Date:
20130429
Docket:
IMM-2894-12
Citation:
2013 FC 435
Ottawa, Ontario,
April 29, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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EMIL GRAIDER
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Applicant
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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
I. Overview
[1]
In
2009, Mr Emil Graider fled Israel to avoid military service. He claims to be a
conscientious objector. A panel of the Immigration and Refugee Board denied his
refugee claim, disbelieving Mr Graider’s contention that he was a genuine
conscientious objector. Further, the Board found that he had failed to take
advantage of the remedies available to him in Israel.
[2]
Mr
Graider submits that the Board’s credibility assessment was unreasonable, as
was its conclusion that he could find protection in Israel. He asks me to quash
the Board’s decision and order another panel to reconsider his claim.
[3]
I
can find no basis for overturning the Board’s decision. The Board reached
defensible conclusions based on the facts and the law. Therefore, I cannot conclude
that its conclusions were unreasonable.
[4]
The
issues are:
1. Was the
Board’s assessment of Mr Graider’s credibility unreasonable?
2. Was
the Board’s conclusion that state protection was available to Mr Graider
unreasonable?
II. Factual Background
[5]
Mr
Graider performed mandatory military service beginning in 1998. He says he
experienced psychological shock after witnessing Israeli soldiers shooting at
unarmed Palestinians. He left duty on temporary leave, but then refused to
report back for service. He was arrested about two weeks later. He says that he
was then beaten and denied medical treatment. He was court-martialed and
sentenced to 10 weeks detention. Further, he endured insults and harassment
until his period of mandatory service ended in 2001.
[6]
From
2001 until 2009, Mr Graider managed to avoid being called up for reserve duty
because he was either in school or injured. However, he received a notice to
appear in September 2009 and he had no further grounds to refuse. He decided to
flee Israel and seek refugee protection in Canada.
III. The Board’s Decision
[7]
The
Board noted that Mr Graider’s written narrative made no reference to the fact
that he was a conscientious objector. It did not accept Mr Graider’s
explanation that his previous lawyer told him that it was unnecessary to
include that information in this narrative. The Board was also concerned that
Mr Graider was unable to provide any corroborative documentary evidence of his
court martial.
[8]
The
Board also doubted that Mr Graider had been able to avoid committing acts he
found objectionable during the period of his military service after his court
martial. It was likely, the Board found, that he continued to participate in
regular military duties.
[9]
The
records that Mr Graider did produce showed that he was present in his military
unit even after he had fled Israel. Accordingly, the Board gave these documents
little weight.
[10]
The
Board also noted the remedies available to conscientious objectors in Israel. Various complaint mechanisms were available to Mr Graider, including an opportunity
to request an exemption from, or an alternative to, military service.
[11]
In
its conclusion, the Board pointed out that prosecution and punishment of a
genuine conscientious objector may not actually amount to persecution. It found
that Mr Graider was neither a refugee nor a person in need of protection.
IV. Issue One – Was the
Board’s assessment of Mr Graider’s credibility unreasonable?
[12]
Mr
Graider argues that the Board unreasonably concluded that his claim to be a
conscientious objector was not credible. While he did not use the precise term
“conscientious objector” in his narrative, he made clear that he was opposed to
serving in the military.
[13]
Mr
Graider also contends that the Board wrongly discounted his corroborative
military records. They showed that he was considered “absent from service
without authorization”.
[14]
In
my view, the Board’s findings were reasonable. Mr Graider did not describe
himself as a conscientious objector. Rather, he simply stated that he found the
events he witnessed while in military service to be deeply disturbing. He did
not allude to any moral or political objections to service and, accordingly,
the Board could reasonably conclude that he was not a genuine conscientious
objector.
[15]
As
for Mr Graider’s military records, there were some entries that indicated that
he was absent without authorization. However, there were others, made while Mr
Graider was in Canada, stating that he was “in unit”. Clearly, these documents
did not accurately record Mr Graider’s attendance. The Board was entitled in
the circumstances to give them little weight as evidence of his military
service.
V. Issue Two – Was the
Board’s conclusion that state protection was available to Mr Graider
unreasonable?
[16]
Mr
Graider maintains that the remedies to which the Board referred are not
adequate. In fact, Justice James Russell referred to the panel that reviews
requests from conscientious objectors in Israel as “haphazard, secretive and
difficult to access” (Kirichenko v Canada (Minister of Citizenship and
Immigration), 2011 FC 12, at para 50). Further, there is no alternative to
military service for conscientious objectors.
[17]
In
my view, the Board’s conclusion was reasonable on the evidence. The Board
relied on documentary evidence that post-dated the Kirichenko decision.
That evidence referred to a “special military committee” that grants exemptions
from military service to conscientious objectors, or recommends their
assignment to non-combat roles.
[18]
This
committee was set up in response to a May 2009 judgment of the Israeli High
Court of Justice that recognized the rights of conscientious objectors.
Accordingly, the remedy of seeking an exemption or re-assignment was available
to Mr Graider before he fled Israel.
VI. Conclusion and
Disposition
[19]
The
Board reasonably concluded that Mr Graider’s claim to be a conscientious
objector lacked credibility. In addition, its further finding that remedies are
available to conscientious objectors in Israel was reasonable. Accordingly, I
must dismiss this application for judicial review. Neither party proposed a
question of general importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James W. O’Reilly”
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