IMM-2786-96
OTTAWA, ONTARIO, THIS 30th day of June 1997
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN
Lidia BOYANSQI,
Boris BOYANSKY,
Dmitry OPALENIK,
Angelika BOYANSKY,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
O R D E R
The application for judicial review is dismissed.
YVON PINARD
JUDGE
Certified true translation
C. Delon, LL.L.
IMM-2786-96
BETWEEN
Lidia BOYANSQI,
Boris BOYANSKY,
Dmitry OPALENIK,
Angelika BOYANSKY,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.
This is an application for judicial review of a decision of the Refugee Division dated July 16, 1996, determining that the applicants, Lidia Boyansqi, her husband Boris Boyansky, his daughter Angelika Boyansky and her son Dmitry Opalenik, are not Convention refugees. The applicants are nationals of Israel who base their claim on grounds of religion, nationality and membership in a particular social group.
The Refugee Division concluded that the applicants are not Convention refugees for the following reasons:
[translation]
... The claimants say that they suffered malevolence and hostility from neighbours and from Israeli society in general because they were not all ethnically Jewish and, in addition, because they practised Christianity. Even if this were persecution within the meaning of the Convention, no valid and credible evidence was presented to show any failure or refusal to provide protection by the Israeli authorities which, according to the voluminous documentary evidence filed and the sources to which it refers, provide adequate protection for their citizens. The allegations that protection is not afforded to nationals of the former USSR facing harassment from orthodox Jews are not reflected in the international press specializing in human rights monitoring. The documents filed by the refugee hearing officer (RHO), which had been disclosed to counsel for the claimants before the hearing, describe Israel as a democratic country with an independent and accessible judicial system, governed by the rules of natural justice. Nor do the actions of the police, of sokhnout, of the department of Absorption, as described by the claimants, invalidate those observations or the presumption that arises from them. It was obvious that the claimants were exaggerating. At tab 5.4 of the file concerning the situation in Israel, the civil society is described as welcoming to the point that a majority (80%) of Israeli families are volunteers in assisting new immigrants from the former Soviet Union and facilitating their integration. In this country there are numerous associations providing legal aid and for the protection of civil liberties which play an active role in integrating immigrants, assisting them in the difficulties they encounter and helping them to obtain redress for wrongs done to them, which is generally administrative in nature.
In addition, there is an investigative office within the department of Justice that receives complaints concerning the conduct of the police, who do not normally respond on the basis of the ethnic or religious characteristics of complaints or of suspects. Obviously the police take action only when they are in a position to file charges in the courts.
The claimants' evidence in no way undermined the integrity and truth of the documentary evidence filed and the sources cited, and consequently we are of the opinion that their testimony is exaggerated and that the inferences and imputations it contains are not justified. It has not been proved to the satisfaction of the tribunal that the Israeli authorities failed in their task of protecting the claimants and assisting them to exercise their rights and remedies.
(Emphasis mine)
Thus the Refugee Division clearly stated that it preferred the documentary evidence indicating that the state of Israel is a democratic state capable of protecting its citizens to the applicants' testimony. Having regard to that documentary evidence, the tribunal concluded that "[i]t was obvious that the claimants were exaggerating".
Normally, it is open to the Refugee Division to place greater weight on the documentary evidence submitted by the hearing officer than on the testimony of a claimant. Mr. Justice Linden, writing for the Court of Appeal, gave his opinion on this point in M.E.I. v. Zhou (July 18, 1994), A-492-91. He wrote:
We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. The other matters raised are also without merit. The appeal will be dismissed.
In Victorov v. M.C.I. (June 14, 1995), IMM-5170-94, Mr. Justice Noël noted, at page 4:
I also reject the applicants' argument that the panel should have confronted them with the documentary evidence used to diminish their credibility. The documents used by the panel were included among those submitted by the refugee hearing officer when the hearing began and were listed in the index to the file on the state of Israel received by the applicants before the hearing. The applicants adduced their own documentary evidence. Among this evidence, the panel was entitled to rely on that which it considered most consistent with reality. This is what it did.
(Emphasis mine)
Since the decision in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, it has been settled that in order to meet the definition of "Convention refugee", a refugee claimant must show, by clear and convincing proof, that the state of which the claimant is a national is unable to protect him or her. In Ward, La Forest J. wrote, at page 726:
In summary, I find that state complicity is not a necessary component of persecution, either under the "unwilling" or under the "unable" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. ...
Subsequently, in M.C.I. v. Kadenko et al. (October 15, 1996), A-388-95,[1] which related precisely to the state of Israel, Mr. Justice Décary, writing for the Federal Court of Appeal, stated, at page 2:
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
2 See Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171, at p. 176 (F.C.A.), approved by Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p. 725.
In the instant case, the applicants described a number of incidents in which police protection was not given in any concrete form. The tribunal concluded that the applicants' allegations on this point were exaggerated, because they were inconsistent with the documentary evidence which was that the state of Israel is a democratic state capable of protecting its citizens.
Having regard to the evidence in the record, I am of the opinion that the Refugee Division could reasonably have concluded that the applicants had not rebutted the presumption that the state of Israel was capable of protecting them. I further find that the applicants have not discharged the burden of proving that the inferences drawn by this specialized tribunal could not reasonably have been drawn. It is well known that in the area of credibility and assessment of the facts, it is not up to this Court to substitute itself for a tribunal where, as in the instant case, the applicants fail to show that the tribunal made a decision based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
Accordingly, since the applicants have further not satisfied me that the Refugee Division made any error that might warrant the intervention of this Court, the application for judicial review must be dismissed.
Like the parties, I do not believe that there is any question here to be certified.
OTTAWA, Ontario
June 30, 1997
YVON PINARD
JUDGE
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-2788-96
STYLE OF CAUSE: LIDIA BOYANSQI, BORIS BOYANSKY, DMITRY
OPALENIK, ANGELIKA BOYANSKY
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: JUNE 12, 1997
REASONS FOR ORDER OF PINARD J.
DATED: JUNE 30, 1997
APPEARANCES:
JACQUES BEAUCHEMIN FOR THE APPLICANTS
MICHÈLE JOUBERT FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALARIE, LEGAULT, BEAUCHEMIN, FOR THE APPLICANT
PAQUIN, JOBIN & BRISSON
MONTRÉAL
GEORGE THOMSON FOR THE RESPONDENT
ATTORNEY GENERAL OF CANADA
[1] Application for leave to appeal to the Supreme Court of Canada, no. 25689, dismissed on May 8, 1997.