IMM-2640-96
OTTAWA, ONTARIO, this 30th day of June 1997
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN
STANISLAV JAKHOVETS,
ANATOLY JAKHOVETS,
IRINA JAKHOVETS,
TATIANA JAKHOVETS,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
O R D E R
The application for judicial review of the decision of the Refugee Division dated July 5, 1996, determining that the applicants are not Convention refugees, is dismissed.
YVON PINARD
JUDGE
Certified true translation
C. Delon, LL.L.
IMM-2640-96
BETWEEN
STANISLAV JAKHOVETS,
ANATOLY JAKHOVETS,
IRINA JAKHOVETS,
TATIANA JAKHOVETS,
Applicants,
- 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 5, 1996, determining that the applicants 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 found that the applicants' testimony was [translation] "credible and not exaggerated, overall" and therefore accepted the facts recounted by them as established. However, the tribunal thought that the integration problems and harassment experienced by the applicants were more in the nature of discrimination than of persecution; accordingly, it concluded that they did not have a well-founded fear of persecution. At page 7 of its decision, the tribunal wrote:
[translation]
| The claimants' problems are problems of adapting in a new country and do not, even cumulatively, establish fear of persecution. The claimants were also harassed by the population, which was reacting to the arrival of nationals of the former USSR who are changing the Israeli landscape and the politics of the country. In addition, there is the fact that the male claimant is not Jewish and that the purpose of the Law of Return is for Jews to return to Israel and that some people are not Jews. The discrimination suffered by the claimants was confirmed by the documentary evidence. |
It is settled law that it is entirely within the jurisdiction of the Refugee Division to make a finding of discrimination rather than persecution. In Sagharichi v. Canada (August 5, 1993), A-169-91, Marceau J.A. stated, at page 2:
| It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may well be seen as amounting to persecution. ... It remains, however, that in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable. |
In the instant case, having regard to the evidence, I am of the opinion that the applicants have not discharged the burden of establishing that the tribunal's finding on this point was unreasonable or capricious. I believe that counsel for the applicants came forward too late with his complaint that certain specific exhibits may not have been before the Refugee Division; rather than waiting for the hearing in this Court, he could and should have raised and developed that argument in a supplementary memorandum. I must therefore conclude that the applicants have not rebutted the presumption laid down in the case law, which is that the tribunal considered all the evidence submitted to it before making its findings and, moreover, that failure to refer to certain evidence in the decision does not establish that the tribunal was not aware of it.1
Moreover, after hearing counsel for the parties and read their written memoranda, I am not satisfied that the tribunal made any error that might warrant the intervention of this Court.
Accordingly, the application for judicial review is dismissed. Like counsel for the parties, I do not believe that there is any question here for certification.
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-2640-96
| STYLE OF CAUSE: STANISLAV JAKHOVETS, ANATOLY JAKHOVETS, IRINA JAKHOVETS, TATIANA JAKHOVETS v. MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: JUNE 11, 1997
REASONS FOR ORDER OF PINARD J.
DATED: JUNE 30, 1997
APPEARANCES:
YVES GRAVEL FOR THE APPLICANT
ANNIE VAN DER MEERSCHEN FOR THE RESPONDENT
SOLICITORS OF RECORD:
YVES GRAVEL FOR THE APPLICANT
MONTRÉAL
GEORGE THOMSON FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
__________________
1 See, for example, Hassan v. M.E.I. (1992), 147 N.R. 317, 318 (F.C.A.).