Docket: IMM-5542-05
Citation: 2006 FC
670
OTTAWA, ONTARIO, June 1, 2006
PRESENT: THE HONOURABLE MR. JUSTICE STRAYER
BETWEEN:
ALEXEY LOSHKARIEV
EMILIA LOSHKARIEV
ALFRED LOSHKAREV
SOFIA LOSHKAREV
BERENIKA LOSHKAREV
SILIGIZ LOSHKAREV
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This
is an application for judicial review of a decision of the Immigration and
Refugee Board, Refugee Protection Division (IRB) of August 29, 2005 wherein the
IRB determined that the applicants were not convention refugees and were not
persons in need of protection.
Facts
[2]
The
claimant family are Israeli citizens who moved to Israel from the
former Soviet Union (FSU) in 1990. In 1999 the male claimant, the husband and
father of the family, Alexey Loshkariev opened a small construction business
which did construction, improvements, and maintenance on streets and roads. To
carry out this work he employed Palestinian Arabs including Palestinian Arab subcontractors
who themselves employed Arab labourers. This work was carried on in a Jewish
settlement, Karney Shomron, as well as in the city of Netanya. Alexey says
that after terrorist attacks committed by Palestinians in December, 2003 and
February, 2004 in these two places, respectively,
his Palestinian Arab workmen employed on projects there were attacked by “Orthodox
Jewish extremists”. In both cases he tried to protect his workers and he too
was beaten. Then and afterward he received follow-up threats by telephone and
by night visits to his house by “Orthodox Jewish extremists”. As a result he,
his mother and his son Alfred and daughter Sofia came to Canada and claimed
refugee status on April 23, 2004. Subsequently his daughter Berenika came to Toronto and claimed
refugee status on September 3, 2004. His wife Emilia similarly came to Toronto in October,
2004 and claimed refugee status on November, 15, 2004. According to Alexey in
both cases where he and his workmen were attacked he called the police, the
police came and did nothing. Later when he and his wife received telephone
threats this was reported to the police who again took no action. After Alexey
and some of the family had come to Canada and Emilia remained in Israel she
continued to receive threats on the phone from “extremist Orthodox Jews” asking
where her husband was and they knocked on the door at night. She reported this
to the police but they did nothing.
[3]
It
is the view of the claimants that the Israeli police did nothing because the persons
they were complaining against were Jewish settlers or extremists.
[4]
The
family therefore claimed refugee status or to be persons in need of protection
in effect because as persons associated with providing employment to
Palestinian Arabs they would be subject to persecution by Jewish extremists.
The daughters Berenika and Sofia also claim such status because they are
conscientious objectors to military service and will be faced with compulsory
service upon their return to Israel or with punishment possibly including
imprisonment for refusing to serve in Israel’s Armed Forces.
[5]
The
Panel concluded that the claimants have not proven that Israel would not or
could not provide them with state protection upon their return. It of course
took note of general information that Israel is a democracy with free
elections and an independent judiciary. However it particularly stressed that
the claimants as immigrants from the FSU could count on at least two parties
who represent the interests of FSU immigrants. It made specific reference
concerning organizations and institutions which look after or cater to the
interests of FSU immigrants including, for example, “non-kosher butchers, and
Russian-language bookstore’s [sic]”. Noting that the burden of proof was on the
claimants to rebut the presumption of state protection, it held that the
claimants had not provided “clear and convincing proof” of Israel’s inability
to protect them.
[6]
With
respect to the daughters’ claims based on alleged conscientious objection to
military service, the Panel rejected these for two reasons. First it was not
satisfied that these alleged beliefs were genuine. Second it concluded that
possible subjection to reasonable punishment for refusal to serve in a
country’s armed forces on grounds of conscience should not be regarded as
amounting to cruel and unusual treatment or punishment.
Issues
[7]
It
appears to me that there are two issues: (1) did the IRB err in fact in
concluding that the claimants had failed to prove the inability of Israel to
protect them; (2) did the IRB err in fact or law in concluding that Sofia and
Berenika Loshkarev were not conscientious objectors or would not be subject to
cruel and unusual treatment or punishment, should they return to Israel, for
refusing to perform military service?
Analysis
[8]
With
respect to the standard of review, I believe the question of whether the
claimants can be regarded as refugees or persons in need of protection, by
virtue of Israel’s inability
or unwillingness to protect them, is essentially a question of fact. I believe
the proper standard of review is that specified in paragraph 18.1(4)(d) of the Federal
Courts Act, namely whether the IRB “based its decision or order on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard to the material before it”. That is the standard specified by
Parliament, one which it commonly equated to the standard of “patent
unreasonability”, the standard commonly defined by the courts for review of other
tribunals where a standard is not prescribed by legislation.
[9]
Similarly
with respect to the issue of conscientious objectors, I believe the conclusion
of the tribunal as to whether Berenika and Sofia genuinely held such views is
one of fact reviewable again by the standards specified in paragraph 18.1(4)(d)
of the Federal Courts Act. As to whether punishment by imprisonment is
so extreme or inhumane as to amount to unusual treatment or punishment, I
believe this is a mixed question of law and fact to which I would apply the
standard of reasonableness simpliciter. I note however that the Federal
Court of Appeal in Ates v. Canada [2005], F.C.J. No. 1661, para. 1
appears to have treated such a question as one of law and may have regarded the
proper standard as that of correctness. I will deal with this in more detail
later.
[10]
With
respect to the findings of fact that the claimants had not established an
unwillingness or inability on the part of Israel to protect
them from the actions of “extremists or Orthodox Jews”, I have concluded that
the Tribunal reached its decision without regard to important evidence. The
evidence specifically cited by the Panel essentially relates to the
availability of political and institutional support for FSU immigrants and for
women and girls. This kind of support and protection, valuable as it may be to
some, is not really related to the form of discrimination alleged by the
claimants: namely that they have been attacked and threatened because the head
of the family employs Palestinian Arabs in Jewish settlements, thus are subject
to alleged persecution ancillary to that practiced against Palestinian Arabs.
[11]
On
the other hand there was considerable material before the Panel indicating that
there is growing tension between ultra-orthodox and secular Jews in Israel, and
frequent aggression by the former against Palestinian Arabs and their
sympathizers. For example Amnesty International in a report covering 2004 in
its opening paragraph states that “Israeli settlers increased their attacks
against Palestinians and their property and against international human rights
workers.” (Applicants’ Record page 142). This report went on to say
Most members of the Israeli
army and security forces continued to enjoy impunity. Investigations,
prosecutions and convictions for human rights violations were rare. In the
overwhelming majority of the thousands of cases of unlawful killings and other
grave human rights violations committed by Israeli soldiers in the previous
four years, no investigations were known to have been carried out.
Israeli settlers also enjoyed
impunity for attacks on Palestinians and their property and international human
rights workers. The Israeli army and police failed to take steps to stop and
prevent such attacks…. (Ibid at 144).
An Amnesty International press
release of October 24, 2004 stated:
Israeli settlers in the Occupied Territories have stepped up attacks
against Palestinians and are waging a campaign of intimidation against
international and Israeli human rights activists. Their aim is to eliminate the
presence of witnesses to their attacks, thereby depriving the local Palestinian
population of this only form of limited protection. (Ibid at 146).
Israeli settlers responsible for attacks
on Palestinians and their properties have not been brought to justice in the
vast majority of cases. Such impunity encourages settlers to commit further
attacks and abuses. In the rare cases when Israeli settlers have been brought
to justice, they have been treated with a degree of leniency uncommon in other
cases. . . . (Ibid at 147)
In an article in the Washington Post of
July 11, 2004 it is stated:
With all the focus on Israel’s struggle with Palestinian
terrorism, foreign political analysts and media have paid little attention to
the simmering internal divide between the country’s secular and Orthodox
worlds. Yet this conflict, which has festered for decades, has the potential to
be deeply destabilizing to Israel as a nation. Its resolution
will determine what kind of state Israel,
born to be a haven for Jews, will be in the years to come. (Ibid at
151).
[12]
It
may well be that a tribunal might weigh these and similar statements in the
evidence against the presumption of such protection and still conclude that the
claimants had not met the burden of proof on them to show a lack of safe
protection. But no mention is made of this kind of evidence in the reasons when
it was clearly germane to the precise issue before the Tribunal; more germane
than the availability of support for FSU immigrants or women and girls as such.
While it is of course not necessary to mention every piece of evidence that is
presented to a tribunal, when the evidence is directly relevant to the claim in
question and important to a determination as to the validity of the claim, the
fact that it is not mentioned and analyzed suggests to a court that the agency made
a finding without regard to the evidence: see Bains v. Canada (MEI)
(1993), 63 F.T.R. 312 (F.C.T.D.); Cepeda-Gutierrez v. MCI, [1990] F.C.J.
No. 1425 at para. 17; Toro v. MEI, [1981] 1 F.C. 652 at para. 1
(F.C.A.).
[13]
I
will therefore set aside the decision of the IRB on the issue of state
protection and send the matter back for reconsideration of that question.
[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.
Disposition
[15]
The
decision of the IRB denying the claimants the status of refugees or of persons
of need of protection based on their failure to rebut the presumption of state
protection by Israel will be set
aside and the matter referred back for reconsideration by a different panel
consistently with these reasons.
[16]
The
application for judicial review of the decision of the IRB that Sofia and
Berenika Loshkarev are not refugees or persons in need of protection because of
their alleged conscientious objection to military service will be dismissed.
JUDGMENT
IT IS HEREBY ORDERED AND
ADJUDGED THAT:
(1)
The
decision of the IRB of August 29, 2005 to the effect that the applicants are
not convention refugees nor persons in need of protection because they had not
met the burden of proof against the presumption of state protection by Israel
is set aside and the matter referred back to another panel for reconsideration
consistently with these reasons; and
(2)
The
application for judicial review of that decision in respect of the claims of
Sofia and Berenika Loshkarev to be convention refugees or persons in need of
protection by reasons of their conscientious objection to military service is
dismissed.
(s)
“B.L. Strayer”
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