Date: 20080314
Docket: IMM-2184-07
Citation: 2008 FC 345
Ottawa, Ontario, March 14,
2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ALEXANDER SOUNITSKY
EKATERINA SOUNITSKY
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for
judicial review pursuant to section 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a pre-removal
assessment (PRRA) officer, dated March 22, 2007, wherein the officer determined
that the applicants would not be subject to risk of persecution, torture, risk
to life or risk of cruel and unusual treatment or punishment.
[2]
The applicants are a husband and
wife who are both dual Russian-Israeli citizens. They emigrated from Russia to Israel in 1993
on the strength of Mr. Sounitsky’s father’s Jewish background. The couple is
Christian. Mr. Sounitsky came
to Canada in February 2002 to take care of his
parents after they were badly hurt in a car accident. He returned to Israel
briefly, then returned to Canada with his wife to continue to assist his
parents. They renewed their visitor’s visas for a second six-month term before
claiming refugee status in January 2003.
[3]
The
couple initially claimed a fear of persecution and risk to their personal
safety in both Russia and Israel: in Russia by reason of
Mr. Sounitsky’s mixed Jewish and Armenian heritage; and in Israel because of
their Christian faith and Mr. Sounitsky’s refusal to continue to serve in the
Israeli military reserves.
[4]
The
Refugee Protection Division denied their claim on November 30, 2005, noting
that the discrimination they face as Christians in Israel is not tantamount
to persecution. The RPD also found that there was insufficient evidence before
it that Mr. Sounitsky was a conscientious objector who would not serve in the
reserves, finding also that the Israeli army shows flexibility towards
reservists in comparison to conscripts and that conscientious objectors were
permitted to serve in non-combat roles. Finally, it found that the punishment
for refusing all forms of reservist service is 56 days imprisonment, which is a
law of general application and not so extreme as to be cruel and unusual.
[5]
Mr. Sounitsky applied for a
pre-removal risk assessment (PRRA) on July 28, 2006 reiterating his fears of
being returned to Russia based on his heritage and of being returned to
Israeli because of his opposition to military service.
[6]
In
order to review the PRRA officer’s decision, it is useful to begin with an
overview of Mr. Sounitsky’s relationship with military service.
[7]
Mr. Sounitsky served a term of compulsory
military service in Russia as a private in the army from 1986 to 1988. After
moving from Russia to Israel in 1993, he was called up to the military reserves.
After a number of deferrals, Mr. Sounitsky served as a reserve force member from
September to November 1995. He did not volunteer to serve, nor has he completed
his mandatory military service in Israel.
[8]
Further deferrals were
granted on financial grounds by the Israeli Defence Force from the call up
notices received by Mr. Sounitsky four or five times per year. He was eventually given an ultimatum of military
service or prison, and served 40 days with the military in the Occupied Territories in May
and June of 1998. He claims that it was after this point that he became a
conscientious objector, due to the situation of the Palestinian people in the
Territories.
[9]
While Mr. Sounitsky was serving in
the Territories, his wife had a nervous breakdown. Ms. Sounitsky apparently
suffers from significant anxiety when staying alone, especially at night, and
has been diagnosed with a phobic psychiatric illness.
[10]
Mr. Sounitsky eventually served a
second term in the reserves, on pain of imprisonment, during which
accommodations were made to allow him to remain close to home. He requested a
further exemption from a third call-up notice, and was put on a year’s
probation by a military tribunal. Mr. Sounitsky asserts that he is not willing
to serve even in the non-combat roles normally offered as accommodation to
conscientious observers.
Impugned
decision:
[11]
The PRRA officer found that Mr.
Sounitsky was not a conscientious objector to military service generally, as he
had served in both Russia and Israel. The officer noted that Mr. Sounitsky’s concern was
with the human rights abuses perpetrated by the Israeli army. While accepting
that some believed human rights violations were systemic to the Israeli army, the
officer found that the death or injury of civilians as a result of military
operations was an “ugly fact of battle rather than part of a deliberate
campaign” and that violators of human rights were punished. Mr. Sounitsky would
not, therefore, be obliged to participate in human rights abuses, directly or
indirectly.
[12]
The PRRA officer also found that
Israelis incarcerated for refusing military service were not subject to cruel
and unusual punishment. The punishment was not disproportionate or persecutory
and flowed from a law of general application, and there was insufficient
information on file to prove otherwise.
[13]
Finally, the PRRA officer, while
accepting that Ms Sounitsky might experience a high level of anxiety if left
alone, found that there was insufficient evidence to show that facing that
situation would account to cruel and unusual treatment. The officer noted that
the applicants did not know what her reaction would be, as she had apparently
never been in the situation, and that the problem had been solved through
medication and the assistance of friends and family when her husband was absent
from the home in the past.
Issues:
[14]
The
issues which must be decided are:
1. Did the PRRA officer err
in his application of the test for admissible new evidence?
2. Did the PRRA officer
apply the wrong legal test to the determination of punishment for conscientious
objection to military service as persecutory?
3. Was the PRRA officer’s
determination that Mr. Sounitsky was not a conscientious objector a finding of
credibility such that the lack of an oral hearing breached procedural fairness?
4. Did the PRRA officer
ignore or misconstrue the evidence?
5.
Were the
PRRA officer’s conclusions unreasonable?
Standard of
Review
[15]
This
application was heard but not decided before the release of the recent decision
of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] S.C.J. 9. Prior to Dunsmuir, the prevailing view in
this Court was that the decision of a PRRA officer was to be reviewed on the
standard of patent unreasonableness for
questions of fact, reasonableness simpliciter for mixed fact and law,
and correctness for questions of law. The decision as a whole was to be
reviewed on a reasonableness standard: Demirovic v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1284, [2005] F.C.J. No. 1560.
[16]
In
Dunsmuir, the Supreme Court held that the two reasonableness standards created
a system which was unclear and overly difficult to apply. Thus they should be
merged into a single test, producing a distinction between legal questions, which
continue to be assessed on a correctness standard, and all other findings by
administrative bodies, which will stand unless they can be shown to be
unreasonable.
[17]
In
applying the reasonable standard, the question which judges must now ask
themselves is whether the decision was reasonable, giving “due consideration to
the determinations of decision makers”: Dunsmuir at paragraph 49. The
Supreme Court expressed its recognition that legislative supremacy drives the
need for deference to be shown by the judiciary to administrative decisions
made under properly delegated authority.
[18]
The
Supreme Court has also determined that it is no longer necessary to apply the
pragmatic and functional analysis in every case where there is clear precedent
as to the standard to be applied. I need not, therefore, re-evaluate the levels
of deference to be shown to the decision of a PRRA officer, other than to note
that questions of fact are no longer reviewable on a patent unreasonableness
standard. Instead, all questions decided by a PRRA officer other than those of
pure law are to be upheld unless unreasonable.
[19]
In
view of these conclusions, I did not deem it necessary to invite counsel to
make additional submissions on the application of Dunsmuir to this case.
New evidence
[20]
The
applicants challenge the statement of the PRRA officer that the purpose of a
PRRA is “to consider whether circumstances or conditions have changed in the
interim period between the refusal by the RPD and [the PRRA] application”. They
allege that this shows that the officer incorrectly limited his consideration
of evidence to that which post-dated the refugee decision, contrary to
paragraph 113(a) of the IRPA.
[21]
I
do not read this statement by the PRRA officer as relating to which evidence he
was permitted to consider, but rather as a correct statement of the purpose of
the assessment. My colleague Deputy Judge Maurice Lagacé set out the law in
this regard in Leudjeu v. Canada (Minister of
Citizenship and Immigration), 2007 FC 875, [2007] F.C.J. No. 1162, at
paragraph 18:
The only purpose of the PRRA is to assess
the risks to which a person might be exposed on removal to his or her country
of origin, based on new facts occurring since the decision by the RPD on his or
her refugee status application. Paragraph 113(a) of the Act leaves no room for
ambiguity in this regard.
[22]
The
applicants alleged an error of law, which attracts a standard of review of
correctness. The PRRA officer was correct in his statement, and I will not set
his decision aside on this point.
Objection to
military service
[23]
The
applicants also alleged that the PRRA officer erred in his selection of the
appropriate test to determine whether the punishment for Mr. Sounitsky’s
objection to military service amounted to persecution. In essence, their
argument is that Mr. Sounitsky’s motivation for refusing to serve in the IDF
should not have been a focus of the officer’s reasoning, citing Zolfagharkhani v. Canada (Minister of Employment and Immigration)
(C.A.), [1993] 3 F.C. 540, [1993]
F.C.J. No. 584 to that end.
[24]
The
respondent agrees that the intent of an ordinary law of general application,
rather than the motivation of the claimant, is relevant to the existence of
persecution. She submits, however, that prosecution or incarceration for refusing
to perform military service is not persecution on a Convention ground per se.
She notes that objections to military service are discussed in the United Nations High Commission for Refugees Handbook
on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, Office
of the United Nations High Commissioner for Refugees; Geneva, reedited January
1992.
[25]
Persons
claiming refugee status based on their conscientious objection to military
service essentially form two specific groups: those who object to military
service in general and those who object to serving in a particular conflict: Lebedev v. Canada (Minister of Citizenship and Immigration), 2007 FC 728, [2007] F.C.J. No. 975; Hinzman v.
Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420, [2006]
F.C.J. No. 521, aff’d 2007 FCA 171, [2007] F.C.J. No. 584.
[26]
Mr.
Sounitsky claims that he resisted reserve service in the IDF partly due to his
wife’s medical condition but also because he opposed Israel’s military
actions and military service itself. The PRRA officer noted that he had served
in the Russian military and pointed to a letter from Ms. Sounitsky’s
psychiatrist which stated that he “would gladly serve” in the military if he
could be home with her at night. As such, the officer found that he is not a
conscientious objector in general, but someone who objects to a particular form
of service.
[27]
Selective
objectors are discussed in paragraph 171 of the Handbook, which
describes them thus:
Not every conviction, genuine
though it may be, will constitute a sufficient reason for claiming refugee
status after desertion or draft-evasion. It is not enough for a person to be in
disagreement with his government regarding the political justification for a
particular military action. Where, however, the type of military action, with
which an individual does not wish to be associated, is condemned by the
international community as contrary to basic rules of human conduct, punishment
for desertion or draft-evasion could, in the light of all other requirements of
the definition, in itself be regarded as persecution.
[28]
In
determining whether an objector should be assessed under paragraph 171 or under
the other paragraphs of the Handbook which relate to persons avoiding
military service, the PRRA officer was correct in assessing the evidence on Mr.
Sounitsky’s motivation for avoiding service.
[29]
Counsel
drew my attention to the decision of my colleague Justice Johanne Gauthier in Tewelde
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1103, [2007] F.C.J. No. 1426. In Tewelde,
Justice Gauthier considered the refusal of refugee protection for an Israeli
citizen who refused to serve as a reservist in the IDF.
[30]
Justice
Gauthier vacated the decision of the RPD on the ground that the decision
incorrectly failed to refer to documentary evidence on the question of human
rights abuses on the part of the IDF. In the instant case, the PRRA officer did
refer to the evidence acknowledging the existence of abuses and the allegations
by some international organizations about IDF practices. The officer gave a
reasoned explanation for finding that the abuses were isolated and not systemic.
Right to an oral
hearing
[31]
The
applicants next submit that the officer erred in finding Mr. Sounitsky was not
a conscientious objector without giving him the benefit of an oral hearing, as
they claim this was an adverse credibility finding which entitled them to one.
[32]
The
PRRA officer found that Mr. Sounitsky was not a conscientious objector to
military service in the larger sense of the meaning of that term, but gave
thorough consideration to his claim to selective objection as discussed in paragraph
171 of the Handbook. This was not an adverse credibility finding, but
instead a finding of which type of objector Mr. Sounitsky was for the purposes
of assessing his claim. I do not agree that the officer breached his duty of
providing procedural fairness to the applicants.
Treatment of
evidence
[33]
The
applicants also allege that the PRRA officer misconstrued evidence relating to
the likelihood of Mr. Sounitsky’s being jailed for his refusal to serve and to
the conditions faced by military objectors in Israeli jails. They also assert
that the officer erred in rejecting the
opinion of a qualified psychiatrist without expert medical evidence to the
contrary.
[34]
It is trite law that a PRRA
officer is presumed to have taken all evidence into consideration, absent
significant indications to the contrary. Indeed, in this instance the officer
directly assessed evidence on the question of the possibility of a jail
sentence and the allegation of cruel or inhumane treatment in Israeli military
jails. The applicants appear to be asking for a reweighing of the evidence, which
is not the role of a reviewing Court.
[35]
Similarly, the officer did not reject the opinion of Dr.
Feldinger and accepted that Ms. Sounitsky might experience a high level of
anxiety if required to stay home alone. The officer did not, however, find that
the evidence on file was sufficient to prove the allegation that her situation
on return would amount to cruel and unusual treatment. This was open to the
officer on the evidence, and I do not find it to be an unreasonable conclusion.
Unreasonable
decision
[36]
Finally, the applicants
ask this Court to find that the PRRA officer’s conclusion was unreasonable. Given that I have not accepted that any of the
specific arguments advanced support a finding of reviewable error, I cannot
agree that the PRRA officer’s decision as a whole is unreasonable.
[37]
This application is dismissed. No
questions of general importance were submitted for certification, and none will
be certified.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that this
application is dismissed. No questions are certified.
“
Richard G. Mosley ”
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