Docket:
IMM-6056-11
Citation:
2012 FC 860
Ottawa, Ontario, July 6, 2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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R.S.
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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 for judicial review in respect of a decision of the Refugee
Protection Division of the Immigration and Refugee Board [RPD or the Board],
dated August 11, 2008, in which the Board found that the applicant was neither
a Convention refugee nor a person in need of protection. The applicant is an
Israeli citizen, who objects to fulfilling his required compulsory military
service in Israel because he believes that Israel's occupation of the Palestinian territories is wrong, that the
Israeli state commits war crimes, that it violates the human rights of its
non-Jewish citizens and that he faces discrimination in Israel due to his
ethnicity as a Mizrahi (or Sephardic) Jew. Before the RPD, the applicant
asserted that he would be subject to imprisonment and would face discriminatory
treatment in prison by reason of the beliefs he holds and that, consequently,
he was entitled to protection in Canada under both section 96 and section 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the
Act].
[2]
In
the decision under review, the RPD rejected the applicant's claims for three
reasons. First, it held that the applicant's objection to compulsory military
service was not based on a genuine reason of conscience but, rather, was due to
an aversion to serving in the military and, accordingly, does not qualify him
for protection under section 96 of the IRPA. Second, it determined that the
imprisonment the applicant would likely face if he returned to Israel and
persisted in his refusal to complete his compulsory military service, likewise,
did not violate section 96 of the Act because there was no evidence before the
Board that the length of prison sentences or treatment received in prison was
harsher based on an individual’s ethnic background. The Board, however, failed
to deal with a key aspect of the applicant's section 96 claim, namely, the
assertion that, as a selective conscientious objector who disagrees with the stances
taken by Israel, the applicant would be subject to harsher treatment in prison
than deserters or individuals who refused to serve for other reasons. Finally,
the RPD held that conditions in military prisons and detention facilities in
Israel met international standards and, therefore, returning the applicant to
Israel to face imprisonment would not expose him to a risk to his life, cruel
and unusual treatment or punishment, or the danger of torture, and,
accordingly, determined that the applicant did not qualify for protection under
section 97 of the IRPA.
[3]
In
this application for judicial review, the applicant does not contest the
Board's conclusion under section 97 of the IRPA but does argue that its
determinations under section 96 of the Act should be set aside for three
reasons. The applicant argues in this regard that:
1. The
Board breached its duty of procedural fairness by failing to provide adequate
reasons;
2. The
Board erred in law in interpreting the meaning of persecution under section 96
of the IRPA:
i.
by
failing to assess whether the applicant's claim falls under the exception for
deserters set out in section 171 of the United Nations High Commissioner for
Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status
[the UNHCR Handbook];
ii.
by
failing to recognize the punishment for objection to military service on
grounds of conscience constitutes persecution on the basis of political
opinion; and
3. The
Board ignored material evidence on the record and thus failed to have regard to
the totality of the evidence.
[4]
As
is more fully discussed below, I have determined that the arguments regarding
the alleged violation of the duty of procedural fairness due to the inadequacy
of the Board’s reasons are without merit. That said, I have also determined
that this application for judicial review must be granted for reasons related
to the second and third of the above grounds because the Board made essential
factual conclusions that contradict the evidence that was before it.
Accordingly, these factual determinations constitute a violation of paragraph
18.1(4)(d) of the Federal Courts Act, RSC, 1985, c F-7 [FCA]. Finally, I
have determined that this case does not raise issues which warrant
certification under section 74 of the Act, despite the several issues proposed
by the applicant, as this decision rests on the conclusion that the key factual
findings made by the RPD were made in a perverse manner and without regard to
the evidence before the Board.
No violation of
the duty of procedural fairness through the issuance of inadequate reasons
[5]
The
applicant's argument that the RPD violated the principles of natural justice in
failing to provide adequate reasons may be disposed of summarily as that the
Supreme Court of Canada has recently determined that the inadequacy of reasons
given by a tribunal does not give rise to breach of natural justice provided
some reasons are given. In this regard, in Newfoundland and Labrador
Nurses Union v Newfoundland and Labrador (Treasury Board), 2011 SCC
62, [2011] 3 S.C.R. 708, Justice Abella, writing for a unanimous Court, stated at
paragraphs 20 and 22:
Procedural fairness … can be easily disposed of here. Baker
stands for the proposition that “in certain circumstances”, the duty of
procedural fairness will require “some form of reasons” for a decision (para
43). It did not say that reasons were always required, and it did
not say that the quality of those reasons is a question of procedural
fairness.
[…]
It strikes me as an unhelpful elaboration on Baker to suggest
that alleged deficiencies or flaws in the reasons fall under the category of a
breach of the duty of procedural fairness and that they are subject to a
correctness review.
[…]
It is true that the breach of a duty of procedural fairness is an error
in law. Where there are no reasons in circumstances where they are
required, there is nothing to review. But where, as here, there are
reasons, there is no such breach. Any challenge to the reasoning/result
of the decision should therefore be made within the reasonableness analysis.
[Emphasis added]
[6]
In
light of this, the applicant’s first argument fails.
Erroneous
factual findings result in the decision being set aside
[7]
Issues
related to the second and third grounds raised by the applicant, on the other
hand, do warrant intervention. The applicant provided consistent testimony
before the RPD with respect to the reasons for his unwillingness to serve in
the Israeli army, which stemmed from his profound disagreement with the policies
of Israel regarding the occupation of Palestinian territories, his belief that
the Israeli state commits war crimes and his view that Israel discriminates
against Mizrahi Jews and other non-Jewish citizens, including, notably, Arabs.
He stated that he was not a pacifist, and would fight for causes that he
believed in, but could not as a matter of conscience fight in the Israeli army
in light of Israel’s current policies. The following excerpts from the
transcript of the hearing before the RPD (Certified Tribunal Record at p 804)
are reflective of the applicant’s testimony throughout:
Q: If you were in Israel and you were
conscripted to serve, what would you do?
A: I would refuse to serve.
Q: Why?
A: Because Israel is not a legitimate country
in my eyes. […] I would refuse to serve in the Israeli army because I do not
want to serve the Israeli government or the army in any way. I do not want to
be associated with this prison state. I disagree entirely with Israel's past
policies and present policies towards original inhabitants of the land, the
Palestinians, and towards their own citizens -- Israeli Arabs and Mizrahi Jews,
both of which groups are still today being discriminated against. […]
[…] I'm not going to fight for a
country that came in, massacred people that were living there, and is still
massacring them today. And I'm supposed to wear a uniform, representing that.
And at the same time it's mistreating
its own citizens, its own citizens because they’re of the wrong colour or of
the wrong background or they’re speaking the wrong language. […] it would be to
me the same as serving in the Gestapo or something like that.
Q: If they asked you why you were refusing to
serve --
A: I would tell them straight. […] I would
say that I disagree with what you're doing. I would say, "When you pull
out of the Palestinian territories, when you apologize to the Palestinian
people, when you apologize to Israeli Arabs, when you apologize to Mizrahi
Jews, when you apologize for the system of discrimination, oppression and racism
that you have created in Israel, and for the oppression that you're causing
around Israel -- when you stop these things and stop violating human rights,
that's when I'll serve that country."
[8]
The
applicant made several others statements of similar ilk during his testimony
before the Board. Notably, contrary to what the RPD found in its reasons, he
never indicated that he was not a conscientious objector. Rather, he stated
that he had not made an application to be recognised as a conscientious
objector in Israel because the Israeli state does not recognise selective
conscientious objectors who refuse to serve in the army by reason of a
principled opposition to the policy choices made by the Israeli state. He also
testified that he was not a pacifist.
[9]
In
addition to repeatedly outlining the principled basis for his unwillingness to
complete the compulsory military service that the state of Israel requires from
Jewish citizens, the applicant also filed substantial documentary evidence with
the RPD which indicated that he would not be granted an exemption from active
military service in Israel and would likely be imprisoned if he were returned
to Israel and refused to serve in its army. The evidence established that
under Israeli law selective conscientious objectors who disagree with Israel’s policies will not be granted an exemption from military service (as opposed to
pacifists or those who object on religious grounds, who may be entitled to such
an exemption).
[10]
The
applicant also filed evidence which supported his argument that selective
conscientious objectors in Israel are subject to repeated and harsher prison
sentences than deserters and which indicated that, in some instances, jailed
selective conscientious objectors have been denied sunlight, clothing, hot
water, paper and reading materials, access to counsel and visits from family.
Certain media reports the applicant filed indicated that this is particularly
the case if the objector refuses to wear a military uniform while in prison, in
which case reports indicated that the individual will often be placed in
isolation and subject to further forms of mistreatment.
[11]
The
applicant further filed documentary evidence from non-governmental
organizations, like Amnesty International and Human Rights Watch, which accused
the Israeli military of engaging in human rights abuses and violations of
international humanitarian law. In addition, he filed articles from several
newspapers, which were critical of certain actions of the Israeli military, and
fact finding mission reports of the United Nations General Assembly Human
Rights Council on violations of international law by Israel. The applicant
asserted that this evidence demonstrated international condemnation of certain
of the activities engaged in by the Israeli army.
[12]
Based
on this evidence, the applicant argued that he met the definition of a
Convention refugee within the meaning of section 96 of the IRPA, noting that
there is nascent support in Canadian case law, and recognition in international
law, of the principle that selective conscientious objectors, who oppose
particular wars for reasons of principle, are entitled to refugee protection if
they would face imprisonment for refusing to engage in military service to
fight in situations where the war they oppose is condemned by the international
community as violating the basic rules of human conduct or violates
international law. The applicant cited in this regard several Canadian cases,
including Zolfagharkhani v Canada (Minister of Employment and Immigration),
[1993] 3 FC 540, 155 NR 311 (CA); Al-Maisiri v Canada (Minister of
Employment and Immigration), [1995] FCJ No 642, 183 NR 234 (CA); Hinzman
v Canada (Minister of Citizenship and Immigration), 2006 FC 420, [2006] FCJ
No 521; affd 2010 FCA 177, [2007] FCJ No 584; Bakir v Canada (Minister of
Citizenship and Immigration), 2004 FC 70, [2004] FCJ No 57; Tewelde v
Canada (Minister of Citizenship and Immigration), 2007 FC 1103, [2007] FCJ
No 1426; Lebedev v Canada (Minister of Citizenship and Immigration),
2007 FC 728, [2008] 2 FCR 585; Key v Canada (Minister of Citizenship and
Immigration), 2008 FC 838, [2009] 2 FCR 625; and Vassey v Canada (Minister
of Citizenship and Immigration), 2011 FC 899, [2011] FCJ No 1120. The
applicant further argued that sections 170 and 171 of the UNHCR Handbook should
be viewed as authoritative, and that these sections provide that those who are
selective conscientious objectors, and who might face imprisonment for refusing
to serve, are entitled to refugee protection. They provide:
170. There are […] cases where the necessity to
perform military service may be the sole ground for a claim to refugee status,
i.e. when a person can show that the performance of military service would have
required his participation in military action contrary to his genuine
political, religious or moral convictions, or to valid reasons of conscience.
171. Not every conviction, genuine though it may
be, will constitute a sufficient reason for claiming refugee status after
desertion or draft-evasion. It is not enough for a person to be in disagreement
with his government regarding the political justification for particular
military action. Where, however, the type of military action, with which an
individual does not wish to be associated, is condemned by the international
community as contrary to the basic rules of human conduct, punishment for
desertion or draft division could, in light of all of the requirements of the
definition, in itself be regarded as persecution.
[13]
As
noted, the first reason that the RPD rejected the applicant’s claim centered on
its conclusion that the applicant's objection to compulsory military service
was not based on a genuine reason of conscience but, rather, was due to an
aversion to serving in the military. The reasons of the Board on this issue are
contained in paragraphs 12 to 14 of its decision, which provide as follows:
… [T]he panel finds that the claimant's reasons for
refusing to serve in the Israel military are not sufficient to exempt him from
conscription service, which intended purpose is a law of general application
[sic]. At the hearing, the claimant provided, through his oral testimony, his
objections to not serving his compulsory military service in Israel: he does
not want to take someone else's life; he does not want to have blood on his
hands; he believes that Israel is not a legitimate country; he believes that
Israel is a prison state and that he would not serve in a Military that kills
its own people.
As a result of his own testimony, and apart from
being opposed to physical violence, the use of arms and killing people, the
claimant provided no testimony that would indicate that his objections to
serving in the Israeli military are sufficiently significant and are those of
the person who is a genuine conscientious objector. Indeed, the claimant's oral
evidence, when questioned on this matter in the hearing, was that he was not a
conscientious objector.
The panel finds, based on the claimant's own
evidence, that the claimant's objection to completing his compulsory military
service obligations in Israel is an aversion to serving in the Israeli military
and not for genuine reasons of conscience. As a result, the panel finds that
the claimant's aversion to beginning his compulsory military service in Israel is not by reason of any one of the five grounds enumerated in the Convention refugee
definition.
[14]
The
RPD’s decision turns on these paragraphs, which are both internally
inconsistent and contradict the evidence that was before the Board. Contrary to
what the Board states, the applicant at no time testified that he was not
conscientious objector. Rather, as counsel for the applicant notes, he “routinely
couched his objection to service as being an objection based on grounds of
conscience” (Applicant’s Further Memorandum of Argument at para 19). He also
clearly indicated he was not a pacifist and testified that in some
circumstances he would be able to kill another person, if it were required to
defend his family or his home. Thus, the RPD's findings that the applicant was
“opposed to physical violence, the use of arms and killing people” and “was not
conscientious objector” are directly contrary to the evidence before the Board.
[15]
The
above passage, moreover, is internally contradictory as one who is opposed to
physical violence, the use of arms and killing people – i.e. a pacifist - would
meet the definition of a conscientious objector. In addition, the RPD did cite
some of the applicant's reasons for not wishing to serve in the Israeli army,
notably, that “he believes that Israel is not a legitimate country”, that “Israel is a prison state” and that “he would not serve in a Military that kills its own
people”. Each of these convictions might amount to grounds for being a
selective conscientious objector, in accordance with sections 170 and 171 of
the UNHCR Handbook.
[16]
This
Court may set aside a factual determination of the RPD only if that
determination is unreasonable (see Canada (Citizenship and Immigration) v
Khosa,
2009 SCC 12 at paras 46-47, [2009] 1 S.C.R. 339; Rahal v Canada (Minister of
Citizenship and Immigration), 2012 FC 319 at para 40; Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No
1425, 157 FTR 35, at para 14; Quiroa v Canada (Minister of Citizenship and
Immigration), 2005 FC 271 at para 6, [2005] FCJ No 338; Gil v Canada
(Minister of Citizenship and Immigration), 2005 FC 1418 at para 20). Paragraph
18.1(4)(d) of the FCA provides “legislative precision to the reasonableness
standard” by which factual findings are to be measured (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 46, [2009] 1 SCR
339). Paragraph 18.1(4)(d) of the FCA states that this Court may set aside a
tribunal’s decision if it is satisfied that the tribunal “based its decision or
order on an erroneous finding of fact that it made in a perverse or capricious
manner or without regard for the material before it”.
[17]
The
wording of section 18.1(4)(d) requires that the impugned finding must meet
three criteria for relief to be granted: first, it must be truly or palpably
erroneous; second, it must be made capriciously, perversely or without regard
to the evidence; and, finally, the tribunal’s decision must be based on the
erroneous finding (Rohm & Haas Canada Limited v Canada (Anti-Dumping
Tribunal), [1978] FCJ No 522, 22 NR 175, at para 5 [Rohm & Haas];
Buttar v Canada (Minister of Citizenship and Immigration), 2006 FC 1281
at para 12, [2006] FCJ No 1607). This is a difficult thing to demonstrate, and
the standard of review accordingly necessitates significant deference being
accorded to a tribunal’s factual findings.
[18]
In
the seminal case interpreting section 18(1)(d) of the FCA, Rohm & Haas,
Chief Justice Jacket defined “perversity” as “willfully going contrary to the
evidence” (at para 6). In terms of a finding being made without regard to the
evidence, the case law recognizes that a finding for which there is no evidence
before the tribunal will be set aside under paragraph 18.1(4)(d) of the FCA
(see e.g. Canadian
Union of Postal Workers v Healy, 2003 FCA 380 at para 25, [2003] FCJ No
1517;
Isakova v Canada (Minister of
Citizenship and Immigration), 2008 FC 149 at para 44, [2008] FCJ No
188; Girgis v Canada (Minister of Citizenship and Immigration), 2007 FC
90 at para 24).
[19]
Despite
the high degree of deference to be afforded to factual findings of the RPD, the
impugned findings of the Board in this case are so key to its overall decision
and so wrong that its decision must be set aside. In this regard, as noted, the
Board's decision turned on its erroneous determination that the applicant was
not a conscientious objector and, instead, objected to military service due to
“aversion”. This determination flies in the face of the uncontradicted evidence
from the applicant regarding his reasons for the refusal to serve. It may
therefore be said to be “perverse” and “made without regard to the material”
before the RPD.
[20]
In
light of this erroneous factual determination, the Board did not analyze the
applicant’s argument that his grounds for objection fall within section 96 of
the IRPA. The RPD, accordingly, did not determine whether the applicant would
likely face imprisonment if returned to Israel, whether the actions of the
Israeli state and military are contrary to international law or are condemned
by the international community nor whether being imprisoned for refusal to
fight in the Israeli army amounts to “persecution” within the meaning of
section 96 of the IRPA. All these inquiries were key to the applicant’s refugee
claim. Accordingly, the Board’s erroneous factual conclusions were central to
its decision. Because these conclusions were also perverse and made without
regard to the evidence before the Board, they fall within the scope of
paragraph 18.1(4)(d) of the FCA and lead to the RPD's decision being set aside.
Failure
to consider a key argument provides an additional reason to set the decision aside
[21]
There
is an additional reason why the RPD’s decision must be set aside. As noted,
the applicant filed evidence indicating that the treatment afforded to
selective conscientious objectors in Israeli military prisons was harsher than
that afforded to those who were jailed because they had refused to serve for
other reasons and that selective conscientious objectors received longer
sentences. The applicant argued that this differential treatment also amounted
to persecution within the meaning of section 96 of the IRPA. The RPD, however,
failed to address this argument. Rather, it confused the applicants’ arguments
and instead reviewed whether the documentary evidence established that those of
different ethnicity were subject to longer sentences. It wrote in this regard
at paragraph 18 of the decision:
The claimant must establish that the harm feared is
sufficiently serious to constitute persecution. The documentary evidence before
the panel indicates that, upon his return to Israel, the claimant could be
imprisoned. However, the panel finds that the sentences imposed on those
Israeli nationals who are unwilling to serve their compulsory military obligations
in Israel, are not excessively or unduly harsh. These prison sentences are
legal sanctions provided for in a law of general application in Israel and, as such, are matters of judicial prosecution and not persecution in violation
of international standards. The panel does not consider the jail sentence to be
disproportionate to the offence committed, nor does the panel find it
persecutory in nature. The punishment is the same for everyone; there is no
evidence before the panel that it is harsher for immigrants from the former Soviet Union, be they Muslim, Christian or Jew. Therefore, the panel finds that the
punishment is of a general application and is inherent or incidental to
sanctions authorized by the laws of Israel, a democratic country with free speech,
free elections and an independent judiciary. In the panel’s view, the
punishment does not disregard accepted international standards.
[22]
This
failure to consider the applicant’s argument gives rise to an additional and
independent basis for setting aside the decision (see Ghirmatsion v Canada
(Minister of Citizenship and Immigration), 2011 FC 519 at paras 106-108; Dirar
v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC
246 at para 19, 385 FTR 133; Level v Canada (Minister of Citizenship and
Immigration), 2010 FC 251 at para 64, [2011] 3 FCR 60; Ivachtchenko v
Canada (Minister of Citizenship and Immigration), 2002 FCT 1291, 225 FTR
168 at para 23).
Certified
Question
[23]
Counsel
for the applicant proposed the following questions for certification under
section 74 of the IRPA:
1. Considering
the evolving nature of the international law on conscientious objection to
military service, and considering the recognized importance of guidance on this
issue of the UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status, set out in paragraphs 167 to 174 of the Handbook,
should the
Refugee Protection Division be required to clearly analyse a refugee claim
based on conscientious objection to military service, in reference to the UNHCR
Handbook, and in particular to paragraphs 169 to 174 of the Handbook?
2. If
the refugee claimant is found to have a sincerely held religious, political or
moral belief or opinion opposed to participating in the required military
service, should any punishment for refusal to serve be recognized as persecution,
in accordance with the evolving international law on conscientious objection to
military service?
3. Is
the refusal to comply with compulsory military service because of political
opinion, a political opinion which could constitute a nexus to
Convention grounds upon which a person can claim refugee protection?
[24]
The
Federal Court of Appeal has indicated that a question should only be certified
where it is a serious question of general importance and would be dispositive
of an appeal (Zazai v Canada (Minister of Citizenship and Immigration),
2004 FCA 89 at para 11, [2004] FCJ No 368). No such question arises here as
this decision turns on the factual errors made by the RPD, which render its
decision unreasonable. Thus, the questions posited by counsel for the
applicant, which are doubtless interesting, simply do not arise in this case.
[25]
Accordingly,
for these reasons, this application will be granted, without costs, and no
question is certified under section 74 of the Act.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is allowed;
2.
The
applicant’s claim is remitted to the RPD for re-determination by a differently
constituted panel of the Board;
3.
No
question of general importance is certified; and
4.
There
is no order as to costs.
"Mary
J.L. Gleason"
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