Date: 20120704
Docket: IMM-8554-11
Citation: 2012 FC 848
Ottawa, Ontario, July 4,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ENAS ALHOKBEE, RAIAN
ALHOKBEE,
ANIS AL TEWNEH, and
KAMELIA AL ATAWNEH
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Applicants
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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]
The
applicants seek judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated
November 8, 2011, which found that the applicants were neither Convention
refugees nor persons in need of protection pursuant to sections 96 and 97 of the
Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow the application is dismissed.
Facts
[2]
The
applicants are a family of Arab citizens of Israel: the principal
applicant, Enas Alhokbee (applicant), and her three children, Anis Al Atawneh,
Kamelia Al Atawneh, and Raian Alhokbee. The applicant states that she was
raised in an abusive home by a strict Muslim father. Her father arranged for
her to marry Kamal Al Alawneh when she was 20 years old and they had two
children together before divorcing in 2003.
[3]
After
the divorce the applicant and her children moved back in with her parents. Her
father physically and emotionally abused her because she was a single mother
and because she violated Muslim norms in her dress and behaviour. She decided
to flee the abuse and left her parents’ home without her father’s permission. Her
father vowed to kill her if she did not return to live with him.
[4]
Between
2005 and 2009 the applicant relocated to nine different apartments in five
cities evading her father and other relatives. In 2007, the applicant gave
birth to her third child out of wedlock, as the father’s family refused to let
him marry a woman with children from a previous marriage. The applicant’s
brother-in-law informed her father that she had a child out of wedlock, because
he was angry at the applicant’s sister for leaving him due to abuse. The
applicant states it is considered shameful in Muslim culture to have a child
out of wedlock.
[5]
The
applicants left Israel for Canada on November 29, 2009
and made their refugee claims on December 1, 2009. The applicant’s sister also
came to Canada with her
children and they made refugee claims in February 2011. They received refugee
protection on December 28, 2011.
[6]
The
applicant states that she fears return to Israel because she
will be the victim of an “honour killing” by her father or other family
members. She also states that since coming to Canada she has
converted to Christianity.
Decision Under Review
[7]
The
Board recounted the applicant’s allegations and noted that she filed a letter
at the hearing indicating she had become a “born again Christian” since coming
to Canada. The Board
noted that the applicant did not elaborate upon her religious beliefs at the
hearing or link those beliefs to her fears upon return to Israel.
[8]
The
Board accepted the applicant’s evidence of her fear of her family and the
danger of being punished or killed by them upon return to Israel. Thus, the
Board found her subjective fear to be credible and to be supported by
documentary evidence about the problem of honour killings in Israel’s Arab
communities. However, the Board found that the claims failed because of the
availability of state protection.
[9]
The
Board did not find the applicant’s evidence about her attempts to seek state
protection credible. The Board noted her testimony that she reported her
father to the police in 2006, but withdrew the complaint.
[10]
The
Board reviewed the relevant principles in determining whether there is state
protection and reviewed general documentary evidence about Israel. The Board
noted some evidence of discrimination against evangelical Christians but again,
noted that the applicant had not alleged persecution based on her conversion to
Christianity.
[11]
The
Board found the applicants did not rebut the presumption of state protection. The
Board noted that on the one occasion the applicant went to the police,
protection was immediately offered, but she withdrew her complaint. The Board
acknowledged the cultural reasons that the applicant gave for withdrawing the
complaint but found that this was nonetheless not demonstrative of a lack of
state protection.
[12]
The
applicants’ claims were therefore refused.
Standard of Review and Issue
[13]
The
issue raised by this application is whether the Board’s analysis of state
protection was reasonable: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190.
Analysis
[14]
The
applicants submit that the Board selectively considered, and in fact distorted,
the documentary evidence on protection against honour killings in Israel. In my
view, the Board’s treatment of the evidence on state protection was reasonable.
[15]
The
determinative issue in the claim was the availability of state protection. The
Board accepted that the applicant feared she would be the victim of an honour
killing by her father or other relatives, and the Board accepted that, based on
the documentary evidence, honour killings are a serious problem in Israel and
therefore this fear was well-founded, both subjectively and objectively.
[16]
The
Board found that on the only occasion that the applicant went to the police,
protection was immediately offered, but she withdrew her complaint. The Board
stated at paragraph 53:
The [applicant] justified her withdrawal
on the basis that if her father was arrested she would face larger problems
from her father’s brothers and extended family. This explanation is rooted in
her Bedouin cultural tradition but is not demonstrative of a failure of state
protection.
[17]
This
is not an accurate summary of the applicant’s explanation for withdrawing the
complaint. She did not state she would face “larger problems”; she stated that
her father had made it clear that he could easily instruct another family
member to kill her, and therefore having her father arrested would not protect
her, and in fact would create greater danger for her.
[18]
The
Board’s interpretation of a letter of support from the Haifa Municipal Family
Violence Centre is also challenged. The Board states that, while the letter
recommends that the applicants leave Israel, the letter “did not specifically
deal with the issue of why the claimant could not access state protection in Israel through the
police and the criminal courts.” However, the letter stated:
Inas has also informed that her cousins
have been arrested I the past for criminal behavior and therefore are not
concerned with criminal repercussions if they harm her. Furthermore she spoke
of a number of incidences [sic] in her family where women were murdered
due to behavior that dishonored the family. From her story it seems that the
only long term solution that will keep her and her children safe will be to
leave Israel and build a new life in a
different country. The need to leave the country is critical since Israel is a very small country and
therefore it is impossible to find a place where she can live safely and calmly
with her children for the long term.
[19]
In
my view the Board accorded the letter both a reasonable interpretation and
weight. The law with respect to state protection is clear. The presumption of
state protection must be rebutted with clear and convincing evidence,
established on a balance of probabilities.
[20]
In
a democratic state like Isreal with a professional police force and an
independent judiciary, more than a single visit to the police, wherein they
agreed to take action which would be adequate, is required to rebut the
presumption: Flores Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94, [2008] 4 FCR 636.
[21]
The
Board noted that counsel for the applicant had cited Pearson v Canada
(Minister of Citizenship and Immigration), 2011 FC 981, in which a
humanitarian and compassionate decision was set aside because the officer
failed to consider whether, despite a general presence of adequate state
protection, the particular applicant had been unable to seek protection given
her circumstances. The Board noted it had no general humanitarian and
compassionate jurisdiction and also that the Pearson case was distinguishable
because that applicant had sought police protection 30-40 times.
[22]
The
applicant also relies on Jabbour v Canada (Citizenship and Immigration),
2009 FC 831 wherein a finding of state protection was set aside in light of the
Board’s failure to address certain aspects of the evidence before it. As the
proposition that a tribunal cannot be selective in its review of the evidence
is well established, it is difficult to see how Jabbour advances the
applicant’s case. In Jabbour, the police refused to protect unless the
applicant became a police informant. Mandamin J. found, in my respectful view,
rightly, that a finding of state protection was unreasonable.
[23]
In
this case, the Board referred to the country reports, the RIR and the specific
evidence before it. The findings that it drew based on that evidence were
reasonable.
[24]
The
Board had before it evidence which supported its conclusion that state
protection was available. Its conclusions fall squarely within the criteria of
logical outcomes as informed by the law and the evidence.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review be and is hereby dismissed. No question for certification has been
proposed and none arises.
"Donald
J. Rennie"
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