Docket: IMM-889-11
Citation: 2011 FC 1283
Ottawa, Ontario, November 9,
2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
|
|
RAIEK SALIM
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR ORDER AND ORDER
[1]
Raiek
Salim’s boyhood dream was to become an airline pilot. He now has his licence
but says he cannot find work. No one will hire him in Israel, the land of
his birth, because he is Arab and a Muslim. No one will hire him in Jordan, where he
trained, or in other Arab countries because he holds an Israeli passport.
Although he would like to work as an airline pilot in Montreal, he has
never applied for permanent residency. He made inquiries at the Canadian
Consulate in Tel Aviv. The person he spoke to doubted that he would qualify as
a skilled worker immigrating to Quebec because at the time he
did not have enough flying hours and had no French.
[2]
Since
then he spent some time in Montreal, obtained his Canadian
pilot’s licence and racked up more flying hours. He also enrolled in a French
language course, but did not complete it. Rather he decided to become a refugee.
[3]
He
convinced the member of the Refugee Protection Division (RPD) of the
Immigration and Refugee Board of Canada who heard his case that he is a second
class citizen in Israel, that opportunities open to others are denied him, and
that he and other Israeli citizens of Arab origin are distrusted by large
segments of the Jewish population, and subject to harassment and discrimination.
She concluded, however, that he was not persecuted within the meaning of the United
Nations Convention Relating to the Status of Refugees, or otherwise in need
of Canada’s
protection. This is the judicial review of that decision.
THE LEGAL BACKGROUND
[4]
There
is a double aspect to Mr. Salim’s claim. He says he fears persecution at the
hands of the Israel Intelligence Services. In addition, while the abuse,
discrimination and harassment to which he has been subjected throughout his
lifetime may not, if considered individually, amount to persecution, they do if
considered cumulatively.
[5]
Under
section 96 of the Immigration and Refugee Protection Act [IRPA], which
gives effect to the Refugee Convention, there must be an objective basis to
one’s subjective fear (Rajudeen v Canada (Minister of Employment and
Immigration), 55 NR 129, [1984] FCJ No 601 (QL) (FCA)). It was not
submitted that Mr. Salim is in need of protection under section 97 of IRPA on
the basis that he would be subjected personally to torture within the meaning
of Article 1 of the Convention against Torture, or to a risk to his life or to
a risk of cruel and unusual treatment or punishment. It must also be kept in
mind that “[t]he most
fundamental principle of immigration law is that non-citizens do not have an
unqualified right to enter or remain in the country. At common law an alien has
no right to enter or remain in the country” (Chiarelli v Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 711 at 733, 135 NR 161,
Sopinka J).
[6]
Generally
speaking, the assessment of the evidence in judicial review is under the
reasonableness standard, as set forth by the Supreme Court in Dunsmuir v New
Brunswick, 2008
SCC 9
[2008] 1 S.C.R. 190. Although the dividing line between persecution and cumulative
discrimination may be difficult to establish, this is a mixed question of fact
and law, also subject to review on the reasonableness standard (Sagharichi v
Canada (Minister of Employment and Immigration), 182 NR 398, [1993] FCJ No
796 (QL)). If a pure error of law was made, it is reviewed, however, on the
correctness standard.
[7]
The
Supreme Court has cautioned that judicial restraint must be exercised in
reviewing on a reasonableness standard. The issue is not whether the reviewing
court would have come to the same conclusion. As Mr. Justice Iacobucci stated
in Canada (Director of
Investigation and Research) v Southam Inc, [1997] 1 S.C.R. 748,
[1996] SCJ No 116 (QL), at paragraph 80:
I wish to observe, by way of concluding my discussion of this issue,
that a reviewer, and even one who has embarked upon review on a standard of
reasonableness simpliciter, will often be tempted to find some way to
intervene when the reviewer him- or herself would have come to a conclusion
opposite to the tribunal's. Appellate courts must resist such temptations. My
statement that I might not have come to the same conclusion as the Tribunal
should not be taken as an invitation to appellate courts to intervene in cases
such as this one but rather as a caution against such intervention and a call
for restraint. Judicial restraint is needed if a cohesive, rational, and, I
believe, sensible system of judicial review is to be fashioned.
THE FACTS
[8]
Mr.
Salim is currently 32 years of age. In 2003, after working for a few years and
saving some money he decided to live his dream and become a pilot. Apparently,
no school in Israel would accept
him. However he was able to attend a flight academy in Jordan and
successfully obtained a licence. Indeed, in 2005 he was the subject of a favourable
interview in an Israeli Arabic language newspaper.
[9]
He
came to Canada in 2005 in
order to continue his aviation studies, to obtain a Canadian pilot’s licence,
which he did, and to rack up flying hours. He returned to Canada later that
year and twice more in 2007, before he finally applied for refugee status.
[10]
As
stated above, there were two bases for his claim. The first was his fear of the
Israeli Intelligence Services. The second was that incidents of discrimination
and harassment considered cumulatively amounted to persecution.
[11]
His
fear of the Israeli Intelligence Services derives from his status as a pilot.
He would be considered a threat to Israel’s national security. His
only run-in with the authorities was in October 2007 at the airport in Tel Aviv
before boarding a flight for Canada. He was subject to intense interrogation,
and questioning with respect to his pilot qualifications and history. He was,
however, permitted to catch his flight. Some months earlier, his brother had
been interviewed by government agents concerning his activities and his training
as a pilot. He believes a case is being made against him. He also suspects that
he has been under surveillance in Canada by Israeli authorities,
but has no evidence thereof.
[12]
As
to discrimination amounting to persecution, in addition to being thwarted in
his efforts to become a pilot in Israel, he relied on country
documentation which shows that many employers, both state organizations and
private enterprises, require prospective employees to have served in the
military. Jews are subjected to conscription while Arabs may volunteer. Mr.
Salim did not. Indeed, it would seem that few Arabs do.
[13]
Arabs
are subject to racial profiling and discriminated against in many areas,
including education, employment, housing, and are scorned upon at sporting and
other events.
THE DECISION
[14]
The
RPD member broke down her reasons in two. She first determined whether Mr. Salim’s
fear of persecution from Israeli Intelligence Services is well-founded. She
then analyzed the issue of discrimination versus persecution. She considered
two aspects to this part of the claim. One was whether the discrimination
alleged by the claimant that he was not allowed to qualify for and then work as
a pilot in Israel rose to the level of persecution, and the other was whether
the cumulative impact of discrimination throughout his life because he was an
Arab and a Muslim “coupled with worsening country conditions” led to a
well-founded fear or a serious possibility of persecution for the claimant “in
the future”.
[15]
She
relied upon The Law of Refugee Status by Professor James C. Hathaway to
distinguish between first level rights, such as freedom from slavery, freedom
of thought, conscious and religion, and second and third level rights, which
would include the freedom to leave and return to one’s country, freedom from
arbitrary detention, the right to access public employment without
discrimination, and the right to equal protection for all.
[16]
The
RPD member rejected the first part of Mr. Salim’s claim. She noted that the
only time he was interviewed by the security forces, on 1 October 2007, was
less than one week after returning to Israel after having been in Canada for a period
of eight months. She thought it entirely reasonable that Israeli security
forces may have been interested in him on that fact alone. She also noted that
Israeli security screening is extremely stringent and necessary to ensure the
safety of all passengers. She was of the view that this event was not persecutory,
and did not violate his freedom of movement. More telling are the computer
notes from the FOSS System regarding an interview when he arrived in Canada on an
earlier visit in January 2007. This was after the article about him had been
published. During the interview, he repeatedly denied that he had any problems
in Israel, and that he
had come to visit a friend. However, his friend was contacted and informed the
officer that they had discussed the possibility that he would claim refugee
status in Canada and might
visit an immigration lawyer. The member found his credibility was impugned
because the possibility of claiming refugee protection was discussed prior to
the alleged persecutory events involving his brother in February 2007 and his
interrogation at the Tel Aviv airport in October 2007.
[17]
The
member found there was routine discrimination to which Arab citizens of Israel were
subjected to in every airport in Israel, and that many endure
what amounts to racial profiling. However, in context, she determined that his
rights were not violated in such a way as to constitute persecution.
[18]
She
then went on to consider discrimination, considered several of the articles
presented and was satisfied that he was discriminated against in not being
allowed to study and work as a pilot in Israel. However one aspect of this was
that Arabs, unlike Jews, are not compelled to do military service. Most do not,
and that fact is often used as a justification for discrimination. The position
of the Israeli Government is that there is no official discrimination against
Arabs and that when they are treated differently it is only because of security
concerns.
[19]
Following
the Hathaway hierarchal approach to human rights, social-economic rights or
so-called third level rights include the right to work, to an adequate standard
of living and a right to an education. She then referred to the United
Nations High Commissioner for Refugees Handbook which provides that
differences in the treatment of various groups exists in many societies.
However, persons who receive less favourable treatment as a result of such
differences are not necessarily victims of persecution.
[20]
Although
she was satisfied that sustained or systemic denial of one’s right to earn
one’s living is a form of persecution, she noted that Mr. Salim had finished
high school with excellent marks and specialized in computers and
communications systems. He later worked in a telecommunications company, as a
lead technician. He was only one of two Arabs in the entire company. He claims
that he was discriminated against because he was not promoted to a managerial
position.
[21]
She
determined that there were no serious restrictions on his right to earn his
livelihood and that it would be wrong to characterize any discrimination as persecution.
[22]
She
then considered the cumulative effect of incidents of discrimination. He was
able to study and work, enjoyed relative economic prosperity, which allowed him
freedom of movement, lived in a democracy, and although there were problems in
certain areas, the Government of Israel generally respected the human rights of
its citizens. She concluded that the cumulative nature of the events of
discrimination did not constitute persecution.
MR. SALIM’S CASE
[23]
Counsel
submits that the RPD ignored, “en masse”, documentary evidence which would have
led to a different conclusion, and that the member erred in law with respect to
the doctrine of cumulative grounds of persecution and the necessity to
prospectively assess the risk of persecution.
[24]
Reference
was made to documentation which indicates that some access to land is conferred
solely on Jewish citizens, that the grant of highly advantageous access to
various public services is on the basis of military service, which
discriminates against Arab Israeli citizens, and that the state has failed to
investigate and prosecute acts of hate speech.
[25]
It
was strenuously argued that a reference to a 2009 United States Department of
State Report was severely taken out of context. The member had used that report
to state that the Israeli Government generally respected the human rights of
its citizens. The entire paragraph of that report reads:
The government generally respected the
human rights of its citizens, although there were problems in some
areas…Institutional, legal and societal discrimination against Arab citizens,
Palestinian Arabs, non-Orthodox Jews and other religious groups continued…The
government maintained unequal educational systems for Arab and Jewish students.
[26]
The
member was also criticized for not quoting the entire paragraph of the UNHCR
Handbook dealing with cumulative discrimination. Paragraph 55 thereof reads:
Where measures of discrimination are, in
themselves, not of a serious character, they may nevertheless give rise to a
reasonable fear of persecution if they produce, in the mind of the person
concerned, a fear of apprehension and insecurity as regards his future
existence. Whether or not such measures of discrimination in themselves amount
to persecution must be determined in the light of all the circumstances. A
claim to fear of persecution will, of course, be stronger where a person has
been a victim of a number of discriminatory measures of this type and where
there is thus a cumulative element involved.
THE MINISTER’S RESPONSE
[27]
The
minister submitted that the RPD’s conclusion that Mr. Salim had not established
that he had a well-founded fear of persecution at the hands of the Israeli Intelligence
Services was reasonable. Indeed, his lack of credibility established that he
did not have a subjective fear of returning to Israel.
[28]
Likewise,
the Board’s analysis and conclusions regarding the allegations of
discrimination and cumulative grounds for persecution were reasonable, and the
allegations of discriminatory incidents were identified and weighed. More
specifically, the Board did not find that Arab Israelis were not discriminated
against, bur rather that in Mr. Salim’s case, the discrimination cumulatively
did not amount to persecution.
ANALYSIS
[29]
The
member’s
decision, as regards fear of persecution at the hands of Israeli Intelligence
Forces, was well within the reasonable range of outcomes and is not to be
disturbed (Dunsmuir, above, at paragraph 47).
[30]
As
to cumulative discriminatory acts becoming persecution at some stage, the
member was well aware of the law and, in my view, applied it in a reasonable
manner. The doctrine of cumulative grounds of persecution was summarized by Mr.
Justice Nadon, speaking for the Federal Court of Appeal, in Canada (Minister
of Citizenship and Immigration) v Munderere, 2008 FCA 84, 377 N.R. 259. Where
evidence establishes a series of actions characterized to be discriminatory,
and not persecutory, the cumulative effect of that conduct must be considered.
It would be an error of law for the RPD not to consider the cumulative nature
of that conduct, as directed against the claimant. The RPD is duty bound to
consider all the events which may have an impact on a claimant’s submission
that he or she has a well-founded fear of persecution.
[31]
That
is exactly what the member did, and her analysis was forward-looking. In my
opinion, the member did not take country conditions out of context.
[32]
The
US DOS Report of 2009 pointed out that “Palestinian rockets and terrorists
attacks killed four and injured 34 civilians in Israel during the
year…”, and that certain fundamental laws, orders and regulations depend on the
existence of a “State of Emergency” which has been in
effect since 1948.
[33]
The
report also states:
The law exempts Arab citizens from
mandatory military service. Citizens who do not perform military services enjoy
fewer social and economic benefits. Arab citizens of Israel generally were ineligible to work in
companies with defence contracts or security-related fields.
[34]
Mr.
Salim did not volunteer for military service. He speculates that he would not
have been accepted. In one sense, this law discriminates against Jews who, for
the most part, have no choice in the matter. However, since many of Israel’s Arab
neighbours bemoan her very existence, one can well understand why Arab citizens
are not conscripted.
[35]
Discrimination
against Arab citizens in Israel by Israeli Airlines was well documented.
Country conditions generally show a broad distrust of Jewish citizens towards
Arab citizens, and vice versa. There are grave security concerns, but such concerns
are by no means confined to Israel. Indeed, Mr. Salim testified that he would
be a useful employee in Canada at a flight training school because after 9/11
Arab candidates are not particularly welcome in the United States.
[36]
One
of the reports submitted by Mr. Salim is from the Arab Association for Human
Rights entitled Discrimination in the Israeli Law. It claims that since
Israel defines itself as Jewish, it cannot be democratic, in that it rests on
three minimum conditions: that Jews form the majority, that they are entitled
to special treatment and preferential laws, and that there is a reciprocal
relationship between Israel and the Jewish people in the Diaspora. Thus, the
Palestinian Arab minority is excluded and discriminated against.
[37]
This
report promotes a particular agenda. A great many states advance one people or
one religion over another. The irony is that this association is actually based
in Israel, which
suggests that Professor Hathaway’s first level right of freedom of thought and
expression is respected.
[38]
Another
country report allegedly ignored is the 2009 Report of the Association for
Civil Rights in Israel which bemoans the fact
that “some would make the rights of Arab citizens conditional upon fulfilling
certain duties and obligations, such as mandatory, military or national
service…” Paradoxically, such a change in the law would put all citizens on an
equal footing.
[39]
Country
reports show that the Israeli airline El Al had been ordered to compensate
Israeli Arab passengers humiliated during a security check in New York, and that it
was charged with racial discrimination against potential Arab staff.
[40]
Based
on all the evidence before her, it was reasonably open to the member to make
the decisions she did. There is no basis for disturbing them. Mr. Salim has
formed the view that he could not successfully immigrate to Canada. However, he
has not even tried. As the poet says: “A man’s reach must exceed his grasp, or
what’s a heaven for?”
ORDER
FOR REASONS GIVEN;
THIS COURT
ORDERS that
1. The
application for judicial review is dismissed.
2. There is no
serious question of general importance to certify.
“Sean Harrington”
Email this Content