) toute preuve nouvelle qu'il apporte;
c) si la partie aurait pu, en faisant des efforts raisonnables, le transmettre selon la règle 29.
30. La partie qui ne transmet pas un document selon la règle 29 ne peut utiliser celui-ci à l'audience, sauf autorisation de la Section. Pour décider si elle autorise l'utilisation du document à l'audience, la Section prend en considération tout élément pertinent. Elle examine notamment:
a) la pertinence et la valeur probante du document;
b) toute preuve nouvelle qu'il apporte;
c) si la partie aurait pu, en faisant des efforts raisonnables, le transmettre selon la règle 29. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4597-05
STYLE OF CAUSE: ZUHEIR ABU HANNA
ULFAT ABU HANNA
MINA ABU HANNA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT AND JUDGMENT: O'KEEFE J.
APPEARANCES:
| Melissa Melvin
|
|
| Janet Chisholm
|
SOLICITORS OF RECORD:
| Green & Spiegel Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|