Date: 20080522
Docket: IMM-4567-07
Citation: 2008 FC 645
Toronto, Ontario, May 22, 2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ALEXEY LOSHKARIEV, SILIGIZ
LOSHKAREV,
ALFRED LOSHKAREV, SOFIA LOSHKAREV,
BERENIKA LOSHKAREV, EMILIA LOSHKARIEV
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Loshkariev family, originally from Russia,
but now Israeli citizens, claim to be United Nations Convention refugees or
otherwise in need of Canada’s protection. This is a
judicial review of the decision of the Refugee Protection Division of the
Immigration and Refugee Board of Canada which found that they were neither.
[2]
The claim
is based on the father, Alexey, who was active in the construction business in Israel. The essence of the claim is
that he hired Palestinian subcontractors to work at his construction company.
After the Intifada began in 2000, both he and his workers were beaten by
religious fanatics. In fact, he was attacked on a number of occasions and
subjected to threats and harassment by Jewish settlers and Orthodox Jews. The
police did little or nothing to help.
[3]
The Board
did not find Mr. Loshkariev credible, preferring country documentation instead.
Although the Board found that Palestinians are subjected to ill-treatment by
certain Jewish settlers, there was no evidence that Jews who took up the
Palestinian cause, on a human rights basis, were subject to attacks otherwise
than in situ. There was no evidence that those Israeli citizens who so
participated were tracked down by settlers and harassed.
[4]
The Board
also found that the police had come to disperse settlers who had allegedly
attacked the claimant and his workers.
[5]
The Board determined,
in any event, that there was an internal flight alternative (IFA) in Haifa and that state protection was available
there.
ANALYSIS
[6]
No matter
if the pertinent proportions of the decision under review are based on findings
of fact, or mixed findings of fact and law, in light of the most recent Supreme
Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J.
No. 9, the decision is not to be disturbed unless unreasonable.
[7]
It was
submitted that the findings with respect to credibility were really findings of
plausibility, and not supported by clear evidence in the record. I disagree.
All the factual findings with respect to credibility, the IFA and state
protection were inferences properly drawn from evidence in the record.
[8]
As noted
by Lord Wright in Grant v. Australian Knitting Mills Ltd & Ors., [1936]
AC 85, [1935] All ER Rep. 209:
Mathematical, or strict logical,
demonstration is generally impossible; juries are in practice told that they
must act on such reasonable balance of probabilities as would suffice to
determine a reasonable man to take a decision in the grave affairs of life.”
[9]
This is a
case of inference, not outright speculation or conjecture unsupported by the
record. (Canada (Minister of Employment and
Immigration) v. Satiacum (F.C.A.), 99 N.R. 171, [1989] F.C.J. No. 505).
[10]
I consider
the decision reasonable in all respects. As stated by Justices Bastarache and
LeBel in Dunsmuir at paragraph 47:
Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead,
they may give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[11]
In its
earlier decision of Canada (Director of Investigation and Research) v. Southam
Inc., [1997] 1 S.C.R. 748, [1996] S.C.J. No. 116, Mr. Justice Iacobucci
equated the standard of reasonableness with the standard to be applied in
reviewing findings of fact by a trial judge. At paragraph 59, he said:
The standard of
reasonableness simpliciter is also closely akin to the standard that this Court
has said should be applied in reviewing findings of fact by trial judges. In
Stein v. "Kathy K" (The Ship), [1976] 2 S.C.R. 802, at p. 806, Ritchie J. described the standard in the
following terms:
.
. . the accepted approach of a court of appeal is to test the findings [of
fact] made at trial on the basis of whether or not they were clearly wrong
rather than whether they accorded with that court's view of the balance of
probability. [Emphasis added.]
[12]
The
Kathy K.
admonished appellate courts from interfering with findings of fact unless
tainted with a “palpable and overriding error”. This warning applies
equally to findings of fact based on inferences (N.V. Bocimar S.A. v. Century
Insurance Co. of Canada, [1987] 1 S.C.R. 1247, [1987] S.C.J. No. 39; and Housen
v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[13]
For these
reasons, the application will be dismissed. There will be no serious question
of general importance to certify.
ORDER
THIS COURT ORDERS that:
1.
The
application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada, determining that the
applicants were not Convention refugees or otherwise in need of protection, is
dismissed.
2.
There is
no serious question of general importance to certify.
“Sean
Harrington”
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