Date: 20070619
Docket: IMM-1683-06
Citation: 2007 FC 652
Ottawa, Ontario, June 19, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
YURI SVERDLOV (a.k.a. YOURI
SAVARDELOV),
MAYA SVERDLOVA (a.k.a. MAYA SVERDLOV)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Yuri
Sverdlov and Maya Sverdlova (the Applicants) are citizens of Israel who claim
refugee protection in Canada. Ms. Sverdlova is a practising member of Jehovah’s
Witnesses who fears persecution on the basis of her membership in that group.
Mr. Sverdlov is Jewish and fears persecution in Israel as the
husband of a non-Jewish wife. In a decision dated March 9, 2006, a panel of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
determined that the Applicants were not Convention refugees or persons in need
of protection pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA). The Applicants seek
judicial review of the decision alleging that the Board made a number of errors
in its decision.
[2]
The Board’s decision was based on three main findings:
- The Board did not
believe that the events that allegedly formed the basis for their claim
ever happened;
- Even if the events
had happened as alleged, the harm did not amount to persecution; and
- In any event, the
Applicants failed to rebut the presumption of state protection.
[3] If
upheld, any one of these findings is determinative of the Applicants’ claim for
protection. Thus, the Applicants would have to persuade the Court that the
Board erred in all three findings. For purposes of this analysis, I will begin
with the Board’s analysis of state protection. For the reasons that follow, I
am satisfied that the Board did not err in a reviewable manner in this part of
its decision. Accordingly, there is no need to review the credibility
determination or the question of discrimination versus persecution.
[4] The
onus rests with the Applicants to demonstrate, with clear and convincing
evidence that the state of Israel is unable or unwilling to protect them (see,
for example, Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689, 103 D.L.R. (4th) 1). In the case of Israel, a
democratic state, that burden is not easily satisfied (Canada (Minister of
Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th)
532 at 534 (F.C.A.), 206 N.R. 272). In this case, the Board found that the
Applicants had not met their burden. Before reaching that conclusion, the Board
examined considerable documentary evidence related not only the existence of
Israel as a democracy, but as to the effectiveness of state protection for
persons similarly situated to the Applicants; that is, the Board directly
considered the willingness and ability of the state of Israel to protect former
citizens of Russia and non-Jews.
[5] The
Applicants assert that the Board failed to have regard to the post-hearing
submissions and documentary evidence provided by the Applicants’ counsel. A
failure to have regard to the evidence can be a ground for review of a
decision. I note first that the Board is presumed to have considered all of the
evidence before it. The post-hearing submissions were included in the Certified
Tribunal Record; therefore, absent evidence to the contrary, there is a
presumption that they were considered. The presumption would certainly apply to
general country condition documents that do not add to the record already
before the Board or to documents that have little inherent reliability or
relevance to the personal situation of the Applicants. Having reviewed the
submissions, I am not persuaded that there was anything in the package that
required specific reference. The documents attached to the submissions are not
from and have not been verified by an independent third party. For the most
part, they appear to be website documents in the nature of hate propaganda. I
would certainly not see these documents as credible or reliable. In its
decision, the Board does acknowledge certain difficulties experienced by both
Russian émigrés and Christians who proselytize; in my view, this demonstrates
that the Board considered and was aware of the evidence in this regard,
including the evidence produced post hearing. The Applicants have not persuaded
me that the Board made its decision without regard to the evidence.
[6] The
second alleged error is contained in one sentence in the state protection
analysis. As noted by the Board (and by the Federal Court of Appeal in Kadenko,
above at 534), in a democratic state, the Applicants are required to show that
they have exhausted all reasonable remedies to obtain the necessary protection.
In its decision, after referring to this principle, the Board states:
The panel finds that the claimants did
not provide any evidence of providing the opportunity for the police to provide
protection and mount a successful investigation. The police must be given
adequate tools to investigate a crime. Information is a crucial tool and these
claimants failed to pursue protection without adequate justification.
[7] The
Applicants submit that they did indeed submit evidence of their attempts to
access protection and that, therefore the words “did not provide any evidence”
reflect a factual error.
[8] I
cannot agree with the Applicants’ characterization of the Board’s statement. It
is clear from a number of statements in the decision that the Board appreciated
that the Applicants had allegedly made some approaches to the police. However,
the Applicants were unable to provide any names of the individuals who had
allegedly sent the hate notes. They also had failed to follow up on the most
serious incident with a written report because, as Ms. Sverdlova testified, she
did not have “any hope for assistance”. The Applicants’ allegation that their
gas stove malfunction was an example of harassment appears to have been pure
speculation – how could police follow-up without any evidence whatsoever to
link the incident to any individuals? Where no names can be given or even
guessed at, where no formal complaint is made or where the call to police is
based on pure speculation, it would be impossible for the police to assist the
Applicants. Thus, it is quite reasonable, on these facts, to say that the
police were not provided with any evidence that would allow them to
provide protection. In my view, this is exactly what the Board said and
what it meant to say. There is no error.
[9] The
Applicants also submit that the Board erred when it stated that they had not
put an address or phone number on one complaint to the police. This likely was
an error; the notice contained at least a street address. However, in light of
the other evidence on the Applicants’ alleged efforts to engage police
assistance, I am not persuaded that this error is material in the context of
the analysis of state protection.
[10] Finally,
with respect to the issue of state protection, the Applicants point out that
the Board acknowledged the unwillingness of the state to protect non-Jews. For
this, they rely on a statement by the Board that “the government discriminates
against non-Jews”. This statement, they argue, constitutes an admission that
the documentary evidence bears out their submission that the police will not
help the Applicants. This argument has no merit whatsoever. At the time this
observation was made by the Board, during the hearing, the Board was simply
referring to one piece of documentary evidence. It certainly cannot be taken as
an admission by the Board that the police are unwilling to protect non-Jews. In
the decision, the Board reviewed a wide variety of documentary evidence that
demonstrates that the state of Israel provides protection and assistance to
non-Jews.
[11] In
sum, the Applicants have failed to persuade me that the Board erred in its state
protection finding. As this is a determinative issue, there are insufficient
grounds to overturn the decision. Even if I were to find that both the
credibility finding of the Board or the Board’s finding that the harassment
does not rise to the level of persecution is flawed (which I do not believe),
this Application would not succeed.
[12] The
Application for Judicial Review will be dismissed. There is no question of
general importance for certification.
ORDER
THIS
COURT ORDERS that:
- The
application for judicial review is dismissed; and
- No
question of general importance is certified.
“Judith A. Snider”
____________________________
Judge
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