Date: 20080613
Docket: IMM-3520-07
Citation: 2008 FC 739
Ottawa, Ontario,
June 13, 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
VLADIMIR
IELOVSKI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision of the Refugee Protection
Division (the RPD) dated August 1, 2007, in which the
applicant was denied the status of a refugee or a “person in need of
protection”. The applicant is an Israeli citizen who is alleging a fear of
persecution based on his political opinions. He had apparently refused to
participate in an armed conflict between his country and Lebanon in the summer
of 2006 because he considered that war unfair and contrary to the principles of
international law. For the following reasons, I am of the view that this
application for judicial review must be dismissed.
I. Facts
[2]
The
applicant was born in Russia in 1983. He later immigrated
to Israel and became an Israeli citizen
in 1992. On February 11, 2003, he was called to do his military
service. Having received training in mechanics, he was posted as a mechanic at
an airbase hangar for three years. He was demobilized on February 28,
2006.
[3]
In July
2006, a conflict erupted between Israel
and Lebanon. As a result, the applicant
was ordered to report for duty as a reservist. When he was informed that he
would be deployed to Lebanon, he refused to comply. He
explained that he disagreed with that war because Israel was targeting Lebanon’s civilian infrastructure,
resulting in many civilian casualties.
[4]
Following
his conviction by a military court, he was imprisoned for 28 days. Claiming to
be outraged by the horrors committed by Israel and being constantly insulted in prison,
he asked his mother to obtain a passport for him. Three days after he was
released from prison, he left Israel to claim refugee protection
in Canada.
II. Impugned decision
[5]
In a
short decision of under two pages, the RPD rejected the applicant’s refugee
claim on the grounds of lack of credibility. First, the panel noted that the
applicant had never objected to performing his three years of military service
and that he had also admitted at the hearing that he was not a conscientious
objector. The RPD also found that the applicant was not opposed to Israel’s
military vision since he had not tried to leave Israel at the end of his military service, even
though he was well aware that he could be called back as a reservist until the
age of 45. Furthermore, the RPD did not believe that the State of Israel was
looking for the applicant so it could convict him a second time. Had he really
been persecuted by his country’s authorities for his refusal to fight in Lebanon, he would not have been
issued a passport and allowed to leave the country. Finally, the RPD wrote that
being a reservist after completing military service complies with a law of
general application and that the applicant’s refusal to serve in Lebanon was a breach of that law for
which the applicant was convicted.
III. Issues and standard of review
[6]
The
applicant is questioning the RPD’s findings that (1) he cannot be perceived as
a conscientious objector; (2) he shares Israel’s military vision because he did
not try to leave his country at the end of his military service, and (3) he
will not be convicted a second time for the same refusal to serve. The first of
these issues is a question of mixed law and fact, while the other two are
questions of fact. Since the Supreme Court of Canada decision in Dunsmuir v.
New
Brunswick,
2008 SCC 9, 64 C.C.E.L. (3d) 1, the standard of review applicable to all these
issues is reasonableness. That is, the Court must inquire into the qualities
that make the decision reasonable. 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,
para. 47).
[7]
The
applicant is also alleging that the RPD erred in law in finding that he could
not have a fear of persecution based on his political opinions because he was
not a conscientious objector. In doing so, the RPD allegedly omitted to
consider that the applicant was opposing a conflict that violated international
law standards and human rights. Although it is a question of law, in my
opinion, it should be reviewed on the reasonableness standard, insofar as it
does not involve a question of constitutionality or jurisdiction. Far from
being a legal question of central importance to the legal system as a whole, it
seems to fall instead within the RPD’s area of expertise. Therefore, the Court
must show the RPD some deference on that question.
[8]
Finally,
the applicant is claiming that the RPD breached procedural fairness by not
allowing him to respond to the argument that the State of Israel could not be
looking for him since he was able to leave the country using his passport. It
is settled law that the review of such a question does not demand a pragmatic
and functional approach. In such a case, the Court must instead ensure that the
procedural fairness requirements were met: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3
F.C.R. 392.
IV. Analysis
[9]
Although
the RPD could have provided more reasons for its decision, and even though I am
prepared to acknowledge that some findings of fact could be quite questionable,
I do not believe that this is a case where it would be appropriate to set aside
the decision and refer the matter back to the RPD for redetermination by a
differently constituted panel. The reason for this is that the applicant did
not satisfy me that his fear of persecution should he return to Israel is real and not speculative.
[10]
As I have
already mentioned in Lebedev v. Canada (MCI), 2007 FC 728,
62 Imm. L.R. (3d) 161, a person who refuses to participate in an armed conflict
or military action on grounds that it goes against international law or human
rights could, in some cases, be granted refugee status based on his or her
political opinions: see also Zolfagharkhani v. Canada (MCI),
[1993] 3 F.C. 540, 155 N.R. 311. Again, it must be established with supporting
evidence that the international community or at the very least some credible
human rights organizations have condemned the military operations in question.
In this case, the applicant submitted very little evidence, which consisted of
only a few newspaper and magazine articles. In addition, we know nothing of the
role the applicant would have been called on to play in the military operation.
Based on the duties he performed during his military service, we may assume
that he would not have been posted to combat operations. It is therefore far from
evident that the applicant would personally have been called on to directly or
indirectly participate in international law violations.
[11]
Moreover,
Mr. Ielovski’s fears are speculative to say the least. Not only did he fail to
submit any evidence that he would be detained again for refusing to serve in
Lebanon, but his claim that other conflicts requiring reservists may erupt is
also hypothetical.
[12]
Finally, I
must add that I am bound by the Federal Court of Appeal decision in Ates
v. Canada (MCI), 2005 FCA 322, 343 N.R. 234, in which the Court
ruled that instituting proceedings against and incarcerating a conscientious
objector who refuses to do military service in a country where military service
is obligatory and where no alternative to that obligation exists does not
constitute persecution on grounds found in the Refugee Convention. On that
subject, my colleague Mr. Justice Strayer wrote the following:
[14] With respect to the claims by Berenika and Sofia to refugee status or
status of persons needing protection because of their alleged conscientious
objection to military service, I find no basis for setting aside the decision
of the IRB. With respect to the finding of fact that these young women had not
proven that they really held such views I believe this was a matter of fact and
there was evidence before the Tribunal upon which it could have decided as it
did. I do not find this conclusion patently unreasonable. With respect to their
possible subjection to imprisonment for refusal to do military service on the
grounds of conscience, I believe that the Tribunal reached a reasonable
conclusion in finding that this would not entitle them to be regarded as
persons potentially subject to cruel and unusual treatment or punishment. If
indeed the matter is one purely of law I would still find the decision to be a
correct one as being fully consistent with the decision of the Federal Court of
Appeal in Ates v. Canada (MCI) supra.
Loshkariev v. Canada (MCI), 2006 FC 670, 149 A.C.W.S. (3d) 298
[13]
I am
therefore of the view that the applicant failed to establish that he had a
reasonable fear, based on objective and subjective considerations, of being
persecuted if he returned to Israel. Not only does the rather minimal
documentary evidence adduced by the applicant not demonstrate that the military
intervention in which he was supposed to participate was condemned by the
international community and violated the basic principles of human rights, but
also there is no evidence suggesting that he would be imprisoned again for his
refusal to serve, when he has already served his sentence and was able to leave
his country without a problem.
[14]
As for the
applicant’s argument that the RPD infringed on his right to procedural fairness
by apparently failing to give him an opportunity to answer to the allegation
that he would have been unable to leave Israel if he was wanted by the authorities, it
is unfounded. In fact, it is trite law that a tribunal does not have to inform
an applicant of every doubt it may have in regard to his or her testimony or of
every implausibility it notes at the hearing before rendering its decision:
see, among others, Danquah v. Canada (Secretary of State),
[1994] F.C.J. No. 1704 (QL), 51 A.C.W.S. (3d) 915, and Appau v. Canada
(MCI) (1995), 91 F.T.R. 225, 53 A.C.W.S. (3d) 1063.
[15]
In any
case, even if it was found that there has been a breach of natural justice, the
decision should not be set aside for that reason. I am of the opinion that that
reason for rejecting Mr. Ielovki’s claim was not crucial to the RPD’s
reasoning. The decision would not have been different even if the RPD had not
taken that reason into consideration: Lahocsinszky v. Canada
(MCI), 2004 FC 275, 129 A.C.W.S. (3d) 769; Fontenelle v. Canada
(MCI), 2006 FC 1432, 153 A.C.W.S. (3d) 681.
[16]
For these
reasons, this application for judicial review must be dismissed.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be dismissed. The parties have proposed no question for certification. I
am also of the view that this case does not raise a serious question of general
importance.
“Yves
de Montigny”
Certified
true translation
Susan
Deichert,
Reviser
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