Date: 20040908
Docket: IMM-2905-03
Citation: 2004 FC 1225
BETWEEN:
ANDREY SOLODOVNIKOV
NATHALIA SOLODOVNIKOV
PAVEL SOLODOVNIKOV
VLADIMIR SOLODOVNIKOV
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
Lemieux J.
[1] On March 26, 2003, the Refugee Protection Division of the Immigration and Refugee Board (the panel) held that the refugee claimants, citizens of Israel, are not Convention refugees within the meaning of section 2(1) of the former Immigration Act. The panel held hearings on June 2, August 3, and October 30, 2002.
[2] There are many grounds raised by the applicants against this decision; however, their major point is the argument that the panel failed to consider one of the grounds in the Convention that the principal claimant, the father, had raised: his fear of persecution based on his political opinion, i.e., his expected refusal to perform compulsory military service in the Israeli Defence Force reserve (IDF).
[3] The Federal Court of Appeal in Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540, recognized that the refusal to participate in military service and the State sanction resulting from this refusal can be considered persecution under certain circumstances.
[4] The certified tribunal record sets out the following facts:
(1) The claimants were born in the Ukraine and went to Israel in January 1996.
(2) When the principal applicant filed his Personal Information Form (PIF) on January 22, 2001, the alleged fear was his persecution by religious extremists and the State of Israel's tolerance if not passivity in ensuring his family's protection. At that time, Mr. Solodovnikov had not mentioned in his PIF that he feared persecution based on his anticipated refusal to serve in the IDF reserves. The claims of his wife and children are based on his claim.
(3) It was on May 22, 2002, that he filed an addendum in response to question 37 of the PIF. That addendum was received into evidence by the panel as exhibit P-12. It reads in part as follows:
[TRANSLATION]
When I wrote the answer to question 37 of my PIF, I did so without consulting counsel. And did not know that legal proceedings for refusing to do military service could be considered as a form of political persecution, so I did not mention it in the following facts. I point out that that was not the main reason that led us to leave Israel, but that was one of the reasons that we do not want to go back there.
. . .
In Israel, for reasons unknown to me, I had not been called to do my reserve military service. I would have refused because I find abhorrent the actions of the Israeli Defence Forces (IDF) toward the Palestinians. Since the beginning of the second intifada things have deteriorated in Israel. I would probably be called to serve in the IDF Reserves, which I would refuse. I would be detained and marked for life socially for that refusal.
My brother cadet Nicolay was called to do his service. He refused to take up arms, for the same reason that I would. He was detained for a month and a half and discharged from the IDF.
(4) The issue of military service was debated before the panel during the hearing of October 30, 2002, (see the tribunal record, pages 913 et seq.; also pages 956 to 958).
(5) The issue was also addressed in the written submissions of the claimants' counsel (see the tribunal record, pages 63 and 64).
[5] At the hearing of this application for judicial review, the respondent's counsel acknowledged that the panel's reasons did not refer to or analyse this second fear of Mr. Solodovnikov.
[6] Notwithstanding that shortcoming, the respondent's counsel submits that this Court should not set aside the panel's decision based on the following factors:
(1) The transcript indicates that the principal claimant was not called to service and that he had not mentioned this factor in his declaration at the port of entry or in his first response to question 37 of his PIF.
(2) According to the documentary evidence, in 1999 Israel had abandoned the mobilization of new immigrations over 18 years of age, which applied to the claimant, who was 24 years old when he arrived, but which did not apply to his brother, who was 18 years old when he was drafted.
(3) Even if he had established that there was a possibility of being drafted, which he did not do, exhibit A-16 entitled "Eligibility for Military Service" establishes that a father arriving in Israel after January 1, 1997, between the ages of 24-27, would not be obligated to join the IDF reserve.
(4) Again according to the documentary evidence, if there is a refusal to serve in the military in Israel, the sanction is not systematically imprisonment and the majority of sentences are no longer than three months.
[7] The respondent's counsel observes that the applicant's brother had been imprisoned for 12 days in 1996 for his refusal, and not for a month and a half as Mr. Solodovnikov testified and, most importantly, he testified that his brother now has an excellent job in Israel.
[8] The respondent's counsel submits that the panel did not have to address that aspect of his fear of persecution given that it was purely and entirely speculative in his case. She argues that it is worthwhile to point out that the documentary evidence bearing on military service in Israel is not in itself sufficient to establish the merits of his fear of persecution based on any speculative and unproved obligation to serve in the military.
[9] She adds that the panel did not disregard Mr. Solodovnikov's submissions since it questioned him on this point to get him to admit that he had not been called and that his brother only served 12 days in prison. Finally, counsel argues that it is settled law that the panel did not have to refer in its decision to every piece of evidence that it had before it. Finally, she submits that because this element of the principal applicant's claim is entirely speculative, it cannot be said that the panel's failure to refer to it is fatal and requires the Court's intervention.
[10] There is no doubt that the panel had the obligation to decide on each of the claimant's grounds for fearing persecution. This principle stems from Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at page 745, where La Forest J. imposes this obligation on the panel even if the ground had not been raised by the claimant.
[11] The respondent's counsel cites the following case law principles:
(1) Given that the ground is entirely speculative, it cannot be said that the panel's failure to refer to it is fatal and requires the intervention of the Court: Bouarouni v. Canada (Minister of Citizenship and Immigration), [2003] F.C. 1211; Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (FCA); Patel v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. 55. In Kabedi v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 442, Noël J. of this Court writes this at paragraphs 8 to 10 of his decision:
[8] With regards to the question of valid UDPS membership, the Board must conform to the Rules. In this case, the Board had the obligation to inform the Applicant of its intention to rely on specialized knowledge in order to make a determination regarding the membership card's validity. The Board did not inform the Applicant that it would be relying on its specialized knowledge of UDPS membership cards and concluded, based on the absence of indications of payment of dues and dates on the card she presented, that the card's validity was in doubt. Clearly, the Board's failure to inform the Applicant of its intention to rely on this specialized knowledge constitutes a breach of the basic principle of procedural fairness. However, this being said, the Court must still determine whether such a breach constitutes a sufficient basis to find a reviewable error whereby the decision must be quashed and the case returned for determination by a different Board?
[9] Having come to a conclusion on the first issue, the second issue of whether the reviewable error is determinative must also be addressed. To do so, the Court must review the other credibility findings, establish whether they stand on their own and, if they do, determine whether the error is so fundamental that it alone provides a sufficient basis to quash the decision.
[10] Based on the jurisprudence set out in Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.) ("Yassine") and in Mobile Oil Canada Ltd. Et al. vs. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, a reviewable error constituting a breach of natural justice will ordinarily void the hearing and the resulting decision; however, an exception to this strict rule has been recognized where the other elements of the claim support the original finding and where re-determination of the claim would likely result in the same decision.
(2) In view of the evidence in the record, the lack of justification is not so great that it amounts to a breach of the rules of natural justice: Dionne v. Radio Shack, [1999] J.Q. No. 3054 (C.A.Q.); Shmulevich v. Minister of Citizenship and Immigration, (IMM-81-03, December 5, 2003, (F.C.)).
3) The panel did not have any obligation to refer to all of the evidence before it: Hassan v. Canada (Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.) ;
4) The absence of reasons from the judge cannot, in itself, justify an appellate review when the decision is otherwise supported by the evidence or when the basis of the decision is apparent from the circumstances. (See, Her Majesty The Queen v. Barrett, [1995] 1 S.C.R. 752.)
[11] My assessment of the evidence which was before the panel on conscientious objection and on the attitude of the State of Israel in matters of compulsory military service is more subtle than that set out by the respondent's counsel especially considering that Mr. Solodovnikov's fear was not of being drafted into the regular army, but of being obliged as a reservist to support the efforts of the IDF in the West Bank.
[12] In my view, the documentary evidence is not sufficiently specific and clear for me to determine that the fear of the principal claimant is speculative. Exhibit P-16 "Eligibility for Military Service" seems to indicate that Mr. Solodovnikov would be required to join the IDF reserve.
[13] This is not the type of case where the panel determined that Mr. Solodovnikov's fear was not well-founded, but where the panel did not give sufficient reasons for that finding, and an assessment of the evidence could have supported the fact that he was a Convention refugee. In this case, in my opinion, the panel failed to decide that issue.
[14] For all of these reasons, this application for judicial review is allowed; the panel's decision is set aside and the applicants' claims are referred for redetermination by a differently constituted panel. In my view, there is no important question to be certified but I give the parties until September 24, 2004, to formulate one.
"François Lemieux"
Judge
Ottawa, Ontario
September 8, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2905-03
STYLE OF CAUSE: ANDREY SOLODOVNIKOV ET AL
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING Montréal, Quebec
DATE OF HEARING: June 30, 2004
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE LEMIEUX
DATE OF REASONS: September 8, 2004
APPEARANCES:
William Sloan FOR THE APPLICANTS
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
William Sloan FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec