Date: 20010615
Docket: IMM-5865-99
Neutral Citation: 2001 FCT 665
Ottawa, Ontario, this 15th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ELENA HAIMOV (a.k.a. Yelena Haimov)
ARTEM HAIMOV
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision dated November 9, 1999 of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"). In its decision the Board determined the applicants not to be Convention refugees.
[2] The applicants seek an order quashing the above decision and referring the matter back for redetermination by a newly constituted panel.
Background Facts
[3] The applicants, Elena Haimov (a.k.a. Yelena Haimov) and her minor son Artem Haimov, are Israeli citizens who entered Canada on September 7, 1998 to make Convention refugee claims. The applicant was born in Russia and is of Christian Orthodox faith. In 1987 she married Boris Haimov who is Jewish. The couple's son was born in September of 1989. In 1991, the applicants emigrated with Boris Haimov to Israel. The applicants' claim was based upon a well-founded fear of persecution in Israel at the hands of Boris Haimov.
[4] The applicants' claim was heard on July 21, 1999. Although the Board accepted the adult applicant's testimony that she was abused by her husband in Israel, it rejected her conclusions with respect to the availability of adequate state protection for her and her son. The Board found that whereas the applicants had a subjective fear of persecution, their fear was not objectively well-founded. The following incidents involved the adult applicant while in Israel:
1. January 1992: The adult applicant was beaten by her husband
following a quarrel over money to buy proper food for their son. After the incident, the applicant saw a doctor who said that she should go to the police first. She asked her sister-in-law to help her communicate with the police. Her sister-in-law explained in response, that there was no point because the police did not provide protection for Russian Christian Orthodox women. The Board wrote the following in regard to this incident at page 5 of its decision:
It is certainly sad that the claimant could not obtain assistance and support from members of her husband's family, though they were not the only source of information for the Russian-speaking claimant. In fact, she obtained help from other sources and found Russian-speaking social workers who gave her correct information and advice to obtain protection.
2. May 1992: Artem's respiratory disease was aggravated by the climate
and a doctor recommended that they move south. The husband sent the applicants to Moscow. They later returned.
3. February 1994: The adult applicant was beaten by her drunken
husband who insisted that she obey him with respect to religious matters. This beating was witnessed by their son. The applicants went to the police where an officer began writing a report. The policeman refused to accept the complaint and threw away the paper when told the conflict was based on religious reasons. The policeman told the applicant that she should reconsider becoming Jewish and that he would do the same with a wife like the applicant. The Board wrote the following with respect to this incident at page 5 of its decision:
The panel finds that the behaviour of the policeman is inexcusable, though it also finds that the behaviour of a single individual does not taint the whole police and all the structures promoting the welfare of women.
. . .
In February 1994, a priest helped her to go to a Russian Orthodox monastery in Jerusalem. She was given shelter by the religious women, who also helped her find employment and accommodation. The nuns offered the claimant an alternative from returning to the home where she was abused. The arrangement failed because the claimant trusted her husband's uncle and went in person to retrieve her documents. Had she asked for assistance, she might have been offered help to avoid the risk.
4. Spring of 1995: The adult applicant was beaten by her husband when
he found a cross that she had hidden from him. This beating was witnessed by their son. With regard to this incident, the Board writes at page 6:
. . . her family doctor advised her to contact the police but she did not follow the advice. The family doctor took positive steps to help the claimant, by referring her to a psychiatrist, who assigned a social worker to her case.
The staff at her son's school sought help for the minor claimant, by involving a social worker and the police. The claimant was asked to go to the police, or to sign a form for the police, as stated in the PIF. However, she refused to do it.
5. Summer of 1996: The adult applicant was attacked by her knife
wielding husband. The Board commented as follows at page 6:
In 1996, a social worker from her town of Sderot referred her to a
shelter, where she lived with her son for several months. When her husband tried to approach her, the shelter staff called the police. In spite of the claimant's complaints that the shelter was not a secure place, she suffered no harm during that period. She even said that she slept peacefully at the shelter. She received legal advice and assistance from a lawyer to prepare and file papers for a divorce, but she abandoned the divorce proceedings and chose to rely on an agreement with her husband. The letter from the shelter director in Exhibit C-4 states that she was transferred to the Herzlia shelter because the shelter had a Russian interpreter, who also ran a hotline for Russian women, and because there were quite a few Russian women at the shelter. The director states in her letter that, when the staff heard that the claimant was planning to return to her husband, they tried to discourage her by pointing out the risks she was taking. In spite of the cautious advice, the claimant returned to her husband even before he signed the agreement. The claimant returned to her husband in December 1996. A copy of the agreement, in Exhibit C-5, is dated June 17, 1997.
6. In 1998: The adult applicant was subjected to renewed threats by her
husband and she called a shelter. However, the social services department was closed for the holidays so she went to a monastery in Jerusalem, where nuns helped her come to Canada.
Applicant's Submissions
[5] The applicants list the issues as:
1. Did the panel err in law in making its decision without proper reference to the testimony of the adult applicant and material before it and by placing undue weight on certain areas of testimony and/or evidence?
2. Did the panel err in law by ignoring relevant evidence on the record?
3. Did the panel act unreasonably and without reference to the evidence before it when it held that there was no clear and convincing confirmation that effective state protection was not available to the applicants?
4. Did the panel err in determining that the applicants are not Convention refugees?
[6] The applicants submit they presented "clear and convincing confirmation" of the state's inability to protect them and that the Board failed to consider the relevant evidence before it. Specifically, the Board failed to consider the community to which the agent of persecution belongs (the Bukharan community which is very close knit and has assisted Mr. Haimov in the past), the role that his sister (a social worker) might play in helping him to locate the applicants, and the ease with which he could locate the applicants due to their religious practice.
[7] Applicants' counsel acknowledged in written submissions to the Board that it is not necessarily that Israel is unwilling to protect the applicants, but rather that Israel is unable to protect them. The adult applicant did more than simply show the Board that she went to see some members of the police in an unsuccessful attempt to obtain protection. The applicants also sought shelter at a women's shelter and at a church. However, the agent of persecution found them and threatened their safety at both places. The applicants submit that although state protection and shelters are available for other women in Israel, this is not the case for the adult applicant.
[8] Israel is a small country with only 12 shelters, therefore making it all the more likely that a family member, who is a social worker, would be able to direct the persecutor to the addresses of these shelters. According to the applicants, this fact alone is clear and convincing confirmation that such protection by shelters that may normally be available to abused women, is not effective protection for the applicants.
[9] There are a limited number of Russian Orthodox churches in Israel, located in only four cities. The applicants submit they have been found at these religious centres in the past and it is possible that they will be found in the future and persecuted. Thus, the applicants contend there exists clear and convincing confirmation that Israel cannot protect them if they practice their faith.
[10] In finding that attending church in Israel would be "inconvenient" for the applicants and concluding that this was not persecution and that Christians do not face discrimination, the applicants submit the Board acknowledged that they would not be protected when practising their faith. Furthermore, the applicants argue that the Board, in analysing the ground of religious persecution, was in effect connecting Israel's inability to protect the applicants to a Convention reason. By concluding that there was no connection, the Board found that state protection is available. The applicants submit the law does not require the inability to protect to be connected to a Convention reason: Badran v. Canada (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 211 (F.C.T.D.).
[11] Moreover, the Board's determination regarding the above fails to address the issue of whether there is clear and convincing confirmation that Israel is unable to offer protection. The applicants submit their claim was not predicated on the ground of religious persecution, but rather on the fact that Israel could not effectively protect them from the agent of persecution because of their religious practice.
Respondent's Submissions
[12] The respondent offers Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, to support its submission that the standard of review ought to be patent unreasonableness for findings of fact. Being that the Board's expertise was in making factual determinations on the risk of persecution, the respondent submits the standard of review ought to be patent unreasonableness in the case at bar.
[13] The respondent submits that in failing to demonstrate a link that their subjective fear was well-founded in an objective sense, the applicants failed to meet the test for Convention refugee.
[14] The respondent argues that Boris Haimov's ability to find the applicants in a shelter is not clear and convincing proof of the state's inability to protect. Rather, that the applicants were able to access a shelter and live for several months free of harm, receive legal advice and assistance from a lawyer to prepare papers for a divorce and were provided with services in the Russian language. This is clear and convincing proof that there is effective state protection available to the applicants in Israel.
[15] The respondent further submits the adult applicant cannot accuse Israel of failing to afford her effective protection when she refused to avail herself of the protection offered, such as asking for police intervention, or following the advice of lawyers, doctors and social workers.
Relevant Statutory Provisions
[16] The definition of "Convention refugee" under the provisions of the Immigration Act is:
| 2(1) "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
« réfugié au sens de la Convention » Toute personne_: a) 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_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
|
Issue
[17] Did the Board make a reviewable error in finding that the fear of persecution alleged by the applicants was not well-founded?
Analysis and Decision
[18] The applicant, Ms. Haimov indicated in her affidavit and her oral testimony that her complaints, when she reported them, were not dealt with by the police because of her religion. In Ward v. Canada (Minister of Employment and Immigration) (1993), 20 Imm. L.R. (2d) 85 (S.C.C.) LaForest J. stated at page 112:
In summary, I find that state complicity is not a necessary component of persecution, either under the "unwilling" or under the "unable" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. I recognize that these conclusions broaden the range of potentially successful refugee claims beyond those involving feared persecution at the hands of the clamant's nominal government. As long as this persecution is directed at the claimant on the basis of one of the enumerated grounds, I do not think the identity of the feared perpetrator of the persecution removes these cases from the scope of Canada's international obligations in this area. On this note, I now turn to a consideration of these enumerated grounds.
[19] There is no doubt that the applicants have a subjective fear of persecution at the hands of the adult applicant's husband. He has threatened to kill her and has beaten her. The police seem to respond to calls that the husband is threatening her and they remove him, but it seems to me from the evidence that when a crime is committed, nothing is done about it. The adult applicant stated that when she filed complaints against her husband, the police did nothing about the complaints. Two of these complaints appear to have dealt with "an attack" and "attacks threat". On another occasion, the applicant was attacked by her husband who grabbed a knife and started to imitate cutting her throat. He only stopped when their son started to gag. When she went to the police, the officer started to write a report but tore it up when he learned the conflict took place because the applicant and her husband were of different religions. In my opinion, this leads to the conclusion that there is a state inability to protect the applicants in the case at bar. I am of the view that this inability of the state to protect the applicants leads to a presumption that the fear is well-founded as outlined in Ward, supra. Accordingly, I am of the view that the Board made a reviewable error, whether or not a standard of review of reasonableness simpliciter or patent unreasonableness is applied.
[20] Accordingly, I would allow the application for judicial review and the matter is referred to another panel of the Board for redetermination.
[21] Neither party wished to submit a serious question of general importance.
ORDER
[22] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to another panel of the Board for redetermination.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
June 15, 2001