Date: 19980814
Docket: IMM-2419-97
OTTAWA, ONTARIO, THE 14th DAY OF AUGUST 1998.
Present: JOYAL J.
Between:
NICKOLAI CHUDINOV
BOGDAN CHUDINOV
ELENA CHUDINOV
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review in the instant case is dismissed.
L-Marcel Joyal
JUDGE
Certified true translation
M. Iveson
Date: 19980814
Docket: IMM-2419-97
Between:
NICKOLAI CHUDINOV
BOGDAN CHUDINOV
ELENA CHUDINOV
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JOYAL J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (hereafter the panel) dated April 23, 1997. In that decision, the panel decided that the applicants are not refugees within the meaning of subsection 2(1) of the Immigration Act.
Facts
[2] The applicants " father, mother and son " are of Ukrainian origin. The father identifies himself as Jewish; however, the whole family is of the Christian faith. While the family lived in the Ukraine, the father campaigned for the reopening of the mosques, synagogues and churches in the city of Krim. Because of his Jewish origins, the father was ostracized by his fellow Ukrainians and the family accordingly decided to leave the Ukraine for Israel in December 1991.
[3] On their arrival in Israel, the applicants moved in near a family from Evpatoria, the region they came from. That family denounced the applicants to the rabbinate, alleging that the father had got the mosques opened and that he supported the Muslim culture when he lived in the Ukraine. Within one week the family was ostracized again and it was suggested that they move to a Muslim area.
[4] Alarmed, the applicants asked for police protection. The police admitted they could do nothing as no death threats had been made against the applicants. The applicants then decided to move to another city.
[5] In February 1992, the father received his identification card with the entry "unknown" for nationality. Because his parents were Jewish, he complained to the Ministry of the Interior, where he was told that a Jew who helps Muslims is not a Jew in Israel.
[6] In November 1992, the son was beaten by fellow students who discovered that he was not Jewish. As a result of that incident, he received first aid and remained at home for one week. The school authorities then convinced the applicants not to complain to the police by promising that this type of incident would not happen again.
[7] In July 1993, the son was beaten by unknown assailants who threatened him with death if he did not leave the country immediately. With their medical certificate in hand, the applicants complained to the police. They also reported that they were being openly threatened with reprisals by graffiti left on their door.
[8] In August 1993, the mother entered a Russian Orthodox cloister for confession during a guided tour. When she came out, she discovered that the guide had told the whole group that she never should have settled in Israel. The next day, the mother was fired. The applicants allege that after this event, they became the target of relentless harassment by religious fanatics. The police promised them protection, but the applicants say that nothing was done in this regard.
[9] In August 1994, the father was dismissed without notice, and when he asked why, he was told that there were doubts about the authenticity of his Jewish origins. The applicants then applied for immigration at the Canadian Embassy, but their application was denied following an interview in November 1995.
[10] The threats intensified and the applicants left Israel for Canada on January 20, 1996. They arrived the same day and claimed refugee status.
Decision of the Panel
[11] Despite the presumption that the testimony of the applicants is truthful, the panel considered that the facts related at the hearing seemed implausible. It maintained that the reasons given for denying the father status as a Jew seemed irrational and that his allegations concerning the loss of his employment at best constituted discrimination. Lastly, the panel considered that the police responded adequately to the applicants" complaints and that the police have an obligation of means and not of result.
Submissions of the Parties
(a) The Applicants
[12] The applicants allege that the panel erred when it stated that it was not rational that the applicants would be criticized for returning Muslim sites to Muslims when it was apparently accepted that the synagogues would be returned to Jews and the churches returned to Christians. According to the applicants, the panel"s conclusion is patently arbitrary, groundless, and as irrational as the one attributed to the Israeli authorities.
[13] The applicants further allege that it was obviously unreasonable for the panel to recognize that discrimination in employment exists in Israel, but find that the applicants were not credible when they complained about this discrimination. Because the panel did not cite any other evidence to justify its finding of non-credibility, the applicants consider that this finding is groundless.
[14] On the issue of the protection of the state, the applicants allege that the panel erred when it excluded the rabbinate as a source of persecution within the Israeli government. The applicants allege that when the fear of persecution comes from the state itself, or from a part of the state, a refugee claimant is not required to approach the state in order to prove that he or she cannot obtain protection. Lastly, the applicants submit that in the case at bar, state protection cannot be conclusive without being examined in more depth by the panel.
(b) The Respondent
[15] The respondent argues that the panel, as judge of the first instance, is in the best position to evaluate to credibility of the witnesses, and that intervention by a court of judicial review is limited to cases in which a palpable and overriding error has been committed. The Federal Court of Appeal has in fact said that in evaluating the credibility of an applicant, the panel may base its assessment of the plausibility of an account on criteria such as rationality and common sense, and that it may prefer the documentary evidence to the evidence presented by the applicant.
[16] The respondent submits that the panel may conclude, based on the evidence presented, that the difficulties encountered by a claimant do not constitute persecution, or that discriminatory acts are serious enough to constitute persecution within the meaning of the Convention. The Court will not intervene in such a decision unless it considers the findings of fact by the panel to be unreasonable.
[17] Since Ward v. Canada (A.G.), [1993] 2 S.C.R. 689, the Court has recognized that it should be assumed that the state is capable of protecting its citizens. An applicant must provide
clear and convincing proof that he or she could not obtain the protection of the state at the time of the hearing. According to the respondent, the applicant in the instant case was unable to prove that the Israeli police could do nothing against the religious forces in the country. In support of that conclusion, reference was made to the fact that each time the applicant complained, the police responded to the complaint. The respondent also argued that Israel is a democratic country, with political and legal institutions capable of protecting its citizens. Lastly, the respondent pointed out that the police have an obligation of means and not of result; a claimant cannot expect flawless protection from the state.
Analysis
[18] In Rajudeen v. M.E.I. (1984), 55 N.R. 129 (F.C.A.), Mr. Justice Heald expressed the test which an applicant must meet in order to establish a fear of persecution as follows, at page 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
[19] The subjective component of the fear of persecution rests solely on the credibility of the applicant. In the case at bar, however, the panel questioned the credibility of the applicants in clear and precise terms. It was therefore open to the panel to conclude that the applicants had not established a subjective fear of persecution.
[20] I would also add a corollary as stated by Heald J. Despite the strong subjective fear of a claimant, that fear must nevertheless be based on more objective facts. In my humble opinion, it is from this perspective, which calls for a black and white distinction on the one hand and common sense on the other, that a tribunal must evaluate objective fear.
[21] Granting Convention refugee status is an alternative form of protection which becomes necessary when the claimant"s home state cannot or will not protect him or her. However, as long as the state continues to exist, it is presumed to be capable of protecting its citizens. To rebut this presumption, the applicant must prove that the state is unable to protect him or her, either by an admission on the part of the authorities of the state involved, by evidence of prior personal incidents when the state did not protect the applicant, or by evidence that the protective measures taken by the state were not effective in protecting persons in similar situations.
[22] Based on the decision in Ward, supra, the Court of Appeal stated in M.C.I. v. Kadenko, October 15, 1996, A-388-95, that the applicant"s burden of proof is directly proportional to the degree of democracy in the state at issue. The higher the level of democracy in a given state, the more the claimant must have done to exhaust all the courses of action available to him or her before seeking the protection of another state.
[23] In the case at bar, the panel concluded that the police had an obligation of means and not of result. This is a proper reading of the case law of the Court. In my humble opinion, the applicants had many other resources to exhaust before seeking the protection of another country.
Conclusion
[24] I do not deny in the slightest the relevance of certain arguments, which were ably made by counsel for the applicants, concerning certain errors of fact or of law in the instant decision. In this regard, I took the liberty of reading the transcript of the hearing before the panel, which enabled me to better interpret the panel"s reasons and to shed light on some of the more ambiguous observations. By doing this kind of examination, the Court can better interpret the text of the panel"s reasons for decision and determine more accurately whether there is anything to warrant its intervention.
[25] While I recognize the discriminatory acts committed by some of the applicants" fellow citizens, I must conclude that these were a few incidents accumulated over a period of more than four years. In deciding that the applicants had not established that their fear of persecution was well-founded, the panel made their decision in accordance with the evidence submitted, and it could not be argued that the decision as a whole was unreasonable.
[26] The application for judicial review must accordingly be dismissed.
L-Marcel Joyal
Judge
O T T A W A, Ontario
August 14, 1998.
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2419-97
STYLE OF CAUSE: NICKOLAI CHUDINOV, BOGDAN CHUDINOV,
ELENA CHUDINOV v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: JUNE 30, 1998
REASONS FOR ORDER OF JOYAL J.
DATED AUGUST 14, 1998
APPEARANCES:
DENIS BRUNET FOR THE APPLICANTS
CAROLINE DOYON FOR THE RESPONDENT
SOLICITORS OF RECORD:
DENIS BRUNET FOR THE APPLICANTS
MONTRÉAL
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA