Toronto, Ontario, November 8, 2005
PRESENT: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for precision and clarification)
[1] The Applicant is a Palestinian Arab with Israeli citizenship. He was born in the village of Deer Hana, Israel to a conservative Muslim family. He submits that he was subjected to repeated harassment by citizens and police officers as he was a Muslim in a largely Jewish community. He claims a well-founded fear of persecution based on nationality (he is Arab), political opinion, and membership in a particular social group (young men targeted by Israeli security to be informers). He also claims he would be subjected personally to a risk to life, cruel and unusual treatment or punishment, or to a danger of torture.
[2] The Board denied his claim but accepted that the Applicant, as an Israeli Arab, faces discrimination in many spheres of life in Israel. However, it did not accept the Applicant's submission that the cumulative effect of this discrimination amounted to persecution. In its view, the detentions and interrogations the Applicant suffered did not amount to persecution given the heightened security prevalent in Israel as a result of suicide bombers. In addition, the Board found that his testimony was not credible as there were various discrepancies as to why he left, the number of demonstrations he participated in and his role in these demonstrations.
[3] The Applicant argues that in order to determine whether discrimination amounts to persecution the Board has to carefully assess the totality of the evidence. He relies on Sampu v. Canada(Minister of Citizenship and Immigration.), 2001 FCT 756, Ahangaron v. Canada (Minister of Citizenship and Immigration) (1999), 168 F.T.R. 315, and Erdos v. Canada(Minister of Citizenship and Immigration), 2003 FC 955. He argues that the Board failed to consider instances involving physical attacks, injury to his hands and hospitalization as well as the uprooting of fruit trees on his family farm.
[4] In respect of the distinction between discrimination and persecution, the Court of Appeal stated in Sagharichi v. Canada(Minister of Citizenship and Immigration) (1993), 182 N.R. 398 at para 3:
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 very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. 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 and unreasonable.
[5] Here the Board was aware that the central issue was whether the discrimination suffered cumulatively amounted to persecution. It examined the evidence, assessed the Applicant's credibility and came to the overall conclusion that:
I also find that his two short detentions and interrogation amount to discrimination and not persecution. The claimant was questioned regarding his presence in a "Jewish area". The claimant was slapped during one of his detentions. He was also stopped and searched on several other occasions. Given the heightened security, on account of the intifada (since 2000), and the suicide bombings in Israel, I believe that, although humiliating, the questioning and detentions could be viewed as necessary security measures. The incidents with the police did not deteriorate to include harm that could be construed as persecution, or a risk to his life, or cruel and unusual treatment or punishment, or to a danger of torture. I am not satisfied that being slapped on one occasion amounts to persecution.
[6] I am of the view that the Board did address the totality of the evidence. It was focused on the central issue and after weighing the evidence made a decision as mandated by Sagharichi, supra. It did not mention each alleged incidence in its decision, however, I don't think that is required as long as it is clear from the reasons that it performed an analysis of the key events regarding the issue of discrimination versus prosecution and came to a reasonable conclusion.
[7] The Board's failure to mention the incidents referred to by the Applicant (involving fights, stabbings, hospitalization, and uprooting of fruit trees) does not establish either that a) the Board failed to address the totality of the evidence, or b) that the conclusion is, in the words of Sagharichi, supra, capricious or unreasonable.
[8] Accordingly this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1494-05
STYLE OF CAUSE: NIMER ABU EL HOF
Applicant
and
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPARDENESS
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 7, 2005
AND ORDER BY: VON FINCKENSTEIN J.
APPEARANCES:
C. Julian Jubenville FOR APPLICANT
SOLICITORS OF RECORD:
C. Julian Jubenville
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT