Date: 20101203
Docket: IMM-493-10
Citation: 2010 FC 1223
Ottawa, Ontario, December 3, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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ABD EL NASSER KADAH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated January 7, 2010, wherein the applicant was determined
not to be a Convention refugee or a person in need of protection under sections
96 and 97 of the Act. This conclusion was based on the Board's finding that
state protection was available to the applicant.
[2]
The applicant requests that the decision of the Board be set aside
and the claim remitted for reconsideration by a different member of the Board.
Background
[3]
Abd
El Nasser Kadah (the applicant) is a gay male Muslim Palestinian citizen of Israel. He claims refugee
status because he fears persecution based on his membership in a particular
social group, that of Arab Muslim homosexuals in Israel.
[4]
The
applicant grew up in a Muslim Palestinian area of Israel called Kufr Manda
outside of Nazareth. He was the youngest of
14 children. The applicant was often physically abused by this father and older
brothers during his childhood. He once overheard his father say that homosexual
“people should be killed.”
[5]
At
age eleven, the applicant began a sexual relationship with an older boy,
Mohammed, which lasted for two months. He hid this relationship from his family
and friends because he feared violent consequences if it was discovered.
[6]
During
his early teenage years, the applicant experienced homophobic verbal abuse as
well as physical and sexual abuse. He attributes this abuse to rumours about
his homosexuality. His brother was often violent with him and in one incident
pushed him down a flight of stairs, resulting in two broken arms. On several
occasions, men attempted to have sex with the applicant, through force or
payment. These men included his cousin, local bullies and two men from his
neighbourhood. He was physically assaulted on several occasions. In high school,
the applicant was isolated and considered suicide. He saw a psychologist but
never disclosed his sexual orientation.
[7]
In
July 2003, the applicant ran away to Tel Aviv where he changed his name. When
his brothers and three friends found him, they forced him to return to Kufr
Manda. He was beaten when his parents realized that he had changed his name.
[8]
The
applicant later returned to Tel Aviv with his parents’ consent as his nephew,
Ibrahiem, accompanied him. He lived there for two months until he was forced to
return home because his nephew was found drinking with a Russian girl. At home,
his family arranged a marriage for him with a cousin.
[9]
In
May 2005, the applicant returned to Tel Aviv for the third and final time. There,
his brother often came unexpectedly to his home to check on him. In one
incident, his brother broke into and searched his apartment. The applicant
moved several times attempting to avoid his brother.
[10]
The
applicant did not approach the police for protection against his family.
Indeed, the only time he sought help from the police was after being involved
in a fight. At that time, he approached the police for water and was told “to
shut up and sleep.” He said that he did not feel safe going to the police.
[11]
The
applicant decided he could not escape his family in Israel and left for Canada. He arrived in Canada on October 14, 2006 on
a visitor visa. After two months, the applicant spoke to a lawyer in Toronto who assigned his case
to an assistant from the same area of Israel as the applicant. Because of this, the
applicant’s original Personal Information Form (PIF) states that he feared
persecution because he is perceived to be gay. The applicant has since amended
his PIF to state that he is gay but was afraid the assistant would inform his
family if he admitted his homosexuality openly.
[12]
The
applicant has kept in touch with his family since he came to Canada but has not given them
his location or telephone number.
Board’s Decision
[13]
In
its decision, the Board found that the applicant was neither a Convention
refugee nor a person in need of protection. The Board identified the
determinative issue as the availability of state protection.
[14]
Overall,
the Board found the applicant to be credible. He was forthright and responsive
and the Board found his story to be consistent with gay males’ accounts of
growing up in the Occupied
Territories.
The Board found the applicant’s explanation of the discrepancy between his
original and amended PIF to be reasonable in the circumstances.
[15]
The
Board found that Israel was a fully functional
democracy and that the presumption of state protection applied.
[16]
The
Board found that the applicant’s one incident of mistreatment by the police was
insufficient reason to refuse to seek protection from the authorities,
especially since it was under different circumstances than the homophobic
harassment and violence he experienced from his family and community.
[17]
The
Board stated that while there may be evidence of discrimination against Arabs
in Israel, there was no evidence
that the police were unresponsive to Arab citizens’ complaints. Further, the
Board found that serious efforts are being made to address discrimination in Israel. In addition, the Board
found that there is no evidence of persecution based on sexual orientation in Israel.
[18]
The
Board found that the documentary evidence presented by the applicant did not
reflect homophobic attitudes in the Israeli police. The article, Nowhere to
Run: Gay Palestinian Asylum Seekers in Israel (Nowhere to Run), relied on
by the applicant, stated that gay Palestinians claiming asylum in Israel
were returned to the Occupied Territories by Israeli police, despite the risk
to their lives. The Board found that this article was evidence that these men,
if granted asylum, would have had access to protection by the authorities in Israel.
[19]
Based
on these findings, the Board concluded that the applicant was required to seek
protection from the state and failed to do so.
Issues
[20]
The
issues are as follows:
1. What
is the appropriate standard of review?
2. Did
the Board err in determining that effective state protection was available to
the applicant?
Applicant’s Written Submissions
[21]
The
applicant submits that he was only required to seek state protection if it was
reasonably forthcoming. He submits that democracy alone is not sufficient to
find that state protection was available. There is no heightened obligation on
refugee claimants from states with democratic institutions and that he only needed
to present reliable evidence of a lack of state protection. The Board must
consider the quality of the institutions providing the protection.
[22]
The
applicant submits that he provided both his own testimony and documentary
evidence of similarly situated individuals which met the burden of proving that
Israel is unable to provide
state protection to its citizens.
[23]
The
applicant submits that the Board erred in finding that the incident where he
was insulted and dismissed when seeking assistance from the Israeli police was
not sufficient to meet the burden of proving the state’s inability to protect
him. This individual experience is part of a broader pattern of the state’s
inability to protect Arab gay men.
[24]
The
applicant submits that the Board erred by finding that there is no evidence of
persecution on the basis of sexual orientation in Israel. Since the Board did not make any adverse credibility
findings, the applicant’s evidence and testimony must be accepted, including
his experiences of homophobic harassment, violence and discrimination which he
submits amount to persecution.
[25]
The
applicant submits that he also produced documentary evidence of similarly
situated individuals unable to avail themselves of state protection. The Board
ignored evidence of police brutality against Arab Muslims in Israel. This evidence
demonstrates the broad societal discrimination faced by Arabs at the hands of
law enforcement officials. The Board was required to determine how this
evidence impacts on the protection the state affords gay Arab Muslim
Israelis.
[26]
In
addition, the applicant submits that the evidence shows that gay Palestinians
are returned to the Occupied Territories to known risks by
Israeli police because of a combination of their ethnic background and sexual
orientation. Arab Israelis face the same discrimination and mistreatment by
Israeli police. This situation is analogous to the apathy of the Israeli police
faced by Arab women who receive threats of honour killings and experience
gender violence as discussed in Jabbour v. Canada (Minister of Citizenship
and Immigration), 2009 FC 831.
[27]
The
failure to examine the totality of the evidence before determining what actions
were reasonable for the applicant is an inappropriate state protection analysis
and the Board erred by finding that adequate state protection existed for the
applicant.
Respondent’s Written Submissions
[28]
The
respondent submits that in order to rebut the presumption that the state is
capable of protecting its citizens, the applicant must provide clear and
convincing evidence of the state’s inability to protect him. The Board’s
finding of a high level of democracy in Israel creates a heavy burden that the applicant needs
to overcome to rebut this presumption.
[29]
The
Board reviewed the applicant’s materials and made reference to his personal
narratives and documentary evidence submitted. The respondent submits that it
was open to the Board to find this evidence to be insufficient to meet the onus
on the applicant.
[30]
The
respondent submits that a single refusal of aid by the authorities is not
sufficient to rebut the presumption of state protection. Further, the
respondent highlighted that the Board found that the incident where the
applicant sought state assistance was under different circumstances to the
harassment and violence he faced from his family.
[31]
Regarding
the evidence of similarly situated individuals, the respondent submits that the
Board considered the evidence of discrimination against Arab Israelis, but found
that it did not demonstrate that the police would not respond to complaints
from the Arab community. This is distinguishable from Jabbour above,
where specific evidence of police apathy in responding to honour killing of
Arab women was before the Board and was not addressed.
[32]
The
respondent submits that it was open to the Board to find that evidence of
security forces refusing asylum to gay Palestinians does not mean authorities
would not provide protection to gay Arab citizens of Israel.
[33]
The
respondent submits that the Board’s decision does not have to refer to all the
evidence before it. In this case, the applicant is seeking to have the Court
reweigh the evidence and conclude differently than the Board. The respondent
submits that the conclusions reached by the Board were open to it and the Court
should not interfere with them.
Analysis and Decision
[34]
Issue
1
What is the appropriate
standard of review?
The Supreme
Court of Canada held in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 that a standard of review analysis need not be conducted in every
case. Where the standard of review applicable to a particular issue before the
court is determined in a satisfactory manner by previous jurisprudence, the
reviewing court may adopt that standard of review (at paragraph 57).
[35]
Previous jurisprudence has determined that the adequacy of state protection
raises questions of mixed fact and law and is therefore reviewable against a
standard of reasonableness (see Hinzman, Re, 2007 FCA 171 at paragraph
38 and James v. Canada (Minister of Citizenship and Immigration), 2010
FC 546 at paragraph 16).
[36]
On a
standard of reasonableness, the reviewing court will be concerned with “the
existence of justification, transparency and intelligibility within decision-making
process.” The Court should only intervene if the decision falls outside of the
“range of acceptable outcomes, which are defensible in respect of the facts and
law” (see Dunsmuir above, at paragraph 47).
[37]
Issue
2
Did the
Board err in determining that effective state protection was available to the
applicant?
After
reviewing the decision and the record, I have to conclude that the Board’s
state protection analysis contains reviewable errors.
[38]
Decision-makers
may presume that states are able to protect their citizens unless there is a
complete breakdown of the state apparatus. Generally, the onus is on a refugee
claimant to provide “clear and convincing” evidence of a state’s inability to
protect its citizens in order to rebut this presumption (see Ward v. Canada (Minister of Employment
and Immigration), [1993]
2 S.C.R. 689, [1993] S.C.J. No. 74 (QL) at paragraph 57).
[39]
Where
the state is a functioning democracy, the presence of democratic institutions
will increase the burden on the applicant to prove that he exhausted all courses
of action open to him (see Kadenko v. Canada (Minister of Citizenship and
Immigration) 143 D.L.R. (4th) 532, [1996] F.C.J. No 1376 (F.C.A.) (QL) at
paragraph 5). However, democracy alone does not ensure adequate state
protection and the Board must consider the quality of the institutions
providing that protection (see Katwaru v. Canada (Minister of
Citizenship and Immigration) 2007 FC 612 at paragraph 21).
[40]
In
order to rebut the presumption of state protection, an applicant may testify
regarding his or her own experiences where state protection was not forthcoming
or provide testimony of similarly situated individuals who sought state
protection and were let down (see Ward above, at paragraph 57).
[41]
In
the case at bar, the applicant’s example of his interaction with the Israeli
police is likely not sufficient, alone, to meet the standard of proof. A single
incident of refusal of assistance by the authorities may be insufficient to
rebut the presumption of state protection (see Sanchez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 134 at paragraph 9). If this were the
only evidence upon which the applicant relied, a reasonable determination would
be that the applicant did not overcome the presumption.
[42]
However,
the Board is also required to “address the practical adequacy of state
protection when a threat to the life or safety of a refugee applicant is
accepted” (see Jabbour above, at paragraph 42). This includes reviewing
evidence of operational inadequacies of state protection and of similarly
situated individuals who have been unable to access state protection (see Zaatreh v. Canada (Minister
of Citizenship and Immigration), 2010 FC 211 at paragraph 55).
[43]
While Board members are presumed to have considered all the
evidence before them, where there is important material evidence that
contradicts a factual finding of the Board, it must provide reasons why the
contradictory evidence was not considered relevant or trustworthy (see Cepeda-Gutierrez
v. Canada (Minister of Citizenship & Immigration) (1998), 157
F.T.R. 35, [1998] F.C.J. No. 1425(F.C.T.D.) (QL) at paragraph 17 and Florea
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598
(C.A.) (QL).
[44]
The Board appears to have made several findings of fact without
regard to the relevant material before it.
Police Responses to Arab Israelis
[45]
The Board concluded that “while there is some evidence of
discrimination against Arab Israelis, there is no evidence to suggest
that police are not responsive to or fail to investigate complaints by members
of the Arab community”.
[46]
There
was extensive documentary evidence before the Board regarding Israeli police
violence and intolerance towards Arab Israelis and Palestinians. The U.S. Department of State (US DOS) report noted numerous
examples of Israeli police illegally detaining and assaulting Arab Israelis or
Palestinians (see certified tribunal record (CTR) at pages 79, 80, 84 and 92). There
was further evidence in the US DOS report before the Board of wider “harsh and
degrading treatment” by Israeli authorities towards nationals with Arab or
Muslim names (see CTR at page 87). In addition, the US DOS report highlighted
that a branch of the Ministry of Justice, “failed to investigate adequately
complaints filed against police officers by Arab Israelis and Palestinians” (see
CTR at page 81). Given the broad examples of Israeli state authorities’ violent
and intolerant behaviour towards Arabs and Palestinians, the Board’s finding of
fact appears to have been made without regard to the evidence before it.
Persecution Based on Sexual
Orientation
[47]
In addition to its finding that there is no evidence of
unresponsiveness by the Israeli police towards Arab citizens, the Board found
that “there is no evidence of persecution in Israel based on
sexual orientation and, in fact, there are specific laws prohibiting
discrimination on such a basis”.
[48]
The Board found that the applicant was credible, including his
account of the homophobic violence and threats he experienced. This amounted to
persecution based on sexual orientation in Israel.
[49]
In addition, there was evidence before the Board of persecution of
individuals, other than the applicant, based on sexual orientation. For
example, the US
DOS report noted that “societal violence and discrimination based on sexual
orientation or against persons with HIV/AIDS existed in isolated cases”.
[50]
The
respondent submits that it was open to the Board to find that the report, Nowhere
to Run, was evidence of state protection in Israel for Palestinian gay men. However, there is
testimony in Nowhere to Run in direct contrast to the Board’s finding.
In one account, an Arab Israeli at the Bat-Yam police station in Tel Aviv
suffered degrading treatment. The individual recounts at page 220 of the certified
tribunal record:
One
of the interrogators, called K, started insulting me when he saw the gay
association membership card. He said: “So, you take it up your ____? You _____
men?” He started cursing me and said: “You are coming here and ruining our
country. Don’t move, you maniac, I’ll kill you, I’ll _____ you.”… When I told
him I would be killed in the Territories he said: “So what, a dog is dead.”
[51]
The personal and documentary evidence suggest that the Board
overlooked relevant evidence when making its finding of fact that there is no
evidence of persecution based on sexual orientation in Israel.
[52]
The Board made several findings of fact without consideration of the
relevant material before it. The Board found that adequate state protection was
available to the applicant based on these findings. This amounted to a
reviewable error.
[53]
Consequently,
the application for judicial review will be allowed and the matter is referred
to a different panel of the Board for redetermination.
[54]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[55]
IT
IS ORDERED that the application for judicial review is allowed, the decision
of the Board is set aside and the matter is referred to a different panel of
the Board for redetermination.
“John A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne 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 :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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