Date: 20100430
Docket: IMM-3844-09
Citation: 2010 FC 482
Ottawa, Ontario, April 30,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
TEWODROS GEBRE-HIWET
HARUYA TEWODROS GEBRE-HIWET
SAMRAWIT-KORAL TEWODROS GEBRA-HIWET
BANCHIAMLAK GEBRE-HIWET
ROBEL GEBRE-HIWET
SENAY TEWODROS GEBRE-HIWOT
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicants, who are Israeli citizens of Ethiopian/Eritrean descent, were found
by the Immigration and Refugee Board (Board) not to be Convention refugees or
persons in need of protection. The Board concluded that the Applicants were not
at risk due to their objection to military service and the alleged discrimination
did not amount to persecution. The Applicants’ claim was further undermined by
their failure to seek state protection.
[2]
The
central issues in this judicial review are the obligation to perform military
service as grounds for refugee/protection status and the consideration of the cumulative
effects of discrimination.
II. FACTS
[3]
The
five Applicants include two minors. They are a family who moved from Ethiopia to Israel in 1995.
While the father and mother were baptised Christians, the mother’s mother was
Jewish and therefore the family was able to take advantage of Israel’s favourable
resettlement policy for Ethiopian Jews. The family left Ethiopia because they
claimed that as “Felasha” (the term for Ethiopian Jews), they were mistreated
even though they lived as Christians.
[4]
The
Applicants’ complaint about their treatment in Israel was (a)
discrimination on the basis of race and religion, and (b) objection to
performing military service.
[5]
The
Applicants outlined a number of incidents of discrimination ranging from
mistreatment on the transit system, dismissal from his work, poor treatment by
parents and others when he was a teacher, vandalization of a car and insulting
epithets being used against them. It appears that these incidents were never
reported to the responsible authorities.
[6]
The
objection to military service arises in respect of the oldest son and the
daughter. The son had served his mandatory service of three years but objected
to operations in Gaza and alleged that Ethiopians were mistreated by
being given either the most menial jobs or the most dangerous. The daughter has
a general objection to military service and a belief that Ethiopians are
mistreated.
[7]
The
family came to Canada in 2007 on visitors’ visas. Three of their
daughters remain in Israel, living in the same area the family had lived
in. One daughter is working, one is going to college through Israel’s program of
free education and one is serving in the military.
[8]
The
Board had significant concerns about the Applicants’ credibility, the internal
inconsistencies of the stories, the memory lapses, the embellishments and the
failure to report incidents and to seek state protection.
[9]
The
Board canvassed and assessed each incident of discrimination and to the extent
that there was some credible basis for the allegation, the Board tended to find
them to be minor incidents. Ultimately, the Board found that the cumulative
incidents did not constitute persecution.
[10]
The
only fear consistently and credibly founded was the problems the Applicants had
with the Ethiopian Jewish community due to their Christian heritage. That claim
was undermined by the failure to report incidents or to take steps to relocate.
The Board found that there was no objective evidence that state protection was
not available in Israel to citizens like the Applicants nor did any of
them seek it out.
[11]
On
the issue of military service, neither the eldest son or daughter took any
steps with respect to either alleged discrimination nor to avail themselves of
the available alternatives to military service.
[12]
Finally,
the Board examined Israel’s policy toward discrimination and integration.
The Board noted both the efforts of the government to facilitate integration of
the Ethiopian Jews and also the problems experienced with such integration. It
concluded that given the generous absorption packages available to these new
communities, Israel could hardly
be seen as enabling discrimination.
III. ANALYSIS
[13]
The
standard of review in respect to whether evasion of military service constitutes
persecution has been held by Justice de Montigny in Lebedev v. Canada (Minister of
Citizenship and Immigration), 2007 FC 728, to be a question of law for
which the standard of review is correctness. I adopt his conclusion. The
failure to consider the cumulative effects of discrimination is also a question
of law; however, whether the events themselves constitute persecution is a
question of mixed fact and law which is subject to the reasonableness standard
(Talman v. Canada (Solicitor General), [1995] F.C.J. No. 41, 93 F.T.R.
266).
[14]
The
state protection finding in cases such as the present is subject to the
reasonableness standard of review (Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171).
[15]
A
finding of state protection would in most instances dispose of the claim of
discrimination/persecution. However, the Applicants argue that the analysis of
this issue is in error. I concur with them that a failure to properly assess
from what one needs to be protected can undermine a state protection finding.
State protection must relate to a proper assessment of the type of risk or harm
from which one needs to be protected.
[16]
The
finding on cumulative effects is somewhat confusing. While the Board
acknowledges the test, there is a suggestion that the Board only assessed
cumulatively those events which were persecutory in themselves. If that was the
case, it would be an error of law.
[17]
However,
where the state protection analysis concludes that for the types of events
alleged as discriminatory, there is state protection, then the cumulative
assessment is unnecessary. Where each of the constituent events said to
cumulatively constitute persecution are themselves state protected, any error
in the cumulative assessment is irrelevant; state protection exists for those
matters for which protection is required.
[18]
Therefore,
even if the Applicants were correct on the cumulative assessment - a matter on
which there is doubt – it does not undermine the state protection finding. In
this case the state protection analysis was thorough and reasonable.
[19]
On
the issue of objection to military service, the law is that conscription is
permissible as a law of general application and does not constitute
persecution. The son was not a conscientious objector to all wars nor did he
show that he would be forced to commit crimes against humanity. The daughter
took no steps to avail herself of alternative means of service which is
available to true conscientious objectors. The finding of no discrimination in
respect of military service was likewise reasonable.
[20]
Therefore,
this judicial review must be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
“Michael
L. Phelan”
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