Date: 19980916
Docket: IMM-2591-97
Between:
ROMAN EDOMSKY
KRISTINA EDOMSKY
VALENTINA EDOMSKY
VLADIMIR EDOMSKI
EMMA EDOMSKY
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] Application for judicial review of the decision of Dominique Leclerc and Jean-Marc Demers, members of the Immigration and Refugee Board, dated January 30, 1997, under section 82.1 of the Immigration Act.
[2] The five applicants are citizens of Israel and are claiming refugee status on the basis of a well-founded fear of persecution by reason of their nationality, their religion and their membership in a particular social group.
[3] The Convention Refugee Status Determination Division made a decision rejecting their claim.
[4] The panel stated the following:
| [TRANSLATION] After examining all of the evidence, both testimonial and documentary, the panel has concluded that the claimants are not Convention refugees for the following reasons: |
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| The presumption that arises from the abundant documentary evidence obtained from various reliable sources and filed by the hearing officer has not been shaken by the claimants. |
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| We found their testimony to be devoid of credibility. |
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[5] The members of the panel went on to explain, giving several reasons why, in their opinion, they could assign no credibility to the claimants' testimony.
[6] Counsel for the applicants eloquently argued a number of points in an attempt to establish that the members of the panel had misinterpreted the evidence before them regarding the credibility of the applicants, asserting, inter alia, that the documentary evidence filed by the hearing officer in their claim seemed to create an imbalance in terms of the assessment of the evidence, making it extremely difficult for the applicants to rebut the documentary evidence.
[7] With all due respect, I believe that while the documentary evidence that was filed at the hearing was indeed extensive, this would in no way justify the members of the panel, let alone this Court, not weighing the evidence on its merits.
[8] The conclusion reached by the panel is not patently unreasonable.
[9] On this point, let us consider the comments of Mr. Justice Décary in Clément Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.):
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who better than the Refugee Division is in a position to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Refugee Division are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. |
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[10] The panel can indeed decide to prefer the objective documentary evidence to the subjective testimony of the applicants:
| The Board is entitled to rely on documentary evidence in preference to that of the claimant.1 |
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| I do not see any legal error in the panel's assessment of the documentary evidence or in the fact that it preferred the documentary evidence over that of the applicant.2 |
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[11] It is also open to the panel to base its decision on the documentary evidence that it considers most appropriate:
| There was contrary evidence which the applicant's counsel had argued before the Board, but the Board has the right to decide which documentary evidence it prefers.3 |
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[12] On the question of whether the State of Israel is capable of protecting its citizens, the panel states, in its analysis:
| [TRANSLATION] The documentary evidence, which was obtained from various non-governmental sources, is clear: the police treat all complaints in the same manner. |
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| Accordingly, neither has any "clear and convincing" evidence been produced by the claimants to rebut the presumption arising from the documentary evidence filed by the RHO as regards the State of Israel protecting its citizens. |
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| The panel is of the opinion that no credible or trustworthy evidence has been presented to it on which it could grant the claimants refugee status, and the evidence submitted to it is insufficient to establish that if the claimants were to return to Israel there would be a "reasonable possibility" that they would be persecuted, as it is put in Adjei.4 |
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[13] Counsel for the respondent submitted voluminous case law to the Court.
[14] On this point, it would be worthwhile to recall the passage from the judgment of Décary J.A. in Kadenko et al. v. Canada (1997), 206 N.R. 272 (F.C.A.); I quote:
| Where there has not been a complete breakdown of the governmental apparatus and where a State has political and judicial institutions capable of protecting its citizens, does the refusal by certain police officers to take action suffice to establish that the State in question is unable or unwilling to protect its nationals? |
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...
| In our view, the question as worded must be answered in the negative. Once it is assumed that the state (Israel in this case) has political and judicial institutions capable of protecting its citizens, it is clear that the refusal of certain police officers to take action cannot in itself make the state incapable of doing so. The answer might have been different if the question had related, for example, to the refusal by the police as an institution or to a more or less general refusal by the police force to provide the protection conferred by the country"s political and judicial institutions. |
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[15] Décary J.A. continued:
| When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state"s institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. |
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[16] In the instant case, it is obvious that the applicants did not attempt to exhaust all the courses of action open to them, and on this point the panel's decision is patently not unreasonable.
[17] In another decision, Sagharichi v. Minister of Employment and Immigration (1993), 182 N.R. 398, Mr. Justice Marceau stated:
| Larisa Garmash claims persecution on the basis of a visit to an ultra-orthodox area in the city where she resided where she was insulted and pushed which caused her to fall. She states she complained to the police who did nothing except to tell her not to go to that area. |
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| What could the police have done? There is no evidence that she knew the individuals who allegedly insulted her or pushed her down. There is no evidence she gave the police the necessary information to cause an arrest to take place. |
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[18] That quotation is particularly applicable to the complaint made by one of the applicants to the police, when the applicant was not able to identify the person who had pushed him.
[19] In another case, Levkovicz et al. v. Secretary of State of Canada, IMM-599-94, March 13, 1995, Mr. Justice Nadon held that evidence of inaction on the part of certain police officers was not sufficient, in a democratic country like Israel, to conclude that the judicial system was not capable of protecting an applicant.
| In my opinion, this evidence is not sufficient to establish that the State of Israel is unable to protect the applicants. The fact that a few police officers neglect or refuse, if that is the case, to perform a duty imposed on them by law does not necessarily mean that the State of Israel cannot provide protection. In my view, to show that a state is incapable of protecting its nationals, evidence going beyond that adduced by the applicants in this case is required. |
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[20] In Ward v. Canada, [1993] 2 S.C.R. 689 (S.C.C.), it was held that it must be assumed that a state is capable of protecting its citizens, and accordingly that the applicant must submit "clear and convincing" evidence to establish the state's inability. At pages 724 and 725, Mr. Justice Laforest stated:
| The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. |
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[21] For all these reasons, the applicants' application for judicial review is dismissed.
[22] No serious question of general importance will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 16, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO: IMM-2591-97
STYLE OF CAUSE: ROMAN EDOMSKY et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 26, 1998
REASONS FOR ORDER OF BLAIS J.
DATED: SEPTEMBER 1998
APPEARANCES:
Michel Le Brun
FOR THE APPLICANTS
Lisa Maziade
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun
FOR THE APPLICANTS
Lisa Maziade
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 Zhou v. M.E.I., A-492-91, July 18, 1994 (F.C.A.).
2 Omorogbe v. S.S. Canada, IMM-2724-93, May 9, 1994.
3 Singh v. M.C.I., IMM-4256-94, June 23, 1995 (F.C.T.D.).
4 Adjei v. M.E.I., [1989] 2 F.C. 680 (C.A.).
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