Date: 20090817
Docket: IMM-4796-08
Citation: 2009 FC 831
Ottawa, Ontario, August 17,
2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
SHADI JABBOUR
SAMAH AMUN
NDAL AMUN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Immigration and
Refugee Board, Refugee Protection Division (the “Panel”) dismissing the
Applicants’ claim for refugee protection.
BACKGROUND
[2]
The
principal Applicant, Ms. Samah Amun is a citizen of Israel. She is a
divorced Muslim Palestinian who is now married to the Applicant, Shadi Jabbour,
a Christian Palestinian who is also a citizen of Israel. Ms. Amun has
a son, Ndal Amun, who was born in Israel and is the minor Applicant
in this application. Ms. Amun and Mr. Jabbour have a son together, Joel Loaay
Shadi Jabbour, who was born in Canada and who is not a party in this
application.
[3]
The
adult Applicants met in Israel. The Applicant, Mr. Jabbour, showed
kindness to Ms. Amun, a divorced Muslim woman. They commenced a relationship
which they kept secret because she is a Muslim woman and he is a Christian man.
Ms. Amun’s family would not approve of her relationship with a Christian. Relatives
and neighbours watched her because she was a divorced woman.
[4]
Ms.
Amun’s family learned of the relationship when hospital staff notified them of a
car accident involving Ms. Amun and Mr. Jabour in 2002. Although her family
disapproved, the couple secretly continued their relationship.
[5]
To
keep the relationship secret, Ms. Amun underwent three abortions. A doctor
recommended them because he was aware of the danger posed should she have a
child by a Christian man. The first two abortions were in 2000 and 2001. Ms.
Amun’s mother discovered the relationship during the third abortion in 2005,
but was persuaded by her daughter to keep it secret.
[6]
During
this period Ms. Amun was followed and became the target of vandalism. She said
she contacted the police for help, but was told nothing could be done unless
she identified the perpetrators. After one of her relatives harassed her, her brother
told her the family would deny anything happened if she reported it. On making
one complaint to the police, Ms. Amun was directed to another official who
proposed she act as an informant; thereby securing police protection. She
declined because it would jeopardize her safety in her community.
[7]
Mr.
Jabbour said he was harassed with threatening phone calls. People threw bottles
and stones at his business. He also went to the police and encountered the
same response as Ms. Amun. Since he could not identify the perpetrators, the
police said they could do nothing.
[8]
In
2005, Mr. Jabbour sought to make peace by formally requesting permission to
marry Ms. Amun. The Amuns rejected the proposal. Two of Ms. Amun’s brothers
assaulted her. A third brother threatened to kill Mr. Jabbour and burn his town
to ashes if his sister married the Christian man.
[9]
Ms.
Amum feared her brothers would kill her to defend their family’s honour. The
threat of an “honour killing” was based on her relationship with a Christian
man and the child she had by him.
[10]
The
Applicants fled Israel in September 2006 to Canada in order to
live together in safety. They were married in Mississauga on February
27, 2008, and their son was born on April 7, 2008.
DECISION UNDER REVIEW
[11]
The
Applicants’ claim for refugee protection is based on the Convention grounds of
religion, nationality, political opinion and membership in a particular social
group – a mixed interfaith family. The Applicants claimed their lives were at
risk, or they would be subject to cruel and unusual punishment in Israel.
[12]
The
Panel decided the Applicants do not have a well-founded fear of persecution
based on a Convention ground in Israel, their lives were not
at risk and they would neither be subject to cruel and unusual treatment nor
punishment.
[13]
The
Panel found the Applicants did not provide sufficient evidence showing they
sought state protection or state protection was simply not available to them. Nor
was the Panel convinced it would have been unreasonable to seek state
protection in Israel.
[14]
The
Panel surveyed the documentary evidence and found discrimination against
Israeli Arabs existed, but not to a degree amounting to persecution. The Panel
quoted an International Religious Freedom Report 2003, which states Israel confers
“full social and political equality on its citizens regardless of religious
affiliations.”
[15]
The
Panel considered the issue of a possible honour killing, as the Applicant Amun alleges
would have been her fate; however, the Panel dismissed her concern stating:
There is nothing in the material on file
in this case which leads me to conclude that the Israeli authorities would not
act on a report of a threat of honour killing. There is nothing to suggest
that the police would not follow up on a complaint which directly named a
Palestinian Muslim or a member of the Muslim community that made any threat of
killing someone or burning cities or that they would be incapable of
investigating such reports.
[16]
The
Panel did not express concerns about the credibility of the adult Applicants.
ISSUES
[17]
The
relevant issues in this case are:
a. Did the Panel
err in law in its analysis of state protection by failing to assess the
adequacy of state protection?
b. Did the Panel
err by selectively relying on documentary evidence?
STANDARD OF REVIEW
[18]
The
issue of whether adequate state protection is available is a finding of fact. In
pre-Dunsmuir jurisprudence the standard was patent unreasonableness: Judge
v. Canada (M.C.I.), 2004 FC 1089; Czene v. Canada (M.C.I.), 2004 FC
723; Charway v. Canada (M.C.I.), 2004 FC 577. In a post Dunsmuir
context, the standard of review is reasonableness. Dunsmuir v. New
Brunswick, 2008 SCC 9
[19]
As
long as a tribunal's reasons are "tenable in the sense that they can stand
up to a somewhat probing examination," then the decision is reasonable and
the Court will not interfere with the tribunal decision: Law Society of New
Brunswick v. Ryan, 2003 SCC 20, at para. 55.
[20]
The
Refugee Division is a specialized body and expert in its field. Evidence with
respect to country conditions and the availability of state protection fall
within its expertise. The Court should not intervene in the Panel’s decision
unless it is made capriciously or ignores relevant and admissible material.
Once those facts are established, they must rebut the presumption of state
protection. Muszynski v. Canda (M.C.I.) 2005 FC 1075 paras. 7-8.
ANALYSIS
[21]
The
Applicants submit the Panel misunderstood the test for state protection: namely
a state’s ability to protect its citizens is a presumption which can be
defeated by clear and convincing evidence. The Applicants submit the Panel committed
a reviewable error by failing in its duty to consider the objective documentary
evidence relating to the Applicants’ situation. The Applicants submit this is
an error of law because the Panel did not consider evidence indicating Arab
Israelis are treated as second class citizens.
[22]
The
Panel, in assessing the availability of state protection with regard to the
Applicants, must consider the police attitude towards Palestinian citizens in Israel and the
effectiveness of the police response with respect to honour killings.
[23]
The
Panel noted Israel is a
democracy with an independent judiciary, and Arab Israelis are subject to the
same laws as all citizens. The Panel was satisfied the reason the police would
not assist the Applicants was because they could not provide sufficient
information as to who was harassing them.
[24]
The
Respondent submits the onus is on the Applicants in all respects of their
application for a refugee claim. And the Panel was not satisfied because the
Applicants failed to rebut the presumption that state protection was available.
[25]
The
Respondent submits it is open to the Panel to prefer some documentary evidence
to other documentary evidence. In this case, the Panel considered the evidence
indicating flaws in state protection in Israel, but
concluded resulting discrimination did not rise to the level of persecution.
The Panel is entitled to put more weight on the documentary evidence even when
it accepts the Applicant’s testimony. Szucs v. Canada (M.C.I.), [2000]
F.C.J. No. 1614, at para. 11.
[26]
The
Respondent submits murders have occurred that are quite possibly honour
killings, but it does not mean adequate state protection is unavailable. And it
submits Israel’s investigations
and prosecutions of these cases indicate it is protecting its Arab citizens against
honour killings.
[27]
There is
an onus on the Applicants to seek state protection, if possible and rebut the
presumption of state protection with clear and convincing evidence the state
was unable or unwilling to help. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The burden of proof for
rebutting the presumption of state protection is related to the level of
democracy in a state; the higher level of democracy, the heavier the onus on
the Applicants to prove that they exhausted all the courses available to them: N.K.
v. Canada (M.C.I.), [1996] F.C.J. No. 1376, at para. 5.
[28]
In Gonsalves
v. Canada (M.C.I.), 2008 FC 844, at para. 16, the Court confirmed
the principle that refugee claimants need not risk their lives in seeking
protection merely to demonstrate its ineffectiveness.
[29]
In Erdogu
v. Canada (M.C.I.), 2008 FC 407, I concluded that the holding of Gibson J.
in Elcock v. Canada (M.C.I.), [1999] F.C.J. No. 1438 at para. 15 remains
good law: “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.” In Erdogu
I noted the Turkish government made efforts to address the problem of honour
killings but continuing problems were such that the effectiveness of such
efforts had to be considered.
[30]
In
Rosales v. Canada (M.E.I.), [1993] F.C.J. No. 1454, and Horvath v.
Canada (M.C.I.), 2001 FCT 398, this Court found that when the Panel “arrives
at its conclusion by ignoring relevant and apparently overwhelming evidence to
the contrary, its decision may not be allowed to stand”, Rosales at
para. 7.
[31]
Contrary
to the Panel’s finding that there was nothing in the material indicating the
police would not act on a report of a threat of an honour killing, there was
evidence before the Panel that raises questions about the effectiveness of
police protection in relation to the threat of an honour killing of a Muslim
woman. It failed to properly consider highly relevant evidence regarding the
issue of protection for women who are threatened with honour killing.
[32]
Ms.
Amun was treated by the Panel as a credible witness and her testimony is
assumed to be true. The Applicant testified that:
When I went to ask the police for
protection against what my family was doing to me, the harassment that I was
facing, so I went and complained to the police as unusual. I found myself sent
to different office to a person, only one person was in that office, and this
sole person started to take the information from me about my problem. So, this
person told me, yes, I [sic] hard you, let me think about your problem, this is
my card, whenever you hear something of interest to me, please call me, this is
my card and my number. An of course that was very clear to me that, and he
explained that, that he wanted information about activities, about people, what
they do, what they don’t do. It didn’t have anything whatsoever to do with the
problem I was reporting to him.
. . .
I was sure that was – I didn’t fit that
category that I become an informer, an agent. But if I were to accept this
offer, I would have made the danger greater to myself.
[33]
The
Panel treated her report of the police proposition that she secure police protection
by being an informant for them in the Palestinian community as merely information
sharing. It stated: “However, I am not persuaded that this type of information
sharing is tantamount to being an informer for the Israeli Security about the
Arab Community.” The Panel never addressed the propriety of police withholding
protection from a victim unless that person turns informant.
[34]
The
Research Directorate Response to Information Request (RIR) ISR102085 E is the
Refugee Division’s report on honour killings in Israel and is
highly relevant.
[35]
Before
referring to the RIR, the Panel stated “I acknowledge that in Israel honour
killings have occurred but rarely.” The Panel then referred to the RIR citing
that “honour killings” result in the death of about 10 Israeli Arab women every
year. The Panel noted the there is little widespread support in Israel’s Arab
sector for honour killings, that the Israeli police vigorously investigate
murder, and Israeli law recognizes no mitigating circumstances in such cases.
[36]
However,
the RIR presents a different picture. It reports the Al-Badil, an Arab
feminist organization, states serious legislative and police action is needed
against perpetuators of honour killings in the Arab community. The Al-Badil blames
the Israeli state for failing to adequately address the problem, a position
echoed by the Nazareth-based Woman against Violence.
[37]
The
RIR reports that the Working Group on the Status of Palestinian Women Citizens
of Israel, a women’s NGO network comprising of six Arab-Israeli women’s
organizations, stated it is the state’s obligation to take steps to eliminate
the practice of ‘honor’ killings. Citing research on honour crimes against
Palestinian-Israeli women, the Working Group indicated that out of twenty-five
cases investigated, victims in five cases had sought police assistance before
being turned away and subsequently murdered.
[38]
The
RIR reports that, in April 2006, the police arrested a doctor and his four
brothers for the murder of his sister who refused to marry a man they wanted
her to marry. The police who were monitoring her safety noticed her
disappearance “after she failed to arrive at a meeting they arranged with her
to make sure she was safe.” The Panel made no comment on the inadequacy of
police protective measures where the victim was required to go to meet with
police to show she was safe.
[39]
The
RIR noted five honour killings in the period between April and June, just
months before the Applicants fled to Canada in September 2006,
contrary to the Panel’s conclusion honour killings occurred “but rarely.”
[40]
Despite
the above relevant documentary evidence, the Panel emphatically stated:
There is nothing in the material on file in
this case which leads me to conclude that the Israeli authorities would not act
on a report of a threat of honour killing. (emphasis added)
[41]
Also
in the documentary information submitted by the Applicants is evidence
Christian Palestinians also face problems securing Israeli police protection.
The Panel accepts that Palestinians in Israel are subject
to discrimination. However, it does not assess documentary evidence concerning
whether such discrimination impacts on the protection provided by police to
affected communities. The Research Directorate Report ISR42767.E refers to
several newspaper reports of complaints by members of Christian communities
about police inaction or ineffectiveness in dealing with violence directed
against Christian Arabs. Despite the reports, the Panel stated:
There is nothing to suggest that the police would
not follow up on a complaint which directly named a Palestinian Muslim or a
member of the Muslim community that made any threat of killing someone or
burning cities or that they would be incapable of investigating such reports. (emphasis
added)
[42]
It
is incumbent upon a tribunal to address the practical adequacy of state
protection when a threat to the life or safety of a refugee applicant is
accepted. I find that the Panel did not properly address this important
question. Instead, it explicitly denied the existence of the Applicants’
evidence on this important question.
[43]
In
Galiano v. Canada (M.C.I.), [1996] F.C.J. No. 1629, the Court quashed
the decision of the tribunal for failing to consider relevant, claim-specific
information. I find the Panel’s reasons in this application failed to consider
relevant evidence directly bearing on the Applicants’ claim for refugee
protection.
[44]
I
find this judicial review application must be allowed and sent back for
re-determination before a different panel.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application for judicial review is granted and the matter is sent back for
redetermination by a different panel.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
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