IMM-3998-96
OTTAWA, ONTARIO, the 17th day of October, 1997
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN
BORIS YAGADAEV
KRISTINA YAGODAEV
OLESIA YAGODAEV
LILIA YAGODAEV,
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
O R D E R
The application for judicial review of the decision rendered on October 2, 1996 by the Refugee Division, ruling that the applicants are not Convention refugees, is dismissed.
Certified true translation
Christiane Delon
IMM-3998-96
BETWEEN
BORIS YAGADAEV
KRISTINA YAGODAEV
OLESIA YAGODAEV
LILIA YAGODAEV,
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
REASONS FOR ORDER
PINARD J.
This is an application for judicial review of a decision rendered on October 2, 1996 by the Refugee Division, which ruled that the applicants, Boris Yagadaev, his wife Kirstina Yagodaev and their two daughters, Olesia and Lilia Yagodaev, are not Convention refugees.
The applicants, Mr. and Mrs. Yagadaev and their two daughters of minor age, are originally from Uzbekistan. Mr. Yagadaev is of Jewish nationality and Mrs. Yagodaev of German nationality. They decided to leave Uzbekistan and go to Israel on February 23, 1991, as a result of growing inter-ethnic conflict in their region. The whole family emigrated to Israel under cover of the Law of Return, thanks to Mr. Yagadeav"s Judaic origins. The applicants have been Israeli citizens since 1991.
The Refugee Division was of the view that the applicants had not established the existence of a well-founded fear of persecution. It characterized the insults and teasing suffered by the applicants" children as manifestations of intolerance. It also noted that Mrs. Yagodaev had worked four years in the same place without experiencing any problems and that her only fear was of having to show her identity card. As to the attempted assault on the applicants" little girl, the Refugee Division noted that this offence is punishable under Israeli law and that the applicants could have complained of the lack of action by the police. Finally, the Division thought the male applicant"s fears concerning compulsory military service for his daughters was not sufficient to constitute a well-founded fear of persecution.
Concerning the reasonable fear of persecution, the Division did not question the applicants" credibility in clear and precise words. The authenticity of what they said must therefore be presumed and their subjective fear of persecution is established.
However, the Refugee Division thought the teasing, insults and incidents described by the applicants did constitute a manifestation of intolerance, which it associated with discrimination rather than persecution. In this regard, the Federal Court of Appeal, in Sagharichi v. Canada (M.E.I.) (1993), 182 N.R. 398, states at page 400:
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. . . it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this court is not warranted unless the conclusion reached appears to be capricious or unreasonable. |
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Having reviewed the record, I do not think the Refugee Division"s conclusion that there is no objective foundation for the applicants" fear of persecution is either capricious or unreasonable.
On the question of state protection, the Refugee Division clearly indicated that it preferred the documentary evidence, which indicated that the State of Israel is a democratic country capable of protecting its citizens, to the testimony of the applicants. The Refugee Division is normally entitled to accord greater weight to the documentary evidence submitted by the refugee hearing officer than to the testimony of an applicant. Linden J.A., for the Federal Court of Appeal, ruled on this matter in M.E.I. v. Zhou (July 18, 1994), A-492-91. He wrote:
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We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. The other matters raised are also without merit. The appeal will be dismissed. |
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In Victorov v. M.C.I. (June 14, 1995), IMM-5170-94, Noël J. commented as follows, at page 4:
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I also reject the applicants' argument that the panel should have confronted them with the documentary evidence used to diminish their credibility. The documents used by the panel were included among those submitted by the refugee hearing officer when the hearing began and were listed in the index to the file on the state of Israel received by the applicants before the hearing. The applicants adduced their own documentary evidence. Among this evidence, the panel was entitled to rely on that which it considered most consistent with reality. This is what it did. [Emphasis added] |
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In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, it was held that in order to satisfy the definition of "Convention refugee", a refugee claimant has to show, by clear and convincing proof, that the country of which he is a national is incapable of protecting him. In Ward , La Forest J. wrote the following, at page 726:
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In summary, I find that state complicity is not a necessary component of persecution, either under the "unwilling" or under the "unable" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. . . . |
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Subsequently, in M.C.I. v. Kadenko et al. (October 15, 1996), A-388-95,1 specifically concerning the State of Israel, Décary J.A., for the Federal Court of Appeal, stated, at page 2:
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When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state"s institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.2 |
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2 See Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171, at p. 176 (F.C.A.), approved by Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p. 725. |
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In the case at bar, the applicants described only one event in which police protection failed to materialize. Furthermore, the Refugee Division pointed out that the applicants replied that they did not know how to bring a complaint against police failure to act. In the circumstances, I am of the opinion that the Refugee Division could reasonably conclude that the applicants had not rebutted the presumption that the State of Israel was able to protect them.
Finally, on the question of military service, the applicants have not persuaded me that the conclusion of the Refugee Division is unreasonable; the law requiring military service is one of general application and includes various exemptions, such as for women and persons who are ill. In Lishchenko v. M.E.I. (January 9, 1996), IMM-803-95, at paragraph 9, my colleague Tremblay-Lamer J. stated:
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As for the military service, the Court concluded in Talman v. Canada (M.E.I.) [(1995), 93 F.T.R. 266; see also Zolfagharkhani v. M.E.I. (1993), 155 N.R. 311] that the punishment for failing to complete compulsory military service in Israel did not constitute persecution, but rather prosecution for failing to comply with a law of general application. |
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For these reasons, the application for judicial review is dismissed.
OTTAWA, Ontario
October 17, 1997
Certified true translation
Christiane Delon
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: Boris Yagadaev et al. v. M.C.I. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: October 7, 1997 |
REASONS FOR ORDER OF PINARD J.
APPEARANCES:
| Michelle Langelier FOR THE APPLICANTS |
| Sébastien Dasylva FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Michelle Langelier FOR THE APPLICANTS |
Montréal, Quebec
| George Thomson FOR THE RESPONDENT |
Deputy Attorney General of Canada
__________________
1 Application for leave to appeal to the Supreme Court of Canada, no. 25689, dismissed on May 8, 1997.
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