Docket: IMM-99-11
Citation: 2011 FC 1217
Ottawa, Ontario, October 25, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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KIRKOYAN KAREN
KORETSKY INESSA
KIRKOYAN KARINA
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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
I. Overview
[1]
The
Immigration and Refugee Board [Board] concluded that the principal Applicant is
neither a conscientious objector, nor was he unwilling to serve in the army.
Moreover, the Board found that the Applicant lacked credibility throughout his
entire narrative of alleged persecution.
[2]
The
Board found that not only was the principal Applicant not a conscientious
objector but no evidence was presented that he had ever been asked or compelled
to carry out any violations of international humanitarian law [IHL]. The Court
found the Board’s decision reasonable. The Federal Court has said it is not
persecution for a country to have compulsory military service.
[3]
As
sated by Justice
Richard Mosley in Sounitsky
v Canada (Minister of Citizenship and Immigration), 2008 FC 345:
[11] … the death or injury
of civilians as a result of military operations was an “ugly fact of battle
rather than part of a deliberate campaign” and that violators of human rights
were punished. Mr. Sounitsky would not, therefore, be obliged to participate in
human rights abuses, directly or indirectly.
[4]
In
light of the evidence, was it reasonable for the Board to conclude that the Applicant
is not a conscientious objector? It certainly was reasonable. That is why the
Court agrees with the position of the Respondent.
II. Facts
[5]
The
Applicants, a married couple and their minor daughter, are citizens of Israel.
The principal Applicant, Mr. Karen Kirkoyan, refuses to
serve as a reservist in the Israeli army; and alleges, thus, that he will be
persecuted if he returns to Israel. Moreover, he and his wife allege having
been discriminated.
[6]
The
principal Applicant completed his military service in 2002. Subsequently, he
was called twice for reserve duty, in 2002 and 2003, respectively.
[7]
During
his military service, the principal Applicant was detained for two weeks
because he refused to serve inside Gaza. He nonetheless completed his assignment,
mainly, by driving trucks between the base in the city of Telnov and the Gaza
border and did not transport any military equipment (Decision at para 12).
[8]
He
completed two weeks of reserve duty in 2002 but had failed to finish his second
mandate in 2003, having left after a week and a half upon his unit having
received a new assignment, the destruction of tunnels used by terrorists (Decision
at para 15).
[9]
Deserting
that last assignment, the Applicant never returned to the military. He received
notices to report in 2005, 2006 and 2007 but simply ignored them all.
[10]
The
Applicants departed from Israel with the principal Applicant having shown his
passport without having been detained by the Israeli authorities.
[11]
The
Board specified that the National Documentary Evidence package demonstrated
that, since its establishment, Israel has faced serious security threats,
including suicide terrorism, external hostility and indiscriminate armed
attacks against its civilian population. Israel’s Supreme Court plays an active
and independent role in scrutinizing the most detailed aspects of the
government’s anti-terrorist measures, in both Israel and beyond its territory,
even amidst fierce fighting and active hostilities (Decision at para 21; in
addition to reference – re Sounitsky, above).
III. Issues
[12]
(1)
Was it reasonable for the Board to conclude that the Applicant was never asked
to take part in activities that would violate IHL?
(2)
Did the Board err in concluding that the principal Applicant would not face
persecution in Israel because of his desertion and failure to report for
reserve duty?
(3)
Was it reasonable to conclude that the Applicants did not face persecution on
the basis of the alleged repeated discrimination?
IV. Analysis
Conscientious
objector
[13]
In
virtue of section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], a refugee claimant must
meet the following criteria:
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96. A Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
(b) not having a
country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
[Emphasis added].
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96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne
peut ou, du fait de cette crainte, ne veut se réclamer de la protection de
chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays
dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
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[14]
The
principal Applicant alleges fear of persecution due to a refusal to serve in
the army.
[15]
Politically
motivated desertions have been analyzed by the Federal Court. The Federal Court
concluded that three categories of desertions qualify for refugee status:
[14] Thus, an applicant
generally cannot claim refugee status under the United Nations Convention
Relating to the Status of Refugees (the Convention) – and accordingly,
under s. 96 of the IRPA, just because he does not want to serve in his
country’s army. According to Hathaway, however, there are three exceptions to
the general rule above. First, military evasion might have a nexus to a
Convention ground if conscription for a legitimate and lawful purpose is
conducted in a discriminatory way, or if the punishment for desertion is biased
in relation to a Convention ground. Second, evasion might lead to Convention
refugee status if it reflects an implied political opinion that the military
service is fundamentally illegitimate under international law. Hathaway
describes this as “military action intended to violate basic human rights,
ventures in breach of the Geneva Convention standards for the conduct of war,
and non-defensive incursions into foreign territory” (Hathaway, above, at pages
180-181). The third and final exception applies to those with “principled
objections” to military service, more widely known as “conscientious objectors”.
[Emphasis added].
(Lebedev v Canada (Minister of
Citizenship and Immigration), 2007 FC 728, [2008] 2 FTR 585).
[16]
Before
the Board, the Applicant declared himself, a “conscientious objector”, stating
that he is “a peaceful person who is not able to bear any conflict situation” (Applicant’s
Record [AR] at p 24).
[17]
To
show that he is a genuine conscientious objector, a deserter bears the onus
to demonstrate that his opinions in that regard are genuine:
170. There are, however, also
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 a 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 basic rules of human
conduct, punishment for desertion or draft-evasion could, in the light of all
other requirements of the definition, in itself be regarded as persecution.
[Emphasis added].
(Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees, United Nations High Commissioner for
Refugees (see excerpts at Annex A of this Judgment).
[18]
Opposition
to military service is not sufficient to obtain refugee status (Mohilov v Canada
(Minister of Citizenship and Immigration), 2008 FC 1292, at para
33).
[19]
A
serious possibility of persecution stemming from deserters must be demonstrated (Adjei v Canada
(Minister of Employment and Immigration), [1989] 2 FC 680
(FCA)). Imprisonment does not constitute persecution in the case of deserters (Ates
v Canada (Minister of Citizenship and Immigration), 2005 FCA 322). In such
a situation, the Applicant needed to demonstrate to the Board that the sentence
awaiting him would amount to persecution.
[20]
The
Board noted many reasons that made it doubt that the principal Applicant is
genuinely a “conscientious objector”:
a. He completed his entire
compulsory military training from December, 1998, to February, 2002;
b. He returned in
2002 for two-week reserve duty, which he completed;
c. He returned again
in 2003 for two-week reserve duty, which he, nevertheless, did not complete;
d. He never met the
military committees, which determine who is a conscientious objector and which
assess if sufficient reasons exist to exempt these objectors from military
service.
[21]
The
Applicant completed two entire assignments in the military. He is, therefore,
certainly in a difficult position to raise objections to military service,
having spent more than three years in it.
[22]
Moreover,
his failure to even contact the relevant military committees, which could have
exempted him from military service, constituted grounds on which the Board
could support its conclusions (Goltsberg v Canada (Minister of
Citizenship and Immigration), 2010 FC 886 at para 32).
[23]
Therefore,
the Board’s conclusions with regard to credibility of the Applicant’s
“conscientious objections” were reasonable.
Violations to IHL
[24]
Regarding
the violations to IHL, the Board concluded that the Applicant did not
demonstrate that he would participate in any such violations.
[25]
To
fit the second exception raised in Lebedev, above, the Applicant was
required, on a balance of probabilities, to demonstrate that he, himself, would
take part in activities that would violate IHL (Ozunal v Canada
(Minister of Citizenship and Immigration), 2006 FC 560, 291 FTR
305 at para 17).
[26]
The
Applicant alleged that he might have been drafted to go into Lebanon in 2006,
where IHL violations might have occurred.
[27]
The
Board emphasized that the Applicant, while alleging that he might have had to
participate in the 2006 war in Lebanon, actually deserted the military in
2003 and had never returned.
[28]
The
Applicant stated that he received notices to appear in 2005, 2006 and 2007, but
ignored them; however, nowhere in the record was it found that an order
actually directed him to participate in war. This assumption is made solely by
the Applicant, who believes that he might have been drafted to Lebanon, had he
obeyed and returned to reserve duty.
[29]
The
Board also doubted the Lebanon war as a reason for desertion when he had
clearly never been asked to participate in that conflict. In fact, the
Applicant expressly had stated that he left the military not wanting to carry
out the task of destroying terrorist tunnels in Gaza.
[30]
As a
result, the Board did not find it credible that the Applicant would have been
forced to serve in the 2006 war with Lebanon; nor did the Board consider the
Applicant to have been forced by the Israeli military to participate in
violations of IHL.
[31]
It
is noted that during the time that the Applicant served in the Israeli army, he
had worked solely driving trucks from one base to another. Apart from the two
weeks he had spent in prison for not wanting to enter Gaza, he did not
demonstrate having been bothered subsequently.
Punishment for desertion
was not considered persecutory
[32]
The
Board found that the Applicant did not force persecution because he had
deserted the military in 2003. The Board concluded that, while the Applicant
might face imprisonment, the potential sentence does not amount to persecution.
[33]
The
Board found that the Applicant might have spent three to six months in prison
upon return to Israel; nevertheless, the Board concluded that such a sentence
would not be disproportionate or persecutory.
[34]
This
conclusion has been reached by the Federal Court in similar circumstances, which
found that longer prison terms do not amount to persecution:
[28] Contrary to Mr. Ozunal's
submissions, the Board specifically assessed the possibility that he would be
submitted to a sentence of up to three years imprisonment. Nevertheless, it
concluded that the possibility of being imprisoned for up to three years is not
an excessive or over-harsh sentence. This conclusion is consistent with the
decision of this Court in Moskvitchev v. Canada(Minister of Citizenship and
Immigration), [1995] F.C.J. No. 1744 (QL), at paragraph 7, in which a
sentence for draft evasion of between six months and five years was not
considered to be inhuman or extreme. [Emphasis added].
(Ozunal, above; Volkovitsky v Canada (Minister of
Citizenship and Immigration), 2009 FC 893 at para 32-35; Mohilov,
above at para 47).
[35]
The
Board acknowledged that the Applicant was sent to jail for two weeks after refusing
to serve inside Gaza; however, no harm was discerned when he was subsequently
sent to drive trucks. He did not receive any further sanction and nothing had
occurred subsequent to his departure from Israel in 2007.
The Applicants did not
face persecution due to their Russian origin
[36]
The
conclusions of the Board in respect of credibility, warrant the standard of
review of reasonableness, with due deference owed the Board’s expertise and
ability to assess the principal witness (Revoloria v Canada
(Minister of Citizenship and Immigration), 2008 FC 1404 at para
12).
[37]
Deference
is also owed the Board in regard to its expertise in evaluating an applicant’s
credibility:
[4] There is no longer any
doubt that the Refugee Division, which is a specialized tribunal, has complete
jurisdiction to determine the plausibility of testimony: who is in a better
position than the Refugee Division to gauge the credibility of an account and
to draw the necessary inferences? As long as the inferences drawn by the
tribunal are not so unreasonable as to warrant our intervention, its findings are
not open to judicial review … [Emphasis added].
(Aguebor v Canada (Minister of Employment
and Immigration), [1993] FCJ No 732 (QL/Lexis), 160 NR 315 (FCA)).
[38]
In
respect of the persecution they allege to have suffered due to their origins,
the Board did not find the respective testimonies of both Applicants to be credible.
[39]
The
Board found that:
a. The principal Applicant
could not describe what happened to him on April 3, 2006, when he supposedly
was pushed by a policeman while carrying a large piece of glass;
b. The Applicant could not
tell whether this incident came before or after he was falsely accused of
driving under the influence of alcohol; as a result of the charge he lost his
license and his job as a truck driver;
c. He reported the first
incident to the police but did not have any document to prove so, saying that
he left the report in Israel; he also stated subsequently that no record
existed of the driving incident.
d. His wife had a difficult
time answering the Board’s questions in respect of her experiences;
e. She stated that she
began being harassed by her father’s neighbour in October 2006, while, she
wrote, in her Personal Information Form [PIF], that it began in September; she
had also stated that she remembered that it was in October because it was her
father’s birthday, but had declared in her PIF that her father was born in
November.
[40]
Clearly,
several significant discrepancies support the Board’s contention that the
Applicants were not credible. The Board was entitled to take into account
contradictions and implausibilities (Lawal v Canada (Minister of
Citizenship and Immigration), 2010 FC 558 at para 20-21; Sbitty v
Canada (Minister of Citizenship and Immigration) (1997), 143 FTR 8 at para
16; Toora v Canada (Minister of Citizenship and Immigration), 2006 FC
828, 300 FTR 7 at para 38; Ojezele v Canada (Minister of Citizenship and
Immigration), 2008 FC 171 at para 5).
[41]
Moreover,
the Board assessed the documentary evidence further in respect of obtaining State
protection. The Board states, in its decision, it is not because the police
would not have given them the desired protection, but rather that they did not
do more or pursue further by which to receive protection.
[42]
Israel
is a working democracy which has control of its institutions; thus, the Board’s
conclusion, that the Applicants had access to necessary protection in Israel,
was not unreasonable.
[43]
The
Applicants had to demonstrate with “clear and convincing proof” (Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689), that Israel could not provide
them with adequate protection; the Board, however, found that they did not meet
this burden. The Board’s conclusion was reasonable, as the Applicants did not
bring any further evidence to demonstrate that the Israeli government is unable
to protect them.
Port of entry notes
[44]
The
Applicants pleaded that they were never confronted with the port of entry notes
which contradict the declaration which they made to the Board.
[45]
In
fact, the principal Applicant testified having left the military, in 2003.
[46]
In
his PIF, he raised the 2006 war with Lebanon as a reason for objecting to Israeli
military actions.
[47]
The
Board concluded that it was inconsistent for the Applicant to raise the issue
of speculative participation in the 2006 war with Lebanon when it was clear
that he was never asked to do so.
[48]
Moreover,
the Board noted that the Applicant expressly declared, on arrival in Canada
(point of entry notes), that he did not participate in the war, thus,
reinforcing the Board’s conclusion.
[49]
Therefore,
the point of entry notes were used to support a finding that could stand on its
own. Since the Applicant has been confronted with the apparent discrepancy, the
Board was not obliged to put before him every piece of evidence that would
further support its finding. Clearly, the Applicant had had the opportunity to
answer the Board’s questions and to explain why he raised the issue of the war
with Lebanon when it had no rapport with his narrative.
[50]
Moreover,
even if the notes do contradict the testimony, they are immaterial to the
decision (Martell v Canada (Minister of Citizenship and Immigration), 2008 FC
1029 at para 18-19). Even if the Applicant’s explanation would have been
accepted, it did not demonstrate that he would have had to fight in Lebanon had
he not deserted the army in 2003. Also, it does not demonstrate that he would
have been asked to violate IHL.
[51]
In
addition, the Board’s conclusion in respect of the Applicants’ lack of
credibility is supported by numerous findings which remain undisputed (Martell,
above, at para 41). The Board’s lack of reference to the Applicant’s port of entry
notes do not justify this Court’s intervention (Ngongo v Canada
(Minister of Citizenship and Immigration), [1999] FCJ 1627 (QL/Lexis)).
V. Conclusion
[52]
The
principal Applicant raised his desertion as a basis for refugee status;
however, he finished three years of army service and returned twice for reserve
duty. Had he been opposed to war, the Applicant would not have spent the time
he did in the Israeli army, even if only to drive trucks.
[53]
Also,
he never did demonstrate having been asked to violate IHL. The Applicant raised
the war with Lebanon to illustrate what might have happened if he had remained
in the military; however, his potential participation in the 2006 war was
speculative, since he had deserted in 2003.
[54]
In
addition, the Applicant’s sentence for refusal to serve in the Israeli army was
not considered persecutory. This Court had found such to be the case in
numerous similar circumstances.
[55]
The
Applicants were not considered credible in respect of their alleged
persecution. The Applicants did not adequately recall the incidents supporting
their claim and the Board simply did not believe them. The Board was in the
best position to make its finding, a position, to which deference is given,
unless it is unreasonable, which was not demonstrated to be so by the
Applicants.
[56]
Due
to the above, the Applicants’ application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS that the Applicants’ application for
judicial review be dismissed. No question of general importance for
certification.
“Michel
M.J. Shore”
Annex “A”
Excerpts from
the Handbook on Procedures and Criteria for Determining Refugee Status under
the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (United
Nations High Commissioner for Refugees, HCR/IP/4/Eng/REV.1 (1992):
167. In countries where military
service is compulsory, failure to perform this duty is frequently punishable by
law. Moreover, whether military service is compulsory or not, desertion is
invariably considered a criminal offence. The Penalties may vary from country
to country, and are not normally regarded as persecution. Fear of prosecution
and punishment for desertion or draft-evasion does not in itself constitute
well-founded fear of persecution under the definition. Desertion or
draft-evasion does not, on the other hand, exclude a person from being a
refugee, and a person may be a refugee in addition to being a deserter or
draft-evader.
168. A person is clearly not a
refugee if his only reason for desertion or draft-evasion is his dislike of
military service or fear of combat. He may, however, be a refugee if his
desertion or evasion of military service is concomitant with other relevant
motives for leaving or remaining outside his country, or if he otherwise has
reasons, within the meaning of the definition, to fear persecution.
169. A deserter or draft-evader
may also be considered a refugee if it can be shown that he would suffer
disproportionately severe punishment for the military offence on account of his
race, religion, nationality, membership of a particular social group or
political opinion. The same would apply if it can be shown that he has
well-founded fear of persecution on these grounds above and beyond the
punishment for desertion.
170. There are, however, also 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 a 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 basic rules of human conduct, punishment
for desertion or draft-evasion could, in the light of all other requirements of
the definition, in itself be regarded as persecution.
172. Refusal to perform military
service may also be based on religious convictions. If an applicant is able to
show that his religious convictions are genuine, and that such convictions are
not taken into account by the authorities of his country in requiring him to
perform military service, he may be able to establish a claim to refugee
status. Such a claim would, of course, be supported by any additional
indications that the applicant or his family may have encountered difficulties
due to their religious convictions.
173. The question as to whether
objection to performing military service for reasons of conscience can give
rise to a valid claim to refugee status should also be considered in the light
of more recent developments in this field. An increasing number of States have
introduced legislation or administrative regulations whereby persons who can
invoke genuine reasons of conscience are exempted from military service, either
entirely or subject to their performing alternative (i.e. civilian) service.
The introduction of such legislation or administrative regulations has also
been the subject of recommendations by international agencies.24 In the light
of these developments, it would be open to Contracting States, to grant refugee
status to persons who object to performing military service for genuine reasons
of conscience.
174. The genuineness of a
person's political, religious or moral convictions, or of his reasons of
conscience for objecting to performing military service, will of course need to
be established by a thorough investigation of his personality and background.
The fact that he may have manifested his views prior to being called to arms,
or that he may already have encountered difficulties with the authorities
because of his convictions, are relevant considerations. Whether he has been
drafted into compulsory service or joined the army as a volunteer may also be
indicative of the genuineness of his convictions.
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