Ottawa, Ontario, this 24th day of March, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Applicant
- and -
The minister of citizenship and immigration
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Mr. Valeri Musorin (also known as Rodshtein), is of Russian background and a citizen of Israel. He lived with his wife in Israel for a period of ten years. He fears returning to Israel because of his perceived and actual political views as a Palestinian sympathiser and because of past mistreatment by Israeli authorities.
[2] The event that precipitated the Applicant's flight to Canada occurred on October 1, 2002, when he was stopped by two men in police uniforms. He was knocked unconscious, taken away and detained for three days by three men in military uniforms. He arrived in Canada on December 8, 2002 and made his claim for protection a few days later.
[3] In a decision of a panel of the Immigration and Refugee Board (Refugee Protection Division) ("the Board") dated February 10, 2004, the Applicant was found not to be a Convention refugee nor a person in need of protection. The basis of the Board's decision was that the presumption of state protection was not rebutted by the Applicant.
ISSUES
[4] The Applicant raises a single issue in the Record:
1) Did the Board err in finding that the Applicant had not rebutted the presumption of state protection, and in so finding, wrongfully rejected the Applicant's claim to refugee status?
ANALYSIS
[5] The Board is entitled to significant deference with respect to its findings on whether a claimant has rebutted the presumption of state protection. Whether that standard is one of reasonableness simpliciter, as was determined recently in Chaves v. Canada (Minister of Citizenship and Immigration) 2005 FC 193, or patent unreasonableness, I am persuaded that the decision is fatally flawed.
[6] The Board's decision that the Applicant had failed to rebut the presumption of state protection was based on a number of findings:
_ With respect to the testimony that the Applicant reported the incident to the local police, the Board accepted the evidence of a witness who testified that the police took down the details and said they would get back to the Applicant if they uncovered anything.
_ The Applicant could not identify his assailants.
_ Without the identity of the alleged perpetrators and with no witnesses to the alleged event, the police could not have effectively investigated the complaint.
_ Since the Applicant failed to provide copies of letters that he allegedly wrote to members of the Knesset, the Applicant's testimony on this point was of "little probative value".
[7] In summary, the Board focused its reasoning on the steps taken by the Applicant to follow up on the incident. The Board concluded that there was not sufficient "credible evidence that the claimant has exhausted avenues of protection or has taken all reasonable steps to ensure his protection".
[8] However, what is not stated by the Board was whether the Board accepted the submission of the Applicant that his assailants were police officers of the state of Israel. The Applicant claims that the main reason for not pursuing state protection, beyond what he did, was because he felt that it was state authorities who had detained and questioned him. In its reasons for finding that the Applicant failed to properly seek state protection, the Board said the Applicant could not identify those involved in the October 2002 incident. However, the Board did not say it took issue with the credibility of the Applicant's statements that amount to a claim that the state of Israel, through these police officers, was the agent of persecution.
[9] The failure of the Board to directly address this evidence of the Applicant is critical to an analysis of the availability of state protection. Once an Applicant establishes that the state is responsible for persecution, the jurisprudence tells us that this is sufficient to rebut the presumption and that the claimant does not have to try to exhaust all avenues of protection. Justice Tremblay-Lamer J. in Gurjit Singh Malik v. Canada (Minister of Citizenship and Immigration) 2003 FCT 453 (T.D.) at paras. 19-21, noted that, when the police are the aggressors and the perpetrators of the violence, it is unreasonable to expect the Applicant to seek protection from the police. If the agent of persecution is the state or a person acting on behalf of the state, the presumption of state protection is rebutted (Zhuravlvev v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 507 (T.D.) at para. 19).
[10] In this case, the Board could have examined the credibility of the Applicant's claim that police officers were his assailants. Alternatively or in addition, the Board could have assessed the Applicant's story against the documentary evidence to determine whether, on a balance of probabilities, these police officers were acting as agents of the state or on their own. These particular police officers could have been no more than a rogue element of local law enforcement. Had the Board taken those steps, its decision would likely not have been assailable. However, in failing to address this question of whether the state of Israel was responsible for the attack on the Applicant, the Board did not assess the very basis of his claim.
CONCLUSION
[11] For these reasons, the application will be allowed. Neither party proposed a question for certification. None will be certified.
ORDER
This Court orders that:
1. The application is allowed and the matter referred to a different panel of the Board for re-determination; and
2. No question of general importance is certified.
"Judith A. Snider"
______________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2218-04
STYLE OF CAUSE: VALERI MUSORIN (RODSHTEIN) v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 3, 2005
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Snider
DATED: March 24, 2005
APPEARANCES:
Angus Grant FOR APPLICANT
Kristina Dragaitis FOR RESPONDENT
SOLICITORS OF RECORD:
Catherine Bruce and Associates FOR APPLICANT
Barrister and Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada