Date: 20091014
Docket: IMM-1031-09
Citation: 2009 FC 997
Ottawa, Ontario, October 14, 2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
BASEM HAMAISA
KIFAYA
HAMAISA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision (the Decision) made by
the Immigration and Refugee Board (the Board), Refugee Protection Division,
dated January 7, 2009 wherein the Tribunal determined the Applicants are not
Convention Refugees and not persons in need of protection pursuant to sections
96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (IRPA).
[2]
The
Applicants raise two issues:
(a) Did the panel err in determining that
there was no nexus to the Convention as vendettas and blood feuds are not considered
Convention grounds?
(b) Did
the panel misapply the test for state protection and ignore documentary
evidence that contradicted its conclusion?
[3]
For
the reasons set out below the Board’s decision was reasonable and the application
is dismissed.
I. Background
[4]
The
Applicants are Basem Hamaisa (the Principle Applicant) and his wife Kifaya
Hamaisa (the Female Applicant), who are both 30 year old Israeli citizens. They
have a Canadian born son who is not part of this application. The Applicants
arrived in Canada on September
17, 2006 and made a refugee claim the next day. Both claims are based on the
Principle Applicant’s fears and the Female Applicant does not have a separate
claim.
[5]
The
Principle Applicant is a member of the Bedouin Tribe of Hamaisa. He states that
he fears returning to Israel as he is the primary target of a blood
feud declared in 2006 by the Abu Sharaf family against his family. The
Principle Applicant is the target of the feud as he is considered the most valuable
member of his family.
[6]
Since
the feud was declared the Abu Sharaf family has attacked several members of the
Principle Applicant’s family that resulted in hospitalization. Attempts to
mediate the feud have been unsuccessful. As a result of the feud, the Principle
Applicant stated he quit his job and could not leave his house. The Principle
Applicant told the Board that he did not contact the police as feud resolution
is undertaken by secret family councils and therefore he would have no concrete
evidence and because the police do not tend to get involved in blood feuds.
[7]
The
Board rejected the claims under section 96 of IRPA on the basis that there is
no nexus between blood feuds and the 1951 Convention Relating to the Status of
Refugees (the Convention). They rejected the claims under section 97(1)(b) of
IRPA on the basis that the claimants failed to rebut the presumption of state
protection in Israel. On page 2
of the Decision, the Board stated that the case turned on state protection. The
Board did not raise credibility as an issue.
II. Standard
of Review
[8]
The
standard of review for questions of law is correctness while other issues are
reviewed on a reasonableness standard (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190). At paragraph 47 of Dunsmuir, above,
reasonableness has been articulated as:
[...] concerned mostly with the existence
of justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[9]
The
standard of review in this matter is reasonableness.
[10]
The
Court should show a high degree of deference to decisions of the IRB as a
specialized tribunal. At paragraph 46 of Canada (Minister of
Citizenship and Immigration ) v. Khosa, 2009 SCC
12, [2009] 1 S.C.R. 339 Justice Binnie, for majority of the Supreme Court of
Canada, stated:
[46] More generally, it is clear
from s. 18.1(4)(d) that Parliament intended administrative fact finding to
command a high degree of deference. This is quite consistent with Dunsmuir. It
provides legislative precision to the reasonableness standard of review of
factual issues in cases falling under the Federal Courts Act.
III. Issues
A. Did
the Panel Err in Determining That There was No Nexus to the Convention as Vendettas
and Blood Feuds Are Not Considered Convention Grounds?
[11]
The
Applicant argues that the Board misapplied the decision of Justice Heneghan in Bojaj
v. Canada (Minister of
Citizenship and Immigration), 194 F.T.R. 315, 9 Imm. L.R. (3d) 299, a
case involving a derivative claim of persecution. Bojaj, above, involved
a refugee claim made by a nineteen-year old Albanian male who advanced a
well-founded fear of persecution based on his fear of being murdered in a blood
feud where revenge would be sought against him. Justice Heneghan held that the
Applicant’s grandfather was the primary victim of the alleged persecution and
the Applicant had a derivative claim.
[12]
The
Applicant also relies on a United Nations High Commission on Refugees (UNHCR) position
paper on blood feuds (“UNHCR Position on Claims for Refugee Status Under the
1951 Convention relating to the Status of Refuges Based on a Fear of
Persecution Due to an Individual’s Membership of a Family or Clan Engaged in a
Blood Feud”, issued by the Protection Operations and Legal Advice Section
Division of International Protection Services, UNHCR, Geneva (17 March
2006)) in which the UNHCR states that persons fearing persecution as the result
of a blood feud could be considered refugees under the Convention. The position
paper distinguished blood feuds from cases of common criminality and argued
that the family unit represents an example of an enumerated ground under the
Convention: particular social group.
[13]
The
Respondent argues that the Board did not err in accepting that the Principle
Applicant was the main target of the blood feud or in basing its decision on Bojaj,
above. They state that the Principle Applicant in this matter is similarly
situated as the applicant in Bojaj, above, as the Principle Applicant
committed no crime but is a revenge target of feuding families.
[14]
The
Federal Court has stated that revenge vendettas have no link to Convention
grounds and blood feuds are not considered to be members of a particular social
group under Canadian law.
In Zefi v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 636, [2003] F.C.J. No. 812 at
paragraphs 40-41 Justice Lemieux wrote:
[40] It has been recognized by this
Court and by the Federal Court of Appeal that criminality, revenge, personal
vendetta, cannot be the foundation of a well-founded fear of persecution by
reason of a Convention ground for the simple reason such a persecution is not
related to one of Convention ground where the persecution must be because of a
person's race, ethnicity, etc.
[41] Revenge killing in a blood feud
has nothing to do with the defence of human rights -- quite to the contrary,
such killings constitute a violation of human rights. Families engaged in them
do not form a particular social group for Convention purposes. Recognition of a
social group on this basis would have the anomalous result of according status
to criminal activity, status because of what someone does rather than what someone
is (see Ward, paragraph 69).
[15]
Based
on the reasons of Justice Lemieux in Zefi, above, the Board’s decision
that the Applicants are not Convention refugees is reasonable.
B. Did
the Panel Misapply the Test for State Protection and Ignore Documentary
Evidence that Contradicted its Conclusion?
[16]
The
Applicants argue that the Board applied the wrong tests for assessing state
protection, did not properly conduct the assessment, and ignored or misconstrued
the documentary evidence.
[17]
The
Applicants take the position that the test for state protection is adequacy,
rather than effectiveness (Carrillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, 69 Imm. L.R. (3d) 309). They
argue that the Principle Applicant had no reasonable expectation that
protection would be forthcoming based on his past experience and knowledge of
police disinterest in matters of family feuds beyond, possibly, a superficial
investigation. The Applicants rely on Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1 for the position that
state protection is not reasonably forthcoming if in past personal incidents
state protection was not forthcoming and that refugee claimants need not risk
their lives in seeking protection merely to demonstrate that it is ineffective.
[18]
The
Respondent argues that the Board’s decision was correct as the Principle Applicant
failed to rebut the presumption of state protection by his failure to report
the threat to police and that it is unreasonable to expect the police to
investigate if they are not contacted and given the requisite information.
[19]
It
is presumed that the state is capable of protecting a claimant. This
presumption can be rebutted if the claimant presents some clear and convincing
evidence of the state's inability to protect them (Canada (Attorney
General) v. Ward, above). In the present case, the Board considered whether
the documentary evidence indicates whether effective state protection is
available in Israel. It also
considered whether the claimant had attempted to avail himself of state
protection. There was evidence before the Board that the police force did
investigate crimes and has investigated blood feud related crimes. There was no
evidence of state protection not being forthcoming when members of the family
had reported blood feud related crimes.
[20]
The
Applicants argue that there is no requirement for an individual to exhaust all
avenues before the presumption of state protection can be rebutted and rely on Chaves
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, 45 Imm. L.R. (3d) 58.
In Chaves, above, the Court stated that an individual will not be
required to exhaust all avenues before the presumption of state protection can
be rebutted where agents of the state are themselves the source of the
persecution in question. That is not the case in this matter.
[21]
The
Applicants also rely on Katwaru v. Canada (Minister of
Citizenship and Immigration), 2007 FC 612, 62 Imm. L.R. (3d) 140 where
Justice Teitelbaum held that democracy alone does not guarantee effective state
protection. In Katwaru, above, the evidence indicated that the Guyana police force
was very weak and was having difficulties responding to the high levels of
violent crime that existed in the country as a whole. Again, that is not the
case in this matter.
[22]
The
third position taken by the Applicants is that the Board made no reference to
the other documentary evidence submitted by the Applicants, including reports
of blood-feud killings and reports suggesting police disinterest in Arab community
affairs. The Applicants submit that it is a reviewable error for the Board to
disregard relevant evidence (Avila v. Canada (Minister of
Citizenship and Immigration), 2006 FC 359, 295 F.T.R. 3) and that this
duty increases with the relevance of the evidence in question to the disputed facts
(Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration),
(1998) 157 F.T.R. 35 (F.C.T.D), [1998] F.C.J. No. 1425).
[23]
At
page 4 of the Decision, the Board referenced specific documentary evidence on
the issue of state protection for similarly situated individuals. The majority
of the material submitted by the Applicants to the Board was not directly
relevant to the Applicants as it pertained to honor killings of women and
Christian Arabs within Israel. The documentary evidence of blood feud
killings that were before the Board, as cited in the Applicant’s Memo of Fact
and Law, all reported some type of police involvement.
[24]
It
is not for this Court to decide whether effective state protection is available
in Israel but rather
to review the Board's decision to determine whether it was reasonable. Upon
reviewing the evidence that was before the Board, I find that its reasons with
respect to the availability of state protection were made with regard to the
evidence and were reasonable.
[25]
Therefore,
the Board’s application of the relevant tests and use of the evidence was
reasonable.
[26]
Neither
party proposed a certified question and no question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“ D.
G. Near ”
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