Date: 20030220
Docket: IMM-186-02
Ottawa, Ontario, February 20, 2003
Before: Pinard J.
Between:
Uliana SOKOLOVSKY
Sergey SOKOLOVSKY
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from the decision by the Refugee Division of the Immigration and Refugee Board on December 23, 2001, that the plaintiffs are not Convention refugees, is dismissed.
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"Yvon Pinard" Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20030220
Docket: IMM-186-02
Neutral citation: 2003 FCT 187
Between:
Uliana SOKOLOVSKY
Sergey SOKOLOVSKY
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board ("the IRB") on December 23, 2001, that the plaintiffs are not Convention refugees as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The IRB refused to allow the plaintiffs refugee status, concluding as follows:
[TRANSLATION]
. . . the female claimant did not discharge her burden that she had a valid fear of persecution in her last country of habitual residence, Israel. For the same reasons, the tribunal also does not feel that her son Sergey would be threatened with persecution if he had to return to his country of habitual residence.
[3] The tribunal gave the following reasons in support of its decision:
- during her testimony, the female plaintiff demonstrated a lack of cooperation and frequently refused to answer questions put clearly: she also lacked transparency and spontaneity;
- the female plaintiff maintained that the male plaintiff was stateless, though the identification documents she filed confirmed that he was born in Russia and that he, his father and the female plaintiff were Russian;
- the plaintiff did not clearly explain the contradiction between her son's personal documents, the personal information form and the point of entry notes, regarding the name of her son's father: accordingly, she gave evidence in bad faith;
- there are inconsistencies in the plaintiff's testimony, when she says that her passport had expired long ago, but she renewed her Russian nationality in Israel five years after she left Russia, and on other subsequent occasions;
- the tribunal does not believe that the male plaintiff is stateless: he was entered on the female plaintiff's Russian passport; further, his Israeli travel document indicated that his nationality was "undefined", which in the opinion of the IRB meant that the child's nationality had not yet been defined, since he was still a minor and could choose for himself at his majority;
- the female plaintiff's ambiguous attitude throughout her testimony and her evasive replies made her a witness completely lacking in credibility;
- the female plaintiff contradicted herself when she maintained that she could not agree to the circumcision of her son because they were Orthodox Christians: if the female plaintiff had really been a Christian, she could not have made use of the benefits of the Law of Return, 5710-1950, and emigrated to Israel alone without a spouse, as she did;
- the female plaintiff's replies about her various allegations of persecution were not convincing and included half-sentences and generalities from scratch; and
- the female plaintiff did not provide clear and persuasive evidence that the government could not come to her assistance and protect her, since she was unable to show satisfactorily that she had taken any serious steps to seek protection.
[4] The plaintiffs alleged that the IRB made an error of law by misinterpreting the Law of Return. The tribunal doubted the way in which the female plaintiff was able to obtain her Israeli nationality, and found she was probably not a Christian.
[5] Although this conclusion was based on a misinterpretation of the Israeli legislation, which counsel for the defendant now admits, it was not directly related to the alleged fear of persecution. Only the argument of membership in a particular social group was raised before the IRB. Further, the mistake about interpretation of the Law of Return was not decisive as to the question of credibility, in view of the many other reasons offered in this regard by the tribunal, reasons which on reviewing the evidence seem to the Court to be entirely reasonable and clearly explained.
[6] The plaintiffs argued, in particular, that the IRB also erred in not accepting the idea that, for the time being, the male plaintiff Sergey is not an Israeli national, nor a national of any other country, since this would have been indicated in his Israeli travel documents.
[7] The IRB was free to doubt the female plaintiff's explanation regarding the description of the nationality of the male plaintiff Sergey in his Israeli travel documents as "undefined". Since he was born in Russia and there is no proof he renounced his Russian nationality, it was not unreasonable for the IRB to find that he was not stateless.
[8] The plaintiffs argued, finally, that the IRB made an error in concluding that the State of Israel could provide the female plaintiff with protection. In this regard, the Supreme Court of Canada said the following in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 724 and 725:
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a State's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.
(My emphasis.)
[9] In the case at bar, the plaintiff did not satisfy the IRB that she had tried to get protection from the Israeli authorities. The tribunal's conclusion was not unreasonable, since the evidence showed that the female plaintiff only went to non-governmental bodies in an effort to obtain assistance: she did not go to the police or to other government agencies. The Court must assume here that the government of a democratic state like Israel can protect its citizens.
[10] For all these reasons, this Court's intervention is not warranted and the application for judicial review is dismissed.
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"Yvon Pinard" Judge |
OTTAWA, ONTARIO
February 20, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-186-02
STYLE OF CAUSE: Uliana SOKOLOVSKY, Sergey SOKOLOVSKY v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 8, 2003
REASONS FOR ORDER BY: Pinard J.
DATED: February 20, 2003
APPEARANCES:
Eveline Fiset FOR THE PLAINTIFFS
Diane Lemery FOR THE DEFENDANT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE PLAINTIFFS
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario