Date:
20131101
Docket: IMM-7148-12
Citation: 2013 FC 1114
Ottawa, Ontario, November 1, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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SERGEY GOLOUBOV
ROZALINA
GOLOUBOV
DANIEL GOLOUBOV
BINYAMIN
GOLOUBOV
DAVID GOLOUBOV
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Applicants
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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 JUDGMENT AND JUDGMENT
[1]
The Applicants, a Russian Orthodox Christian
family with Israeli citizenship, immigrated to Israel from Russia in 1999. They sought refugee protection in Canada immediately upon landing on July 30,
2006. The Refugee Protection Division of the Immigration and Refugee Board of
Canada [RPD] denied their claims on many bases: (1) the presumption of state
protection had not been rebutted; (2) the Applicants had not made efforts to
seek state protection; (3) the father, Sergey Goloubov, was not a credible
witness; and (4) the Applicants had an internal flight alternative [IFA] as
they could relocate to a Russian community within Israel.
[2]
The Applicants submit that the RPD made the
following errors in rejecting their claim:
1.
It erred in finding that Mr. Goloubov was
not credible because of his explanation for not producing a medical report
documenting the injuries he suffered during an attack by his neighbour in Israel;
2.
It erred by finding that there was
adequate state protection without providing any explanation as to why certain
evidence was preferred over other evidence and by drawing inferences without
evidentiary support;
3.
It erred by finding that the Applicants
could safely return to Israel if they relocated to a Russian community;
4.
It erred in rejecting the Applicants’
evidence respecting harm to similarly situated persons without explaining why it
was rejected; and
5.
It erred in drawing an adverse inference
from the fact that the principal Applicant had added a fear of the ultra-racist
Israeli organization, the Khemla Association, only on “the day of his hearing”
despite the fact that several hearings were conducted between January 2010 and
April 2012.
[3]
While not explicitly set out as an issue, the Applicants also argue that
the RPD evaluated their application with a biased view of the Israeli-Palestinian
conflict which affected its perception of Mr. Goloubov’s reservations regarding
reporting for military service.
[4]
At the hearing, the Respondent objected to the re-characterization of
this bias argument. The Applicants submitted that the RPD had erred in failing
to assess Mr. Goloubov’s claim that he would be at risk in Israel given his objection to some military service. I agree with the Respondent that no such
submission was made in the Applicants’ memorandum or in their Reply and it
cannot be made at the last minute, taking the opposing party and the Court by
surprise.
[5]
For the reasons that follow, I find that the RPD’s findings with respect
to the availability of state protection were reasonable and this application
for judicial review must therefore be dismissed. Since the issue of state
protection is determinative, I do not need to come to any conclusions as to the
reasonableness of the RPD’s credibility findings, or the availability of an IFA.
However, I will comment briefly on the Applicants’ allegation of bias at the
end of these reasons.
[6]
The RPD found that the Applicants had not rebutted the presumption of
state protection. Specifically, it found that while they complained of the
police refusing to help, they did not avail themselves of the complaints
procedure for investigating police complaints through the Ombudsman’s office.
The RPD acknowledged that sometimes complaints “do not always receive adequate
response due to problems within the investigation system in a conspiracy of
silence among police officers,” but determined that this was no reason for the
Applicants not to seek state protection altogether.
[7]
The Applicants submit that the RPD erroneously concluded that state
protection was available to them despite observing that complaints did not
always receive adequate responses. They argue that no explanation is provided
as to why the RPD discounts “evidence about a systemic flaw in the complaints
investigation process.” They further argued that that the RPD erred by failing
to consider the real impact of efforts by the state to protect its citizens.
[8]
The Applicants’ submissions are unfounded. First, there is simply no
evidence in the record to indicate that there is a “systemic flaw” in the
complaints investigation process. The strongest statement in the national
document package [NDP] relating to police conduct is that several Jehovah’s
Witnesses reported difficulties in convincing police to investigate crimes
against them: United States Department of State, 2010 Report on
International Religious Freedom – Israel and the Occupied Territories, (17
November 2010), Certified Tribunal Record, at p 696. There is no similar
report for Russian Orthodox Christians. The RPD states at paragraph 14
of its reasons that “if there is a serious problem for Christians in Israel, this would be mentioned [in the NDP].” That is a reasonable conclusion to reach
based on the evidence.
[9]
Second, the RPD canvasses the potential for initiating police complaints
through the office of the Minister of Justice and the Ombudsman’s office.
Contrary to the Applicant’s submissions, this constitutes an analysis of the
real impact of efforts to provide state protection. No more was needed because
there is simply no evidence in the NDP that these complaints processes are
inadequate to protect Russian Orthodox Christians. In fact, as was noted by
the RPD, of the 1505 complaints investigated by the Ministry of Justice’s
Department for Investigations of Police Officers, 20 percent ended in a
criminal trial or disciplinary hearing (Certified Tribunal Record, at p 379).
The remaining complaints were closed because of lack of evidence or the
officers were found not to be guilty. Similarly, the record shows that in
2009, the Ombudsman’s office received 756 complaints against the Israeli police
force, and 43.8 percent of them were found to be justified.
[10]
Finally, the comments in the decision referencing the fact that
complaints to the Ombudsman “do not always receive adequate response due to
problems within the investigation system in a conspiracy of silence among
police officers” is not, as submitted, contradictory evidence because the
reference from which that observation is taken does not refer to police
investigations generally. Contrary to what the applicant submits, it refers to
investigations regarding improper use of force where officers are required to
testify against each other. As the Applicants make no claim that the police
improperly used force against them, this evidence is not relevant.
[11]
In addition to these comments, I make the following
observations. There are no indications in the NDP that Russian Orthodox
Christians, despite being a minority in Israel, face unique challenges with
which the state is unable or fails to deal.
[12]
Further, Israel is a democratic society with free and fair elections.
Therefore, the Applicants face a higher threshold in order to rebut the
presumption of state protection, commensurate with the level of democracy: Kotai
v Canada (Minister of Citizenship and Immigration), 2013 FC 693 at para 15.
[13]
The US Department of State, 2008 Human Rights Report on Israel and
the Occupied Territories, (25 February 2009), pointed to by the Applicants,
describes specific instances of societal abuses and discrimination based on
religious beliefs or practices, but most of these instances were directed
towards Jehovah’s Witnesses and Muslims. There were a number of discrete
instances against Christians, but no specific mention was made of instances
involving Orthodox Christians or Russian Christians specifically, and, most
importantly, there is no indication of any failure on the part of the state to
protect these populations, nor of discrimination towards Russian immigrants or
Orthodox Christians by police. In fact, there is evidence that crimes against
Christian groups are being adequately investigated. For example, in one
violent incident where 100 Haredi Jews assaulted approximately 50 Christian
tourists in Jerusalem, two of the attackers were subsequently convicted: See
the Certified Tribunal Record at p 609.
[14]
As for issues with the children, evidence in the NDP also shows that the
Israel National Council for the Child (NCC) set up a special in-house Ombudsman
for Children and Youth to make it easier for immigrant children and their
families to address problems with the treatment of immigrant children. This
office answers approximately 10,000 requests annually, ranging from requests
for general advice, intervention with the school, to macro level policy
advocacy: See Certified Tribunal Record at p 664.
[15]
No attempts were made by the Applicants to approach the Ombudsman for
protection for their children.
[16]
Given the various efforts that Israel has taken to ensure state
protection is available and the complete lack of evidence that such efforts are
inadequate, there is no justification on the part of the Applicants for not
seeking the protection available to them. In fact, the Applicants’ evidence reveals
that no efforts were made to even learn about the available means for
protection. Therefore, there is nothing to suggest that the Applicants would
not have been able to avail themselves of state protection, and there is no
compelling reason for their failure to seek out state protection.
[17]
While the Applicants raise serious issues with
respect to the credibility finding and the RPD’s IFA determination, as noted
earlier, the state protection finding, which was reasonable, is determinative
of this application.
[18]
Although it is unnecessary given the conclusion
I have reached, I will make some comments on the allegation of bias in the Applicants’
memorandum.
[19]
The Applicants allege that the RPD’s reasons indicate a bias and that
the RPD member “is sympathetic to one participant to the Palestinian-Israeli
conflict to the disadvantage of the Applicants.”
[20]
I agree with the Respondent that the test for reasonable apprehension of
bias is high and that the Applicants’ accusations do not meet this standard.
Beyond the one sentence in the RPD’s reasons that “I find that the claimant
cannot refuse to serve in the military simply because he refuses to take up
arms against Palestinians who aim rockets into civilian areas in Israel,” there is no indication of any bias on the part of the RPD. Additionally, the
RPD’s statement referenced documents in the NDP that confirm that 1,500 rockets
were fired into Israel indiscriminately and that very issue was discussed
between the RPD and Mr. Goloubov during the hearing.
[21]
Even if the RPD’s comment could be viewed as indicative of a reasonable
apprehension of bias with respect to the Israeli-Palestinian conflict, there is
no indication that this would have had any effect on the application given that
none of the family’s claims for protection related to the Israeli-Palestinian
conflict.
[22]
Therefore, not only is the allegation of bias unfounded, even if
accepted as it was pled, it would not have affected the outcome of the
application.
[23]
This application for judicial review is dismissed. It was
reasonable for the RPD to conclude that the Applicants had failed to rebut the
presumption of state protection on the evidence before it.
[24]
Neither party proposed a question for certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that the application is dismissed and no question
is certified.
“Russel W. Zinn”
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