Date:
20110113
Docket:
IMM-2192-10
Citation:
2011 FC 36
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, January 13, 2011
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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ELEONORA GALINKINA AND
JOSEPH KARPMAN
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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]
This is an
application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board (the panel) dated April 9, 2010, that the applicants are neither
Convention refugees nor persons in need of protection under the Act.
Facts
[2]
The principal
female applicant and her husband are Jews born in the USSR. They left the USSR
in 1990 to seek refuge in Israel following anti-Semitic attacks.
[3]
In January 1991,
during bombings, they met an Arab family, that of Hidjazi Mahmoud Omaina, who
took them to a bomb shelter. Afterward they became friends.
[4]
In 2000,
after the start of the Intifada, Mahmoud was attacked by Israelis. The principal
female applicant tried to intervene, but she was also pushed and her husband,
Jakob Karpman, and his son-in-law had to intervene to protect her.
[5]
The principal
female applicant also argued that she was insulted by the neighbours who called
the police when she entertained Mahmoud and his family in her home. At that
time, she was allegedly subject to an identity check by Israeli police officers
on three separate occasions.
[6]
In 2006,
during the Lebanon-Israel conflict, the female applicant noted increased
hostility against Arabs.
[7]
On April 4,
2007, the principal female applicant and her family left for a suburb with
their friend Mahmoud. While the men were playing volleyball, one of the
neighbours pushed Mr. Karpman, who fell to the ground. Mahmoud tried to
come to his aid, but in vain; a number of men assaulted him as well.
[8]
Jakob
Karpman was taken to hospital where they found multiple contusions to his arm
and his ribs. The principal female applicant then went to the police station to
file a complaint. She states that she did not receive any assistance from the
authorities.
[9]
The
applicants also apparently consulted a legal practitioner who allegedly told
them that it was not worth pursuing.
[10]
Following
a telephone conversation with their daughter Viktoria who lives in Montréal,
they decided to come to Canada and claim refugee protection. They arrived on
June 2, 2007, and filed their claim on June 4, 2007.
Impugned decision
[11]
The panel
first determined that the principal female applicant and her husband are not Convention
refugees or persons in need of protection because the mistreatment suffered
would not amount to persecution under the Convention and the applicants have
not rebutted the presumption of state protection.
Issues
[12]
This
application for judicial review raises the following issues:
1. Did
the panel err in concluding that the mistreatment suffered by the applicants
did not amount to persecution?
2. Did the
panel err in finding that the applicants had not rebutted the presumption of
state protection?
Analysis
A. Standard of review
[13]
The
question of state protection is one of mixed fact and law; it is reviewable on
the standard of reasonableness (Dunsmuir v New-Brunswick, 2008 SCC 9,
2008 1 SCR 190, at paras 55, 57, 62 and 64; Hinzman v Canada (Citizenship
and Immigration), 2007 FCA 171, 282 DLR (4th) 413 at para 38; Liang v
Canada (Citizenship and Immigration), 2008 FC 450 at paras 15
and 17). The same standard applies to assessing the evidence and credibility (Ndam
v Canada (Citizenship and Immigration), 2010 FC 513 at para 4).
B. The credibility of the applicants
[14]
The applicants
argue that the panel erred in finding that the mistreatment suffered does not
amount to persecution. In their view, the panel trivialized the reported
incidents by calling them unpleasant rather than very serious mistreatment.
[15]
It is for
the panel to assess the evidence adduced. It is well established that issues of
credibility and of assessment of the facts and the evidence are wholly within
the discretion of the panel, as the trier of fact (Chen v Canada (Minister
of Citizenship and Immigration), 2005 FC 767, 148 ACWS (3rd) 118. It is not
for the Court to substitute its own assessment of the evidence for that of the
panel.
[16]
The panel
applied the criteria set out in Ward (Canada (Attorney General)
v Ward, [1993] 2 S.C.R. 689, [1993] SCJ No 74 [Ward]) that the
mistreatment suffered must constitute serious prejudice, a violation of
fundamental rights, to be deemed an objective fear of persecution. It came to
the conclusion that the incidents reported by the applicants did not meet the above
criteria.
[17]
Indeed,
the applicants in their memorandum again related the incidents that took place
over a period of over fifteen (15) years, but they did not show how the panel
erred in assessing these facts or what evidence the panel disregarded.
[18]
At the
hearing, counsel for the applicants reiterated the criticisms levelled at the
panel regarding the objective seriousness of the incidents, particularly the mistreatment
suffered by Mr. Karpman, and argued that the panel erred.
[19]
From the
reading of the decision, it is evident that the panel considered each of the
incidents related by the applicants in their testimony and came to a reasonable
conclusion in the circumstances. There is therefore no need for the Court to
intervene on this first issue.
C. Internal flight alternative
[20]
Did the
panel err in finding that the applicants had not rebutted the presumption of
state protection?
[21]
The case
law of this Court is clear: to rebut the presumption of state protection, an
applicant must present clear and convincing proof of the state’s inability to provide
protection. This evidence must be reliable and relevant and must be able to
convince the panel, which has sole jurisdiction over the facts, of the
inadequacy of state protection (Ward, above, Carrillo v Canada (Minister
of Citizenship and Immigration), 2008 FCA 94, [2008] 4 FCR 636).
[22]
The
obligation to obtain state protection is greater when the state is a democratic
state such as Israel. The applicants in this case must show that they tried to
exhaust all courses of action open to them in Israel to obtain the necessary state
protection (Kadenko v Canada (Minister of Citizenship and Immigration),
[1996] FCJ No 1376, 206 NR 272 (FCA) [Kadenko]).
[23]
This Court
has already found that the state of Israel is a democratic country that is
willing and able to protect its citizens, including former citizens of Russia
and non-Jews (Sverdlov v Canada (Minister of Citizenship and
Immigration), 2007 FC 652, [2007] FCJ No 892; Hanna v Canada (Minister
of Citizenship and Immigration), 2006 FC 580, [2006] FCJ No 720).
[24]
The
applicants allege that the panel did not consider all of the evidence in
relation to the steps they took to obtain state protection in Israel, in
particular that it did not believe the female applicant, who alleges that she reported
the incident of April 4, 2007, to the proper authorities and consulted a
legal practitioner regarding her courses of action following the incident.
[25]
In its
decision, the panel argues that the applicants could have applied to other
organizations in Israel, such as the Ombudsman. Although the criticisms
levelled at the applicants for failing to file a copy of the April 4, 2007, is without merit, the
fact remains that the applicants did not exhaust all possible courses of action,
as the panel points out in its decision.
[26]
If refugee
claimants fail to take all available measures to seek state protection before
filing a refugee claim, they cannot then rebut the presumption of state
protection (Cordova v Canada (Minister of Citizenship and Immigration),
2009 FC 309, [2009] FCJ No 620). This is a rule clearly established by this
Court's case law (see also Kadenko, above, and Castellanos v Canada
(Minister of Citizenship and Immigration), 2009 FC 307, [2009] FCJ No 663).
[27]
Under the
circumstances, the Court finds that the panel’s decision is reasonable. The applicants
did not try to seek out other means of state protection in Israel, and they did
not show, by means of the evidence, that state protection was not reasonably
available in Israel.
[28]
For these
reasons, the application for judicial review is dismissed. The parties did not
propose a question for certification, and no question arises in this file.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that
- The application for judicial review is dismissed
and no question is certified.
“André
F.J. Scott”
Certified true
translation
Catherine Jones,
Translator
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