Date: 20081121
Docket: IMM-1044-08
Citation:
2008 FC 1292
Ottawa, Ontario, November 21, 2008
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
DAVID MOHILOV
LEILA MOHILOV
SHIMON MOHILOV
ARIEL MOHILOV
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision dated
February 8, 2008, by member Pierre Duquette of the Refugee Protection Division
of the Immigration and Refugee Board (the panel), that the applicants are
neither Convention refugees nor persons in need of protection.
I. Issue
[2]
The
Court considers the following issues relevant:
a.
Did
the panel err by finding that the principal applicant would not necessarily be called
upon to commit violations of international humanitarian law?
b.
Did
the panel err regarding the punishment for desertion by relying on the
punishment that was imposed on the principal applicant in the past?
[3]
The
application for judicial review will be dismissed for the following reasons.
II. Facts
[4]
The
applicants are Israeli citizens. The principal applicant, David Mohilov, is 34
years old and is the spouse of Leila Mohilov, who is 31, and the father of
Shimon and Ariel, who are both minors.
[5]
The
principal applicant emigrated from the former USSR (Russia) to
Israel in June
1994. In May 1996, he was called up for his military service, which continued
until September 1996. At the end of his training, he was told that he would be
called for active duty in 1997.
[6]
In
September 1997, he went to Canada to escape the army and stayed as a visitor
for one year, until September 1998.
[7]
Although
he should have been called up every year to perform one month of military
service, the principal applicant heard nothing about military service until
June 2003 when the authorities discovered, during an identity check, that he
was wanted by the army. He was detained for two days and then sent to patrol
for a month.
[8]
The
principal applicant married Leila, a Muslim, in August 2003. Leila had emigrated
from Russia to Israel in February
2001. The applicant received an exemption from the army in 2004 because his
wife was pregnant. On June 5, 2005, he served for one month as a patroller. In
June 2006, he was called up for his annual month of service from July 5 to
August 5 at a military base near the Lebanese border.
[9]
The
principal applicant left for Canada on June 27, 2006, to avoid being on active
duty and claimed refugee protection on December 15, 2006. His wife and children
arrived in Canada on December 8, 2006,
and also claimed refugee protection at the same time as the applicant. The
applicants say that they fear persecution on the ground of their religion,
nationality and political opinion. They also believe that they are persons in
need of protection because they will be subjected to a risk to their lives or to
a risk of cruel and unusual punishment as well as to a risk of torture.
[10]
Leila
Mohilov bases her application on her husband’s and adds that she has a Muslim
name and was discriminated against.
III. Impugned
decision
[11]
First,
the panel noted that the principal applicant served a month in the military in
2005 without problems or protests. When he came to Canada the second
time, the applicant was trying to avoid the 2006 military service. The
applicant explained that he was to report to the Zir Filadelfi base near the
Lebanese border, and he concluded that he would have seen action. He stated
that he would not have left Israel if he had not been sent to a combat unit.
He said that he had no objection to serving in the army as long as he was not
placed in a combat unit because then he would have to attack civilians and
destroy their homes.
[12]
The
panel stated that the principal applicant could not have foreseen the 34-day
war between Lebanon and Israel that began on July 12, 2006, when he
decided to go to Canada and that he cannot justify his departure on the
basis of a war that started afterwards. However, the panel believed the
applicant when he said that he did not want to kill civilians, although such
action was not necessarily a foregone conclusion in June 2006.
[13]
The
panel noted that the principal applicant was never a member of a political
organization or party and never publicly expressed his opposition to attacking
civilians. The only evidence that the panel received on this point was his own
statement.
[14]
The
panel acknowledged that there was evidence in the record (Amnesty International
and Human Rights Watch reports about Lebanon) indicating that war crimes were
committed during the war between Israel and Lebanon in July and
August 2006. On the other hand, that war is over, and the principal applicant would
not have to participate in that war if he were to return to Israel. To date, he
has served three times, for periods of one to four months and has
never been asked to commit crimes against humanity. The panel stated that a
very low percentage of the half-million Israeli soldiers shot at civilians
during the 34-day war.
[15]
Furthermore,
the applicant was not an officer and did not have to make decisions about the
conduct of the war. As in Hinzman v. Canada (Minister of
Citizenship and Immigration), 2006 FC 420, [2007] 1 F.C.R. No. 561,
he was merely a foot soldier. Although it is true that crimes were committed,
there is nothing to indicate that the applicant would have been called upon to
commit any crimes. There is no evidence that he would be unable to explain his
refusal to act on an illegal order or that his punishment would be unreasonable
if he refused to comply.
[16]
The
panel was of the view that the principal applicant did not have to engage in
objectionable conduct at any time. There was no evidence to indicate that the
applicant would have been forced to take part in war crimes or crimes against
humanity, notwithstanding that he was called up to serve at the Lebanese
border.
[17]
The
panel acknowledged that the evidence in the record showed that military service
is compulsory in Israel and that there is no alternative or civil
service. Men must complete one month of military service per year until they
turn 45. Every government has the recognized right to require its citizens to
perform military service and to punish those who refuse to serve or who desert.
The penalties may vary and are not regarded as persecution. However, the panel
noted that, in certain circumstances, a deserter or draft dodger may be
considered a refugee.
[18]
The
panel cites Professor James Hathaway, who notes that a claimant cannot claim
refugee status merely because he does not want to serve in the army. On the
other hand, there are three exceptions to this principle, which the Court
referred to in Lebedev v. Canada (Minister of
Citizenship and Immigration), 2007 FC 728, 314 F.T.R. 286:
1. 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;
2.
Evasion might lead to Convention refugee status if it reflects an
implied political opinion that the military service is fundamentally
illegitimate under international law;
3. The final exception applies
to those with “principled objections” to military service,
more widely known as
“conscientious objectors”.
[19]
The
applicant did not claim that his being called up for military service was
discriminatory or that the punishment that he could receive would be biased on
a Convention ground. He argued his claim on the second exception because he
believed that the last time he was called up in July 2006, he would have
been associated with illegitimate military actions.
[20]
This
exception is referred to in paragraphs 170 and 171 of the Handbook on Procedures and Criteria for
Determining Refugee Status issued by the United Nations High
Commissioner for Refugees (the UNHCR Handbook). To come within paragraph 170 of
the Handbook, the applicant’s refusal to serve in the army must be based on
genuine political, religious or moral convictions or valid reasons of
conscience. Paragraph 171 states that not every genuine moral or political
conviction constitutes a sufficient reason for claiming refugee status. This
paragraph also requires objective evidence that “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”. The
applicant did not provide any specific evidence of human rights violations in
Israel’s military actions in the occupied territories or in Lebanon. He did not
prove that serious and numerous violations were committed or that he would be
unable to escape them if he were conscripted. The second exception therefore does
not apply to the applicant.
[21]
If
he were to return to Israel, the applicant would probably have to
suffer the consequences of his desertion. The panel relied on the minor
punishment that was imposed on him: two days’ imprisonment for evading service
from 1997 to 2003. Moreover, the applicant failed to show that his punishment
would be excessive or biased in relation to a Convention ground.
[22]
The
panel also decided that the refugee claim of the female applicant and her
children, who based their claims on that of the principal applicant, could not
be allowed.
[23]
The
female applicant also alleged that she had been discriminated against because
she has a Muslim name. The few examples that she provided at the hearing did
not resemble persecution. According to the panel, the female applicant did not prove
that she had a reasonable fear of persecution if she were to return to Israel.
[24]
Last,
there is no evidence that the applicants are persons in need of protection
under section 97 of the Act.
IV. Relevant legislation
[25]
The
relevant legislation can be found in Schedule A at the end of these reasons.
V. Analysis
1.
Did the panel err by finding that the principal applicant would not necessarily
be called upon to commit violations of international humanitarian law?
[26]
According
to the applicant, the issue of whether he was called upon to commit violations
of international law is a question of law, reviewable on the standard of
correctness (Lebedev, above at paragraph 54 and Mugesera v. Canada
(Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100
at paragraph 37).
[27]
He
states that, in reviewing participation in violations of international
humanitarian law, the panel considered the total number of soldiers in Israel and the fact
that a very low percentage of these soldiers had to shoot at civilians during
the war in Lebanon. The panel should
have considered that Israeli soldiers committed other serious violations of
human rights in other places where they were mobilized. The percentage of
soldiers who committed these violations is therefore higher than what the panel
believed.
[28]
The
panel criticized the principal applicant for leaving Israel before the
hostilities with Lebanon broke out and says that if the applicant were
to return to Israel now, his participation in violating international
humanitarian law would not be in the context of the war between Israel and Lebanon because it
ended in August 2006. The applicant submits that his objection is not restricted
to a territory or to the war with Lebanon, but applies to any
place where Israeli soldiers violated international humanitarian law. The panel
should therefore have considered other places where Israeli armed forces
committed serious human rights violations.
[29]
The
principal applicant alleges that the punishment for refusing to serve or to
carry out an illegal order may be regarded as persecution where the military
action is condemned by the international community.
[30]
He
also submits that the standard of proof to be applied to facts that underlie a
refugee claim is the balance of probabilities (Li v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 1, [2005] 3 F.C.R. 239). Thus,
the principal applicant does not have to prove 100% that he will personally be
called upon to commit crimes.
[31]
In
the respondent’s view, the panel considered all the applicants’ allegations and
explanations. The principal applicant does not object to serving in the army,
as long as he is not placed in a combat unit, and the panel correctly found
that he had not established that he had been asked to commit crimes against
civilians in the past or that he would be called upon to commit them if he were
to continue to perform his duties as a reservist.
[32]
Likewise,
the documentary evidence cited by the panel indicates that, notwithstanding
that war crimes were committed during the recent war with Lebanon, there were
no systematic violations of human rights by Israeli military forces.
[33]
The
respondent notes that it is settled law that a dislike of military service is
not sufficient, in itself, to establish a well-founded fear of persecution (Musial
v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 290; 38
N.R. 55 (F.C.A.); Popov v. Canada (Minister of Employment
and Immigration) (1994), 75 F.T.R. 90, 24 Imm. L.R. (2d) 242 (F.C.T.D.)). On
the other hand, the respondent notes that the applicant knew, before
immigrating to Israel, that he would have to serve in the military while there (Talman
v. Canada (Solicitor General), (1995) 93 F.T.R. 266, 54 A.C.W.S. (3d)
741 (F.C.T.D.) and Kogan v. Canada (Minister of Citizenship and Immigration)
(1995), 57 A.C.W.S. (3d) 87, [1995] F.C.J. No. 865 (F.C.T.D.) (QL)).
[34]
According
to the respondent, the panel correctly indicated that the Israeli law is a law
of general application and that no discrimination was established (Zolfagharkhani
v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540
(F.C.A.); Budaghyan v. Canada (Minister of Citizenship and Immigration),
2002 FCT 20, 112 A.C.W.S. (3d) 934). Furthermore, it is recognized that
compulsory military service is not a ground for protection (Ozunal v. Canada (Minister of
Citizenship and Immigration), 2006 FC 560, 291 F.T.R. 305; Usta v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1525, 134 A.C.W.S. (3d) 1070).
[35]
Moreover,
considering that the principal applicant would only be a simple soldier, participation
by a foot soldier in a unlawful war is not sufficient to justify granting
refugee status, and a claimant’s mere participation does not bring him within
the ambit of paragraph 171 of the UNHCR Handbook (Hinzman, above).
[36]
Although
the panel acknowledged that war crimes were committed during the 34-day war,
there were no systematic violations of personal rights by the military. The
panel correctly determined that the evidence regarding condemnation by the
international community was insufficient.
[37]
In
addition, the applicant failed to provide evidence showing recent situations,
other than the 34-day war, where he would be called upon to commit
international human rights violations.
[38]
After
analyzing the reasons for this decision based on the evidence adduced, the Court
cannot find that its intervention is necessary here. The panel’s finding is
supported by the facts and the documentary evidence that it had to consider.
2.
Did the panel err regarding the punishment for desertion by relying on the
punishment that was imposed on the principal applicant in the past?
[39]
Considering
the punishment that could be imposed on the principal applicant is a question
of fact, reviewable on the new standard of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190).
[40]
Reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir, at
paragraph 47). The Court must not intervene if the panel’s decision is
reasonable, and the Court cannot substitute its own opinion on the sole ground
that it would have come to a different conclusion.
[41]
According
to the applicant, the panel relied on the minor punishment that had been
imposed on him in the past to assume that the punishment he will face in the
future will not be severe. The applicant notes that the situation with respect
to punishment has evolved over the years based on certain aggravating factors,
and that, therefore, it is not appropriate to consider the minor punishment in
this case.
[42]
With
respect to the punishment imposed for refusing to serve in the military, the
respondent submits that the Court recently recognized that the possibility of
imprisonment for a period of up to 56 days does not constitute excessive
or draconian punishment or persecution (Sounitsky v. Canada (Minister of
Citizenship and Immigration), 2008 FC 345, 166 A.C.W.S. (3d) 310).
[43]
The
respondent adds that the applicants’ own evidence reveals that the consequences
of the applicant’s non-compliance with his military duties were not serious and
that he benefited from exemptions, since he was imprisoned for only two days
for evading military service between 1997 and 2003.
[44]
The
respondent notes that the punishment applicable to deserters is a law of
general application. The respondent cites Musial, above, and submits
that when a person is punished for violating a law of general application, the
offence committed must be considered, not the political motivation. Punishment arising
from a law of general application is not sufficient to constitute persecution,
since such punishment involves prosecution, not persecution (Lebedev, above,
at paragraph 26).
[45]
The
principal applicant alleges, in particular, that he fears returning to Israel because he
will be punished for deserting the army.
[46]
In
Israel, a law of
general application imposes military service on its citizens, and the applicant
did not demonstrate that this law is inherently persecutory in relation to a
Convention ground (Zolfaghkarkhani, above). It is well established that
compulsory military service does not amount to persecution and that dislike of
conflict or fear of serving in the army will not justify a fear of persecution
based on a law (Garcia v. Canada (Secretary of State) (1994), 47 A.C.W.S.
(3d) 603, [1994] F.C.J. No. 147 (F.C.T.D.) (QL)).
[47]
The
applicant failed to demonstrate that the punishment pursuant to the law of
general application for refusing to serve in the army could be regarded as
persecution or that it would be excessive or biased in relation to a Convention
ground. The punishment that the panel mentioned is an example of a sanction
that was already inflicted on the principal applicant for violating the law.
[48]
The
Court does not consider it unreasonable that the panel mentioned the previous
punishment when analyzing all the evidence before making a determination on
this issue. The Court is of the view that the panel did not commit a reviewable
error.
[49]
No
question for certification was proposed and there is none in the record.
JUDGMENT
THE COURT
ORDERS that the application for
judicial review is dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Mary
Jo Egan, LLB
Schedule A
Relevant legislation
Handbook on Procedures and
Criteria for Determining Refugee Status issued by the United Nations High Commissioner for
Refugees (the UNHCR Handbook):
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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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167. Dans les pays où le service
militaire est obligatoire, le fait de se soustraire à cette obligation ou
insoumission est souvent une infraction punie par la loi. Quant à la
désertion, elle est toujours dans tous les pays – que le service militaire
soit obligatoire ou non – considérée comme une infraction. Les peines varient
selon les pays et normalement leur imposition n'est pas considérée comme une
forme de persécution. La crainte des poursuites et du châtiment pour
désertion ou insoumission ne constitue pas pour autant une crainte justifiée
d'être victime de persécutions au sens de la définition. En revanche, la
désertion ou l'insoumission n'empêchent pas d'acquérir le statut de réfugié
et une personne peut être à la fois un déserteur, ou un insoumis, et un
réfugié.
168. Il va de soi qu'une
personne n'est pas un réfugié si la seule raison pour laquelle elle a déserté
ou n'a pas rejoint son corps comme elle en avait reçu l'ordre est son
aversion du service militaire ou sa peur du combat. Elle peut, cependant,
être un réfugié si sa désertion ou son insoumission s'accompagnent de motifs
valables de quitter son pays ou de demeurer hors de son pays ou si elle a de
quelque autre manière, au sens de la définition, des raisons de craindre
d'être persécutée.
169. Un déserteur ou un insoumis
peut donc être considéré comme un réfugié s'il peut démontrer qu'il se
verrait infliger pour l'infraction militaire commise une peine d'une sévérité
disproportionnée du fait de sa race, de sa religion, de sa nationalité, de
son appartenance à un certain groupe social ou de ses opinions politiques. Il
en irait de même si l'intéressé peut démontrer qu'il craint avec raison
d'être persécuté pour ces motifs, indépendamment de la peine encourue pour
désertion.
170. Cependant, dans certains
cas, la nécessité d'accomplir un service militaire peut être la seule raison
invoquée à l'appui d'une demande du statut de réfugié, par exemple lorsqu'une
personne peut démontrer que l'accomplissement du service militaire requiert
sa participation à une action militaire contraire à ses convictions politiques,
religieuses ou morales ou à des raisons de conscience valables.
171. N'importe quelle
conviction, aussi sincère soit-elle, ne peut justifier une demande de
reconnaissance du statut de réfugié après désertion ou après insoumission. Il
ne suffit pas qu'une personne soit en désaccord avec son gouvernement quant à
la justification politique d'une action militaire particulière. Toutefois,
lorsque le type d'action militaire auquel l'individu en question ne veut pas
s'associer est condamné par la communauté internationale comme étant
contraire aux règles de conduite les plus élémentaires, la peine prévue pour
la désertion ou l'insoumission peut, compte tenu de toutes les autres
exigences de la définition, être considérée en soi comme une persécution.
172. Le refus d'accomplir le
service militaire peut également être fondé sur des convictions religieuses.
Si un demandeur est à même de démontrer que ses convictions religieuses sont
sincères et qu'elles ne sont pas prises en considération par les autorités de
son pays lorsqu'elles exigent de lui qu'il accomplisse son service militaire,
il peut faire admettre son droit au statut de réfugié. Toutes indications
supplémentaires selon lesquelles the applicant ou sa famille auraient
rencontré des difficultés du fait de leurs convictions religieuses peuvent
évidemment donner plus de poids à cette demande.
173. La question de savoir si
l'objection à l'accomplissement du service militaire pour des raisons de
conscience peut motiver une demande de reconnaissance du statut de réfugié
doit également être considérée en tenant compte de l'évolution récente des
idées sur ce point. Les États sont de plus en plus nombreux à avoir introduit
dans leur législation ou leur réglementation administrative des dispositions
selon lesquelles les personnes qui peuvent invoquer d'authentiques raisons de
conscience sont exemptées du service militaire, soit totalement, soit sous
réserve d'accomplir un service de remplacement (c'est-à-dire un service
civil). L'introduction de semblables dispositions législatives ou
administratives a également fait l'objet de recommandations de la part des
institutions internationales.24 Compte tenu de cette évolution, les États
contractants sont libres, s'ils le désirent, d'accorder le statut de réfugié
aux personnes qui ont des objections à l'égard du service militaire pour
d'authentiques raisons de conscience.
174. L'authenticité des
convictions politiques, religieuses ou morales d'une personne ou la validité
des raisons de conscience qu'elle oppose à l'accomplissement du service
militaire doit, bien entendu, être établie par un examen approfondi de sa
personnalité et de son passé. Le fait que cette personne a exprimé ses
opinions avant l'appel sous les drapeaux ou qu'elle a déjà eu des difficultés
avec les autorités en raison de ses convictions est un élément d'appréciation
pertinent. De même, selon qu'elle a reçu l'ordre d'accomplir un service
militaire obligatoire ou qu'au contraire elle s'est enrôlée dans l'armée
comme volontaire, la sincérité de ses convictions pourra être appréciée
différemment.
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