Date: 20041001
Docket: IMM-8131-03
Citation: 2004 FC 1322
BETWEEN:
LEYKA ALSHYNETSKY
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board dated September 17, 2003, that the applicant is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] The applicant, Leyka Alshynetsky, is a citizen of Israel of Ukrainian origin, born on May 17, 1926. Between 1999 and 2001, she lived in Israel without any problem. However, in 2001, a quarrel broke out with a new neighbour over a garbage bag that the neighbour had left in front of her door. Her son filed a complaint with the police, then sold the apartment and left Israel with an immigration visa in order to come settle in Canada. He then brought his mother over as a visitor. Once in Canada, she claimed refugee protection.
[3] According to the case law of this Court, the applicant was required to establish a connection between her fear and one of the five grounds listed in the definition of "Convention refugee" (Rizkallah v. Canada (M.E.I.) (1992), 156 N.R. 1 (F.C.A.)).
[4] I accept the applicant's argument to the effect that the IRB erred in the identification of the social group. In fact, in its decision, the IRB stated that the applicant alleges persecution because of her membership in a particular social group, namely that of the family, when the applicant no longer has family in Israel. A review of the evidence in the record indicates that the applicant rather based her claim on two grounds, namely her nationality and her membership in a new social group, that of new Russian-speaking immigrants.
[5] Although the IRB erred in identifying the social group, that finding does not have any bearing on the assessment of the evidence in the record which led the IRB to determine that the applicant was not a refugee on the basis that she does not meet one of the grounds of the Convention. In fact, the applicant is rather claiming refugee status because of an isolated incident (namely the conflict with her neighbour) which has nothing to do with the fact that she was a newcomer to Israel. This is clear in the reasons of the IRB, where it states:
The claimant alleged that there is hate in Israel towards newcomers. In support of this allegation, she cited the quarrel she had with her neighbour. The panel cannot agree with this allegation based on an isolated, commonplace incident, since, until 2001 the claimant did not have any problems with other neighbours, and that this problem occurred only with the new neighbour. The panel sees no nexus with one of the five Convention grounds.
In my view, the IRB properly assessed the applicant's alleged fear, which is no longer disputed by the applicant or her counsel at the hearing before me, the applicant arguing only that the IRB improperly refused to exercise its jurisdiction with respect to section 97 of the Act.
[6] On that point, the following passage from the decision at issue should be reproduced:
In addition, the claimant stated that she does not feel safe by reason of terrorist acts perpetrated in Israel. The claimant is not specifically targeted by these actions; instead, the entire population of Israel faces the risk of terrorism. Paragraph 97(1)(b) stipulates that protection is limited to persons facing a risk not faced generally by other individuals in the country.
Finally, the claimant alleged that her life would be threatened if she were to return to Israel because she does not speak Hebrew and that she could not survive far from her family. The authority to consider humanitarian grounds falls to the Minister. The panel does not have jurisdiction for determining such a claim.
[7] Although there may sometimes be circumstances which amount to humanitarian grounds as well as a risk to life or a risk listed in section 97 of the Act, it is important to read the above passage of the IRB's decision in the context of the evidence in the record and the express finding by this panel that sections 96 and 97 of the Immigration and Refugee Protection Act did not apply to the applicant personally. Therefore, it is clear from decision that the panel intended to exercise its jurisdiction under section 97 of the Act. It remains to be determined whether that was patently unreasonable.
[8] The applicant's counsel himself recognized the weakness of his evidence with respect to the risks described in section 97 of the Act. In my view, I cannot discern any serious evidence of any such risks. On the other hand, a review of the transcript at pages 127 and 133 of the Tribunal Record clearly shows that the panel considered the applicant's allegations in finding humanitarian and compassionate grounds rather than a situation contemplated by section 97 of the Act. Reading the IRB's reasons in their proper context, not only did this panel indeed exercise its jurisdiction with respect to section 97 of the Act, but further reasonably held that the circumstances described by the application did not amount to a situation covered by the protection offered by that legislation, that it was rather a matter of humanitarian grounds for the Minister to assess. As the Court of Appeal decided in M.C.I. v. Ranganathan, [2001] 2 F.C. 164, at pages 171 and 172:
[17] Second, it creates confusion by blurring the distinction between refugee claims and humanitarian and compassionate applications. These are two procedures governed by different objectives and considerations. As Rothstein J. said in Kanagaratnam [(1994), 83 F.T.R. 131], at page 133:
While in the broadest sense, Canada's refugee policy may be founded on humanitarian and compassionate considerations, that terminology in the Immigration Act and the procedures followed by officials under it, has taken on a particular connotation. Humanitarian and compassionate considerations normally arise after an applicant has been found not to be a Convention refugee. The panel's failure to consider humanitarian and compassionate factors in its Convention refugee determination in this case was not an error.
[9] For all of these reasons, the application for judicial review is dismissed.
[10] In my opinion, there is no matter here for certification, indeed there was no question of general importance proposed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
October 1, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8131-03
STYLE OF CAUSE: LEYKA ALSHYNETSKY v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 31, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: October 1, 2004
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Suzon Létourneau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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