Date: 20050121
Docket: IMM-9488-03
Citation: 2005 FC 70
Ottawa, Ontario, January 21, 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
EREZ SHLOMO ELBARNES
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (Act) against a decision of the Refugee Protection Division of the Immigration Refugee Board (Board) dated January 26, 2004, wherein the Board determined that the respondent was a Convention refugee and a person in need of protection.
ISSUES
[2] The issues are as follows:
1. Did the Board err in its assessment that Israel could not protect the respondent?
2. Did the Board commit a patently unreasonable error in assessing the respondent's subjective fear of persecution?
[3] For the following reasons, I must answer the two questions in the negative.
CONTESTED DECISION
[4] The Board was satisfied that the letters in support of the respondent's case and a number of other documents confirmed his reputation and position in the ultra-Orthodox, anti-Zionist Jewish movement. It concluded that the respondent's testimony seemed sincere and relevant. Therefore, it was held that the respondent was credible.
[5] The Board made no negative inference with respect to the respondent's subjective fear even though he waited more than two years after his arrival in Canada to fill an application for refugee protection. The respondent explained that he was in Canada legally and that, therefore, he did not fear being sent back to his country. The Board concluded that such an explanation was sufficient to justify the respondent's delay in claiming asylum.
[6] It believed that it was reasonable to conclude that the ideas preached by the respondent were deemed dangerous by the authorities of Israel since he is a chief rabbi. The Board concluded that the evidence clearly showed that the respondent was persecuted because of his opinion and that his fear was well-founded.
[7] Moreover, it was of the opinion that the respondent's state of origin was unable to and did not want to protect him and even contributed to defaming him as much as possible in the eyes of the public. The Board arrived to such a conclusion because it was clear that the ideas conveyed by the respondent were against the existence of Israel as an independent country.
[8] Finally, it concluded in accordance with the Federal Court of Appeal decision in Chan v. Canada (Minister of Citizenship and Immigration) (2001), 10 Imm. L.R. (3d), p.171 (erroneously referred to as p. 111 in the Board's decision), on the same issue, that subsection 1F(b) does not apply to the claimant. Therefore, it granted the respondent refugee status.
ANALYSIS
1. Did the Board err in its assessment that Israel could not protect the respondent?
[9] The standard of review applicable when dealing with the issue of state protection is patent unreasonableness (Czene v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 912 (T.D.) (QL), 2004 FC 723 and Canada (Minister of Citizenship and Immigration) v. Abad, [2004] F.C.J. No. 1065 (T.D.) (QL), 2004 FC 866). In such circumstances, the Federal Court may only grant relief if it is satisfied that the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7).
[10] International refugee law was formulated to serve as a back-up to the protection from the state of which an individual is a national. It can only be used when that protection is unavailable, and then, only in certain situations. The international community intended that persecuted individuals seek their home state for protection before they ask protection from other states (Canada (General Attorney ) v. Ward, [1993] 2 S.C.R. 689, paragraph 18).
[11] It is incumbent upon the claimant to prove a well-founded fear of persecution in their country. In order to succeed, it is not enough for a refugee claimant to establish that he has a subjective fear of persecution in his home state. He must also demonstrate that his fear is objectively well-founded. It is at this stage that the state's inability to protect should be considered. If a state is able to protect the claimant, then his or her fear is not, objectively speaking, well-founded (Ward, supra, paragraph 25). Therefore, if state protection exists, there is no reason why the claimant would be unable or unwilling to avail himself of this protection.
[12] In Canada (Minister of Citizenship and Immigration) v. Smith, [1999] 1 F.C. 310 (T.D.), the Federal Court reiterated what was held by the Supreme Court of Canada in Ward, supra.
A Convention refugee claimant must advance "clear and convincing" evidence of a state's inability to afford protection. Absent a complete breakdown of state apparatus, it should be presumed that the state is capable of protecting a claimant. When the state in question is a democratic state, the claimant must do more than simply show that he went to see some members of the police force and that his or her efforts were unsuccessful. The more democratic the state's institutions, the more the claimant must exhaust all the courses of action open to him or her.
[13] In Zhuravlvev v. Canada, [2000] 4 F.C. 3 (T.D.) at paragraph 19, Pelletier J. (as he then was) held that :
[...] the question of state protection is one which admits of degrees. Where the state is shown to be the agent of persecution, one need not inquire into the extent or effectiveness of state protection; it is, by definition, absent. Where the agent of persecution is not the state, as in Ward, the question of state protection is rarely a yes/no proposition. The state may wish to provide protection but may be unable to provide effective protection, either locally or across its entire territory. Effectiveness is itself a matter of degree. All policing activity is bound to encounter failures, particularly in a democratic state. Even in Canada, random acts of vandalism or violence seldom yield convictions. When does the absence of police assistance represent something other than the normal limits of police activity? When does police failure to act, based upon inadequate material for investigation, amount to an undeclared refusal to act? When does the refusal of a local police detachment to act amount to a state refusal to act? To what extent does a claimant have to canvass alternate police resources, [page12] geographically or administratively, before it can be concluded that the state is unable or unwilling to protect the claimant?
[14] In light of those decisions, I believe that the analysis of state protection must take into consideration the nature of the agent of persecution and if it was reasonable for the respondent to seek such protection. In the present case, the Board concluded at page 4 of its decision that state protection was not available.
[15] The evidence clearly shows that the respondent was persecuted for his opinions. The weight of this evidence also allows us to conclude that the alleged fear of future persecution is well founded, as the state was unable to and did not want to protect him and even contributed to defaming him as much as possible in the eyes of the public.
[16] Documentary evidence on country conditions (Country Reports on Human Rights Practices 2002 produced by the U.S. Department of State, page 1 of the applicant's Further Memorandum of Argument) clearly establishes that Israel is a democratic country and that the government generally respect the human rights of its citizens. However, it notes a continued problem with respect to its treatment of Arab citizens. Not so long ago, there were still problems with the government detaining, without charge, thousands of people in Israel. Some security prisoners were sentenced on the basis of coerced confessions by both themselves and others (page 2).
[17] As mentioned by the Board, the evidence revealed that the respondent believes and teaches that the existence of the State of Israel is an insult to the teachings of the Torah (the Bible); that the State must cease to exist because it should not have become a nation before the coming of the Messiah; that Arab domination of the land must be accepted by Jews and that they must leave Israel or perish.
[18] Given the State relation with Arabic citizens and given the fact that the respondent preached that the Arab domination must be accepted, I understand why the Board concluded that state protection would not be available. After carefully looking at the evidence adduced, I cannot conclude that the Board committed a patently unreasonable error in concluding that even though Israel is a democratic country that the Israeli government would not have offered protection to the respondent. His religious belief and opinion are against the mere existence of Israel as an independent country.
2. Did the Board commit an patently unreasonable error in assessing the respondent's subjective fear of persecution?
[19] Subjective fear of persecution is merely based on the assessment of the claimant's credibility (Ward, supra). The standard of review in a case involving credibility finding is patent unreasonableness. The Board, as a specialized tribunal, has complete jurisdiction to determine the credibility of the applicant's testimony. Therefore, as long as the inferences drawn by the Board are not patently unreasonable, its findings are not open to judicial review (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) at pages 316 and 317.
[20] The applicant argues that the Board erred in assessing the respondent's subjective fear of persecution because it did not consider in its reasons that the respondent returned voluntarily to Israel for three weeks in December 2001 while he claims he feared for his life in his country. I agree that it is well settled that the respondent's return in his country is not compatible with a fear of subjective fear of persecution (Caballero v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 483 (F.C.A.) (QL)).
[21] However, in the case at hand, the Board did consider this evidence in its decision (first paragraph on page 3 of the Board's decision). Therefore, I do not consider that the Court's intervention is warranted here.
[22] The parties declined the opportunity to submit serious questions of general importance. I am satisfied that none arises out of this matter. No question will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Michel Beaudry"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9488-03
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND
IMMIGRATION v.
EREZ SHOLOMO ELBARNES
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: December 14, 2004
REASONS FOR ORDER THE HONOURABLE
AND ORDER BY: MR. JUSTICE BEAUDRY
DATED: January 21, 2005
APPEARANCES:
Sherry Rafai Far FOR THE APPLICANT
Julius H. Gray FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE APPLICANT
Deputy Attorney General of Canada
Montreal, Quebec
Julius H. Gray FOR THE RESPONDENT
Montreal, Quebec