Date: 20081103
Docket: IMM-1142-08
Citation: 2008 FC
1218
BETWEEN:
RENATA ARINA MAKIAS
OR MAKIAS
SHANY MAKIAS
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT
BLANCHARD J.
I.
Introduction
[1]
The Applicants,
Renata Arina Makias, and her two children, Or Makias and Shany Makias, seek
judicial review of a negative humanitarian and compassionate (H&C) decision
rendered by a Pre-Removal Risk Assessment Officer (the Officer) on March 5,
2008 pursuant to s. 25 of the Immigration and Refugee Protection Act
(the Act).
II. Facts
[2]
The principal
Applicant, Renata Arina Makias, her husband, Mr. Yossef Makias, and their
children, all citizens of Israel, arrived at Dorval Airport on
January 29, 2003, as visitors. They subsequently claimed refugee status. A
negative decision denying their refugee claims was rendered on November 24,
2003. An application for leave and judicial review of this decision was
denied on June 17, 2004.
[3]
The principal
Applicant claims that her husband became physically abusive towards her soon
after their marriage. She had hoped this situation would improve when they came
to Canada. However, the principal Applicant
claims that her husband became violent again upon moving to Vancouver, British Columbia, in 2004.
[4]
The couple
separated following a violent incident in June 2004. Mr. Makias had threatened
to kill the principal Applicant and his daughter. As a result, the principal
Applicant called the police and Mr. Makias was arrested and charged with
uttering threats to cause death or bodily harm to his wife. He was subsequently
released on conditions which included a restraining order forbidding him from
having any contact with his wife or his children. Mr. Makias did not respect
those conditions and was convicted before the Provincial Court of British
Columbia of “breach of recognizance”.
[5]
On October 14,
2004, the principal Applicant filed a Pre-removal risk assessment (PRRA), which
application was denied on December 6, 2004. An application for leave and
judicial review of this decision was denied on April 27, 2005, at the leave
stage.
[6]
The principal Applicant
failed to appear for two interviews in British Columbia with the Canada Border Services Agency (CBSA) to
plan her removal to Israel. These meetings were scheduled for
July 7, 2005 and July 11, 2005 respectively.
[7]
On February 9,
2005, the principal Applicant filed a first application for an exemption from
filing an application for permanent residence from outside Canada for humanitarian and compassionate reasons (the
H&C application). The application was denied on November 23, 2005. The
decision denying the application was not challenged before this Court.
[8]
In July 2005, the principal
Applicant learned that Mr. Makias had returned to Israel. She moved to Montréal with her children and on August 5, 2005,
commenced divorce proceeding against her husband.
[9]
On July 13, 2005, the
principal Applicant presented herself at the CBSA in Montréal and was advised
that her departure was scheduled for July 23, 2005. She failed to appear for
removal on July 23, 2005 and a warrant of arrest was issued against her on July
25, 2005.
[10]
The principal
Applicant’s divorce petition was granted by the Superior Court of Québec on
March 8, 2006 and the Court granted custody of the children to the principal
Applicant.
[11]
On November 16,
2006, Mr. Makias obtained an Israeli court order granting him custody of the
children. On October 18, 2007, he appealed the decision of the Superior Court
of Québec, granting the principal Applicant’s application for divorce and
custody of the children. The principal Applicant was arrested on January 24,
2008, and detained at the Immigration Prevention Centre in Laval, Quebec. At that time, she refused to divulge the
location of her children.
[12]
On May 8, 2008,
the Québec Court of Appeal quashed the divorce judgment and the custody order.
The Court held that the allegations against Mr. Makias by the principal
Applicant and the children under her control must be treated with great
circumspection. At paragraph 88 of its reasons, the Court wrote:
[…] Sous l’éclairage de l’ensemble de la preuve,
la Cour estime que toute allégation de violence à l’endroit de l’intimée et des
enfants doit être reçue avec grande circonspection dans la mesure où, sans être
autrement corroborée, elle provient de l’intimée ou de personnes soumises à son
influence […].
[13]
The Officer did
not have before him the decision of the Québec Court of Appeal since it was rendered
after the March 8, 2008 decision under review.
III. Decision Under Review
[14]
In his decision,
the Officer considered the Applicants’ risk of return to Israel by reason of the Israeli-Palestinian conflict
and the consequence of potential domestic abuse by Mr. Makias on the
Applicants; the degree of establishment in Canada of the Applicants; and the best interest of the Applicant children.
[15]
With respect to
the risk associated with the Israeli-Palestinian conflict, the Officer found
that:
(a) evidence shows
that the Palestinian terrorist cells rarely target precise individuals, but
rather the Jewish population at large;
(b) given that the
Jewish population comprises 76% of the Israeli population, it can not be
concluded that the Applicants face a personalized risk; and
(c) all the reports
consulted indicate that the Jewish state is actively working to protect its
citizens from such attacks.
[16]
Regarding the risk
associated with potential domestic abuse by Mr.Makias, the Officer determined
that:
(a) sources indicate
that legal recourse for victims of conjugal violence exists in Israel;
(b) the Israeli State understands the serious nature of the problem
and established a ministerial committee whose mandate is to combat violence in
all its forms;
(c) many Israeli
cities have safe houses for battered women and many safe houses for children at
risk of abuse;
(d) Israel has in place laws forbidding psychological,
physical and sexual abuse of children; and
(e) as a result, the
Applicants could seek the protection of the state.
[17]
In respect to
establishment in Canada, the Officer found that the
Applicants had failed to show they were significantly established in Canada and would be subject to unusual and undeserved,
or disproportionate hardship if they were to apply for permanent resident
status from abroad.
[18]
On the best
interest of the Applicant children, the Officer found that:
(a) the documentary
evidence suggests that the principal Applicant would have recourse to the civil
courts in Israel to challenge the custody order
granted to her husband; and
(b) the principal Applicant
and her children have access to state protection and safe house protection
should the husband continue to be abusive upon their return.
IV. Issues
[19]
The principal Applicant
raises the following issues:
1.
the Officer failed
to be alert, alive and sensitive to the best interests of the children by
failing to define the benefits and hardships that the children would
experience. In particular:
(a) the Officer failed
to examine the impact on the children when they are in the hands of their
violent father for the period of time it would take their mother to (hopefully)
regain their custody in the Israeli courts;
(b) the Officer
ignored some of the key evidence pertaining to the best interests of the
children such as the letter from the principal of the Jewish Day School in Richmond, BC;
(c) the Officer erred
in law by acting contrary to the decisions of the two Canadian provincial
courts;
(d) the Officer
ignored and misapprehended the evidence pertaining to the Applicant’s alleged
ability to regain custody of her children from the Israeli civil courts.
2. The Officer
ignored and misapprehended the evidence of personalized risk pertaining to the Applicants’
fear of physical violence from Mr. Makias, by restricting himself to a general
analysis of the issue of state protection in Israel.
V. Standard of Review
[20]
Issues raised by
the Applicants concerning determinations of fact and the weighing of evidence are
to be reviewed on a standard of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC
9, 1 S.C.R. 190 at para. 51).
[21]
A reasonable decision is one that upon weighing of
the factors falls “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
supra para. 47).
VI. Preliminary Objection
[22]
The Respondents
raise the following preliminary matter. It is submitted that the principal
Applicant does not have clean hands and that the seriousness of her misconduct
is such that the merits of her application should not be determined and that
relief should not be granted. The Respondents state that the principal
Applicant failed to report for removal and as a result was subsequently
arrested. She also failed to cooperate with the CBSA and consistently refused
to reveal the whereabouts of her children, the co-Applicants in this
application, until two months after her arrest. Further, the Respondents
point to the recent Court of Appeal of Québec decision which raises very
serious doubts as to the truthfulness and reliability of the allegations of
domestic violence made, in that proceeding, against Mr. Makias by his wife.
[23]
When the clean
hands doctrine is invoked, the Federal Court of Appeal teaches that “…the Court
should attempt to strike a balance between, on the one hand, maintaining the
integrity of and preventing the abuse of judicial and administrative processes,
and, on the other, the public interest in ensuring the lawful conduct of
government and the protection for fundamental human rights.” See Thanabalasingham
v. Canada (Minister of Citizenship and
Immigration) 2006
FCA 14 at paragraph 10.
The factors to be considered in balancing these interests include the
seriousness of the applicant’s misconduct and the extent to which it undermines
the proceeding in question.
[24]
Here, the
evidence of the most serious misconduct by the principal Applicant stems from
observations and findings by the Court of Appeal of Québec in its decision
quashing the principal Applicant’s divorce decree and order granting her
custody of her children. While these findings bring into question the
reliability of the principal Applicant’s evidence against Mr. Makias, in my
view, they cannot be used to deny the Applicants’ access to the prerogative
relief sought. The alleged misconduct pertains to the very issue that forms the
basis for the principal Applicant’s claim in this application, that is Mr.
Makias’ conduct vis-à-vis his children. However, the alleged misconduct has not
been established before this Court. The record which supported the Court of
Appeal of Québec decision is not before this Court for consideration. Without
such an evidentiary record, a proper balancing of the interests to determine to
what extent the alleged misconduct would undermine proceedings before this
Court cannot be conducted in the circumstances. Further, the alleged misconduct
of the principal Applicant, if established, cannot be imputed to the principal
Applicant’s children, the co-Applicants in this case. Their interest must be
considered in the balance. In the exercise of my discretion, I will therefore
proceed to consider the application on its merits.
VII. Analysis
[25]
At the outset, I note that the Applicants
do not challenge the Officer’s conclusion regarding their degree of establishment
in Canada.
Nor do they challenge the Officer’s determination concerning their risk of
return to Israel by reason of the Israeli-Palestinian conflict. The principal Applicant
essentially challenges the Officer’s finding relating to the best interest of
the children. In particular the principal Applicant argues that since the
Israeli court order provides for the “immediate” transfer of the children to
Mr. Makias, it is likely that he would take the children into custody upon
their arrival in Israel. The principal Applicant does not dispute the fact that
the state of Israel has the institutional means to protect the interest of the
children, but this would require the principal Applicant to pursue legal
recourse to obtain custody. In the meantime the children would be with Mr.
Makias, and given his past record of violence, the principal Applicant argues
that they would suffer irreparable harm at the hands of their father.
[26]
In his decision, the Officer reasoned
that there was state protection to address the principal Applicant’s concerns
in Israel.
The Officer wrote:
Devant ces informations, je suis satisfait que la
demanderesse pourrait se prévaloir de la protection des autorités israéliennes
si elle et les enfants étaient à nouveau victime de son ex-conjoint et père des
enfants.
[27]
The Officer appears to be suggesting
that state protection would be available to the children should they again be
victimized by Mr. Makias. The Officer does not address the principal Applicant’s
main argument, that is to say what happens before the Israeli authorities have
an opportunity to review the custody order. The Officer had before him evidence
of Mr. Makias’ past violent behaviour including: a restraining order issued
against Mr. Makias by the Provincial Court of Bristish Columbia as a result of
an incident involving threats to the principal Applicant and his daughter; a
conviction for breaching certain conditions of that order by Mr. Makias; and a letter
from school authorities in British Columbia evidencing the negative reaction of
the children when they were approached by Mr. Makias at school. On its face,
the Israeli Custody Order does not appear to indicate that these factors were
considered. This is difficult to know as I do not have the record of that
proceeding before me. However, the Israeli Order does emphasize that the principal
Applicant was in Canada illegally and that an arrest warrant had issued against
her.
[28]
Given the record before the Officer, I
am of the view that he was required to expressly deal with and provide reasons
for rejecting the principal Applicant’s argument and evidence in respect to
this issue. In the circumstances, it was insufficient to simply state that
state protection was available if the children were again victimized or placed
in jeopardy. Risk of harm to the children had to be weighed in light of Mr.
Makias’ prior history of violence in Canada in the event their physical custody was to be “immediately”
assumed by him upon their return to Israel. Given its importance, by failing to consider this
evidence, I am left to conclude that the Officer made his decision without
regard to the material before him in respect to the best interest of the children.
In so doing, the Officer committed a reviewable error. In the circumstances, it
cannot be said that the Officer was alive and alert to the best interest of the
children.
VIII. Conclusion
[29]
As a consequence of the reviewable
error by the Officer, discussed above, the application will be allowed.
[30]
On judicial review, absent exceptional
circumstances, the reasonableness of the decision under review is considered on
the basis of the record that was before the decision maker. In this case, developments
which occurred since the Officer’s decision have been brought to my attention.
Of particular concern is the decision of the Court of Appeal of Québec allowing
Mr. Makias’ appeal of the principal Applicant’s petition for divorce and
custody order. As indicated above, the findings of the Court of Appeal of Québec
bring into question the reliability of the principal Applicant’s evidence
against Mr. Makias concerning alleged incidents of violence involving the
children. In the particular circumstances of this case, the interest of justice
requires that the evidentiary basis for these findings of the Court of Appeal
of Québec be explored. To that end, I will be directing that the matter be
returned for re-consideration by a different immigration officer in accordance
with these reasons. At the re-consideration hearing, the parties may adduce
evidence to deal directly with the findings of the Court of Appeal of Québec
regarding the alleged incidents of violence by Mr. Makias against his children
and the principal Applicant. Further, additional evidence of country conditions
may also be adduced by either party.
IX. Certified
Question
[31]
Counsel are requested to serve and file any submission with
respect to certification of a question of general importance, if any, within
fifteen (15) days of receipt of these reasons. Each party will have a further
four (4) days to serve and file any reply to the submission of the opposite
party. Following consideration of those submissions, an order will issue
allowing the application for judicial review and disposing of the issue of a
serious question of general importance as contemplated by section 74(d)
of the IRPA.
“Edmond P. Blanchard”
Ottawa, Ontario
November 3, 2008
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