Date: 19980610
Docket: IMM-2540-97
Ottawa, Ontario, the 10th day of June 1998
Present: The Honourable Mr. Justice Pinard
Between:
Vladimir MAMONTOV
Ilan MAMONTOV
Aleksander BEKKER
Irina BEKKER
Zinaida BEKKER
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of the Refugee Division dated May 13, 1997, determining that the applicants are not Convention refugees, is dismissed.
Yvon Pinard
JUDGE
Certified true translation
M. Iveson
Date: 19980610
Docket: IMM-2540-97
Between:
Vladimir MAMONTOV
Ilan MAMONTOV
Aleksander BEKKER
Irina BEKKER
Zinaida BEKKER
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Division dated May 13, 1997, determining that the applicants, Vladimir Mamontov, his wife Irina Bekker, her mother Zinaida Bekker, and their sons Aleksander Bekker and Ilan Mamontov, are not Convention refugees.
[2] Preferring the documentary evidence to the testimony of the applicants, the panel determined that the applicants had not established a reasonable chance of persecution within the meaning of Adjei v. Canada (M.E.I.), [1989] 2 F.C. 680 (F.C.A.) if they returned to Israel, because Israel is [TRANSLATION] "a democratic country in which the political and judicial institutions are capable of protecting its citizens".
[3] It is worth quoting the following passage from the panel"s decision:
| [TRANSLATION] The claimants allege they were mistreated and harassed by their neighbours. Because they did not have their newborn son circumcised within 8 days of his birth, everyone found out they were not Jewish and told them that Israel was not for Russians. Since 1989, almost one million immigrants from the former Soviet Union have settled in Israel, and now make up 20% of the population. Of this number, almost one third are not Jewish. The problems they face are the same as those the Jews must face and there is no difference [citation omitted]. |
| The claimants related complaints which the police accepted regarding stains on their door or injuries to their son while the clinic refused to confirm that the incident constituted assault. |
| These incidents do not undermine the presumption which emerges from the documentary evidence supplied by the Association for Civil Rights or the following principle expressed by the Federal Court of Appeal in Kadenko [citation omitted]: "Once it is assumed that the state (Israel in this case) has political and judicial institutions capable of protecting its citizens, it is clear that the refusal of certain police officers to take action cannot in itself make the state incapable of doing so." The credible documentation filed at the hearing indicates that Israel is a democratic country in which the political and judicial institutions are capable of protecting its citizens [citation omitted]. |
[4] Since the decision of the Federal Court of Appeal in Zhou v. M.E.I. (July 18, 1994), A-492-91, it is settled law that it is ordinarily open to the Refugee Division to place greater weight on the documentary evidence submitted by the refugee hearing officer than on an applicant"s testimony. In that decision, Mr. Justice Linden wrote the following:
| We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. The other matters raised are also without merit. The appeal will be dismissed.1 |
[5] It has also been settled since Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, that in order to satisfy the definition of "Convention refugee", refugee claimants must advance clear and convincing proof that the state of which they are nationals is unable to protect them. In that decision, Mr. Justice La Forest wrote the following at page 726:
| 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. . . . |
[6] Then, in M.C.I. v. Kadenko et al. (October 15, 1996), A-388-95,2 which also related specifically to the state of Israel, Mr. Justice Décary stated the following for the Federal Court of Appeal, at page 2:
| 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.2 |
| 2 See Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171, at p. 176 (F.C.A.), approved by Canada (Attorney Genera) v. Ward, [1993] 2 S.C.R. 689, at p. 725. |
[7] In the case at bar, after relating in detail the information and the testimony provided by the applicants, the panel stated that it had considered all the evidence before concluding essentially that the applicants had not succeeded in rebutting the presumption that Israel was incapable [sic] of protecting them. After reviewing all the evidence, I am of the view that it was reasonable for the panel to conclude as it did on this point.
[8] Moreover, even though in my view the panel went too far in stating that non-Jews face the same problems as Jews, I do not consider this error serious enough under the circumstances to warrant the intervention of this Court, because the panel decided in any event that the applicants would be afforded the protection of the state of Israel.
[9] The application for judicial review is accordingly dismissed without certification pursuant to subsection 83(1) of the Immigration Act.
Yvon Pinard
JUDGE
OTTAWA, ONTARIO
June 10, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2540-97
STYLE OF CAUSE: Vladimir MAMONTOV et al. v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 3, 1998
REASONS FOR ORDER BY Pinard J.
DATED: June 10, 1998
APPEARANCES:
Eveline Fiset FOR THE APPLICANTS
Lisa Maziade FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE APPLICANTS
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 See also Victorov v. M.C.I. (June 14 , 1995), IMM-5170-94 and Leonid Viacheslavov et al. v. Canada (M.C.I.) (November 29, 1996), IMM-48-96.
2 Application for leave to appeal to the Supreme Court of Canada, No. 25689, dismissed on May 8, 1997.