Date: 20061020
Docket: IMM-4817-05
Citation: 2006 FC 1256
Ottawa, Ontario, this 20th day of October, 2006
PRESENT: The Honourable Mr. James Russell
BETWEEN:
CHARLE HITTI, MUNA HITTI,
RANA HITTI AND ELIAS HITTI
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
INTRODUCTION
[1] Charle Hitti, his wife Muna Hitti, and their two minor children, Rana and Elias Hitti, are citizens of Israel and are Arab Christian Catholics. The family arrived in Canada in 2004 and made a claim for refugee status on the basis of ethnicity and religion. On July 4, 2005, the Refugee Protection Division of the Immigration and Refugee Board (Board) determined that the Applicants are neither Convention refugees nor persons in need of protection (Decision).
[2] In this application for judicial review, made pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, the Applicants challenge the Decision. They seek an order from the Court quashing the Decision and remitting their refugee claim back to a differently constituted panel of the Board for re-determination.
THE APPLICANTS’ REFUGEE CLAIM
[3] In their Personal Information Form (PIF), the Applicants state that they are making a refugee claim in Canada because of the constant harassment and danger that the family faces in Israel on a daily basis. In particular, they claim refugee protection from Muslims in Nazareth who are endangering their lives. The Applicants lived in an area in which 80 percent of the residents are Muslim. They claim that Christians in the neighbourhood are harassed by their Muslim neighbours.
[4] The Applicants say the problems in their neighbourhood started in the autumn of 1998 when a dispute erupted between Muslims and Christians over a property in downtown Nazareth. A Christian church and school had been built on the property, but the Muslims claimed that the property was holy. The Applicants say that tensions flared after Muslims tore down the school and erected a tent on the property. Muslim groups started interfering with Christian prayers, threw stones at Christians leaving their churches, burnt down Christian stores, and harassed many Christian females.
[5] In respect to their personal lives, the Applicants claim that, beginning in 2000, the whole family was constantly in danger. They claim that they were spit on when they left their house and that the tires on their car were flattened two to three times a week. They say they were unable to go to church on Sundays or special holidays because of the fear of being attacked. They claim that, in 2000, Muna Hitti began receiving threats: Muslims would telephone her or come to the door of her home threatening to attack her sexually. As a result, Muna Hitti was afraid to leave the house. The Applicants also say that Rana Hitti, who was then 10, witnessed the murder of a Muslim woman by her Muslim husband in their neighbourhood. After that, Rana refused to sleep in her own bedroom or walk or play in the neighbourhood.
[6] The Applicants say the situation became unbearable and, in March 2004, they were forced to sell their apartment at a loss and leave the neighbourhood. Despite moving to a different neighbourhood, the Applicants allege that the harassment of Muna Hitti did not stop.
[7] The Applicants say they could not go to the police because it would only put them in further danger. Moreover, they say most of the police in their neighbourhood are Muslim and are unable to prevent violent incidents such as shootings and killings. With respect to moving to another part of Israel, the Applicants say they did not have enough money to rent another apartment and, moreover, there are no cities that would be safe for them and which have Christian schools and churches.
[8] The Applicants’ claim was heard over three days: October 20, 2004, December 20, 2004 and March 14, 2005. Charle Hitti and Muna Hitti testified at the hearing into the merits of their claim. Neither of the minor applicants, Rana and Elias Hitti, testified. Written submissions were provided to the Board by the Refugee Protection Officer (RPO) and counsel for the Applicants following the final hearing.
PRELIMINARY MOTION
[9] At the beginning of the hearing into the Applicants’ refugee protection claim held on October 20, 2004, counsel for the Applicants made a motion asking the Board to reverse the order of questioning prescribed in the Immigration and Refugee Board Chairperson’s Guideline 7. Under Guideline 7, in cases where the Minister of Public Safety and Emergency Preparedness (Minister) does not intervene, the RPO questions the refugee claimant first, followed by the member sitting as the Board. Counsel representing the claimant then has an opportunity to question the claimant.
[10] In written submissions and oral arguments, counsel for the Applicants in the present case took the position that Guideline 7 violates the Applicants’ right to natural justice and procedural fairness. In particular, because the burden of proof is on the Applicants to establish that they are in need of refugee protection, counsel argued that natural justice requires that the Applicants be allowed to present their case as they see fit. They say that having counsel for the Applicants question after the RPO and the Board member creates problems with regards to the presentation of evidence and may create insurmountable and unfair difficulties in case presentation.
[11] The Board issued written reasons denying the Applicants’ motion on November 30, 2004. Stating that it had considered counsel’s arguments and the unique complexities presented by the refugee determination proceedings, the Board found that the order of questioning as set out in Guideline 7 does not infringe the principles of natural justice and procedural fairness. The Board also dismissed the Applicants’ motion that a different panel of the Board be appointed to hear the Applicants’ refugee claim because having the same panel member hear the merits of the claim creates a reasonable apprehension of bias. The Board held that no evidence of actual or reasonable apprehension of bias was presented and, moreover, that the Board’s decision on the order of questioning did not touch on the merits of the Applicants’ refugee claim.
[12] The Applicants subsequently filed for leave to judicially review the Board’s decision on the preliminary motion. On February 16, 2005, the Court dismissed the application without prejudice to the Applicants’ right to raise arguments of procedural fairness in the context of a judicial review of the Board’s Decision on the merits of the Applicants’ refugee claim should the Board’s final decision be unfavourable to the Applicants.
DECISION ON THE MERITS
[13] In its Decision, the Board determined that the Applicants were neither Convention refugees nor persons in need of protection. The Board concluded, considering the totality of the evidence and the relevant law, that there is no serious possibility that the Applicants would experience persecution without access to adequate state protection should they return to Israel. Hence, the Board dismissed their claim for refugee protection under section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). With respect to refugee protection under section 97 of the Act, the Board concluded that the existence of adequate state protection was determinative and, moreover, that the Applicants had not established that they would be personally in danger or at risk. The Board acknowledged, however, that there was a generalized risk to persons living in Israel at this difficult time.
[14] The Board questioned why the Applicants did not move from their neighbourhood until 2004 if they had feared for their lives since 2000. The Board found inadequate the Applicants’ explanation that they did not move sooner because they did not have enough money to do so. The Board noted that the principal claimant, Charle Hitti, vacationed with his family every year, had money to buy plane tickets to Canada for the whole family, and had $5,000 to settle in Canada.
[15] The Board also found it implausible that, after they moved, the Applicants continued to be threatened by the Muslims from their former neighbourhood who had wanted them to leave. Moreover, the Board found that neither the harm the family experienced when they lived with Charle Hitti’s mother, namely overcrowding, nor the trauma experienced by Rana Hitti on witnessing the murder of a Muslim woman by her husband, were related to the Applicants’ ethnicity or religion.
[16] In its reasons, the Board noted that there are persons similarly situated to the Applicants who remain in Israel, including Charle Hitti’s brother and mother. The Board reviewed the supporting documentary evidence and found that it did not assist the Applicants in establishing a subjective fear of persecution in Israel on the basis of their ethnicity and religion. Regarding the letter by Father Yusuf Essa, of the Maronite Church in Nazareth, the Board noted that Father Essa made no reference to any personal targeting of the family which led to their flight to Canada. Moreover, Father Essa stated that the principal applicant “decided to immigrate to Canada, in order to provide a better future for his kids.”
[17] The Board also found that an article provided by the Applicants after the hearings was not relevant to the Applicants’ case. That article spoke of an incident between Druze and Christians in Maghar. The Board noted that the country documentation makes a distinction between Druze and Muslims. Finally, with respect to a news article reporting that a robber stole a gold cross from a Coptic Church in Nazareth, the Board stated that there was no information in the article indicating any anti-Christian motive behind the theft.
[18] Regarding the existence of an internal flight alternative (IFA), the Board canvassed with the principal applicant the possibility of the family moving to Haifa. The Board noted that Charle Hitti had worked on the outskirts of Haifa for 18 years and had not experienced any problems. Mr. Hitti testified that his children could not obtain a proper Christian education in Haifa. The Board acknowledged that Human Rights Watch found state discrimination in Israel in relation to education and funding for education which disproportionately favours Jews. Nevertheless, the Board held that education for Arabs is available and that a lesser quality of education is not considered a restriction of a fundamental human right.
[19] Although the Board acknowledged that Arab Christians in Israel experience discrimination, the Board held that, even cumulatively, the ill treatment experienced by Christian Arabs generally, or the Applicants specifically, did not amount to persecution. The Board stated that there is no question that Arabs are not treated equally in terms of land ownership, access to services, and access to employment in higher levels of government. However, the Board also noted that while there is a higher unemployment rate for Arab Israelis, this does not mean Arab Israelis cannot get employment. Moreover, the Board found there is clear documentary evidence that serious efforts are being made by the Israeli government to protect its citizens, both Israeli and Arab.
[20] The Board also addressed the issue of delay in leaving Israel and the principal applicant’s failure to claim refugee protection in the United States when he went there in 2003. The Board held that, while not determinative on their own, the delay in leaving and the failure to claim refugee protection at the earliest opportunity were evidence of behaviour that does not support a genuine fear of persecution.
[21] Notwithstanding the above findings, the Board went on to address the issue of state protection. The Board found that the Applicants had not provided clear and convincing evidence that there is no adequate state protection for them or other Arabs in Israel. In its reasons, the Board noted that the Applicants had not given the police an opportunity to provide protection and to investigate the alleged incidents of harassment and assault. Specifically, the Board noted that, while the Applicants had asked a municipal social worker for assistance, they had not asked the police for help. Moreover, the Board held that it was reasonable to expect the Applicants to produce some supporting documentation of the social worker’s efforts or inability to assist them. Finally, regarding the Applicants’ evidence that a neighbour had gone to the police twice in 2001 but had received no help, the Board found that there was nothing in the reports indicating the intervention made by the police or the outcome of their investigation.
[22] The Board made the point that because Israel is a democratic country, there is a greater requirement on the Applicants to exhaust all reasonable remedies to obtain protection from the state before seeking international protection. The Board noted, among other things, that Israel has an independent judiciary, and that a wide variety of local and international human rights groups operate in Israel to assist Jewish and non-Jewish citizens, including the Association of Civil Rights and sexual assault centres. In summary, the Board held that the Applicants had not met their onus of rebutting the presumption of adequate state protection.
ISSUES
[23] The Applicants raise two general issues:
1. Does the Board’s order of questioning claimants violate the principles of natural justice and procedural fairness?
2. Did the Board err in concluding that the Applicants are not Convention refugees or persons in need of protection?
PERTINENT LEGISLATION
Order of Questioning
[24] On October 30, 2003, as part of his Action Plan to reduce the backlog of refugee claims before the Board, the Chairperson of the Immigration and Refugee Board issued Guideline 7 which sets out, among other things, the standard order of questioning in hearings before the Board. The specific paragraphs of Guideline 7 relevant to the present case are the following:
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19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case. [...]
23. The member may vary the order of questioning in exceptional circumstances. For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules.
24. The member will limit the questioning by the RPO and counsel for the parties according to the nature and complexity of the issues. Questioning must bring out relevant information that will help the member make an informed decision. Questions that are answered by the claimant just repeating what is written in the PIF do not help the member. |
19. Dans toute demande d'asile, c'est généralement l'APR qui commence à interroger le demandeur d'asile. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet ainsi au demandeur d'asile de connaître rapidement les éléments de preuve qu'il doit présenter au commissaire pour établir le bien-fondé de son cas. [...]
23. Le commissaire peut changer l'ordre des interrogatoires dans des circonstances exceptionnelles. Par exemple, la présence d'un examinateur inconnu peut intimider un demandeur d'asile très perturbé ou un très jeune enfant au point qu'il n'est pas en mesure de comprendre les questions ni d'y répondre convenablement. Dans de telles circonstances, le commissaire peut décider de permettre au conseil du demandeur de commencer l'interrogatoire. La partie qui estime que de telles circonstances exceptionnelles existent doit soumettre une demande en vue de changer l'ordre des interrogatoires avant l'audience. La demande est faite conformément aux Règles de la SPR.
24. Le commissaire limite la portée de l'interrogatoire par l'APR et le conseil des parties selon la nature et la complexité des questions à trancher. L'interrogatoire doit servir à obtenir l'information pertinente qui aidera le commissaire à rendre une décision éclairée. Les questions invitant le demandeur d'asile à simplement réciter l'exposé circonstancié du FRP n'aident pas le commissaire. |
Refugee Protection
[25] The Applicants make their claim for refugee protection under sections 96 and 97 of the Act. Those provisions read as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. |
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. |
STANDARD OF REVIEW
[26] Regarding the first issue, in assessing allegations of denials of natural justice or procedural fairness, the Court is required to examine the specific circumstances of the case and determine whether the tribunal in question adhered to the rules of natural justice and procedural fairness. Thus, it is unnecessary for the Court to determine a particular standard of review: Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29. If the Court concludes that there has been a breach of natural justice or procedural fairness, no deference is due and the Court will set aside the Decision of the Board.
[27] Regarding the second issue, the essential finding of the Board being challenged in this application is that the experiences of the Applicants constitute discrimination but not persecution. In Canada (Minister of Citizenship and Immigration) v. Hamdan, 2006 FC 290 at paragraph 17, Justice Johanne Gauthier held that whether or not specific acts of discrimination amount to persecution are questions of mixed fact and law, so that the standard of reasonableness simpliciter applies. In support of her determination, Justice Gauthier cites the following cases: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A); Al-Mahamud v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm. L.R. (3d) 315, 2003 FCT 521; Tolu v. Canada (Minister of Citizenship and Immigration) (2002), 218 F.T.R. 205, 2002 FCT 334; and Bela v. Canada (Minister of Citizenship and Immigration), 2001 FCT 581.
[28] In Sagharichi at paragraph 3, the Federal Court of Appeal had this to say about reviewing a Board’s finding that discrimination does not amount to persecution:
It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.
[29] Drawing from the above jurisprudence, I am of the view that the appropriate standard for reviewing the Board’s decision that the Applicants were not persecuted is reasonableness.
[30] With respect to the Board’s findings that an IFA exists for the Applicants, such a determination is a finding of fact. In general, the Court must show significant deference to findings of fact made by the Board and only intervene where the decision is patently unreasonable: (see Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.) (QL)).
[31] In a recent decision, Ako v. Canada (Minister of Citizenship and Immigration), 2006 FC 647, Justice Yves de Montigny confirmed that the appropriate standard for reviewing the Board’s decision in respect of an IFA is patent unreasonableness. At paragraphs 20 and 21 of Ako, Justice de Montigny stated the following:
It is trite law that questions of fact falling within a tribunal’s area of expertise are generally reviewed against a standard of patent unreasonableness. More particularly, this Court has consistently found that this is the proper standard to apply with respect to the existence of a viable internal flight alternative: see, e.g., Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741; Kumar v. Canada (Minister of Citizenship and Immigration), 2004 FC 601, [2004] F.C.J. No. 731, (QL); Camargo v. Canada (Minister of Citizenship and Immigration) 2006 FC 472, [2006] F.C.J. No. 601, (QL); Shimokawa v. Canada (Minister of Citizenship and Immigration, 2006 FC 445, [2006] F.C.J. No. 555, (QL); Bhandal v. Canada (Minister of Citizenship and Immigration), 2006 FC 426, [2006] F.C.J. No. 527 (QL).
In considering all the relevant factors required under the pragmatic and functional analysis as explained by the Supreme Court of Canada (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20,; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63), it is my opinion that in this case, as well, the appropriate standard of review is patent unreasonableness. As a result, the decision of the Board should be accorded a high level of deference. Unless the decision is clearly irrational and cannot be supported by any line of analysis, it must therefore stand.
[32] In the circumstances of this case and in considering all of the relevant factors under the pragmatic and functional analysis, I see no reason to depart from the analysis and conclusion of Justice de Montigny. Consequently, I will adopt a standard of patent unreasonableness in reviewing the Board’s decision with respect to its IFA finding.
[33] With regards to adequate state protection, Justice Danielle Tremblay-Lamer conducted a pragmatic and functional analysis in Chaves v. Canada (Minister of Citizenship and Immigration) (2005), 45 Imm. L.R. (3d) 58, 2005 FC 193, and determined that the appropriate standard of review is reasonableness. This standard has also been applied in several recent decisions of the Court (see for example, Resulaj v. Canada (Minister of Citizenship and Immigration), 2006 FC 269; Robinson v. Canada (Minister of Citizenship and Immigration), 2006 FC 402; Larenas v. Canada (Minister of Citizenship and Immigration), 2006 FC 159; and Codogan v. Canada (Minister of Citizenship and Immigration), 2006 FC 739). In my view, after taking into account all of the relevant factors under the pragmatic and functional analysis, reasonableness is the appropriate standard for reviewing the Board’s state protection finding in this case.
ARGUMENTS
The Applicants
1. Order of questioning
[34] The Applicants argue that the Board erred in concluding that the order of questioning prescribed by Guideline 7 does not violate the principles of natural justice and procedural fairness. Specifically, the Applicants contend that not allowing counsel to conduct an “examination-in-chief” jeopardizes their ability to present their case fully and fairly.
[35] In coming to this conclusion, the Applicants make arguments in relation to the five factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 243 N.R. 22, for determining the content of procedural fairness in an administrative law context. In relation to each of the Baker factors, the Applicants submit the following:
1) The refugee determination process is quasi-judicial in nature; moreover, the Board is not a “board of inquiry” as the language of Guideline 7 implies;
2) There is no right to appeal a refugee determination decision of the Board, only a right of judicial review;
3) The interests at stake in refugee determination proceedings pertain to life, liberty and security of the person;
4) Given the wording of paragraph 170(e) of the Act – which provides that claimants are to be given a reasonable opportunity to present evidence, question witnesses and make representations – claimants have a legitimate expectation of an “examination-in-chief.” This legitimate expectation is heightened in the present case because the “right” to an “examination-in-chief” existed at the time the Applicants made their claim for refugee protection;
5) While the Board has the statutory right to set its own procedures, this right must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees.
[36] The Applicants highlight other factors which they submit point to the importance of providing refugee claimants with the right to an “examination-in-chief”, including the following:
1. Refugee protection hearings are highly adversarial;
2. The PIF is not an adequate substitute for an “examination-in-chief”, particularly because of the central role of credibility determinations in refugee hearings;
3. Refugee claimants inherently distrust state agents;
4. Traumatization and cultural variances are major issues affecting how refugee claimants are able to present themselves and how they are perceived; and
5. Giving evidence through an interpreter is fraught with the possibility of innocent misunderstanding.
[37] The Applicants argue that the Baker factors mandate that the highest order of procedural protections be applied in refugee determination hearings, and this includes providing claimants with a right to an “examination-in-chief.”
[38] Finally, on this issue, the Applicants submit that in several decisions, the Federal Court has found that “by systematically preventing counsel from leading their case, the Board has breached its duty to the applicants to provide them with a fair hearing and in doing so, has committed a reviewable error.” The cases cited by the Applicants are: Kante v. Canada (Minister of Employment and Immigration), [1994] F.CJ. No. 525 (QL); Ganji v. Canada (Minister of Citizenship and Immigration), (1997), 135 F.T.R. 283 [1997] F.C.J. No. 1120 (QL); Atwal v. Canada (Minister of Citizenship and Immigration), (1998), 157 F.T.R. 258 [1998] F.C.J. No. 1693 (QL); and Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124.
2. Merits
[39] The Applicants argue that the Board came to a patently unreasonably conclusion that the Applicants would not be subject to persecution in the form of cumulative discrimination and harassment if they returned to Israel. They submit that the Federal Court of Appeal has recognized that cumulative acts of discrimination may amount to persecution (Retnem v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 53, (1991), 13 Imm. L.R. (2d) 317; Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49 (QL); Oyarzo v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779; and Surujpal v. Canada (Minister of Employment and Immigration) (1985), 60 N.R. 73).
Personal Harassment
[40] The Applicants claim there was unrefuted evidence before the Board of the personal harassment they faced. They maintained in their submissions before the Board that they did not flee Israel prior to May 2004 because of their hope that the situation would improve and preclude the necessity to seek refuge. They submitted that this hope persisted until the situation worsened following the elections in November 2003. They also stated that they did not seek refugee in the United States because they were still hoping the situation would be resolved at that time. As evidence of this, they pointed out that they sought protection form Israel following Mr. Hitti’s visit to the United States.
IFA and State Protection
[41] The Applicants made several submissions regarding the unavailability of an IFA in their Personal Information Form (PIF) and in their submissions before the Board. In their PIF, the Applicants submitted that they could not go and live in another city in Israel because they did not have enough money to rent an apartment. They also submitted that there were bombings in other areas of Israel, and that there was no city in which they would be safe that also had Christian schools and churches.
[42] In the Applicants’ submissions before the Board, they expanded on their arguments, maintaining that the persecution they face does not emanate solely from the Muslim Arabs in Israel, but also stems from the relationship between Muslim Arabs in Israel and Jewish Israelis. The Applicants submitted that they would be subject to harassment, discrimination, and persecution in Jewish Israeli neighbourhoods throughout Israel because Arab Israelis have been persona non grata in Israel for 40 years. On the other hand, as Christian Catholics, the Applicants are also persona non grata amongst the Arabs who are almost all Muslims. The Applicants point out that there is a lack of facilities available for Christian Arabs to raise their children and live as devout Catholics without harassment and persecution. As a result of this combination of factors, the Applicants submit that it is untenable for them to live anywhere in Israel.
[43] The Applicants submit that it is for these same reasons that the Israeli authorities cannot provide them with protection. Furthermore, the Applicants submitted in their PIF that there were so many incidents in the Arab Muslim neighbourhood that the police were unable to deal with them. In the submissions before the Board, the Applicants noted that they sought the assistance of social workers to try and ease the tension between them and their Muslim neighbours. However, they did not seek protection from the police because the experience of others was that, when this was done, the persecution by the Muslims had only intensified.
[44] Finally, the Applicants argue that the subjective and objective evidence accepted by the Board “preclude the finding” of an IFA or of adequate state protection. As a result, the Applicants content that the Board erred in determining that they would not be subject to persecution in Israel.
The Respondent
1. Order of questioning
[45] The Respondent submits that, under the refugee determination process as prescribed in the Act, it is open to the Board to control its own hearing process. Further, the Respondent argues that the Applicants have not proffered any evidence to support a conclusion that the order of questioning under Guideline 7 prevented them from fully presenting the basis of their claim to the Board. The Respondent contends that the whole process leading up to the hearing affords claimants reasonable and ample opportunity to gather all information in support of their claim. Finally, the Respondent states that the jurisprudence of the Court indicates that there is nothing constitutionally deficient about “reverse order questioning” per se: (Liang v. Canada (Minister of Citizenship and Immigration), 2005 FC 622; Sy v. Canada (Minister of Citizenship and Immigration), 2005 FC 379; and Cortez Silva v. Canada (Minister of Citizenship and Immigration), 2005 FC 738.)
[46] As regards the present case, the Respondent submits that the Applicants had the opportunity to fully present the facts that would support their refugee claim. The failure to convince the Board of the merits of their claim had nothing to do with the order in which they were questioned.
2. Merits
[47] The Respondent argues that it was open to the Board to conclude that the problems faced by the Applicants are attributable to discrimination and not persecution. The Respondent submits that the Court should not interfere with the determination by the Board that the discriminatory practices which non-Jewish citizens of Israel face does not rise to the level of persecution deserving of protection in Canada, and that the problems in finding employment or in accessing Christian education are all attributable to discrimination and not persecution.
[48] The Respondent further submits that the Board’s findings that delay in leaving Israel pointed to a lack of subjective fear of persecution were reasonable. The Respondent maintains that there should be no interference with the decision of the Board whereby it held that the Applicants’ failure to make a refugee claim in the United States in 2003 was unreasonable. The fact that Mr. Hitti managed to bring his entire family to Canada a year later did not accord with his explanation that there were insufficient funds to do so in 2003.
ANALYSIS
1. Does the Board’s order of questioning claimants violate the principles of natural justice and procedural fairness?
[49] Subsequent to the parties filing their respective Memoranda of Fact and Law for this application, the Court, in two cases, considered in depth the question of whether Guideline 7 violates principles of natural justice and procedural fairness: Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 168, 2006 FC 16, and Benitez v. Canada (Minister of Citizenship and Immigration), (2006), 40 Admin. L.R. (4th) 159, 2006 FC 461. Reasons in Thamotharem and Benitez were issued, respectively, in February and April of this year.
[50] Although in the present case, the Court provided the parties with an opportunity to submit further arguments up until late May, neither party did so. As such, there is no reference to either of the above cases in the written submissions of the parties. Consequently, on July 12, 2006, I issued a direction to the parties instructing them to be prepared to discuss Thamotharem and Benitez at the hearing into this application for judicial review. Both counsel came prepared to do this and a full discussion ensued.
[51] Both Justice Edmond Blanchard in Thamotharem and Justice Richard Mosley in Benitez addressed the following issues in their judgments:
1. Do the principles of natural justice and procedural fairness require that refugee claimants be afforded the opportunity to conduct an “examination-in-chief?”
2. Does Guideline 7 fetter the discretion of the Board members?
Both Justice Blanchard and Justice Mosley agreed that the order of questioning in Guideline 7 did not breach natural justice or procedural fairness. However, Justice Blanchard found that Guideline 7 fettered the discretion of Board members, while Justice Mosley found that it did not.
ORDER OF QUESTIOING AND PROCEDURAL FAIRNESS
[52] In Thamotharem and in Benitez, Justice Blanchard and Justice Mosley, respectively, held that the principles of natural justice and procedural fairness do not require that refugee claimants be afforded the opportunity to conduct an “examination-in-chief,” unless the particular circumstances of the case so dictate. Moreover, in Benitez, Justice Mosley held that Guideline 7 does not violate section 7 of the Canadian Charter of Rights and Freedoms, and that the applicants in that case had not provided a sufficient factual basis on which he could determine whether refugee claimants are discriminated against through the implementation of Guideline 7 contrary to section 15 of the Charter. The Court in each case received lengthy submissions from the parties (and the intervener in Thamotharem) as well as extensive affidavit evidence on the issue of Guideline 7 and natural justice and procedural fairness.
[53] After considering the arguments of both parties in this case, I have come to the same conclusion reached by the Court in Thamotharem and in Benitez with respect to this first issue. While I am not bound by the decisions of other judges of this Court, judicial comity suggests that I should exercise restraint when dealing with legal issues which my colleagues have previously decided. This is the position taken by Justice Mosley in Benitez in commenting on whether he should follow the decision of Justice Blanchard in Thamotharem. Justice Mosley had this to say at paragraph 35:
With judicial comity in mind, I have concluded that I should differ from the prior decisions of my colleagues only if I am satisfied that the evidence before me requires it or that I am convinced that the decisions were wrongly decided in that they did not consider some binding authority or relevant statute. In that regard, I would note that while the record before me includes the evidence that was before the Court in Thamotharem, it also includes new evidence that was not part of the record in that case.
In my opinion, nothing in the present case persuades me that, on the issue of the “right” to an “examination-in-chief,” Thamotharem and Benitez were wrongly decided. I note that the Applicants provided no new evidence in support of their assertion that natural justice and procedural fairness require that counsel for refugee claimants question first. Moreover, I note that the arguments raised by the Applicants in this present case are similar to those raised in Thamotharem and Benitez.
[54] I will summarize below the findings of the Court in Thamotharem and in Benitez relevant to the Applicants’ submissions.
[55] Regarding the Applicants’ assertion that previous decisions of the Court – namely, Kante, Ganji, Atwal and Veres – support their position of a right to an “examination-in-chief,” I note that in Thamotharem, Justice Blanchard specifically addressed those four cases and found that in none of them did the Court establish that the principles of natural justice and procedural fairness require that refugee claimants be questioned by their counsel first. At paragraphs 46 and 53 of Thamotharem, Justice Blanchard stated the following:
[...] In fact, whether the Board’s choice of the order of questioning accorded with natural justice or procedural fairness was not before the Court in any of the cases. The cases all dealt with specific circumstances in which the Court held that the Refugee Board’s conduct of the hearing was improper or led to an error in the Board’s findings of fact.
[...]
In my opinion, the cases cited by the applicant and the intervener do not lead to the conclusion that a meaningful opportunity to present one’s case includes a right to question first. Rather, they reaffirm that the Board is entitled to control the procedures of a hearing but that the Board must conduct the hearing in a way that does not unfairly restrict the claimant’s right to present her or his case.
[56] Justice Mosley stated at paragraph 78 of Benitez that he saw no reason to depart from the conclusions reached by Justice Blanchard in Thamotharem in respect of these prior decisions of the Court.
[57] With respect to the application of the factors set out in Baker in determining the content of procedural protections required in the refugee determination process, Justice Blanchard in Thamotharem came to the following conclusions at paragraphs 91 and 92:
The Intervener has provided some evidence pointing to the difficulties refugee claimants face and the benefits to them of “counsel-first” questioning. However, in my view, neither the applicant nor the intervener has established that the principles of natural justice or procedural fairness require that refugee claimants be afforded an “examination-in-chief” in order for the refugee determination process before the Board to be fair. The opportunity for the applicant to make written submissions and provide evidence to the Board, to have an oral hearing with the participation of counsel, and to make oral submissions, in my opinion, satisfies the requirements of the participatory rights required by the duty of fairness in this case.
After considering the factors set out in Baker and the further factors submitted by the intervener, I am not persuaded that the principles of natural justice or procedural fairness demand that the applicant’s refugee determination hearing be conducted with a particular order of questioning – that is, with counsel for the applicant questioning first – in order to ensure the applicant has a meaningful opportunity to present his case fully and fairly.
[58] In Benitez at paragraphs 127 and 128, Justice Mosely stated the following in coming to the same conclusion as Justice Blanchard:
I have no difficulty, after considering the Baker factors and the further factors submitted by the applicants, in deciding that it has not been established that natural justice requires that counsel for a refugee claimant be provided with the opportunity to question the claimant first in order for the claimant to have a meaningful opportunity to present his or her case fully and fairly, or that the Guideline results in denial of the effective assistance of counsel.
I agree with the conclusion reached by Justice Blanchard that the opportunity for the applicant to make written submissions and provide evidence to the Board, to have an oral hearing with the participation of counsel, and to make oral submissions, satisfies the requirements of the participatory rights required by the duty of fairness and that Guideline 7 does not, in itself, breach that duty.
[59] I recognize that both Thamotharem and Benitez are currently on appeal to the Federal Court of Appeal, and that among the questions certified in the appeals is the issue of the right of refugee claimants to an “examination-in-chief.” That said, in the circumstances of this case, I find no reason not to adopt the conclusion reached by Justice Blanchard and Justice Mosley that Guideline 7 does not violate the principles of natural justice and procedural fairness. I note further that the Applicants have not pointed to any circumstances particular to them which would justify or require a variance in the order of questioning, allowing counsel for the Applicants to question first. For example, the Applicants do not suggest they have any vulnerabilities which specifically hindered their ability to present their evidence during testimony at the hearing. As well, the Applicants do not point to any conduct by either the RPO or the Board member which might raise concerns about bias or inappropriate behaviour. Moreover, the Applicants do not claim that the Board did not inform them of the case to be met, or that the Board decided their refugee claim on the basis of an issue that was not put to the Applicants. In fact, the transcript of the December 20, 2004 hearing into the merits of the Applicants’ refugee claim indicates that the Board stated at the outset the issues that needed clarification, and that counsel acknowledged the areas of concern for the Board.
[60] It is important to note in the present case that although the Applicants objected to the application of Guideline 7 at the hearing before the Board, their arguments before me are really based upon the inherent unfairness of that Guideline. They bring forward no new evidence to support such inherent unfairness, and there is certainly no allegation or evidence to suggest that the application of Guideline 7 in this case prevented the Applicants from putting their full case before the Board.
[61] The Applicants are asking the Court, in effect, to consider the decisions in Thamotharem and Benitez and to come to different conclusions from both Justice Blanchard and Justice Mosley on the issue of the inherent unfairness of Guideline 7 (i.e. it is inherently unfair because it denies refugee claimants the right to an “examination-in-chief”).
ORDER OF QUESTIONING AND FETTERING DISCRETION
[62] The Applicants are also asking me to follow Justice Blanchard on the issue of “fettering of the Board’s discretion.” However, the Applicants really bring nothing new before me in terms of argument or evidence. They just want me to disagree with Justice Mosley and follow Justice Blanchard.
[63] The basic reason why Justice Mosley came to a different conclusion on the issue of fettering than Justice Blanchard was that he had significantly different evidence before him on whether members were, in practice, acting as though their discretion was fettered by Guideline 7:
There is considerably more evidence before me as to the manner in which Guideline 7 is actually being applied by RPD members than there was before my colleague in Thamotharem. On that evidence in these proceedings, I am not satisfied that the applicants have demonstrated that the discretion of RPD members to determine the procedure to be followed in the refugee proceedings before them has been fettered by the implementation of Guideline 7.
That is not to say that fettering could not be made out in a particular case. As held in Leung v. Ontario (Criminal Injuries Compensation Board) (1995), 24 O.R. (3d) 530, 82 O.A.C. 43, (Ont. Div. Ct.), the application of a policy guideline may amount to an unlawful fettering of a Board’s discretion, if applied without due consideration to the evidence and submissions in a particular case. Such a situation may arise where a member decides to apply the Guideline without exception and ignores the evidence or submissions of counsel that there is reason to vary the procedure.
[64] In the present case, the Applicants place no new evidence before me on the issue of fettering of discretion or that fettering occurred in this particular case. Hence, on the basis of Thamotharem and Benitez, I cannot say that the Applicants have convinced me that Guideline 7 amounts to an inappropriate fettering of a member’s discretion.
[65] Justice Blanchard, in Thamotharem, was troubled by what he saw as the mandatory language of Guideline 7, but he also paid close attention to the evidence that was adduced in that case concerning actual practice as stated in paragraph 135:
In the instant case, I am satisfied that there is significant evidence that the IRB made known to its members that they are expected to comply with the guideline save in exceptional cases. The problem is not so much with the expression of this expectation by the IRB, but rather its combination with a number of factors: the monitoring and expectation of compliance, the evidence of compliance, and especially the mandatory language of Guideline 7. These factors, in my view, all serve to fetter Board members’ discretion. As Mr. Aterman acknowledged in testimony given on cross-examination: “It’s a balancing which respects adjudicative independence on the one hand and the public and institutional interests in consistency on the other hand”. In the circumstances of this case, the balancing of these interests, essentially because of the mandatory language used in Guideline 7, results in the interests of consistency outweighing the adjudicative independence of the Board member. The mandatory language of Guideline 7, the limited and narrow description of exceptional circumstances provided for in the guideline and the not so subtly expressed expectation of compliance by the IRB, all combine to limit a Board member’s discretion. The fact that there are cases where a Board member has chosen not to follow the guideline does not cure these deficiencies. As stated earlier, the essence of discretion is that it can be exercised differently in different cases on the merits of the case. A guideline should not have the effect of causing a member, in conducting a hearing, to question whether he or she can adopt a particular procedure or a particular order of questioning of a claimant when the Board member legitimately holds the view that the standard order prescribed by the guideline is not the best or fairest way to proceed in the circumstances. There is uncontroverted evidence that for at least certain Board members this is the case. Guideline 7 in my view has the effect of dictating a certain procedure and allowing few exceptions, on a procedural issue that could potentially affect the fairness of the hearing. Put another way, Guideline 7, for the most part, requires a member to exercise her or his discretion in a particular way. In the result, I find that Guideline 7 fetters the discretion of Board members.
[66] Justice Mosley in Benitez was provided with new evidence that took him beyond the position of Justice Blanchard in Thamotharem, which is outlined in detail in paragraphs 140 to 172:
I think it fair to say that my colleague Justice Blanchard relied less upon the factual history of the matter before him in Thamotharem and more upon the evidence relating to the form and content of the Guideline and the manner in which it was implemented in reaching his conclusion that Board Members’ discretion was fettered by the imposition of the Guideline. Indeed the applicants have submitted, as discussed above, that had he had a record before him similar to certain of those in these proceedings, he may have found that a higher degree of procedural protection was called for.
The respondent points out that there was no evidence on the record in Thamotharem of a refusal by the Board Member to exercise his discretion to vary the order of questioning due to the claimant's particular circumstances, no evidence of any particular vulnerability that would make testimony difficult, no argument of improper questioning and no request to vary the order outside the assertion of an absolute right to an examination-in-chief.
The finding in Thamotharem that members’ discretion is fettered turns on the language of the Guideline itself and the extrinsic evidence about how it could be interpreted and applied by RPD members and not on the facts of the particular case.
At paragraph 119 of his reasons, Justice Blanchard found that the language of Guideline 7 left little doubt that the thrust of the Guideline indicates to Board members a mandatory process rather than a recommended but optional process: paragraph 19 provides that the standard practice will be for the RPO to begin, and if no RPO is participating at the hearing, the Board member will begin. Further, while paragraph 23 allowed for the Board member to vary the order of questioning, the basis for the finding by the Court in Zaki that it was sufficiently flexible, Justice Blanchard found that it set a high threshold for what constitutes “exceptional circumstances”: the claimant must be “severely” disturbed and the child must be “very” young for an exception to apply. He concluded that while these may be just examples, they restrict the sort of circumstances that may warrant an exception. He went on to state these views on the language used in Guideline 7:
The use of qualifiers such as “severely” and “very” leave little doubt that the scope of “such circumstances” contemplated by the guideline is limited. There may well be circumstances which do not fit within the scope of those “exceptional circumstances” contemplated in Guideline 7 which, in the discretion of the Board Member, would warrant proceeding otherwise than by the standard order of questioning. The language of paragraph 23 may leave a member with the impression that he or she has no option but to follow the guideline in such cases. At the very least, in my view, paragraph 23 by requiring “exceptional circumstances” for straying from the norm deters the member from considering other factors before deciding what order of questioning is appropriate. Guideline 7 would in effect, in such a case, serve to fetter the member’s discretion.
In urging me to depart from these conclusions, the respondent submits that the language of the Guideline has to be read as permissive rather than mandatory in keeping with the principles established in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, 137 D.L.R. (3d) 558, that discretion given by statute cannot be confined by general policy statements and that a term such as “will normally” does not mean “in every case”. Here, the respondent submits, the contextual evidence including the Board’s policy on the use of guidelines, indicate that members retain discretion to vary the order of questioning where they deem it appropriate.
The respondent relies on the new evidence attached to the affidavit of Asad Kiyani, some forty decisions and excerpts of transcripts from hearings before various RPD members, which, the respondent submits, demonstrate that the conclusion that members’ discretion has been fettered is not shared by the members themselves. I note that Justice Blanchard had evidence before him of Board members deviating from the Guideline order of questioning although the evidence was not as extensive as that filed by the respondent in these proceedings.
While the attachments to the Kiyani affidavit provide only a selective picture of the response of Board members to Guideline 7, they support the respondent’s contention that the discretion of Board members is not fettered by Guideline 7 and that members are not restricting themselves to the exceptional examples set out in paragraph 23 of Guideline 7 as an exhaustive list of instances in which the order of questioning should be varied as Justice Blanchard feared.
In each of the cases, the Member considers the applicability of the Guideline in the circumstances and then decides whether the order of questioning should be varied. There are no indications in these exhibits that Board members believe that they will be punished for failing to implement the standard order of questioning. Nor do they support the conclusion that the Guideline has the effect of causing a member, in conducting a hearing, to question whether he or she can adopt a particular procedure or a particular order of questioning of a claimant when the Board member legitimately holds the view that the standard order prescribed by the Guideline is not the best or fairest way to proceed in the circumstances.
...
These examples indicate to me that members understand that the illustrations of exceptional circumstances provided by the Guideline are simply that and that members feel free to apply them broadly.
In contrast, the strongest evidence put forward by the applicants is an excerpt from the Board’s decision in Baskaran (Board File: TA1-07530), attached to Mr. Boulakia’s affidavit, in which the Member stated:
We have been told that we have to do the questioning first and your counsel will be asking you questions after that, and that's the procedure we have to follow....
The applicants point to this excerpt as indicating that members would feel under pressure to conform to the practice outlined in the Guideline, out of loyalty to the institution and, in some cases, from a lack of confidence in their own discretion and ability to make independent decisions as to the correct procedure to follow. The Baskaran excerpt may be an example of the latter. While troubling, it does not in itself justify the conclusion that this was a broadly held view among Board members.
Professor Galloway’s evidence as a former Board Member also lends support to the applicants’ contentions as to how the Guideline would be interpreted and applied by RPD members. However, he had no direct experience with the implementation of the Guideline and his evidence as to how the Guideline would be interpreted and applied by members was, while helpful, largely speculative.
The respondent asks the Court to give greater weight to the testimony of Mr. Paul Aterman which indicated that Board members retain the discretion to determine the appropriate questioning procedure at a particular hearing. At page 38 of the transcript of the first cross-examination on September 14, 2005, he stated:
How the individual is treated within that hearing is a matter of discretion for the member. The member can look and say “In this given circumstance, the questioning should be done by counsel”, or the member may say “in the circumstances it’s more appropriate for the questioning to be done by the RPO or member.” Those are discretionary choices which the guideline makes clear are open to members...
Mr. Aterman also expressed the view on cross-examination that members exercise their judgment with respect to how and when to apply the Guideline bearing in mind the particular circumstances of any given case (September 15, 2006 transcript at 79-80). Those comments are supported by the examples of decisions deviating from the Guideline that are attached to the Kiyani affidavit.
Reference was made during argument to a decision by Board Member K. Brennenstuhl, R.K.N. (Re) [2004] R.P.D.D. No. 14, which was apparently distributed to other RPD members for their assistance on the interpretation and application of Guideline 7. This action was cited by the applicants as illustrating the Board's efforts to impose Guideline 7 on the RPD members and thereby fetter their discretion. However, the distribution of the decision is not in my view evidence of fettering so long as members did not consider themselves bound to follow Member Brennenstuhl’s conclusions. There is no evidence before me that this was the case. The R.K.N. decision has not been identified by the Chairperson as a jurisprudential guide nor does it fall within the category of “persuasive decision”, which the Deputy Chair, Refugee Protection Division may designate under a policy adopted by the Board as “models of sound reasoning” which members are encouraged to adopt. See the Board’s Policy Note on Persuasive Decisions, December 13, 2005.
I accept that the language of Guideline 7 could be construed as mandatory in nature by an inexperienced and less confident Board member and that Board members in general may, as found by Justice Blanchard, feel some top-down pressure to follow it. But that does not necessarily lead to the conclusion that members consider themselves bound to apply it as if it were legislation, a regulation or a formal rule made under the Chairperson’s authority.
As Doherty J.A. observed in Ainsley, guidelines are not rendered invalid merely because they regulate the conduct of those to whom they are directed. A guideline remains a guideline even if those affected by it change their practice to conform to the guideline.
On the face of the record in this case, the evidence does not in my view support a finding of fettering similar to that considered by the courts in Ainsley and Ha. Unlike the case of the policy statement in Ha, for example, the text of Guideline 7 itself allows for consideration of the particular circumstances of each case and for exceptions to the standard practice to be made. If members were in any doubt about this, the general policy statement which the Chairperson has issued respecting all of the guidelines states expressly that they are not binding and cites a decision of this court to that effect: Fouchong v. Canada (Secretary of State) (1994), 88 F.T.R. 37, 26 Imm. L.R. (2d) 200 (F.C.T.D.).
Moreover, again unlike the case in Ha, the policy offers guidance to the RPD members as to how to exercise their discretion, albeit in a structured way. And further, unlike Ha, the evidence before me indicates that members have chosen to disregard the “standard practice” when they deemed it necessary and for reasons that go beyond the type of exceptional circumstance described in paragraph 23.
With regard to the second Ainsley factor, the practical effect of non-compliance with the guideline, the threat of coercive action is not made out on the facts. There is no evidence on the record to suggest that the Chairperson has threatened to, or has in fact, sanctioned any Board member for non-compliance with Guideline 7. Indeed, the Chairperson does not have that authority. The evidence is that at least one Member, Mr. Ellis, has refused to implement the Guideline from the outset and there is no evidence that he has been sanctioned in any way.
The evidence indicates that the Board was monitoring compliance with the implementation of the Chairperson’s guidelines through a voluntary reporting system employing “Hearing Information Sheets”. Members were invited to self-report on their use of the guidelines. Paul Aterman’s evidence was that the response rate on these forms was very low. Thus it is difficult to understand how that might be perceived as coercive. At most, this would seem to be a normal and unthreatening procedure to gauge the effects of a policy.
There is also evidence of e-mails from the Vice-Chair inquiring whether members were applying the guidelines and that members were asked to explain whether there were exceptional circumstances or other reasons for not following them. Mr. Aterman conceded that managers were required to monitor individual members' compliance with the guidelines but, again, there is no evidence of any consequences flowing to those who chose to ignore or to not strictly apply them.
Finally, the Board’s performance appraisal forms for members indicate that application of the guidelines “in appropriate circumstances” will be one factor taken into consideration. As I read the evidence, this provision applied to all of the guidelines and there is no evidence of any member ever receiving a poor performance appraisal for failing to apply Guideline 7.
There is considerably more evidence before me as to the manner in which Guideline 7 is actually being applied by RPD members than there was before my colleague in Thamotharem. On that evidence in these proceedings, I am not satisfied that the applicants have demonstrated that the discretion of RPD members to determine the procedure to be followed in the refugee proceedings before them has been fettered by the implementation of Guideline 7.
That is not to say that fettering could not be made out in a particular case. As held in Leung v. Ontario (Criminal Injuries Compensation Board) (1995), 24 O.R. (3d) 530, 82 O.A.C. 43 (Ont. Div. Ct.), the application of a policy guideline may amount to an unlawful fettering of a Board's discretion, if applied without due consideration to the evidence and submissions in a particular case. Such a situation may arise where a member decides to apply the Guideline without exception and ignores the evidence or submissions of counsel that there is reason to vary the procedure.
[67] Obviously, as the above quotations make clear, the conflicting decisions on the issue of the fettering of discretion had a great deal to do with the actual evidence before each judge on this issue. The Applicants in the present case merely assert that Justice Mosley got it wrong and Justice Blanchard got it right. But if the evidentiary basis was different, in my view there is no obvious conflict in the two cases on this issue. And because the Applicants have brought nothing that is really new before me on this matter, I have to conclude that Thamotharem and Benitez reach different conclusions on fettering because of the evidence adduced in each case, so that the Applicants have not provided me with a sufficient evidentiary basis to support a finding of fettering that is somehow inherent in Guideline 7.
[68] And, as regards whether there was actual fettering in the present case, in accordance with paragraph 171 of Benitez, once again, I am without a sufficient evidentiary basis to make such a finding.
[69] Consequently, I have to conclude that, on the facts and argument before me, the Applicants have not satisfied me that:
a) Guideline 7 is inherently unfair because it prevents applicants from exercising their “right” to an “examination-in-chief”;
b) Guideline 7 imposes a fettering of discretion upon Board members; or
c) There is any evidence of an actual fettering of discretion in this case.
[70] As a result, I am of the view that the Board committed no reviewable error in concluding that Guideline 7 does not violate the principles of natural justice and procedural fairness.
2. Did the Board err in concluding that the Applicants are not Convention refugees or persons in need of protection?
[71] The primary finding of the Board being challenged by the Applicants is that what the Applicants experienced in Israel before they left for Canada, and what they would likely experience if they returned to Israel, is discrimination but not persecution. In coming to that conclusion, the Board noted that the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 734 defined persecution as being a “sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”
[72] Before considering the specific findings of the Board in respect to this question, I wish to comment on the matter of who is the “agent of persecution” alleged by the Applicants. I note that this was an issue raised by the Board at the outset of the December 20, 2004 hearing, but one which the Board did not pursue with the Applicants. In their PIF, the Applicants state that they fear persecution at the hands of Muslims in their neighbourhood in Nazareth; the Applicants do not make a claim of persecution against the government of Israel. However, in reviewing the testimony of the principal applicant, Charle Hitti, and the written arguments presented to the Board by counsel for the Applicant, it would appear that the Applicants are also claiming that the discrimination they face at the hands of the Israeli government constitutes persecution. In its reasons, the Board addresses not only the Applicants’ circumstances as Arab Christians in relation to Arab Muslims, but also their situation as Arabs citizens in relations to Jewish citizens in Israel.
[73] With respect to persecution at the hands of Arab Muslims, I am of the opinion that it was open to the Board not to accept as plausible the Applicants’ testimony that the harassment and threats against them by their former Muslim neighbours continued even after the Applicants had moved out of the neighbourhood. I note that the Applicants do not allege that, after they moved, their former Muslim neighbours continued to slash the tires of their car, throw rocks at them, or prevent them from going to church; the only allegation they make is that the harassing phone calls continued. In my opinion, this is evidence that it is not likely that their former Muslim neighbours continued to pursue the Applicants after they moved to a different neighbourhood. Moreover, I find that it was not patently unreasonable for the Board to find inadequate the Applicants’ explanation as to why they did not leave the predominantly Muslim neighbourhood in which they alleged they had been targeted until 2004, and why they did not approach the police for help. In my view, the Board did not commit a reviewable error in finding the Applicants had not established a well-founded fear of persecution or risk to life at the hands of Arab Muslims from their former neighbourhood.
[74] Regarding the question of whether the discrimination faced in Israel at large by the Applicants as Arabs and / or Arab Christians in relation to Jews constitutes persecution, I am of the opinion that the Board did not commit a reviewable error in finding that it does not. The Board acknowledges that the documentary evidence indicates that Arabs in Israel are not treated equally to Jews in several respects. However, it was reasonable for the Board to conclude that such evidence does not give rise to a finding of persecution, particularly given the Board’s finding that the state protection against persecution is adequate in Israel.
[75] Finally, with respect to the existence of an IFA and adequate state protection, I do not find that the Board’s determinations were patently unreasonable or unreasonable respectively. In my view, the Board provides sufficient reasons as to why it reached the conclusions it did and refers widely to the documentary evidence before it.
[76] In summary, I am of the opinion that the Board’s findings that the Applicants are neither Convention refugees nor persons in need of protection do not contain reviewable errors. The Applicants have not pointed the Court to any reviewable error made by the Board in coming to these conclusions, and in particular in relation to the Board’s finding that while the situation facing the Applicants may constitute discrimination it does not amount to persecution. Of course, it is always possible to point to evidence and say that the Board might reasonably have reached a different conclusion. But that does not mean that a conclusion reached by the Board on any particular issue was patently unreasonable or unreasonable.
[77] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.
“James Russell”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: CHARLE HITTI v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 19, 2006
REASONS FOR ORDER: Justice Russell
APPEARANCES:
Bernard Assan FOR RESPONDENT
SOLICITORS OF RECORD:
Yehuda Levinson
Levinson and Associates
Barristers and Solicitors FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Ontario Regional Office
Toronto, Ontario