Docket: IMM-638-11
Citation: 2011 FC 1403
Vancouver, British Columbia, December
2, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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WEAAM ZIRINI
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Applicant
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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 ORDER
[1]
Mr.
Zirini is a young man who comes to us from Israel. He seeks
refugee status on the basis that he is persecuted there because of his Arab
ethnicity. He concedes that no single adverse event in Israel amounts to persecution
within the meaning of the United Nations Convention and section 96 of the Immigration
and Refugee Protection Act [IRPA], but submits that cumulatively,
in the aggregate, they do amount to persecution. This is the judicial
review of the decision by a member of the Refugee Protection Division [RPD] of
the Immigration and Refugee Board of Canada who determined that he is not a
Convention refugee and not a person otherwise in need of Canada’s
protection.
[2]
The
case was argued against the backdrop of my own recent decision in Salim v Canada (MCI), 2011 FC
1283. The same counsel appeared for both Mr. Salim and Mr. Zirini and the
country documentation is largely the same. Counsel aptly described the Salim
decision as the elephant in the courtroom. As masterful as he was in
distinguishing that case and, with respect as was his duty, suggesting that it
was wrongly decided, I am dismissing this application for judicial review.
[3]
There
are of course some differences on the facts and it was a different member of
the RPD who rendered the decision. In the main, however, Salim applies.
[4]
Although
Mr. Zirini is an Israeli citizen by birth, he considers himself Palestinian and
testified about frequent abuse and humiliation he and others endured at the
hands of the Israeli police, discrimination he faced in employment, lack of
access to education, and the disdain he faced from society as a whole.
[5]
The
RPD’s qualification of country documentation emanating from the Government of
Israel could not be considered, as the member did, as being “neutral and
reliable” because the government was one of the agents of persecution.
[6]
In
reaching its conclusion that although Mr. Zirini may well be a second-class
citizen who has faced discrimination and humiliation, not amounting to
persecution, it is alleged that the Board ignored significant documentary and
testimonial evidence and mischaracterized Mr. Zirini’s problems with the
Israeli police. Furthermore, the RPD’s conclusions concerning the effects of
his not having served in the military were unreasonable, as was its finding
that state protection was available.
I. The
Facts
[7]
In
my view, the facts break down into four broad categories: education, military
service, police brutality, and societal attitudes.
[8]
The
evidence was that Mr. Zirini did not finish high school because his family was
poor and he had to go to work to help out. The implication is that his family
was poor because it was Arab and discriminated against. However, there are a
number of Arabs who enjoy prominence in Israel, with
accompanying wealth. Indeed, Mr. Salim was better educated and financially
better off. The point is that he was able to work.
[9]
Although
there are some exceptions, the general rule is that Israeli Jews are subject to
compulsory military service, while Arabs are not. They may volunteer, but the
vast majority do not. Lack of military service is said to be used as a pretext
to foster discriminatory hiring practices in both governmental and
non-governmental circles.
[10]
Mr.
Zirini says he did not volunteer for military service because he did not want
to be put in a position where he might have to kill Palestinians,
and because he would be harassed and discriminated against by his own
neighbours. This is a classic example of two solitudes.
[11]
As
an Arab in appearance, he was constantly subjected to security checks. Although
it was conceded that heightened security concerns in Israel might
justify racial profiling, the same did not justify the goading and insults to
which he was constantly subjected. However, he was not the victim of police
brutality, although he says some of his friends were.
[12]
It
seems to be a fact that many Jewish Israelis are suspicious and do not like
their fellow citizens of Arab origin. The reverse also holds true.
II. The
Law
[13]
It
is well-established that at some point cumulative discriminatory acts may
constitute persecution. In Canada (MCI) v Munderere, 2008 FCA 84, 377 NR
259, Mr. Justice Nadon, speaking for the Federal Court of Appeal, stated that
where evidence establishes a series of actions characterized to be
discriminatory, but not persecutory, the cumulative effect of that conduct must
be considered. It would be an error in law for the RPD not to consider the
cumulative nature of those events.
[14]
It
was submitted that the member did not consider the events in the aggregate and
simply stated facts without analysis. I disagree. Taken as a whole, the member
was aware of the law, and her findings of fact were well within the norm of
reasonableness set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190. The reasons are more than adequate.
[15]
The
record also shows that the state does protect its Arab citizens.
III. Certified
Question
[16]
Mr.
Zirini shall have until December 12, 2011 to propose a serious question of
general importance which would support an appeal, as per section 74(d) of IRPA.
If a question is posed, the Minister shall have one week therefrom to
reply.
“Sean Harrington”
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