Date: 19980114
Docket: IMM-3478-96
Ottawa, Ontario, the 14th day of January 1998
Present: The Honourable Mr. Justice Pinard
Between:
NIKOLAI SHMILEV,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review of the Convention Refugee Determination Division"s decision of September 4, 1996, which determined that the applicant is not a Convention refugee, is dismissed.
| YVON PINARD |
| JUDGE |
Certified true translation
Stephen Balogh
Date: 19980114
Docket: IMM-3478-96
Between:
NIKOLAI SHMILEV,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.:
This application for judicial review concerns a decision by the Convention Refugee Determination Division dated September 4, 1996 that the applicant, an Israeli national, is not a Convention refugee as defined in subsection 2(1) of the Immigration Act (the Act), basically for the following reasons:
| [TRANSLATION] Israeli society is not entirely free of harassment, discrimination or crime. The documentary evidence mentioned above, and that filed by counsel for the claimant, refers to this, but no objective evidence was adduced as to an absence of protection by the state, and even less as to any complicity whatsoever, whether active or passive, on the state"s part. |
| In the absence of clear and convincing proof rebutting this presumption, the panel is of the view that the claimant is not credible and that his story is not plausible. . . . |
It should be borne in mind that the Refugee Division is ordinarily at liberty to give greater weight to the documentary evidence submitted by the refugee hearing officer than to an applicant"s testimony. Mr. Justice Linden ruled on this point for the Federal Court of Appeal in Zhou v. M.E.I. (July 18, 1994), A-492-91. He wrote the following:
| 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.1 |
It has been established since Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, that to satisfy the definition of "Convention refugee", refugee claimants must advance clear and convincing proof that the state of which they are nationals is unable to protect them. In Ward, La Forest J. wrote the following 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. . . . |
Then, in M.C.I. v. Kadenko et al. (October 15, 1996), A-388-95,2 which also concerned the state of Israel, Mr. Justice Décary stated the following for the Federal Court of Appeal 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 case at bar, the applicant alleges that he was subjected to hostility, administrative harassment, and abuse, blows and injuries; he also alleges that the authorities did nothing to help him. The panel considered the applicant"s story implausible because it was inconsistent with the documentary evidence that Israel is a democratic state capable of protecting its citizens.
In light of the evidence in the record, I am of the view that it was reasonable for the Refugee Division to conclude that the applicant had not rebutted the presumption that the state of Israel was capable of protecting him.
As for the reference by the panel, in the excerpt from its decision reproduced supra, to the complicity of the state, it is my view, in light of the text of the entire passage, that the question of absence of complicity on the part of the state of Israel, which was irrelevant per se, was not a determining factor in the decision.
For these reasons, the application for judicial review is dismissed.
| YVON PINARD |
| JUDGE |
OTTAWA, ONTARIO
January 14, 1998
Certified true translation
Stephen Balogh
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3478-97
STYLE OF CAUSE: NIKOLAI SHMILEV v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 8, 1998
REASONS FOR ORDER BY PINARD J.
DATED: January 14, 1998
APPEARANCES:
Michelle Langelier FOR THE APPLICANT
Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANT
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 See also Victorov v. M.C.I. (June 14, 1995), IMM-5170-94, and Leonid Viacheslavov et al. v. Canada (M.C.I.) (November 29, 1996), IMM-48-96.
2 Application for leave to appeal to the Supreme Court of Canada, No. 25689, dismissed on May 8, 1997.