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:
|
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:
|
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
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