Date: 20041115
Ottawa, Ontario, November 15, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
ROKSANA ANTYPOV
DANIEL MALYY
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board) dated April 15, 2004 in which the Board determined that the applicants are not Convention refugees or persons in need of protection.
FACTS
[2] The principal applicant, Roksana Antypov, (the "applicant") is a 28 year-old citizen of Israel. She arrived in Canada on December 2, 2002 with her son, Daniel Malyy, who is now four years old. On December 12, 2002, the applicant and her son applied for refugee status. They claim to have a well-founded fear of persecution on the basis that the applicant was subjected to domestic violence while living in Israel.
The Decision
[3] At the commencement of the hearing, the Board considered a request by the applicant for an adjournment to allow her to obtain counsel. The Board denied the request on the grounds that the applicant had already received three postponements in the proceedings. Accordingly, the hearing proceeded without counsel.
[4] With respect to the applicant's substantive claim, the Board concluded that the applicant was not a Convention refugee for two reasons. First, it found that her testimony was not trustworthy because it contained several implausibilities and inconsistencies. Second, it concluded that even if the applicant's testimony had been credible, it still would have rejected her claim on the basis that state protection was available to women who experience domestic violence in Israel.
ISSUES
1. Did the Board err in refusing to adjourn the hearing to allow the applicant to obtain counsel?
2. Did the Board err in concluding that state protection was available to the applicant?
3. Did the Board err in determining that the applicant was not credible because of implausibilities and inconsistencies in her evidence?
ANALYSIS
Issue No. 1
Did the Board err in refusing to adjourn the hearing so that the applicant could obtain counsel?
[5] Administrative tribunals, such as the Board, have the authority to control their own procedures, and thus, have the discretion to grant or refuse an adjournment. In Siloch v. Canada (Minister of Employment and Immigration) (1993), 151 N.R. 76, the Federal Court of Appeal outlined some of the factors that a tribunal should consider when exercising its discretion. In particular, the tribunal should consider:
i. whether the applicant has done everything in her power to be represented by counsel;
ii. the number of previous adjournments granted;
iii. the length of time for which the adjournment is being sought;
iv. the effect on the immigration system;
v. whether the adjournment would needlessly delay the conduct of the inquiry;
vi. the blame to be placed on the applicant for not being ready;
vii. whether any previous adjournments were granted on a peremptory basis; and
viii. any other relevant factors.
[6] In the present case, the proceedings were postponed on several occasions on account of the applicant. First, the applicant failed to complete her personal information form on time which resulted in an abandonment hearing. On September 10, 2003, the date of her first refugee hearing, the applicant requested, and was granted, an adjournment to accommodate her newly appointed counsel. A peremptory hearing was set for three months later, which the applicant failed to attend. The applicant was then required to attend a show cause hearing. The Board found that cause was established and another hearing was set for April 6, 2004. On the day before her hearing, the applicant sent a letter to the Board requesting another postponement to obtain counsel. She stated that because she was not able to obtain legal aid, the lawyer she had retained no longer wanted to represent her and that she needed time to look for a new lawyer.
[7] The Board concluded that because the applicant had already delayed the proceedings on numerous occasions, because she had been advised well in advance that the hearing on April 6, 2004 would proceed regardless of whether she had counsel, and because of the need to proceed with refugee hearings in an expeditious fashion, it would not grant a further adjournment. In my view, the Board properly considered the factors set out in Siloch, supra, and did not err in the exercise of its discretion. The applicant had demonstrated a pattern of delaying the proceedings, she had already been granted an adjournment on a peremptory basis and she had been given ample time to find counsel.
Issue No. 2
Did the Board err in concluding that state protection was available to the applicant?
[8] As noted recently by Justice O'Keefe in Balasingam v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1763, the jurisprudence is divided as to whether an assessment of state protection should be reviewed on a patently unreasonable or reasonableness simpliciter standard. However, because I have concluded that the Board's decision in the present case was reasonable on the issue of state protection, there is no need to determine which standard applies.
[9] It is well-established that a state is presumed to be capable of protecting its citizens absent a complete breakdown in its apparatus. In order to rebut the presumption of state protection, a refugee claimant must provide clear and convincing evidence that the state is unable to protect her. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. As discussed by the Federal Court of Appeal in Canada (MCI) v. Villafranca (1992), 15 N.R. 232,
The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid ... or that the government itself is in some way prevented from giving it.
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation.
[10] The applicant argues that the Board erred in concluding that there was state protection because she had contacted the police on two occasions and they were unwilling to help her. This, in her view, was sufficient to rebut the presumption of state protection. The applicant also argues that the Board erred because it held that "the refusal of one officer to act appropriately does not make the state incapable of providing protection." On this latter point, I am satisfied based on a reading of the reasons that the Board did not fail to appreciate that the applicant had contacted the police twice, but rather that it was referring to the more egregious incident in which the officer accused her of blackmail.
[11] With respect to the applicant's first argument, I am equally satisfied that the Board did not err when it concluded that the applicant had not rebutted the presumption of state protection. The Court has held on numerous occasions that a claimant's burden of proof is directly proportional to the level of democracy in the state in question. As discussed in by the Court of Appeal in Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532,
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.
[...]
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.
[12] The documentary evidence before the Board illustrated that Israel considers domestic abuse a serious issue and that it has undertaken initiatives to assist victims of abuse. In particular, the Board noted that legislation had been enacted recently to mandate minimum sentencing for abusive men, that additional funds had been allocated to implement a domestic abuse prevention plan, that domestic abuse had been identified as a priority by the Israel's Chief of Police, that police and social service workers have received special training relating to family violence and that there are numerous emergency hotlines and domestic violence prevention and treatment centres in Israel. In my view, given the documentary evidence before the Board and given that Israel is a democratic state, it was reasonable for the Board to conclude that the applicant had not rebutted the presumption of state protection. The failure of the police to assist her on two occasions did not mean that the state, as a whole, was unable or unwilling to assist her.
[13] As the Board's decision with respect to state protection is reasonable on the evidence, the Court will dismiss the application without addressing the issue of credibility.
[14] Neither party proposed a question for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4251-04
STYLE OF CAUSE: ROKSANA ANTYPOV ET AL v. MCI
DATE OF HEARING: Wednesday, November 10, 2004
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: Monday, November 15, 2004
APPEARANCES BY: Mr. David Yerzy
For the Applicant
Ms. Alison Engel
For the Respondent
SOLICITORS OF RECORD:
David Yerzy
14 Prince Arthur Ave
Suite # 108
Toronto, Ontario
M5R 1A9
For the Applicant
DEPARTMENT OF JUSTICE
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent
FEDERAL COURT
Date: 20041115
Docket: IMM-4251-04
BETWEEN:
ROKSANA ANTYPOV
DANIEL MALYY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER