Date: 20030715
Docket: IMM-5459-02
Citation: 2003 FC 878
Ottawa, Ontario, 15th day of July, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
JAMES EVGENY MEYER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), rendered October 17, 2002.
Facts
[2] The applicant, Mr. James Meyer, is a 23-year-old citizen of Israel. He claims refugee status on the ground that he is persecuted on the basis of his membership in a particular social group, namely homosexuals. He also claims to be a "person in need of protection" as described in s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[3] The applicant states that he became aware of being gay while a teenager, and in 1995 was harassed and beaten at a discotheque while embracing another man. He met with the police twice in relation to this incident, but did not receive notice that anyone had been apprehended and the applicant suggests that his complaint was not taken seriously by the police.
[4] In April 2000, the applicant entered technical college and began his military training in August 2000. The applicant states that a former schoolmate recognized him there and that he was beaten by four colleagues on account of his sexual orientation. He did not report the incident. A few months later, he was again attacked by the same colleagues and one of the assailants purposely burned him with a cigarette. This incident was also not reported to the authorities by the applicant.
[5] A third incident occurred in which the same four colleagues attacked the applicant and urinated on him. The next day, the applicant attended before his commanding officer and reported the incidents and the fact that he was being victimized because of his sexual orientation. The officer arranged for an appointment with the staff psychiatrist. The applicant received a certificate stating that he suffered from reactive adjustment disorder, which he categorized as "démence psychiatrique". The applicant states that, after completing his military service, he was refused employment on account of this certificate. He was discharged prematurely from the military in October 2001.
[6] A few months later, the applicant received an anonymous letter that insulted him and threatened him with death because of his homosexuality. He states that his life is in danger.
Board's Decision
[7] The Board summarized the applicant's evidence, as described above. The Board stated that, after having analysed the documentary and oral evidence, it concluded that the applicant had not demonstrated that he was persecuted, nor that he was a person in need of protection.
[8] The Board stated that it did not believe the applicant's story and that his credibility was marred by the omission of important facts, by inconsistencies, and because his story was inconsistent with the documentary evidence concerning Israel. The Board noted that the applicant did not state in his Personal Information Form ("PIF") that he had been harassed between 1995 and 2000, during his school years. The applicant replied that he was only verbally harassed during that time. The Board stated that it found it curious that the applicant did not describe these incidents, yet he detailed the names of his sexual partners during the same period. The Board quoted from case law, suggesting that all important and pertinent facts should be disclosed in the PIF and expanded upon during oral testimony.
[9] The Board stated that it did not find credible the applicant's story that he was targeted and attacked three times while in the military, but did not go to the infirmary after receiving cigarette burns. When questioned about this, the applicant stated that he was afraid of being laid off by his supervisor. The Board stated that it did not accept this explanation.
[10] The Board did not believe that the applicant was excluded from military service because of his sexual orientation because the documentary evidence showed that Israel is very progressive in protecting the rights of gay people. The Board quoted numerous documentary sources suggesting that Israeli society is open to homosexuality and that the military authorities do not discriminate on that basis. The Board concluded that, while many people in political and religious spheres do not accept homosexuality and that some homosexuals experience discrimination in Israel, homosexuality is not a crime and is accepted by civil and military authorities. In the circumstances, the Board stated that it preferred the trustworthiness of the documentary evidence to the applicant's story and concluded that the applicant did not have a well-founded fear of persecution.
[11] The Board stated that it did not give weight to the medical report which stated that the applicant's scars were caused by cigarette burns because it did not believe the applicant's story.
[12] The Board held that the applicant had not demonstrated that he suffered prejudice in relation to employment because of his homosexuality or because of his early military discharge. The Board noted that his evaluation certificate from the military was positive and doubted that the applicant would suffer prejudice in looking for a job in view of this positive reference.
[13] The Board also stated that it was not satisfied that the state of Israel was unable to protect the applicant if he were returned to that country. The Board queried why the applicant would not bring a complaint to the military authorities if he were not in accord with the psychiatric diagnosis, and did not accept the applicant's explanation that the diagnosis was final and binding. The Board noted that, according to the documentary evidence, there exists an "ombudsman" for military personnel in Israel. The Board also noted that the applicant did not bring a formal complaint to the police after receiving the anonymous letter in 2001 and noted also that there exists an organization ("l'Unité nationale") that reviews complaints against the police that the applicant could have used.
[14] The Board held that it did not believe that the applicant had demonstrated subjective fear, since he had asked to immigrate to Canada in December 2001, did not leave Israel until 31 December 2001 and did not request refugee status in Canada until March 5, 2002. The Board concluded that the applicant's behaviour was incompatible with a subjective fear of persecution and determined that he was not a Convention refugee.
Issue
[15] The applicant submits that the Board erred in basing its decision on findings of fact that it made in a perverse or capricious manner and without regard for the material before it. The applicant further submits that the Board erred in making a negative credibility assessment by disregarding the applicant's evidence which, given under oath, is presumed true.
Standard of Review
[16] The issues raised by the applicant challenge the Board's findings of fact, including the credibility assessment of the applicant. The standard of review on questions of fact is patent unreasonableness: Dhindsa v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2011 (QL) at QL para. 41.
Analysis
[17] In his written submissions the applicant submits that the Board failed to respect the principle set out in Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302, which provides that allegations given under oath are presumed to be true unless there is a reason to doubt their truthfulness. The applicant submits that the Board failed to give credence to his testimony, despite the fact that some of the documentary evidence corroborated his story. For example, the applicant points out that the documentary evidence quoted by the Board states: "In practice, however, cases of exemption or discharge for homosexuals are still granted for medical reasons". The applicant argues that the Board's reasoning concerning the applicant's credibility is speculative and gives rise to a patently unreasonable decision.
[18] The respondent submits that the documentary evidence, taken as a whole, supports the Board's conclusion that the civil rights of homosexuals are generally respected in Israel. Furthermore, the respondent submits that the Board acknowledged that in some cases there is discrimination against homosexuals, but in the end preferred the documentary evidence to that of the applicant. The respondent notes that it is the function of the Board to assess the credibility of an applicant and to weigh the evidence accordingly.
[19] In addition, the respondent notes that the Board held that the applicant had not rebutted the presumption of state protection and consequently the applicant would be found not to be a Convention refugee in any event.
[20] In my view, it was open to the Board to find that the applicant's delay in leaving Israel and in claiming refugee status in Canada is not behaviour that is compatible with a subjective fear of persecution. I am also of the view that the applicant has failed to show in what way the Board's findings are capricious or perverse or made without regard to the evidence. In his written submissions the applicant did not take issue with the following findings of the Board. The Board held that the applicant had failed to include important events in his PIF. Further, the Board did not accept the applicant's story that he failed to report attacks to the military authorities nor seek medical aid after he was burned by his colleagues with a cigarette. In addition, the Board rejected the applicant's story that he was involuntarily excluded from completing his military service on the ground of his sexual orientation. The applicant essentially argued that the Board afforded far too much importance to the documentary evidence and failed to properly consider the applicant's evidence. I reject the applicant's argument. There is nothing before me to support the contention that the Board has failed to have regard to the evidence before it. The applicant may not accept the Board's findings, but it is not the role of the Court on judicial review to re-weigh the evidence. It is also well established that the Board, an expert tribunal, is at liberty in assessing evidence to prefer documentary evidence over the testimony of an applicant. [Zhou v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 1087 (QL)]. Based on the evidence before the Board, I do not find its credibility and plausibility assessments to be patently unreasonable. The documentary evidence cited by the Board states that the policy of the Israeli military forces is to place no limitations on recruitment, placement and advancement of homosexuals within the ranks. This evidence supports the Board's findings.
[21] In any event, I note that the Board held that the applicant had not exhausted the protection of the state of Israel before claiming refugee status in Canada. The Board found that the applicant did not pursue formal complaints with the police, or the "ombudsman" for military personnel after receiving a death threat. Nor did the applicant pursue his case with "l'Unité Nationale", an organization charged with reviewing complaints against the police. The Board further stated that the applicant did not attempt to challenge the unsatisfactory medical diagnosis via recourse within the military. There is abundant documentary evidence showing that the rights of homosexuals are generally respected in Israel and that police do respond to complaints lodged by homosexuals. Even if the applicant's allegations with respect to the difficulties he encountered with the authorities were accepted as true, it cannot be said that he established by clear and convincing evidence that the state of Israel was unable or unwilling to protect him. I am satisfied that the Board's conclusion that the applicant had failed to rebut the presumption of state protection is not in error. Consequently, I find that the Board's decision is not reviewable.
Conclusion
[22] For the reasons outlined above, the application for judicial review will be dismissed.
[23] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), rendered October 17, 2002, is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5459-02
STYLE OF CAUSE: Meyer v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: July 8, 2003
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: July 15, 2003
APPEARANCES:
Me Roman B. Karpishka FOR APPLICANT
Me Claudia Gagnon FOR RESPONDENT
SOLICITORS OF RECORD:
Me Roman B. Karpishka FOR APPLICANT
101-935, 44e avenue
Lachine, Québec H8T 2L3
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Montréal, Québec
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