Date: 19990518
Docket: IMM-735-98
OTTAWA, ONTARIO, MAY 18, 1999
PRESENT: MR. JUSTICE TEITELBAUM
BETWEEN:
Ilia SHUMUNOV
Vladimir SHUMUNOV
Evgenia SHUMUNOV
Tatyana CHVETS
Galia CHVETS
Applicants
AND:
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
O R D E R
For the reasons set out in the Reasons for Order, the application for judicial review is dismissed.
Max M. Teitelbaum
J.F.C.C.
Certified true translation
Peter Douglas
Date: 19990518
Docket: IMM-735-98
BETWEEN:
Ilia SHUMUNOV
Vladimir SHUMUNOV
Evgenia SHUMUNOV
Tatyana CHVETS
Galia CHVETS
Applicants
AND:
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.
INTRODUCTION
[1] This is an application for judicial review of the Refugee Division decision dated January 28, 1998, determining that the applicants are not Convention refugees. The applicants are asking this Court to set aside the decision and to order a rehearing and a stay of all removal orders for the duration of the proceedings.
FACTS
[2] The following facts are taken from the Convention Refugee Determination Division decision dated January 28, 1998. All of the family members base their claims on that of the principal applicant, Ilia Shumunov, who says he fears persecution for reasons of religion and nationality.
[3] The applicant was born in Turkmenistan of a father of Assyrian origin. His wife Tatyana was born in Tajikistan of a father of Jewish origin and a mother of the Islamic faith. The applicant and his wife allege that they experienced difficulties due to their nationality from the moment they arrived in Israel in January 1983 because his identity card stated he was of Russian nationality and hers said "unregistered".
[4] They allege inter alia that their son was repeatedly harassed, insulted and beaten at school in Haifa and that their complaints to the school and police were to no avail. In February 1994, a medical examination allegedly showed that their son has eye problems due to blows to the head.
[5] The applicant says he was dismissed in September 1993 because he was not of Jewish nationality. He says he began receiving telephone threats in January 1995 and was beaten by two men from Moledet, an organization whose objective is to ensure the purity of the Jewish nation. They allege that they were insulted and beaten a number of times, including in October 1995 by religious neighbours and in December 1995 by a group of four or five people. Furthermore, young Evgenia was allegedly beaten by two young men in May 1996 on her way home from the library, and neighbours allegedly threatened to set their dog on the children. Applicant Galia was allegedly assaulted on the street and had a heart attack as a result. She was hospitalized for about ten days at that time, and for brief periods in March and September 1996 because of cardiac discomfort. She therefore had to stay in Israel for some time after the family left for Canada.
[6] The applicant and his family allegedly made repeated complaints to the police, but in vain. In addition, they allegedly approached other authorities, including the ministry of eduction, a lawyer, the "Israel Balea" political party and the Tel Aviv Zionist forum. Applicant Tatyana allegedly also approached the Naamat organization.
[7] Applicant Evgenia also fears imprisonment for desertion and refusal to perform her military service due to her conscientious objection and religious beliefs.
Decision of the Convention Refugee Determination Division
[8] The Convention Refugee Determination Division completely rejected the applicant and his family"s allegations regarding persecution in Israel and the lack of state protection because they were not credible or trustworthy. The Refugee Division based its decision on the fact that the laws for the protection of workers in Israel apply to all individuals without discrimination, that teachers in the schools receive the requisite training to promote the integration of young immigrants, that Israeli police do not take into account ethnic origin or religious affiliation in the handling of complaints, and that there is a body, the national unit for complaints against the police, responsible for investigating public complaints against the police.
[9] The Refugee Division also held that applicant Evgenia"s conscientious objection to military service due to her Islamic faith was not credible. She stated that she was Christian on her Personal Information Form (PIF), whereas in her testimony she said she did not practise any religion and was not baptized.
ISSUE
[10] Did the Refugee Division err in rejecting the applicant and his family"s refugee claim?
REPRESENTATIONS
Applicant"s representations
[11] The applicant submits that the Refugee Division disregarded the recent documentary evidence on the Israeli people"s perception of the applicants and on the lack of protection due to the rise of religious extremism and the new Netanyahu government. According to counsel for the applicant, the Refugee Division disregarded numerous articles showing that young Israelis engage in racist behaviour toward immigrants, including Israel, la montée des hommes en noir [Israel: Rise of the men in black] (January 11, 1997), Un an de pouvoir de Benjamin Netanyahu [A year under Benjamin Netanyahu] (May 27, 1997), Polls show negative view of immigrants in Israel (July 2, 1997), Les jeunes israéliens racistes vis-à-vis des arabes et des immigrés [Young Israelis racist toward Arabs and immigrants] (July 23, 1997). According to the applicant, the racist behaviour reported by the print media is shared by civil servants and the police, and shows that young immigrants are victims of harassment and suffer verbal and physical violence in Israeli schools.
[12] With respect to the state"s inability to protect the applicants, the applicant says the Refugee Division disregarded the affidavits of Leonid Mestechkin and Sarah Kisin"both accepted refugees"showing that the police refuse to take action when the individuals involved are Russian. The applicant also submits that the Refugee Division erred in finding that there was no credible basis, when the evidence includes two accepted refugees" affidavits and documents showing that there is no state protection. Citing Ward v. Canada , [1993] 2 S.C.R. 689, the applicant submits that the applicants can establish that there is no protection using their own testimony or that of similarly situated individuals. According to the applicant, this also means that the panel must examine and make its findings on each of the methods used.
Respondent"s representations
[13] The respondent submits that the Refugee Division had regard to all of the evidence"including documents from reliable sources about persecution in Israel, citing organizations that protect immigrants from the former Soviet Union"in finding that the oral evidence lacked overall credibility. Considering the presumption that the Refugee Division had regard to all of the evidence and to specific references to the evidence, it cannot be held that because the Refugee Division did not refer to the evidence in its reasons, it disregarded that evidence.
[14] The respondent submits that the Refugee Division acted in accordance with subsection 69.1(9.1) of the Immigration Act in stating that there was no credible basis, since both Board members were of the opinion that there was no credible or trustworthy evidence.
[15] Furthermore, the Refugee Division is not required to give credence to all documentary evidence that is favourable to the applicant. It is for the Refugee Division to weigh the evidence, and the Federal Court cannot substitute its own findings for those of the Refugee Division.
ANALYSIS
[16] The applicant says the Refugee Division disregarded evidence in the record. In particular, the Refugee Division allegedly disregarded current news articles showing that young Israelis engage in racist behaviour toward Russian immigrants, that this also applies to civil servants and police officers, and that young immigrants are victims of violence in the schools. The applicant says the Refugee Division also erred in disregarding the affidavits introduced in evidence regarding the lack of state protection.
[17] As the respondent says, the Convention Refugee Determination Division has all the required discretion to assess the applicants" credibility and weigh the documentary and oral evidence. In addition, the Refugee Division is deemed to have had regard to all of the evidence and is not required to refer to all of the evidence in its reasons.
[18] In Hassan v. M.E.I., 147 N.R. 317, Mr. Justice Heald stated at page 318:In my view the conclusions of the Board were reasonably open to it based on the totality of the evidence adduced, and consequently, it did not err in law. The fact that some of the documentary evidence was not mentioned in the Board"s reasons is not fatal to its decision. The passages from the documentary evidence that are relied on by the appellant are part of the total evidence which the Board is entitled to weigh as to reliability and cogency. My examination of the record before the Board persuades me that it did, in fact, consider and weigh the total evidence in a proper fashion.
[19] Also, in Akinlolu v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.) (IMM-551-96, March 14, 1997), Mr. Justice MacKay commented at paragraph 13:Questions of credibility and weight of evidence are for the CRDD panel in considering refugee claims. Thus, the panel may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence or it is found to be implausible. Particularly where there has been an oral hearing and the panel"s assessment appears clearly dependent, as in this case, at least in part, upon seeing and hearing the witness, this Court will not intervene unless it is satisfied that the panel"s conclusion is based on irrelevant considerations or that it ignored evidence of significance. In short, its decision must be found to be patently unreasonable on the basis of the evidence before the panel.
[20] The Refugee Division completely rejected the credibility of the applicant and his family"s allegations regarding persecution and the lack of protection.
[21] The Refugee Division found that the applicant and his family"s allegations of persecution were not credible or trustworthy. In so finding, did the Refugee Division disregard relevant evidence? In particular, did the Refugee Division disregard certain articles that, according to the applicant, show the racist behaviour of young Israelis toward immigrants? In my view, it cannot be inferred from the Refugee Division"s failure to mention those articles in its reasons that it disregarded them. Though relevant to all of the allegations involved, the articles do not appear to support the applicant"s allegations directly; they deal mainly with the behaviour of young people, whereas the applicant alleges that he was repeatedly persecuted by various people, including groups of people on the street and religious neighbours, and at work.
[22] Nor, with respect to the lack of protection, can it be inferred from the news articles regarding young Israelis" violence against immigrants that government officials and police officers have the same attitude toward foreigners and refuse to deal with their complaints. Rather, it appears that the Refugee Division assessed the evidence in the record and chose to give greater weight to certain evidence.
[23] I note that those articles appear, however, to support the applicant"s allegations that his son might have been a victim of violence at the hands of students at his school. However, the Refugee Division did not believe that the authorities would refuse to help them, because the documentary evidence shows that teachers were specifically trained to deal with this type of situation. In my view, that finding is not patently unreasonable in light of the evidence in the case at bar.
[24] The applicant also says the Refugee Division disregarded the affidavits of refugees accepted in Canada showing that there is no state protection. In support of his arguments, the applicant relies on Ward, supra, in which the Supreme Court of Canada held that applicants may establish that there is no state protection by various means, including by advancing testimony of similarly situated individuals.
[25] As the applicant says, the Refugee Division did not refer to the affidavits he filed in evidence regarding the lack of state protection. In my view, it would have been better if the Refugee Division had referred to the affidavits so as to remove any doubt about whether it did have regard to them. However, that omission is not a reviewable error in itself and does not mean that the Refugee Division disregarded them. The decision shows that the Refugee Division based its decision on a great deal of documentary evidence establishing that there are organizations providing services to promote the integration of immigrants, that Israeli police officers do not take into account ethnic origin or religious affiliation in investigating complaints, and that the government has a national complaints unit for the public to file complaints against the police. The applicant does not appear to have exercised all available remedies to show that there is no state protection.
[26] The applicant"s arguments have not satisfied me that the Refugee Division erred in making an adverse finding regarding the applicant"s credibility or that it disregarded evidence. In my view, the Refugee Division acted within its broad discretion, its decision is reasonably supported by all of the evidence, and no intervention is warranted.
[27] In his oral argument, counsel for the applicants raised an issue of the Board disregarding his allegation involving the Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949. Counsel says that this convention was incorporated into Canadian law pursuant to the Geneva Conventions Act, R.S.C., 1985, c. G-3, section 3.
[28] I am satisfied that the Board was not required to have regard to the allegations because they did not apply to it in determining whether the applicants are Convention refugees.
[29] First, as he himself says, counsel for the applicants" allegation applies only to Evgenia Shumunov, the applicant who received a notice to report for enlistment in the Israeli armed forces.
[30] Counsel says that under the Convention, Schedule IV (sections 2 and 4), the applicant would be persecuted if she were compelled to serve in the Israeli military.
[31] Counsel quotes section 4, which provides:
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Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. |
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Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. |
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The provisions of Part II are, however, wider in application, as defined in Article 13. |
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Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, shall not be considered as protected persons within the meaning of the present Convention.
[32] This section does not apply to any of the applicants. Moreover, chapter G-3 says:
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In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. |
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The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. |
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Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
[33] I am satisfied that under the circumstances of this case, that section does not apply to Evgenia"s refugee claim.
CONCLUSION
[34] The application for judicial review is dismissed.
QUESTION FOR CERTIFICATION
[35] Counsel for the applicants submits the following question for certification under subsection 83(1) of the Immigration Act: [TRANSLATION] Must the Refugee Division have regard to the "Geneva Conventions", which were brought into force by legislative enactment in Canada (R.S.C., 1985, c. G-3), in order to determine whether a claimant is a Convention refugee? More specifically, did the Refugee Division err in law in disregarding the concept of "protected person" defined in section 4 of Schedule IV and the related rights and obligations?
[36] As the respondent says in her argument regarding the certification of a serious question of general importance, [TRANSLATION] "it should be noted from the outset that the certified question applies only to applicant Evgenia Shumunov".
[37] I entirely agree with that statement. It must accordingly be emphasized that there is no question warranting certification regarding Ilia Shumunov, Vladimir Shumunov, Tatyana Chvets and Galia Chvets.
[38] Their application for judicial review is dismissed and no question is certified.
[39] If the only issue decided by the Convention Refugee Determination Division had been its refusal to consider the issue of the application of the Geneva Convention, I might have allowed a question to be certified.
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[40] As the respondent says in her argument:[TRANSLATION] However, the Refugee Division was of the opinion that the applicant Evgenia Shumunov was not credible. In particular, the Refugee Division gave no credit to her conscientious objection to doing her military service due to her Islamic faith, because she stated on her Personal Information Form that she was Christian and said at the hearing that she did not practise any religion (Reasons for decision of the Refugee Division at page 6; see also the transcript of the Refugee Division hearing at pages 424-429 of the Court file). In addition, the Refugee Division held that according to the documentary evidence in the record, women who express their objection to doing military service due to their religious convictions may be exempted therefrom. However, the issue of military service is the ground for the proposed question (Paragraph 33 of the applicants" factum, at page 230 of their record). |
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The respondent submits that the applicant"s proposed question does not warrant certification for the following three reasons: |
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" the question is not determinative of the matter; |
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" the Refugee Division does not have jurisdiction to apply the Geneva Conventions Act ; |
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| " in any event, it is clear that the scope of those conventions differs from that of refugee determination. |
[41] I agree with that argument. Evgenia"s testimony was considered not credible, and the Refugee Division gave no credit to the issue of her refusal to do her military service.
[42] I refuse to certify the question for which certification was requested, because it was not the determinative factor in the refugee claim.
Max M. Teitelbaum
Ottawa, Ontario
May 18, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-735-98
STYLE OF CAUSE: ILIA SHUMUNOV
VLADIMIR SHUMUNOV
EVGENIA SHUMUNOV
TATYANA CHVETS
GALIA CHVETS
v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 27, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE TEITELBAUM
DATED MAY 18, 1999
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANTS
LIZA MAZIADE FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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