Date: 19971212
File: IMM-4668-96
BETWEEN:
AMIR SBITTY,
Applicant,
-and-
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
ROULEAU J.
[1] The application for judicial review is allowed.
"P. ROULEAU"
JUDGE
OTTAWA, Ontario
December 12, 1997
Certified true translation
C. Delon, LL.L.
Date: 19971212
File: IMM-4668-96
BETWEEN:
AMIR SBITTY,
Applicant,
-and-
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of the decision of the Refugee Division dated November 25, 1995, determining that the applicant, a citizen of Israel, is not a Convention refugee as defined by subsection 2(1) of the Immigration Act. On September 2, 1997, Noël J. granted leave to file an application for judicial review in this case.
[2] The applicant was born in Israel on September 24, 1974; his nationality is Palestinian, his religion Catholic and his citizenship Israeli. While he resided in Israel he lived in the Arab quarter of Haifa.
[3] The applicant's problems began in the spring of 1993 when he was involved in skirmishes with the Israeli police and the Jews in Haifa. On April 26, 1993, more specifically, the applicant was detained by the police and beaten, suffering blows all over his body. According to the applicant, this situation became intolerable and he temporarily left Israel. He came to Canada to visit members of his family from December 1993 to May 1994.
[4] In about June 1994, shortly after he returned, police officers from the Israeli Security Services started questioning him about thefts and crimes committed in the neighbourhood. In addition, he was harassed to get him to be a collaborator for the State of Israel. Among other things, he was given to understand that if he refused to collaborate with them life would be hard for him. In fact, the Security Services arrested him and tried to get information from him about all the minor offences that had been committed in the neighbourhood.
[5] According to the applicant, the Security Services tried several times to accuse him of crimes he had not committed. In particular, in December 1994, they arrested one of his friends and charged him with drug trafficking; they tried in vain to get him to admit that the applicant was trafficking in drugs. A week later, the Security Services arrested the applicant and kept him in detention for two days on the pretext of drug trafficking. He was released, but a week later he was charged with burglary. That time the applicant was imprisoned for ten days and then released.
[6] One day after he was released, the police arrested the applicant again to get a sample of his signature. Another burglary had been committed in his neighbourhood, apparently by a left-handed person. Since the applicant was right-handed, he was released immediately. That was when the applicant understood that the security forces would use every method they could to try to find him guilty of some crime and to compel him to collaborate against the Palestinians. The applicant then left Israel and came to Canada on March 6, 1995.
[7] The applicant made a claim to the Immigration and Refugee Board alleging a well-founded fear of persecution in his country by reason of his Palestinian origin. The hearing was held on June 13 and August 14, 1996, and the decision was issued on November 19, 1996. On that date, the Refugee Division (the "Board") decided that the applicant was not a "Convention refugee" as defined in subsection 2(1) of the Act.
[8] The Board concluded that the applicant was completely non-credible, for the following reasons:
| [TRANSLATION] ... because his testimony appeared to us to be implausible in relation to elements of his claim. Moreover, we found the claimant's testimony to be vague and such as would lead the tribunal to think that the claimant was not taking the matter seriously. |
[9] The Board gave several examples on this point in its decision, and more specifically with respect to the incident that occurred on April 26, 1993. According to the Board, the medical certificate submitted by the applicant in no way showed that the applicant had injuries, and it concluded that the certificate contradicted the allegation that he had been beaten all over his body.
[10] In addition, the Board noted that at the hearing on June 13, 1996, the applicant testified that in December 1994 he had been arrested by the police for 24 hours, while his PIF indicated that he had been detained for a period of two days. At the hearing on August 14, 1996, he testified that in reality he had been detained for two days.
[11] The Board further noted that the applicant had changed his facts with respect to his countless problems with the police between 1990 and 1993; first, he stated that he had been subjected to searches three or four times a month, but later, at the hearing, he contradicted himself and said that the Security Services had come to his home only twice between 1990 and 1993.
[12] The Board also found that the applicant had an internal flight alternative in Israel. In its decision, it stated:
| [TRANSLATION] We would also point out that we suggested to the claimant that he could have moved from the neighbourhood or the city to avoid the demand made by the police. The claimant answered that the situation would be the same in other neighbourhoods or other cities in Israel. We cannot accept this answer, since the police were interested in him only because he lived in that neighbourhood and was known there. If the claimant had had his residence in another neighbourhood or another city, he would have had no value to the police, since the police were interested in what was going on specifically in his neighbourhood. |
[13] The Board determined that there is a unit in the Israeli Justice ministry that specifically handles citizen complaints concerning police conduct. When he was questioned as to this fact, the applicant testified that he had not used this recourse and that he was not aware of its existence.
[14] Lastly, the Board concluded that even if the applicant had proved that he had suffered persecution, the documentary evidence shows that the State of Israel was capable of protecting him, and that in this case the applicant had been unable to produce any clear and convincing evidence that the State was incapable of protecting him.
[15] The points in issue are as follows:
| (1) Did the Board err in determining that the applicant was not credible? |
| (2) Did the Board err when it determined that the applicant had a viable internal flight alternative? |
| (3) Did the Board err when it determined that the applicant could seek the protection of the State of Israel? |
[16] The determination of credibility is a question of fact.1 The panel of the IRB that hears a refugee claim is in a unique position to assess the claimant's credibility; findings of fact based on internal contradictions, inconsistencies and evasive statements are "the heartland of the discretion of triers of fact".2 Considerable restraint must therefore be exercised in judicial review proceedings in respect of findings relating to credibility, and they may not be set aside unless they were made in a perverse or capricious manner or without regard for the material before the Board.3
[17] As stated by Noël J. in Oduro v. M.E.I.:4
| However, it is not for me to substitute my discretion for that of the Board. The question I must consider is whether it was open for the Board on the evidence to conclude as it did ... the fact that I might have seen the matter differently does not allow me to intervene in the absence of an overriding error. |
[18] Similarly, in Aguebor v. M.E.I.,5 this Court held:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Refugee Division are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. |
[19] The applicant states that the Board erred in determining that he was not credible. More specifically, the applicant contends that the Board erred in its assessment of the testimonial evidence submitted with respect to the events of April 26, 1993, the length of the arrest in December 1994 and the searches of the applicant's home between 1990 and 1993.
[20] With respect to the events that occurred on April 26, 1993, the Board found the applicant's testimony not to be credible since, in its view, the medical evidence did not support the facts submitted by him. I examined the certificate in question and I noted that the medical report was divided into two parts. The first conclusion was reached by a urologist, and the second by an orthopaedic surgeon. The translation of the urologist's expert opinion reads as follows:
| There was no pathology in urological examinations. |
[21] On the other hand, the orthopaedic surgeon confirmed:
| The patient of 18 was hurt on the head, in the area of genitals and the upper part of his back. |
[22] Another medical report dated August 26, 1996, is found in Exhibit 42 in the applicant's record, and states:
| Amir Sbitty passed a medical examination earlier today ... he declared he was hit by someone several times on the 26th of April 1993 ... Description of wounds and bruises: wound on the front of the head, the size is about 0.35 cm - bruise on the eyelid of the right eye - wound around the right eyebrow - sensitive when touched on the right knee - feels pain - bruise on the right forearm - 5 cm long - also feels severe pain when touched on numerous parts of his body. |
[23] It seems to me, based on this evidence, that the Board should have considered the testimony of these two physicians, or at least rejected it in its conclusion.
[24] With respect to the question of the arrest in December 1994, the Board noted that at the hearing on June 13, 1996, the applicant testified that in December 1994 he was arrested by the police for 24 hours, while his PIF indicated that he had been detained for a period of two days. At the hearing on August 14, 1996, he testified that in reality he had been detained for two days. The Board determined that this was another factor that showed that the applicant was not credible.
[25] In my view, this inconsistency is not important, and is merely a minor contradiction that could not reasonably permit the Board to reject the applicant's testimony as lacking credibility. In Attakora,6 the Federal Court of Appeal stated:
| I have mentioned the Board's zeal to find instances of contradiction in the applicant's testimony. While the Board's task is a difficult one, it should not be over-vigilant in its microscopic examination of the evidence of persons who, like the present applicant ... tells tales of horror in whose objective reality there is reason to believe. |
[26] Finally, with respect to the question of the searches of the applicant's home between 1990 and 1993, I am satisfied that the Board erred in assessing the evidence. Both the applicant's affidavit and the PIF point out that the police searched Mr. Sbitty's home only after the 1993 period.
[27] For these reasons, I am of the opinion, on the first issue, that the Board made a capricious decision without regard for the material before it.
[28] On the second two issues, although the respondent suggested that he did not have to address them since the Board found the applicant not to be credible, I wish to make the following comments.
[29] The Board concluded that the applicant had an internal flight alternative. I am of the opinion that the Board erred on this point. It does not seem to have considered the situation of a Christian Palestinian living in Israel. In its analysis, it suggested that only the police in his neighbourhood were harassing him and that by moving he could avoid persecution. The Board totally ignored the reasonableness of the applicant's internal flight alternative as a Palestinian. As this Court stated in Thirunavukkarasu:7
| An IFA [internal flight alternative] cannot be speculative or theoretical only; it must be a realistic, attainable option. |
[30] For these reasons, I am of the opinion that the Board committed an error of law on this point.
[31] On the question of the protection offered to the applicant by the State of Israel, here again the Board erred. The Security Services which were harassing the applicant are a judicial body of the State of Israel. At the hearing, the applicant was unable to produce clear and convincing evidence as to the State's ability to protect him since he was totally unaware of the existence of a unit which apparently handles citizen complaints concerning police conduct. I strongly doubt that a Christian Palestinian who is continually harassed by the police in the neighbourhood, and who is desired as a collaborator to report on the activities of his fellow citizens, could obtain the protection of the State or even find refuge in another region.
[32] The evidence in the instant case does not contain sufficient serious material to support the decision of the Refugee Division. For these reasons, the application for judicial review is allowed.
"P. ROULEAU"
JUDGE
OTTAWA, Ontario
December 12, 1997
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-4668-97
STYLE OF CAUSE: Amir SBITTY v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 27, 1997
REASONS FOR ORDER OF ROULEAU J.
DATED: December 12, 1997
APPEARANCES:
Jacques Beauchemin FOR THE APPLICANT
Lisa Maziade FOR THE RESPONDENT
SOLICITORS OF RECORD:
Alarie, Legault, Beauchemin, Paquin , FOR THE APPLICANT
Jobin & Brisson
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 White v. R., [1947] S.C.R. 268.
2 Dan-Ash v. M.E.I. (1988), 93 N.R. 33 (F.C.A.); Giron v. Canada (M.E.I.) (1992), 143 N.R. 238.
3 Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.).
4 Oduro v. M.E.I. (1993) F.C.J. No. 56 (F.C.T.D.)
5 Aguebor v. M.E.I., 160 N.R. 315 (F.C.A.).