Date: 19980323
Docket: IMM-2366-97
Ottawa, Ontario, the 23rd day of March 1998
Present: The Honourable Mr. Justice Pinard
Between:
POLINA GULIN
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of the Refugee Division dated May 5, 1997, which determined that the applicant is not a Convention refugee, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19980323
Docket: IMM-2366-97
Between:
POLINA GULIN
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
1 This is an application for judicial review of a decision of the Convention Refugee Determination Division (the Refugee Division) dated May 5, 1997, which determined that the applicant is not a Convention refugee. The applicant, a national of Israel, alleges that she fears persecution for reasons of race, religion, nationality and membership in a particular social group.
2 Although the facts in the applicant"s testimony had been established to its satisfaction, the Refugee Division found that the applicant had not succeeded in establishing a well-founded fear of persecution, mainly for the following reasons:
| - the applicant is Jewish, as reflected in her internal passport; |
| - the applicant no longer faces a possibility of persecution by reason of her husband"s testimony at the inquiry into the accident in question, as her husband has disappeared; |
| - there must be access to justice in Israel, as an Arab employee stands to be awarded a substantial sum of money should his employer be found to have been negligent; what is more, justice must be feared for someone to have gone after the applicant"s husband to persuade him to withdraw his testimony on the matter; |
| - the applicant is not a practising Christian, and in any event, the documentary evidence refers to resentment toward Christians, not persecution; |
| - the applicant"s problems are due to her husband"s experience with his former employer, not her religious beliefs. |
3 More specifically, regarding the failure of the police to act, the Refugee Division stated the following:
| [TRANSLATION] The police required evidence before acting. It is hard to take action against anonymous calls from a telephone booth. When assaulted, the claimant and her family members could say only that they had been assaulted, nothing more. The police needed names, addresses or a good description of the assailants in order to take action. The police did not refuse to take action, but wanted more information before doing so. |
4 After reviewing the evidence in the record, I agree with the inference the Refugee Division drew from it that all the major incidents described by the applicant seem to stem from the assailants" desire to influence her husband"s testimony. It was therefore open to the panel to find that the applicant"s fear of persecution was no longer well founded after her husband disappeared. Whether a fear of persecution is well founded must be assessed on the basis of the possibility of persecution at the time the claim is being considered, not on the basis of the possibility at the time the claimant fled his or her country (see Mileva v. Canada (M.E.I.) , [1991] 3 F.C. 398 (C.A.)). It is therefore my view that the applicant has not discharged her burden of showing that the inferences drawn by the Refugee Division, which is an expert tribunal, could not reasonably have been drawn (see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.)).
5 As for the applicant"s argument based on the failure of the State of Israel to provide protection, the Refugee Division observed that a non-Jew was expecting to obtain justice in respect of a workplace accident and that the applicant"s family had never managed to provide the information the police needed in order to help them. The Supreme Court of Canada held in Canada (Attorney General) v. Ward , [1993] 2 S.C.R. 689, that a refugee claimant must give clear and convincing proof of his or her state"s inability to protect. More specifically in reference to Israel"s ability to protect its nationals, the Federal Court of Appeal stated as follows in Kadenko et al. v. Canada (Solicitor General) (1996), 206 N.R. 272, at page 273:
| . . .Once it is assumed that the state (Israel in this case) has political and judicial institutions capable of protecting its citizens, it is clear that the refusal of certain police officers to take action cannot in itself make the state incapable of doing so. The answer might have been different if the question had related, for example, to the refusal by the police as an institution or to a more or less general refusal by the police force to provide the protection conferred by the country"s political and judicial institutions. |
6 In the circumstances of the case at bar, the applicant has clearly not discharged the burden of showing that the State of Israel failed in its duty to protect its nationals.
7 For all these reasons, the application must be dismissed.
8 This is not an appropriate case for certification under Rule 18(1) of the Federal Court Immigration Rules, 1993.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
March 23, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2366-97
STYLE OF CAUSE: POLINA GULIN v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: MARCH 10, 1998
REASONS FOR ORDER BY PINARD J.
DATED: MARCH 23, 1998
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
LISA MAZIADE FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANT
MONTRÉAL
GEORGE THOMSON FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA