Date: 20040123
Docket: IMM-4484-03
Citation: 2004 FC 109
Ottawa, Ontario, this 23rd day of January, 2004
Present: The Honourable Justice James Russell
BETWEEN:
YAKOV KOVTUN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the decision of Mr. Brian Goodman, a member of the Refugee Protection Division of the Immigration and Refugee Board ("Member"), dated June 4, 2003, ("Decision") dismissing the refugee claim of Mr. Yakov Kovtun ("Applicant").
BACKGROUND
[2] The Applicant is a 30-year-old citizen of the state of Israel who, as a Jehovah's Witness, claims refugee protection on the basis of his religion. He fears that if he returns to Israel, he will face persecution by religious nationalists and extremist groups.
DECISION UNDER REVIEW
[3] The Member found that the Applicant was a Jehovah's Witness in Israel and remains a member of that faith in Canada. The Member found that the key issue in the claim was whether the Applicant could expect to receive state protection if he returned to Israel.
[4] The Member indicated the following at page 6 of his Decision:
There is a presumption that the state will protect the fundamental human rights of its citizens. That presumption can only be rebutted on the basis of clear and convincing evidence to the contrary.
I find that on the basis of the objective evidence to which I will refer in a moment, that there is less than a mere possibility that the state will not take adequate steps to protect the claimant as a Jehovah's Witness should he return to Israel, and that he did not rebut the presumption of state protection, should he return to Israel. ...
[5] The Member canvassed a number of potentially problematic features of the Applicant's background and testimony but, generally speaking, he found the Applicant's account to be credible and reasonable.
[6] The Member dealt with the principal issue of adequate state protection by referring to the International Religious Freedom Report which is produced by the US Department of State Bureau of Democracy, Human Rights and Labour for Israel and the Occupied Territories:
I find to be significant the following quote at page five:
"There were no complaints of harassment of members of Jehovah's Witnesses during the period covered by this report (2002)." However, of the over 120 cases of harassment filed by members of Jehovah's Witnesses between 1998 and 2000, many were still pending.
There is no doubt in my mind, on the basis of the human rights and religious reports on Israel for the previous years, that Jehovah's Witnesses were harassed and in some cases, beaten and made complaints to the police that were not properly investigated.
However, it appears that now there are no complaints of harassment by members of Jehovah's Witnesses. I am not prepared to draw the inference that the reason there are no complaints is because Jehovah's Witnesses are unwilling to make complaints because they do not believe the police will act on them. I have received no evidence that the police in the future, will not investigate, complaints from Jehovah's Witnesses.
I recognise that the claimant refers in his evidence, to a number of incidents where he approached the police and they called him crazy or did nothing, including one meeting with the Chief of Police. However, those incidents that he complained of took place in 1999 and 2000, and we are now in the year 2003.
I believe it is reasonable to infer that the reason that there have been no complaints of harassment is that it is likely that, as Israelis become more familiar with the Jehovah's Witnesses, there is less harassment and therefore less reason for Jehovah's Witnesses to complain that they have been harassed or persecuted.
What the objective evidence tells me is that while there have been previous complaints, there are no recent reports or complaints, because there are fewer incidents of harassment etc. or it never gets to a complaint stage because the police are willing to take action in appropriate cases.
So in summary again, I find that the claimant has not provided clear and convincing evidence that the state would be unable or unwilling to protect him as a Jehovah's Witness should he return to Israel.
RELEVANT LEGISLATION
[7] Section 2 of the Immigration Act [R.S.C., 1985, c. I-2] defines a Convention refugee as follows:
| "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(I) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(b) has not ceased to be a Convention refugee by virtue of subsection (2)
(2) A person ceases to be a Convention refugee when:
(e) A person ceases to be a Convention refugee when
the reasons for the person's fear of persecution in the country that the person left, or outside of which the person remained, cease to exist.
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"réfugié au sens de la Convention" Toute personne:
a) 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:
(I) soit se trouve hors du pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
(2) Une personne perd le statut de réfugié au sens de la Convention dans les cas où:
e) les raisons qui lui faisaient craindre d'être persécutée dans le pays qu'elle a quitté ou hors duquel elle est demeurée ont cessé d'exister.
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[8] Section 3 of the Immigration Act sets out the objectives of Canada's immigration policy:
| 3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need
(g) to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;
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3. La politique canadienne d'immigration ainsi que les règles et règlements pris en vertu de la présente loi visent, dans leur conception et leur mise en oeuvre, à promouvoir les intérêts du pays sur les plans intérieur et international et reconnaissent la nécessité:
g) de remplir, envers les réfugiés, les obligations imposées au Canada par le droit international et de continuer à faire honneur à la tradition humanitaire du pays à l'endroit des personnes déplacées ou persécutées;
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ISSUES
[9] The Applicant raises the following issues:
3. Did the Member err in law by ignoring relevant portions of both Applicant's testimony and documentary evidence?
4. Did the Member err in law by taking into account erroneous and irrelevant considerations in reaching its decision?
5. Did the Member further err in law by basing its decsion on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it?
6. Did the Member fail to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe?
7. Did the Member act on a basis of bias toward the Applicant in exercising its discretion?
8. In the alternative, if these do not amount to errors individually, does rendering a decision that is based on these matter combined amount to an error in law?
9. Did the Member err in law with respect to its determination that there is not an objective possibility that the Applicant will be at risk if forced to return to Lithuania (sic)?
10. Did the Member err in law in stating that the Applicant did not discharged the onus of showing clear and convincing evidence of the state's inability to protect?
11. Did the Member further err in law by stating that the Applicant failed to present sufficient credible or trustworthy evidence to establish that they were persecuted as Communist by his political opinion (sic)?
ANALYSIS
What is the applicable standard of review to apply to the Decision of the Member?
[10] The Court must first determine what the appropriate standard of review is for this case.
[11] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, the Federal Court of Appeal discussed the standard of review for Refugee Division decisions:
4. 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 is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. ...
[12] The Court should not seek to reweigh evidence before the Board simply because it would have reached a different conclusion. Both counsel agree that a standard of patent unreasonableness should be applied to the issues before me and I concur with this approach.
Did the Member commit an error by concluding that the state of Israel would take adequate steps to protect the Applicant as a Jehovah's Witness should he return to Israel?
[13] Notwithstanding the alternative ways that the Applicant frames the issues, the Decision stands or falls on the way in which the Member handled the central concern of adequate state protection.
[14] The Member refers to a document entitled the International Religious Freedom Report forIsrael and the Occupied Territories, produced by the U.S. Department of State Bureau of Democracy, Human Rights, and Labour. This report states that there were no complaints of harassment of Jehovah's Witnesses during the period covered by the report; however, it goes on to say that "of the over 120 cases of harassment filed by members of Jehovah's Witnesses between 1998 and 2000, many were still pending."
[15] So the issue before me is whether this document is adequate to rebut the sworn testimony of the Applicant on whether the state would be unable or unwilling to protect him if returned. In fact, on page 5 of the report, the author specifically states that "[r]elations among different religious groups - between Jews and non-Jews, between Christians and Muslims, and among the different streams of Judaism - are often strained."
[16] The Member indicates in his Decision that he believes there have been no complaints of harassment by Jehovah's Witnesses in 2002 because there were fewer incidents of harassment, or because such incidents never reached the complaint stage because the police were willing to take action in appropriate cases.
[17] The Applicant argues that the Member simply states a conclusion and does not give clear and cogent reasons as to why he makes such a determination. The Applicant notes that in Olschewski v. Minister of Employment and Immigration, [1993] F.C.J. No. 1065 (F.C.T.D.), McGillis J. stated as follows:
2. In concluding that the applicants failed to establish a well-founded fear of persecution in Israel, their country of citizenship, the Immigration and Refugee Board (the Board) relied on documentary evidence in preference to the uncontradicted, sworn evidence of the applicants. Although the Board may have reached the appropriate result in this case, it regrettably failed to articulate in any manner whatsoever its reasons for preferring the documentary evidence over the evidence of the applicants. Indeed, the Board may have believed that the evidence of the applicants did not reveal a well-founded fear of persecution, but it failed to make this finding
[18] The Member was very clear in his Decision on the paramount issue before him: "The issue before me is whether the claimant can expect to receive state protection if he returns to Israel. Will the state make adequate efforts to protect him if he complains to them that he is being persecuted as a result of his being a Jehovah's Witness?"
[19] The Respondent argues that the Member did not find there had been past persecution because this was unnecessary to the Decision. The Respondent says the Member correctly concluded that the test for persecution is prospective and, on the evidence available, decided that the presumption of adequate state protection had not been rebutted.
[20] The Applicant characterizes the Decision in a different way. He says that the Member accepted the Applicant's account of past persecution and inadequate state protection but concluded, based upon the International Religious Freedom Report, that the situation had changed in 2002. There is no real analysis or reasoning provided as why the change of conditions are effective and durable enough to conclude that the Applicant could return to Israel and claim state protection.
[21] In my view, the characterization issue is crucial for the decision before this Court. When the Decision is reviewed in its entirety, the Member comes to the following significant conclusion:
With respect to credibility, I found the claimant generally to be a credible witness. There are some items that I'm going to refer to in a moment that cause me some difficulty. But for the most part, I believe the claimant's testimony. His testimony was, in many respects, confirmed by the documentary evidence that was submitted in relation to his personal situation.
[22] The "items" that caused "some difficulty" were not materially significant on the state protection issue. If the Member believed the Applicant generally, then the Member accepted evidence of a series of events that, by any standard, would be considered as persecution. Also, the Applicant gave evidence of his repeated attempts to seek protection from the police in Israel and of their failure to provide protection. So, by his own words, the Member must have accepted this evidence .
[23] So even if I accept the Respondent's argument that the Member makes no specific finding on persecution and the lack of state protection in the past, if the Member says he believes the Applicant's evidence on these issues, in my opinion, the Applicant had clearly established both persecution and lack of state protection.
[24] Hence, the change of country conditions issue cannot be avoided by saying that the Member merely asked whether there was evidence of inadequate state protection in the future and found in the negative on this issue. The Member believed the Applicant's testimony about what had happened in the past and, in my opinion, that testimony clearly established an objective fear of persecution and a lack of state protection. So the change in the situation and how the member addressed that change are significant aspects of the Decision.
[25] In effect, the Member dealt with this issue by placing heavy reliance upon a single paragraph in the International Religious Freedom Report that says there were "no complaints of harassment of members of Jehovah's Witnesses during the period covered by this report (2002)." From this evidentiary base the Member then concludes as follows:
I believe it reasonable to infer that the reason that there have been no complaints of harassment is that it is likely that, as Israelis become familiar with the Jehovah's Witnesses, there is less harassment and therefore less reason for Jehovah's Witnesses to complain that they have been harassed or persecuted.
What the objective evidence tells me is that while there have been previous complaints, there are no recent reports or complaints, because there are fewer incidents of harassment, etc. or is never gets to a complaint because the police are willing to take action in appropriate cases.
[26] So the Member's conclusion that "the claimant has not provided clear and convincing evidence that the state would be unable or unwilling to protect him as a Jehovah's Witness should he return to Israel" is based upon the Member's speculative conclusions drawn from a report which says that no complaints of harassment have been reported for 2002.
[27] There is no explanation or analysis of why this factor should outweigh the Applicant's accounts of past persecution and failure of the state to protect (an account which the Member says he believes) or why a report that addresses the year 2002 should be sufficient to show that the state of Israel now provides effective and durable protection to Jehovah's Witnesses, particularly when the Applicant's evidence (accepted by the Member) is that it has consistently failed to do so in the past in this case.
[28] In my opinion, these matters should have been addressed by the Member and his failure to deal with them appropriately renders the Decision patently unreasonable.
[29] 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 for Order. 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"
JFC
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4484-03
STYLE OF CAUSE: KOVTUN, YAKOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY JANUARY 7, 2004
REASONS FOR ORDER
AND ORDER BY: Russell, J.
DATED: January 23, 2004
APPEARANCES BY: Mr. Frederick Wang
For the Applicant
Ms.Negar Hashemi
For the Respondent
SOLICITORS OF RECORD: Bay Street Immigration Lawyers
Toronto, ON
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20040107
Docket: IMM-4484-03
BETWEEN:
KOVTUN, YAKOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
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