Date: 20050805
Docket: IMM-7356-04
Citation: 2005 FC 1070
Ottawa, Ontario, August 5, 2005
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
YULIA GISINSKY
MICHAEL GISINSKY
BEN GISINSKY (a.k.a. BEN GAISINSKI)
ALEKS GAISINSKI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated July 24, 2004 in which the Applicants were found not to be AConvention refugees@ or Apersons in need of protection@ pursuant to sections 96 and 97 of the Act.
[2] Yulia Gisinsky, her husband Aleks Gaisinsky and their sons Michael and Ben are all citizens of Israel. Yulia Gisinsky (the female Applicant) was designated to represent her minor son Ben. The Applicants based their claims on nationality, Ukrainian, and membership in a particular social group, a mixed marriage family. In addition, Yulia, Michael and Ben also based their claims on religion, Orthodox Christians. In addition, Michael (the adult son) made a claim based on conscientious objection to serving in the Israeli Defence Force (IDF). The Applicants also claim they would be subjected personally to a risk to their lives or to cruel and unusual treatment or punishment.
[3] The female Applicant alleged that as the non-Jewish wife of a Jew from Ukraine she faced harassment and physical assaults from members of Shas who pressured her to convert and threatened to burn down her house. She alleged she had problems finding a job on account of her religion and her nationality, that her ability to worship was curtailed by the requirement to work on Sunday=s, and that she would face serious harm if she were to return to Israel. On the other hand, the adult son alleged he objected to serving in the military on account of his religion, and that he was a conscientious objector to the actions of the IDF, against civilians in the Occupied Territories, and that he was a pacifist. He alleged he would be sent to jail for up to ten years if he were to refuse to serve.
[4] The Board first determined that there is not a serious possibility that non-Jews from the former Soviet Union, Christians, or mixed marriage families, such as the Applicants, would face persecution, or that they would face a danger, believed on substantial grounds to exist, of torture, or of a risk to life, or cruel and unusual treatment or punishment upon their return to Israel. This latter determination has not been challenged by the Applicants. Therefore, the sole question in these proceedings is whether this Court should set aside the second part of the impugned decision where the Board determines that the adult son has not established, on a balance of probabilities, that he is a conscientious objector or a pacifist and therefore, there is not a serious possibility that he would be persecuted for a Convention ground if he were to return to Israel.
[5] The relevant portions of the Board's decision dealing with the conscientious objector/pacifist issue read as follows:
[6] In the present case, the Applicants submit that the Board made an obvious factual mistake in assuming that their adult son was present in Canada in November 2002. This point is conceded by the Respondent. That being said, given the relative importance given to this latter element in the impugned decision, the Applicants argue that this error materially affects the finding made by the Board. The Applicants further argue that the Board overlooked their explanations for why the adult son did not go to church and publicly manifest his alleged Christian beliefs. Indeed, the female Applicant was unable to take Sunday's off, and as a result, Michael was unable to attend Church which was located in a different city. Moreover, Michael did not drive a car, and it was too dangerous to take a bus due to bombings.
[7] In my view, the Board could reasonably conclude that the adult son is not a true conscientious objector based on the lack of credible evidence. While the Board made a factual error in considering that Michael was present in Canada at the time his parents first came to Canada in November 2002, this, in itself, is not sufficient to render the Board=s principal finding patently unreasonable. Indeed, it is apparent from reading of the reasons above that the Board took into account several other relevant factors, namely that Michael rarely attended church in Israel, that he did not make his views known publicly and that he did not make contact with any objector/pacifist group or individuals in Israel. The Board also considered that Michael had difficulty providing answers to simple questions in connection with his alleged beliefs.
[8] The Board is better placed than this Court to determine whether there is sufficient evidence to support the allegations that the adult son was a conscientious objector or pacifist. It is not a matter of simply stating that one fears to be persecuted for a particular reason, here on the ground of being a conscientious objector or pacifist. The Board is entitled to consider the actions of the claimant. What is important here is the fact that the Board found that there was no outward manifestation, no 'showing' of the adult son's beliefs. This is certainly a relevant consideration. The Board was not obliged in its reasons to explicitly refer to the Applicants' explanations unless same would affect the Board's reasoning in this case. This is manifestly not the case here. Accordingly, I also dismiss the Applicant's submission that the omission of the Board to recite all the explanations given by the Applicants renders its ultimate finding patently unreasonable.
[9] In conclusion, the present application must fail. No question of general importance has been proposed for certification and none shall be certified by the Court.
ORDER
THIS COURT ORDERS that the present application for judicial review be dismissed.
"Luc Martineau"
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7356-04
STYLE OF CAUSE: YULIA GISINSKY
MICHAEL GISINSKY
BEN GISINSKY (a.k.a. BEN GAISINSKI)
ALEKS GAISINSKI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 3, 2005
REASONS FOR ORDER
AND ORDER BY: MARTINEAU J.
APPEARANCES BY:
Gary Mazin For the Applicants
Stephen Jarvis For the Respondent
SOLICITORS OF RECORD:
Gary Mazin
Barrister and Solicitor
Toronto, Ontario For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent