Date: 20100223
Docket: IMM-3846-09
Citation: 2010 FC 211
Ottawa, Ontario, February 23,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
LEVIS ZAATREH
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
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 (Act) for judicial review
of a decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated July 7, 2009 (Decision) which refused the Applicant’s
application to be deemed a Convention refugee or a person in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of Israel of Arab ethnicity who is a practicing
Christian. His refugee claim is based on a fear of being persecuted by an
extremist Muslim group.
[3]
The Applicant
was first attacked on Easter Sunday, 1999 as he was leaving a church service.
He was hit in the back of his head and his ribs. A week after this attack, many
stores owned by Christians were vandalized, set on fire, and robbed.
[4]
In
2001, the Applicant was attacked in a coffee shop because he refused to
participate in a demonstration against Jewish authorities. In May, 2002, as he
was walking down the street, the Applicant was attacked by a group of Muslims
who “pulled his cross from his neck and started to beat him up.”
[5]
The
Applicant moved to Haifa in 2005 to escape further persecution. However,
while at work in a Christian-owned store, the Applicant was robbed at knife-point.
His assailants took all of the money from him and the shop. They also cursed
and threatened the Applicant and told him that Christians were unwanted and
should leave Israel. After the departure
of the assailants, the Applicant phoned the police. While the police took some
notes of the incident, the Applicant did not hear from them again.
[6]
While
in Haifa, the
Applicant’s car was damaged and his windows were broken. He also began
receiving threatening phone calls at the start of 2006.
[7]
The
Applicant fled to Canada in May, 2006 and filed his refugee protection
claim shortly thereafter.
[8]
After
his arrival in Canada, The Applicant learned that three of his
cousins had been shot by their Muslim neighbours. One of his cousins died in
this attack.
DECISION UNDER REVIEW
[9]
The
RPD determined that there was a lack of clear and convincing evidence of the
unavailability of state protection.
[10]
The
RPD noted the alleged attacks that occurred on Easter Sunday, in the coffee
shop, and while walking down the street. However, it also noted that “[t]he
claimant testified that he could not remember if he reported those attacks to
the police.”
[11]
The
Applicant testified with regard to his reporting of the 2005 shop attack to the
police. The police asked the Applicant if he could identify the intruders. He
did not recognize them because they wore masks. The RPD noted that
[w]ithout adequate description or
identification of the perpetrators, the police were not given enough
information to perform their task. It is reasonable to assume that the adequacy
of the protection offered by the state was not tested, as the police did not
have sufficient information to mount a successful investigation. This was the
only instance where the claimant called the police for protection. Doubting the
effectiveness of the protection offered by the state, when one has not really
tested it, does not rebut the existence of a presumption of state protection in
one’s country of origin.
[12]
Accordingly,
the RPD found that the Applicant had not discharged his burden of establishing
clear and convincing evidence of the state’s inability to protect its citizens.
[13]
The
RPD then considered other options available to the Applicant. For instance, it
noted the potential for filing a complaint of police inaction in response to
reports of crimes, harassment or discrimination at the Public Complaints Unit. The
RPD then canvassed the efforts made to improve the complaints process against police
officers.
[14]
The
RPD also noted the existence of the Office of the Ombudsman which “examine[s]
complaints against government offices, state institutions, local governments,
and certain other bodies,” many of which are launched by vulnerable people. Moreover,
the Ombudsman is easily accessible and the service is free of charge.
[15]
In
contrast to the Applicant’s submissions that Arab citizens of Israel are “treated
as second class citizens” and experience persecution and discrimination, the
RPD found that the police had responded to the Applicant’s call, had taken
notes, and had discharged their duty. However, the RPD noted that “they could
only act on the information they were given.” The Applicant did not testify that
the “indifference and discrimination” by police officers was due to his Arab Christian
background.
[16]
The
RPD considered the Applicant’s evidence with regard to the police. It determined
that even though the police remained “uninvolved in sectarian violence between…Muslims
against their Christian Arab neighbors,” local failures to provide effective
policing do not amount to a lack of state protection, unless they are part of a
wider pattern of a state’s inability or refusal to protect.
[17]
Further,
the country condition documentation demonstrated that Israel is a parliamentary
democracy in which “the government generally respects the human rights of its
citizens.” The evidence also demonstrated that Israel allows
freedom of worship which is also generally respected by the government. Based
on an international Christian Zionist website, the RPD also noted that
Christians also benefit from “legal protection from persecution.”
[18]
The
RPD pointed out that in February, 2003, no evidence existed that anyone was
being imprisoned for their belief in Christianity. Moreover, in May, 2004, for
the first time ever, a Christian Arab was elected as a Supreme Court judge. The
RPD also cited documentary evidence that “by and large, Israel treats its
138,000-strong Christian minority tolerantly and equitably.”
[19]
The
RPD concluded that “where a state is in effective control of its territory, has
military, police and civil authority in place and makes serious efforts to
protect its citizens, the mere fact that the state’s efforts are not always
successful will not rebut the presumption of state protection.” Indeed, the
Applicant had not provided convincing evidence to rebut the presumption of
state protection.
[20]
As
a result, the RPD concluded that the Applicant is not a person in need of
protection and that there is no risk to his life or risk of cruel or unusual
treatment or punishment should he be returned to Israel.
ISSUES
[21]
The
Applicant submits the following issue in this application:
1.
Did
the RPD err in law in its analysis of state protection?
STATUTORY PROVISIONS
[22]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
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.
Person in
need of protection
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.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Définition de
« réfugié »
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.
Personne
à protéger
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.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
STANDARD
OF REVIEW
[23]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[24]
Precedent
case law has determined that the issue of state protection is to be considered
on a standard of reasonableness. See Song v. Canada (Minister of
Citizenship and Immigration), 2008 FC 467, [2008] F.C.J. No. 591 at
paragraph 6.
[25]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
[26]
The
Applicant contends that the RPD erred in its determination of state protection
in two respects: first, it misunderstood and misapplied the law with regards to
state protection; and second, it selectively relied on documentary evidence and
failed to consider relevant evidence.
[27]
The
Court has found that serious efforts made by a state must be considered at the
operational level of the protection offered by the state. See Garcia v. Canada (Minister of
Citizenship and Immigration), 2007 FC 79, 308 F.T.R. 54 2007 at
paragraph 15. Further, although there is a presumption of state protection,
this presumption can be rebutted by clear and convincing evidence of the
state’s inability to protect. This inability can be demonstrated by considering
the experiences of similarly situated individuals who have been let down by
state protection. See Balogh v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 809, 221 F.T.R. 203 at paragraph
42. Furthermore, the ability of a state to protect “must be seen to comprehend
not only the existence of an effective legislative and procedural framework but
the capacity and the will to effectively implement that framework.” See Jabbour
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 831, [2009] F.C.J. No. 961 at
paragraph 29.
[28]
In
this instance, the RPD failed to understand that the presumption of state
protection can be rebutted by clear and convincing evidence, and that the
experiences of similarly situated people and the Applicant’s own experiences
may provide such evidence. For this reason, the RPD erred in failing to
consider objective documentary evidence as it related to the Applicant’s
personal situation.
[29]
The
RPD also erred in relying on irrelevant evidence and by selectively citing
portions of the documentary evidence to support its finding while ignoring
evidence that pointed directly to the contrary. For example:
a)
The
RPD cited an excerpt from a Response to Information Request in the
documentation package entitled: “Israel: Reports of discrimination against
immigrants from the former Soviet Union and response of
government authorities and non-governmental organization” [emphasis in
original]. Clearly this is in error since the Applicant is not an immigrant
from the former Soviet Union but an Arab Christian born in Israel;
b)
The
RPD also cited from a Response to Information Request that contained general
information from the website of the Israel police, which discusses
a pilot project that would involve “mediation between police officer and
complainants” [emphasis in original]. It also states that an Israeli
organization which provides information on human rights violations in the West
Bank and Gaza Strip claimed that it was “instrumental in obtaining the
first conviction in 5 years of a Border police officer for abusing Palestinians”
[emphasis in original]. This cannot support a finding of state protection.
Furthermore, there was specific documentary evidence before the RPD with regard
to the availability of state protection for Arabs and Arab Christians in Israel that was
ignored by the RPD;
c)
The
RPD also selectively quoted from a Response to Information Request entitled
“State Protection Available to Christians.” The RPD found that “in 2001, for
every Jew to visit Israel there were two Christians” and that this was an
indication that “by and large, Israel treats its 138,000-strong Christian
minority tolerantly and equitably.” The Applicant submits that the fact that
Christians from all over the world visit holy sites in Jerusalem and other
cities in Israel is not evidence that Israel treats its Christian
minority “tolerably and equitably.” This same Response to Information Request discussed
the treatment of Christian Arabs in Israel and the lack of police
protection for them; however, this evidence was ignored by the RPD. Indeed, the
evidence indicated that the “police have remained for the most part uninvolved”
with regard to sectarian violence. Further, despite vandalism and shootings
directed at Christian homes, “the police have not interfered and have made no
arrests.” A villager of Rama, Galilee was also cited in the
documentary evidence as saying “authorities are not interested in policing Arab
communities.”
[30]
The
RPD was required to consider the attitude of the police towards Arab citizens as
well as the effectiveness of the police response with regard to the acts of
violence committed by Muslim extremists against Christian Arabs.
[31]
The
RPD further erred in its consideration of the police’s reaction to the
Applicant’s reporting of the May, 2005 attack. The police are required to
follow up and investigate complaints brought to them. The evidence before the RPD
was that, despite the Applicant’s complaint, the police did nothing with regard
to his attack. The RPD determined that the police would be unable to
investigate because the Applicant did not provide them with the identity of his
attackers. The Applicant submits that such reasoning is absurd, since it would
mean that as long as a criminal wears a mask to hide his identity, no criminal
act will ever be investigated, solved and prosecuted. Furthermore, contrary to
the RPD’s findings, the Applicant testified that the police would be unwilling
to protect him because the police were Jews and there existed “racist troubles
between the Jews and Arabs,” and that “even the right extremist government
that’s ruling Israel [is] calling for dislocation of all Arabs from Israel or transfer
of all Arabs from Israel.”
[32]
The
RPD clearly erred by ignoring the evidence before it. While the RPD considered
that Israel is a democracy, has an independent judiciary and allows for freedom
of worship, this does not mean that Arab Israelis are treated similarly to the
Jewish citizens of Israel. The evidence before the RPD showed that Arab
Israelis are treated as second class citizens. This is clear in the
institutional, legal and societal discrimination that occurs against Arab
Israelis. Furthermore, the police discriminate towards Arab Israelis, and their
behaviour is based on an approach that views the Arab citizens as an enemy and
as a security threat to the state.
[33]
The
Applicant cites many pieces of documentary evidence that were overlooked or
ignored by the RPD. For instance, the 2007 annual report by the Association for
Civil Rights in Israel, which reports an overwhelming amount of racism,
restriction of personal freedoms and discrimination, especially against Israeli
Arabs in Israel. The same
documentary evidence shows that racism and incidents against Israeli Arabs had
dramatically increased from the previous year.
[34]
Other
documentary evidence noted that a majority of Jewish Israelis supported the transfer
of Arab citizens, and believed that “the State of Israel should encourage Arab
citizens to leave the country.” The same evidence found that in 2006 racism
against Arab Israelis was exacerbated, which resulted in “racism on the part of
Jewish Members of Knesset and ministers; racism on the part of police; racism
in official and semi-official bodies; and racism in the provision of services.”
Indeed, the evidence noted that “[m]ost Arab citizens have almost no doubt that
the senior officers and divisions of Israeli Police adopt a discriminatory
attitude toward them,” and that “the behaviour of the police is not based on an
egalitarian approach to all citizens, but rather on an approach that views the
Arab citizens as an enemy and as a security threat to the state.” Furthermore,
the documentary evidence before the RPD showed that “not only has no improvement
been seen in the attitude of the police toward the Arab minority, but this
attitude has actually become more racist, more hostile, more aggressive, and
more violent.”
[35]
The
Applicant cites and relies on many pieces of documentary evidence that were before
the RPD to demonstrate that the support given to Arab Israelis is minimal at
best, and violent and aggressive at worst. This evidence clearly contradicts
the RPD’s finding that the police failed to take action when the Applicant phoned
for help because he was unable to provide sufficient information with respect
to the attack. Rather, the evidence supports a finding that the police’s
inaction was due to the Applicant’s identity as an Arab. The RPD failed to have
regard for the evidence before it. As such, its Decision cannot be upheld as
reasonable. See, for example, Gonsalves v. Canada (Minister of Citizenship
and Immigration), 2008 FC 844, 73 Imm. L.R. (3d) 311; Rosales v. Canada (Minister of
Employment and Immigration), 72 F.T.R. 1, [1993] F.C.J. No. 1454; Horvath
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 398, 14 Imm.
L.R. (3d) 263.
[36]
Other
evidence before the RPD clearly contradicted its finding of state protection
for the Applicant in Israel including: the ingrained discrimination; the
treatment of Arab Israelis as second class citizens; the racist and aggressive
attitude of the police towards Arab Israelis; and the lack of police
interference in acts of violence against Christians. The RPD erred in failing
to consider this evidence fully and failing to determine whether the
discrimination faced by Arab Christians affects the protection afforded to them
by the police. See Jabbour at paragraphs 29-30, 41-43.
[37]
The
Applicant submits that this evidence demonstrates more than a local failure to
provide effective policing. Indeed, the evidence clearly shows a broader
pattern of the state’s refusal to provide protection to Arab citizens,
including Christian Arabs.
[38]
The
documentary evidence before the RPD also referred to many similarly situated
persons who have been let down by state protection in Israel. Although
this evidence was highly relevant, it was ignored by the RPD. The RPD is not
allowed to selectively rely on evidence presented to the detriment of the
Applicant, or ignore pertinent evidence supporting his claim. See, for example,
Jabbour; Garcia v. Canada (Solicitor General), 1993 F.C.J.
No. 952; Naqvi v. Canada (Minister of Citizenship and Immigration), 2005
FC 996, 2005 F.C.J. No. 1242.
The Respondent
[39]
It
is the Applicant’s onus to establish all aspects of his refugee claim. In this
case, the Applicant failed to rebut the presumption of state protection.
[40]
When
the Decision is read as a whole, it is clear that the RPD understood the facts
of the Applicant’s claim and found his evidence insufficient to support a
positive determination. See Ragupathy v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 151, [2007] 1 F.C.R. 490 at paragraph
15; Mughal v. Canada (Minister of Citizenship and Immigration), 2006 FC
1557, [2006] F.C.J. No. 1952 at paragraph 31.
[41]
The
Applicant must approach his home state for protection prior to seeking refugee
status elsewhere. See, for example, Carillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636 at paragraph
25. The Applicant must also demonstrate that he is willing but unable to
receive protection from his country of nationality.
[42]
The
presumption of state protection applies equally where an applicant alleges a
fear of persecution by either the state or a non-state entity. See Hinzman
v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th)
413 at paragraph 54. The Respondent contends that the Applicant must do more
than simply show that the Israeli government “has not always been effective at
protecting those who fear honour killings” in order to rebut the presumption of
state protection.
[43]
Where
an applicant is unwilling to approach the state, he/she will not be considered
a refugee or protected person where it was “objectively reasonable” for the
applicant to have sought state protection and where state protection “might
reasonably have been forthcoming.” See Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689 103 D.L.R. (4th) 1.
[44]
The
more democratic a state, the higher the Applicant’s burden to show that state
protection was sought. See Kadenko v. Canada (Minister of Citizenship and Immigration)(1996),
143 D.L.R (4th) 532, 206 N.R. 272; and Hinzman, above at paragraphs
56-57. Because Israel is a democratic state, the Applicant must do
more than show that he approached the police on one occasion and that their
efforts were unsuccessful. See, for example, Carrillo, above at
paragraphs 31-36.
[45]
Furthermore,
state protection may be available from sources other than the police, such as
state-run or state-funded agencies. See, for example, Pal v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 698, [2003] F.C.J. No. 894; Nagy
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 281, [2002]
F.C.J. No. 370.
[46]
It
is the Applicant’s onus to rebut the presumption of state protection. It is not
for the RPD to establish the adequacy or effectiveness of protection. To do so
would be to shift the burden of proof. See Samuel v. Canada (Minister of
Citizenship and Immigration), 2008 FC 762, [2008] F.C.J. No. 963 paragraph
10.
[47]
Although
the Applicant’s burden of proof to show inadequate state protection is on a
balance of probabilities, this burden is also coloured by the fact that Israel is a
democratic state. See Carillo, above at paragraph 26. Such evidence must
be clear, convincing, relevant and reliable. See Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689. The Applicant failed to provide clear
and convincing evidence that demonstrates, on a balance of probabilities, that
the Israeli state is incapable of offering him protection.
[48]
In
order to rebut the presumption of state protection in a democratic state, the
Applicant must demonstrate that he exhausted all possible protection available.
An applicant will only be exempted from this obligation to seek state
protection in exceptional circumstances. See Hinzman, above at paragraph
57. In this instance, the Applicant did not make adequate attempts to seek
state protection prior to seeking refugee protection. Multiple attacks and
threats were never reported to the authorities and the Applicant proved
unwilling to avail himself of state protection. The Applicant also failed to
follow up on what he believed was the inaction of the police.
[49]
Furthermore,
the RPD is entitled to prefer documentary evidence to the testimony of the
Applicant as long as it provides adequate reasons for doing so. In this case,
the RPD found that rebutting the presumption of state protection would require
more than an assertion of subjective reluctance to seek protection. Even where
the RPD accepts the Applicant’s testimony, it is entitled to place more weight
on documentary evidence. See Szucs v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1614 at paragraph 11.
[50]
The
RPD examined the evidence before it, and while it recognized that the system
was imperfect, it found that the resulting discrimination did not rise to the
level of persecution. The simple fact that the Applicant would have preferred a
different result is not reason enough for the Court to intervene. See, for
example, Krishnan v. Canada (Minister of Citizenship
and Immigration), 2007 FC 846, 63 Imm. L.R. (3d) 38 at paragraph 31.
[51]
The
RPD is not required to mention every piece of evidence in its Decision, so long
as it is clear that the RPD has considered the evidence as a whole. The
Respondent contends that simply because there have been honour killings in
Israel does not negate the availability of state protection to someone who is a
Christian Arab in Israel.
[52]
The
fact that religious tensions run high in Israel is not
evidence that state protection is unavailable to citizens of Israel. Furthermore,
the fact that murders have occurred in the past does not prove the
unavailability of state protection. Rather, the Respondent contends, the fact
that the state investigates and prosecutes these matters demonstrates the
availability of state protection.
ANALYSIS
[53]
The
Applicant’s position on state protection is that because of systemic state
discrimination towards Arabs and Christians, adequate police protection was not
available to him in Israel. A significant amount of evidence was
introduced on this point. Counsel for the Respondent spent a great deal of time
at the hearing of this application addressing what she regarded as deficiencies
in that evidence which might render it irrelevant and/or of little weight.
[54]
What
we do not have, however, is the PRD’s assessment of that evidence. In reviewing
this Decision the Court is concerned with the Decision itself and the reasons,
or lack thereof, contained in the Decision. Counsel’s views of the evidence do
not really assist the Court in this regard.
[55]
After
reviewing the Decision and the record, I have to conclude that the RPD’s state
protection analysis contains reviewable errors. Generally speaking, the Board
failed to review the evidence of inadequate state protection at an operational
level and it failed to consider the evidence about persons similarly situated
to the Applicant who have been let down by the state. As in Balogh, the
RPD in this case did not test the presumption of state protection against the
evidence led by the Applicant. In fact, the RPD appears to have relied upon
facts and conclusions selected from the evidence that, in my view, do not
particularly support its general findings. See Jabbour at paragraphs 29,
30, 41-43.
[56]
The
evidentiary record before the RPD has been accurately summarized by the
Applicant in his Memorandum of Argument. Without mentioning every point in
turn, I think the general conclusion is justified that the evidence
demonstrated that there were not only local failures to provide adequate
policing, but also a broad pattern in Israel of the state’s refusal
to provide adequate protection to its Arab citizens, including Christian Arabs
such as the Applicant. This evidence should have been addressed by the RPD. See
Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration),
157 F.T.R. 35, [1998] F.C.J. No. 1425 at paragraph 17.
[57]
The
RPD also ignored the evidence of similarly situated persons who have been let
down by the state protection arrangements in Israel.
[58]
Generally
speaking, I agree with the criticisms of the decision put forward by the
Applicant in his Memorandum of Argument and adopt them in concluding that this
Decision is unreasonable and must be returned for reconsideration.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The Decision is set aside and the matter is returned
for reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
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