Date: 20120607
Docket: IMM-7021-11
Citation: 2012 FC 714
Ottawa, Ontario, June 7,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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IRIT FURMAN - YOUNIS
(AKA IRIT FURMAN YOUNIS)
EDEN YOUNIS
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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, Irit Furman-Younis (the Principal Applicant) and her minor son Eden Younis
are citizens of Israel. They seek to have set aside a negative
decision by the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated September 15, 2011. The Board found they were
not Convention refugees or persons in need of protection within the
meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the following reasons, their application is dismissed.
I. Background
[3]
The
Applicants brought a refugee claim in Canada based on Eden having
experienced racially-motivated bullying at school in Israel. While his
mother is Jewish Israeli, his father is Sudanese Muslim. He is being raised as
Muslim and Jewish to reflect his mixed religious background.
[4]
The
Applicants claim that Eden was continuously harassed and bullied at
school. In February 2007, an attack at school landed him in the hospital. His
mother attempted to address the situation with school officials, including
writing a letter of complaint to the Minister of Education. She also sought
the assistance of a local newspaper.
II. Decision Under Review
[5]
The
Bound found the Applicants failed “to submit credible and trustworthy evidence
to establish a well-founded fear of persecution or serious harm upon their
return to Israel.” In
particular, a letter from a doctor following the February 2007 incident did not
substantiate the Applicants’ allegations that Eden was
persecuted or subjected to cruel and unusual treatment based on his race,
religion or the colour of his skin as his mother alleged. She was seen as
exaggerating what happened to embellish her claim. Similarly, referring to
newspaper articles and negative consequences that arose from them, the Board
concluded:
[…] I find that the adult claimant did
not adduce sufficient credible and trustworthy evidence to suggest that race,
religion, or the colour of the minor claimant’s skin played a roll in the
incidents – the threatening phone calls, car incident, or termination from her
employer – that happened to her after the publication of the two articles on
June 19 and 26, 2009.
[6]
As
an alternative finding, the Board faulted the Applicants for failing to rebut
the presumption of state protection in Israel. Despite
the Principal Applicant’s complaints to educational institutions regarding the
treatment of her son, she did not go to police until June 20, 2009. This
was 20 days prior to them leaving Israel. There was also
insufficient evidence of police inaction.
III. Issues
[7]
The
Applicants raise the following issues:
(a) Were the Board’s negative
credibility findings reasonable?
(b) Was
the Board’s conclusion that the Applicants did not rebut the presumption of
state protection reasonable?
(c) Did
the Board apply the correct legal standard with respect to the burden of proof
under sections 96 and 97 of the IRPA?
IV. Standard
of Review
[8]
Questions
of credibility are to be afforded deference in accordance with the
reasonableness standard (Aguirre v Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] FCJ no 732 at
paras 13-14). This standard also applies to the assessment of the availability
of state protection (Mendez v Canada (Minister of
Citizenship and Immigration), 2008 FC 584, [2008] FCJ no 771 at paras
11-13).
[9]
Based
on this standard, the Court will only intervene absent justification, transparency,
and intelligibility or an outcome that is unacceptable in light of the facts
and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 47).
[10]
By
contrast, the statement of a legal test warrants the correctness standard (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 44).
V. Analysis
A. Credibility
Findings
[11]
The
Applicants assert that the Board was unreasonable in the treatment of medical
evidence following the February 2007 incident. The Board considered the
failure of this report to corroborate their allegations by merely suggesting
that Eden “was injured
at school” central to its overall negative credibility finding. They also
insist that the Board misconstrued the evidence as to Eden not
remembering what happened when his mother first arrived at the hospital.
[12]
With
respect, I cannot accept the Applicants’ position. While the Board’s
conclusions regarding the medical evidence were not the only ones that could be
reached, it does not follow that they are unreasonable. The Board is justified
in focusing on whether the evidence presented relates to the specific claim,
namely that Eden was
mistreated at school based on his race, religion or skin colour in such a way
that would amount to persecution or put him at risk of harm.
[13]
The
Applicants reliance on Ukleina v Canada (Minister of
Citizenship and Immigration), 2009 FC 1292, [2009] FCJ no 1651 is of
limited assistance. In that case, Justice Sean Harrington took issue with the
Board finding a report a forgery because it failed to state the cause of the
injury. As the Respondent suggests, the Board in this case accepted the report
as presented. There was no suggestion of a forgery. Rather, the Board faulted
the report and drew a negative inference as to credibility for not addressing
the central allegations raised by the Applicants related to the racial
motivation behind the attacks. This analytical approach is reasonable.
[14]
The
Applicants further contest the Board’s failure to explicitly mention
psychological reports from Canadian professionals addressing Eden’s condition
and his discussions regarding racial and religious mistreatment.
[15]
The
Respondent maintains that the Board was not necessarily required to refer to
these reports in seeking evidence that would address the racial motivation
behind the attack. These individuals could not verify what occurred in Israel and relied
primarily on the recitations from the Applicants to the extent that the reasons
for the attack were mentioned. In Gosal v Canada (Minister of Citizenship
and Immigration), [1998] FCJ no 346, Justice Barbara Reed suggested that
the Board is not required to refer to a psychiatrist’s report in all instances
stating, “[i]t will depend on the quality of that evidence and the extent to
which it is central to the applicant’s claim.”
[16]
However,
in this matter I find that the quality of the evidence was such that the Board
should have specifically referred to and considered the psychological reports
(see for example Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ no 1425
at para 27). The failure to do so undermined its overall credibility finding. As a
consequence, I cannot accept that this aspect of the Board’s decision was
reasonable.
[17]
I
do not agree with the holding in Cortes (Litigation Guardian) v Canada (Minister of
Citizenship and Immigration), 2011 FC 329, [2011] FCJ no 427 that a
determination as to the Board’s credibility findings being flawed automatically
leads to the conclusion that the application must be allowed. There is no
basis to conclude that the Board’s credibility finding “tainted its entire
decision” in this instance (for similar reasoning see Pena v Canada (Minister of
Citizenship and Immigration), 2011 FC 746, [2011] FCJ no 964 at para
30). Therefore, in my view, an assessment as to the reasonableness of the
state protection analysis must also be undertaken.
B. State
Protection
[18]
On
review, I consider the Board’s assessment of state protection, which is
determinative of the claim, reasonable in the circumstances.
[19]
The
Applicants take issue with the Board faulting Eden’s mother for
not contacting police before 2009 despite her efforts to address the matter
with educational officials. They also question why if she was dissatisfied
with the police response she was expected to seek protection elsewhere.
[20]
In
a democratic state, however, the burden is much higher to rebut the presumption
of state protection (see Kadenko v Canada (Minister of
Citizenship and Immigration), [1996] FCJ no 1376 at para 5 (CA)). In a
recent case, Justice André Scott found that applicants “must show that they
tried to exhaust all courses of action open to them in Israel to obtain
the necessary state protection” (Galinkina v Canada (Minister of
Citizenship and Immigration), 2011 FC 36, [2011] FCJ no 39 at para 22).
As another example, this Court has found that applicants must do more to show
that state protection was not available to them than make two failed attempts
to contact police (see Antypov v Canada (Minister of Citizenship and
Immigration), 2004 FC 1589, [2004] FCJ no 1931 at para 12).
[21]
In
the context of Israel, the Board therefore reasonably faulted the
Applicants for not further pursuing these matters with the police and awaiting
their response. While the Applicants initially raised the matter with
educational officials, they had only brought the matter to the police shortly
before leaving Israel. There were other avenues available to them
and the police were not given the opportunity to address the complaint (see for
example Gutierrez v Canada (Minister of
Citizenship and Immigration), 2009 FC 487, [2009] FCJ no 617 at para
20).
[22]
I
must also stress that the standard of protection in these cases is adequacy (Carillo
v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, 2008 CarswellNat 605 at para 38).
Failure to solve crimes does not necessarily mean the protection was not
adequate where police investigated and responded to the allegations (see Salvagno
v Canada (Minister of
Citizenship and Immigration), 2011 FC 595, [2011] FCJ no 794 at para
18).
[23]
Given
my conclusion with respect to state protection, there is no need to address
other arguments raised by counsel at the hearing as to whether the Board had
conducted a separate analysis under sections 96 and 97 applying the correct
legal tests (see Pena, above at para 40).
VI. Conclusion
[24]
Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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