A-388-95
CORAM: HUGESSEN
J.A.
DÉCARY J.A.
CHEVALIER
D.J.A.
BETWEEN:
MINISTER
OF CITIZENSHIP AND IMMIGRATION,
Appellant,
AND:
NINAL
KADENKO, BORIS FEDOSOV,
ALEXANDER
FEDOSOV AND MILA FEDOSOV,
Respondents.
Hearing
held at Montréal
on
Tuesday, October 15, 1996
Judgment
delivered at Montréal
on
Tuesday, October 15, 1996
REASONS FOR JUDGMENT OF
THE COURT BY: DÉCARY J.A.
A-388-95
CORAM: HUGESSEN
J.A.
DÉCARY J.A.
CHEVALIER
D.J.A.
BETWEEN:
MINISTER
OF CITIZENSHIP AND IMMIGRATION,
Appellant,
AND:
NINAL
KADENKO, BORIS FEDOSOV,
ALEXANDER
FEDOSOV AND MILA FEDOSOV,
Respondents.
REASONS
FOR JUDGMENT OF THE COURT
(Delivered
from the bench at Montréal, Quebec
on
Tuesday, October 15, 1996)
DÉCARY J.A.
The motions judge, sitting on
judicial review of a decision by the Convention Refugee Determination Division
(“the Refugee Division”), certified the following question under subsection
83(1) of the Immigration Act:
Where there has not been a
complete breakdown of the governmental apparatus and where a State has
political and judicial institutions capable of protecting its citizens, does
the refusal by certain police officers to take action suffice to establish that
the State in question is unable or unwilling to protect its nationals?
In her reasons, the motions judge
herself suggested that this question should be answered in the affirmative and
that once certain police officers in a democratic state refuse to take action,
there is automatically incapacity on the part of the state.
In our view, the question as worded
must be answered in the negative. Once it is assumed that the state (Israel in
this case) has political and judicial institutions capable of protecting its
citizens, it is clear that the refusal of certain police officers to take
action cannot in itself make the state incapable of doing so. The answer might
have been different if the question had related, for example, to the refusal by
the police as an institution or to a more or less general refusal by the police
force to provide the protection conferred by the country’s political and
judicial institutions.
In short, the situation implied by
the question under consideration recalls the following comments by Hugessen
J.A. in Minister of Employment and Immigration v. Villafranca:[1]
No government that makes any claim
to democratic values or protection of human rights can guarantee the
protection of all its citizens at all times. Thus, it is not enough for a
claimant merely to show that his government has not always been effective at
protecting persons in his particular situation. . . .
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]
In the case at bar, the Refugee
Division made the following findings of fact and law:[3]
[translation]
The claimants
testified that they always complained to the same police station but that no
action was ever taken.
The fact that their
complaint to one police station did not bear fruit is not a sufficient basis
for concluding that the state of Israel cannot protect them.
The documentation that
was filed indicates that since 1990 almost four hundred and fifty thousand
Russian-speaking persons have been repatriated to Israel pursuant to the Law of
Return. More than one hundred and fifty thousand of them (more than 30%) are
not Jewish. All the returnees, whether Jewish or not, receive very adequate
financial assistance and special provision is made for them with respect to
such things as housing and language courses to help them adjust.
It is true that the
documentation shows problems of discrimination, integration, intolerance and
high unemployment, but nowhere could we find any problems of persecution within
the meaning of the definition. Very often, these immigrants are specialists in
their area of expertise and they usually have to occupy lower-level positions
that do not pay very well. To deal with this situation, the state attempts to
retrain them in a new area of expertise better suited to the economic
situation. In this regard, the female claimant herself said that since she
could not find work, she went to one of the agencies that assist returnees,
which suggested that she take occupational retraining courses.
In light of this
evidence, we have a great deal of difficulty seeing how there can be an
objective basis for the claimants’ claims of persecution or how the government
cannot protect them. It is hard for us to believe that after providing such
considerable assistance to people who had fled their country of origin, a
country would then want to persecute them and refuse to protect them.
In this regard, we are
following the principle concerning protection that was established by the
Supreme Court of Canada in Ward, namely that the claimants must provide
clear and convincing evidence that their country cannot protect them.
This finding of fact is amply
supported by the evidence and the legal conclusion is amply supported by the
case law. In point of fact, the motions judge simply substituted her opinion
on the evidence for that of the Refugee Division, which is not her role on an
application for judicial review.
The appeal will be allowed, the
certified question will be answered in the negative, the Trial Division’s
judgment will be set aside and the application for judicial review will be
dismissed.
Robert Décary
J.A.
Certified true
translation
A. Poirier
A-388-95
MONTRÉAL, QUEBEC,
THE 15TH DAY OF OCTOBER 1996.
CORAM: THE HONOURABLE MR.
JUSTICE HUGESSEN
THE
HONOURABLE MR. JUSTICE DÉCARY
THE
HONOURABLE DEPUTY JUSTICE CHEVALIER
BETWEEN: MINISTER OF
CITIZENSHIP AND IMMIGRATION,
Appellant,
AND:
NINAL
KADENKO,
BORIS
FEDOSOV,
ALEXANDER
FEDOSOV,
MILA FEDOSOV,
Respondents.
J
U D G M E N T
The appeal is allowed, the certified question in
answered in the negative, the Trial Division’s judgment is set aside and the
application for judicial review is dismissed.
James K. Hugessen
J.A.
Certified true
translation
A. Poirier
FEDERAL
COURT OF APPEAL
A-388-95
BETWEEN:
MINISTER
OF CITIZENSHIP AND IMMIGRATION,
Appellant,
AND:
NINAL
KADENKO, BORIS FEDOSOV,
ALEXANDER
FEDOSOV AND MILA FEDOSOV,
Respondents.
REASONS
FOR JUDGMENT OF THE COURT
FEDERAL
COURT OF APPEAL
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-388-95
STYLE
OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION,
Appellant,
AND:
NINAL
KADENKO, BORIS FEDOSOV, ALEXANDER FEDOSOV AND MILA FEDOSOV,
Respondents.
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: October
15, 1996
REASONS FOR JUDGMENT OF THE
COURT (THE HONOURABLE MR. JUSTICE HUGESSEN, THE HONOURABLE MR. JUSTICE DÉCARY
AND THE HONOURABLE DEPUTY JUSTICE CHEVALIER)
DELIVERED FROM THE BENCH BY: The
Honourable Mr. Justice Décary
Dated: October
15, 1996
APPEARANCES:
Michèle Joubert for
the Appellant
Jacques Beauchemin for
the Respondents
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney
General
of Canada
Ottawa, Ontario for
the Appellant
Alarie,
Legault, Beauchemin
Paquin,
Jobin & Brisson
Montréal,
Quebec for the Respondents
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