Ottawa, Ontario, June 19, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
YURI SVERDLOV (a.k.a. YOURI SAVARDELOV),
MAYA SVERDLOVA (a.k.a. MAYA SVERDLOV)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Yuri Sverdlov and Maya Sverdlova (the Applicants) are citizens of Israel who claim refugee protection in Canada. Ms. Sverdlova is a practising member of Jehovah’s Witnesses who fears persecution on the basis of her membership in that group. Mr. Sverdlov is Jewish and fears persecution in Israel as the husband of a non-Jewish wife. In a decision dated March 9, 2006, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the Board) determined that the Applicants were not Convention refugees or persons in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The Applicants seek judicial review of the decision alleging that the Board made a number of errors in its decision.
[2] The Board’s decision was based on three main findings:
- The Board did not believe that the events that allegedly formed the basis for their claim ever happened;
- Even if the events had happened as alleged, the harm did not amount to persecution; and
- In any event, the Applicants failed to rebut the presumption of state protection.
[3] If upheld, any one of these findings is determinative of the Applicants’ claim for protection. Thus, the Applicants would have to persuade the Court that the Board erred in all three findings. For purposes of this analysis, I will begin with the Board’s analysis of state protection. For the reasons that follow, I am satisfied that the Board did not err in a reviewable manner in this part of its decision. Accordingly, there is no need to review the credibility determination or the question of discrimination versus persecution.
[4] The onus rests with the Applicants to demonstrate, with clear and convincing evidence that the state of Israel is unable or unwilling to protect them (see, for example, Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1). In the case of Israel, a democratic state, that burden is not easily satisfied (Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 at 534 (F.C.A.), 206 N.R. 272). In this case, the Board found that the Applicants had not met their burden. Before reaching that conclusion, the Board examined considerable documentary evidence related not only the existence of Israel as a democracy, but as to the effectiveness of state protection for persons similarly situated to the Applicants; that is, the Board directly considered the willingness and ability of the state of Israel to protect former citizens of Russia and non-Jews.
[5] The Applicants assert that the Board failed to have regard to the post-hearing submissions and documentary evidence provided by the Applicants’ counsel. A failure to have regard to the evidence can be a ground for review of a decision. I note first that the Board is presumed to have considered all of the evidence before it. The post-hearing submissions were included in the Certified Tribunal Record; therefore, absent evidence to the contrary, there is a presumption that they were considered. The presumption would certainly apply to general country condition documents that do not add to the record already before the Board or to documents that have little inherent reliability or relevance to the personal situation of the Applicants. Having reviewed the submissions, I am not persuaded that there was anything in the package that required specific reference. The documents attached to the submissions are not from and have not been verified by an independent third party. For the most part, they appear to be website documents in the nature of hate propaganda. I would certainly not see these documents as credible or reliable. In its decision, the Board does acknowledge certain difficulties experienced by both Russian émigrés and Christians who proselytize; in my view, this demonstrates that the Board considered and was aware of the evidence in this regard, including the evidence produced post hearing. The Applicants have not persuaded me that the Board made its decision without regard to the evidence.
[6] The second alleged error is contained in one sentence in the state protection analysis. As noted by the Board (and by the Federal Court of Appeal in Kadenko, above at 534), in a democratic state, the Applicants are required to show that they have exhausted all reasonable remedies to obtain the necessary protection. In its decision, after referring to this principle, the Board states:
The panel finds that the claimants did not provide any evidence of providing the opportunity for the police to provide protection and mount a successful investigation. The police must be given adequate tools to investigate a crime. Information is a crucial tool and these claimants failed to pursue protection without adequate justification.
[7] The Applicants submit that they did indeed submit evidence of their attempts to access protection and that, therefore the words “did not provide any evidence” reflect a factual error.
[8] I cannot agree with the Applicants’ characterization of the Board’s statement. It is clear from a number of statements in the decision that the Board appreciated that the Applicants had allegedly made some approaches to the police. However, the Applicants were unable to provide any names of the individuals who had allegedly sent the hate notes. They also had failed to follow up on the most serious incident with a written report because, as Ms. Sverdlova testified, she did not have “any hope for assistance”. The Applicants’ allegation that their gas stove malfunction was an example of harassment appears to have been pure speculation – how could police follow-up without any evidence whatsoever to link the incident to any individuals? Where no names can be given or even guessed at, where no formal complaint is made or where the call to police is based on pure speculation, it would be impossible for the police to assist the Applicants. Thus, it is quite reasonable, on these facts, to say that the police were not provided with any evidence that would allow them to provide protection. In my view, this is exactly what the Board said and what it meant to say. There is no error.
[9] The Applicants also submit that the Board erred when it stated that they had not put an address or phone number on one complaint to the police. This likely was an error; the notice contained at least a street address. However, in light of the other evidence on the Applicants’ alleged efforts to engage police assistance, I am not persuaded that this error is material in the context of the analysis of state protection.
[10] Finally, with respect to the issue of state protection, the Applicants point out that the Board acknowledged the unwillingness of the state to protect non-Jews. For this, they rely on a statement by the Board that “the government discriminates against non-Jews”. This statement, they argue, constitutes an admission that the documentary evidence bears out their submission that the police will not help the Applicants. This argument has no merit whatsoever. At the time this observation was made by the Board, during the hearing, the Board was simply referring to one piece of documentary evidence. It certainly cannot be taken as an admission by the Board that the police are unwilling to protect non-Jews. In the decision, the Board reviewed a wide variety of documentary evidence that demonstrates that the state of Israel provides protection and assistance to non-Jews.
[11] In sum, the Applicants have failed to persuade me that the Board erred in its state protection finding. As this is a determinative issue, there are insufficient grounds to overturn the decision. Even if I were to find that both the credibility finding of the Board or the Board’s finding that the harassment does not rise to the level of persecution is flawed (which I do not believe), this Application would not succeed.
[12] The Application for Judicial Review will be dismissed. There is no question of general importance for certification.
ORDER
THIS COURT ORDERS that:
- The application for judicial review is dismissed; and
- No question of general importance is certified.
“Judith A. Snider”
____________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1683-06
STYLE OF CAUSE: YURI SVERDLOV ET AL v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 14, 2007
REASONS FOR ORDER
APPEARANCES:
|
Mr. Arthur I. Yallen |
|
|
Ms. Asha Gafar |
SOLICITORS OF RECORD:
|
Yallen Associates Barristers and Solicitors Toronto, Ontario
|
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada |