IMM-3896-96
OTTAWA, ONTARIO, the 17th day of October, 1997
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN
DANIIL KUDRIAVTSEV
LILIA KUDRIAVTSEV
ROMAN KUDRIAVTSEV
YEKATERINA KUDRIAVTSEV,
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 9, 1996 by the Refugee Division, ruling that the applicants are not Convention refugees, is dismissed.
Certified true translation
Christiane Delon
IMM-3896-96
BETWEEN
DANIIL KUDRIAVTSEV
LILIA KUDRIAVTSEV
ROMAN KUDRIAVTSEV
YEKATERINA KUDRIAVTSEV,
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
REASONS FOR ORDER
PINARD J.
I dismissed the preliminary motion by counsel for the applicants to cease to act on the ground that his motion was still not consistent with the requirements of Rule 300(6)(a) and (b). The lawyer, with the consent of the applicants who were present, therefore kindly agreed to continue to represent them.
This is an application for judicial review of a decision rendered on October 9, 1996 by the Refugee Division, which ruled that the applicants are not Convention refugees. The applicants are nationals of Israel who base their claims primarily on grounds of religion and nationality.
The panel"s decision is based purely and simply on the applicants" lack of credibility:
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[Translation] Accordingly, since we do not consider the claimants, Mr. Daniil KUDRIAVTSEV, Mrs. Lilia KUDRIAVTSEV, Roman KUDRIAVTSEV and Yakaterina KUDRIAVTSEV, to be credible, we are unable to grant them refugee status as defined in section 2(1) of the Immigration Act. |
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In view of the record, I have not been persuaded that this assessment was not adequately formed (see Rajaratnam v. M.E.I. (December 5, 1991), A-842-90 (F.C.A.)). Accordingly, the tribunal could reasonably make the finding it did, since its perception that the applicants were not credible amounts in fact to a finding that there was no credible evidence that might justify the refugee claims in question (see Sheikh v. Canada, [1990] 3 F.C. 238, at 244).
More particularly, it is apparent from the tribunal"s decision that it preferred the documentary evidence that the State of Israel is a democratic state 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 tribunal was unable to believe the applicants" claims that the Israeli authorities were unable or unwilling to protect them. The applicants described a number of events in which police protection had allegedly not materialized, and one instance in which Mr. Kudriavtsev had been beaten solely because he had complained of the acts of a Jewish Israeli. The tribunal found that the applicants" allegations in this regard were exaggerated, since the documentary evidence that the Israeli state is a democratic state was irreconcilable with these stories. In my opinion, the tribunal"s conclusion on the issue of state protection is not unreasonable in view of the evidence.
In regard to the conscientious objection of the principal claimant, which is reported at page 2 of the decision, it is worth recalling what my colleague, Tremblay-Lamer J., stated in Lishchenko v. M.E.I. (January 9, 1996), IMM-803-95, at paragraph 9:
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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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Furthermore, I accept the respondent"s argument that conscientious objection to military service cannot be pleaded, since Mr. Kudriavtsev is now beyond the age of conscription for active military service, being over the age of 40.
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: DANIIL KUDRIAVTSEV et al. v. M.C.I. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: October 7, 1997 |
REASONS FOR ORDER OF PINARD J.
APPEARANCES:
| Yves Gravel FOR THE APPLICANTS |
| Annie Van Der Meerschen FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Yves Gravel 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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