Date: 20071024
Docket: IMM-81-06
Citation: 2007
FC 1103
Ottawa, Ontario,
October 24, 2007
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
BARUCH
TEWELDE
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Tewelde is a citizen of Israel who seeks judicial review of the decision
of the Refugee Protection Division (RPD) rejecting his claim under section 96
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. (the
Act)
[2]
Mr.
Tewelde alleges that he fears persecution because he objects, on grounds of
conscience, to serving as a reservist in the Israeli Defence Forces (IDF) in
either Gaza or the West Bank, given his belief that the IDF has repeatedly
committed human rights violations in those areas, including the reckless
shooting and shelling of civilians, the use of civilians as human shields, and
the wide scale destruction of civilians’ houses without due regard to their
security.
[3]
In
its fourteen page decision, the RPD focuses on the punishment imposed on
conscientious objectors in Israel, for instance how he might be treated if
incarcerated, and concludes that the imposition of such penalties would not
amount to persecution. It also reviews whether the applicant would be subject
to discrimination at large because of his refusal to serve in the Occupied Territories
of Gaza and the West
Bank. On that issue, the RPD also concludes that there is no reasonable
possibility of persecution. These findings are not contested by the applicant.
[4]
The
RPD also considered that following the decision of the Federal
Court of Appeal in Zolfagharkhani v. Canada
(Minister of Employment and Immigration) (F.C.A.), [1993]
F.C.J. No. 584, Mr. Tewelde
could have a valid claim under section 96 of the Act as a selective
conscientious objector, provided that the military actions objected to “are
judged by the international community to be contrary to basic rules of
conduct”. The RPD essentially concludes in two paragraphs, however, that there
is no objective basis for such a finding in Mr. Tewelde’s case.
[5]
It
is in respect of this last finding that the applicant argues the RPD erred,
either by ignoring important documentary evidence that clearly contradicts its
conclusions, or by failing to give adequate reasons, thereby breaching its duty
of fairness.
[6]
There
is no dispute that whether or not the IDF’s actions in Gaza and the West
Bank, in which the applicant might be liable to participate, involve human
rights abuses or other reprehensible conduct of the type referred to in
paragraph 171 of the UNHCR
handbook is a question of fact. The issue is therefore reviewable on the most
deferential standard of review (Lebedev v. Canada
(Minister of Citizenship and Immigration), [2007] F.C.J. No. 975, at par.55; Hinzman v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 521, at par.168; Mugesera v. Canada (Minister of Citizenship
and Immigration), [2005] 2 S.C.R. 100, at par.38).
[7]
In respect of the alleged failure to give
adequate reasons, the Court will normally intervene if there was a breach of
procedural fairness. (Baker v. Canada (MCI), [1999] 2 S.C.R.
817; Sketchley v. Canada,
[2005] F.C.J. No. 2056).
[8]
It is trite law that the decision-maker is presumed to have
considered all the evidence on record, and there is no doubt in this matter
that all of the passages referred to by the applicant were indeed part of the
record before the RPD. However, the applicant relies on the principle set out
in Cepada-Gutierrez, [1998] F.C.J. No. 1425 to
argue that in the particular circumstances of this case, the Court should infer
from the absence of any reference to certain evidence that the RPD simply
ignored it.
[9]
As a first step, the Court must therefore consider the
evidence in question and determine its importance relative to the issue that
was before the RPD.
[10] First,
as noted in his PIF and his testimony before the RPD, the applicant had
referred to specific types of human rights violations and abuses committed by
the IDF. In support of his contentions and to corroborate his testimony, the
applicant filed, among other materials, Human Rights Watch reports dated 2004
and 2005 (pages 1- 75 of exhibit C-3, at pages 264 to 338 of certified record)
as well as three documents (pages 75-90 of exhibit C-3, at pages 339-354 of the
certified record) dealing more specifically with the treatment of conscientious
objectors in Israel.
[11] In
its decision, the RPD refers to some portions of exhibit C-3 which address the
treatment of conscientious objectors (particularly pages 75, 84 and 85). The
Court notes that such passages were expressly referred to by the applicant
during the oral submissions made at the hearing. The RPD makes no reference to
any documentation whatsoever when it examines the issue that the applicant
challenges here.
[12] A
review of the documentation produced in support of the applicant’s allegations
of house destruction and of the use of civilians as human shields, etc…,
indicates that Human Rights Watch’s observations and comments are based on
years of investigation. For example, the report states:
p. 324 …
This report documents these and other illegal demolitions. Based on extensive
research in Rafah, Israel and Egypt, it places many of the IDF’s justifications for the destruction,
including smugglers’ tunnels and threats to its forces on the border, in
serious doubt. The pattern of destruction, it concludes, is consistent with
the goal of having a wide and empty border area to facilitate long term control
over the Gaza Strip. Such a goal would entail the wholesale destruction of
neighborhoods, regardless of whether the homes in them pose a specific threat
to the IDF, and would greatly exceed the IDF’s security needs. It is based on
the assumption that every Palestinian is a potential suicide bomber and every
home a potential base for attack. Such a mindset is incompatible with two of
the most fundamental principles of international humanitarian law (IHL): the
duty to distinguish combatants from civilians and the responsibility of an
Occupying Power to protect the civilian population under its control.
This report also documents – through witness testimony,
satellite images and photographs – the extensive destruction from IDF
incursions deep into Rafah this past May.
[13] It
is also worth noting certain extracts of the report relied upon by the
applicant:
p. 328 In May 2004, Rafah witnessed a level of destruction
unprecedented in the current uprising, resulting in 298 demolished homes…
In investigating the events of May 2004 and other
demolitions, Human Rights Watch documented systematic violations of
international humanitarian law and gross human rights abuses by the Israeli
military…
p. 326 IDF
positions fire with large caliber machine guns and tanks at civilians areas.
Based on multiple visits to the area by Human Rights Watch since 2001 and
interviews with local residents and foreign diplomats, aid workers, and
journalists, this shooting appears to be largely indiscriminate and in some
cases unprovoked. In July 2004, nearly every house on Rafah’s southern edge
was pockmarked by heavy machine gun, tank, and rocket fire on the side facing
the border. Bullet holes were not only clustered around windows or other
possible sniper positions, but sprayed over entire sides of buildings. Human
Rights Watch researchers also witnessed indiscriminate use of heavy machine gun
fire against Palestinian civilian areas in nearby-Khan Yunis, without apparent
shooting by Palestinians from that area at the time…
Both the IDF and Palestinian armed groups use tactics that
place civilians at risk. Under customary international law, civilians must be
kept outside hostilities as far as possible, and they enjoy general protection
against danger arising from hostilities. Human Rights Watch documented
multiple cases where the IDF converted civilian buildings into sniper positions
during incursions and forced residents to remain with them inside. In some
cases, the IDF coerced civilians to serve as “human shields, while searching
Palestinian homes, a practice strictly prohibited by international humanitarian
law…
p. 325 In
the case of Rafah, it is difficult to reconcile the IDF’s stated rationales
with the widespread destruction that has taken place. On the contrary, the
manner and pattern of destruction appears to be consistent with the plan to
clear Palestinians from the border area, irrespective of specific threats.
[14] Faced
with this evidence among other things, the RPD simply says in its decision at
p.8:
“While the record is not complete on this war there is little
in the country documentation or the claimant’s observations to suggest that
persecution of the particular claimant for military evasion in this conflict
would in and of itself mean that the persecution for avoiding service would
constitute persecution because the conflict involves action abhorrent by
international standards and internationally condemned.
The panel has no serious reasons to believe
that the state of Israel deliberately targets civilians in its campaign to identify and deal with
terrorists. While the army may over react in certain circumstances in an
attempt to maintain order and protect borders even in circumstances when
deliberately provoked by stone throwers or suicide bombers, there is no
persuasive evidence that the army is actively engaged in systemic killings
or systemic abuse that violates fundamental human rights of civilians in a
war”.
(my emphasis)
[15]
With respect to actions considered abhorrent by international standards and
which have attracted international condemnation, the respondent cannot point to
any documentation in the certified record that could support the RPD’s specific
reference to a campaign to identify and deal with terrorists or to the army
overreaction in certain circumstances.
[16] In
Lebedev
v. Canda (Minister of Citizenship and
Immigration),
[2007] F.C.J. No.
975, a recent decision on the subject of selective conscientious
objectors, my colleague Justice Yves de Montigny examined what section 171 of
the UNHCR
handbook means by “actions… condemned by international communities as contrary
to basic rules of human conduct…”, at paragraphs 57 and following. Justice de
Montigny adopts most of the findings of Justice Ann MacTavish in Hinzman,
supra, in that respect.
[17]
It appears that international condemnation is not limited to an assessment by a
state or inter-state body. As noted at paragraph 70 of Lebedev, “There
will also be instances where political expediency will prevent the U.N or its
member states from condemning the violation of international humanitarian law.
This is why reports from credible non-governmental organizations, especially
when they are converging and hinge on ground staff, should be accorded credit.
Such reports may be sufficient evidence of unacceptable and illegal practices”.
[18] In
this regard, the decision of Justice Bud Cullen in Ciric v. Canada (Minister of Citizenship and Immigration), [1994] 2 F.C.J. 65, is on point. In that decision,
observations and comments of Helsinki Watch, Amnesty International and the
International Committee of the Red Cross were considered sufficient to
constitute international condemnation.
[19] It
is evident from the above that in the instant case, the various reports of
Human Rights Watch (of which only one was commented on by the Court in these
reasons) constituted highly relevant evidence that not only corroborated the
applicant’s testimony, but indeed went to a central element of the claim.
[20] Although
Lebedev dealt with the actions of the Russian army in Chechnya and a very
different record then the one presently before the Court, it is nonetheless of
assistance in the present case to note Justice de Montigny’s finding that the
PRRA officer was, at the very least, under an obligation to substantiate her
conclusion that the evidence on record, which included U.S. Department of State
reports and a War Resisters International report, did not establish a breach of
international standards by the Russian army.
[21] The
Court is satisfied that the RPD’s use of the words “there is little…to suggest”
cannot be meant to refer to the HRW report referred to above which expressly
alleges that the IDF engaged in “systemic violations of international
humanitarian law and gross human rights abuses”. Having reviewed all the
evidence, the Court is convinced that this is indeed a case where it should
infer that the RPD ignored the evidence.
[22] In
any event, if contrary to my belief, the RPD indeed considered the evidence at
issue, its reasons are inadequate to enable the Court or the applicant to
review their validity, or to appreciate why some evidence was discarded. A
simple statement that the evidence is not persuasive, without further comment,
does not meet the duty of fairness incumbent on the RPD. As Justice Sexton
observed in Via Rail Canada Inc. v. National Transportation Agency, [2000] F.C.J.
No. 1685, at paragraph 22, “(t)he obligation to provide adequate
reasons is not satisfied by merely reciting the submissions of the parties and
stating a conclusion (…) (t)he reasoning process followed by the decision-maker
must be set out and must reflect consideration of the main relevant factors.”
[23]
The parties have not sought certification of any question and the Court finds
that this case turns on its own facts.
ORDER
THIS COURT ORDERS that
1. The
application is granted.
2. The decision
is set aside and the matter shall be sent to a new panel for re determination.
“Johanne
Gauthier”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-81-06
STYLE OF CAUSE:
Baruch Tewelde
v.
Minister of
Citizenship and Immigration
PLACE OF HEARING:
Toronto, Ontario
DATE OF
HEARING:
October 16, 2007
REASONS FOR JUDGMENT
AND JUDGMENT:
The Honourable Justice Gauthier
DATED:
October 24, 2007
APPEARANCES:
|
Catherine
Bruce
|
FOR THE APPLICANT, Baruch Tewelde
|
|
Bernard Hassan
|
FOR THE RESPONDENT, Minister of
Citizenship and Immigration
|
SOLICITORS
OF RECORD:
|
Catherine
Bruce
(416) 483-4381
|
FOR THE APPLICANT
|
|
Bernard Hassan
(416) 973-0965
|
FOR THE RESPONDENT
|
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