Date: 20000707
Docket: IMM-4364-99
BETWEEN:
ANDREA WEISS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, given orally August 18, 1999, and signed September 15, 1999. The Board determined that the applicant was not a Convention Refugee.
[2] The applicant's claim was based on a fear of persecution in Israel because of ethnicity as a non-Jew and because she had deserted from the Israeli army prior to coming to Canada. In her PIF, the grounds of her claim were listed as membership in a social group "conscientious objectors and family member of persecuted individual."
[3] The applicant seeks judicial review on the grounds that: the tribunal's conduct of the hearing raised a reasonable apprehension of bias; the tribunal made a perverse finding when it found that the treatment the applicant received in Israel was harassment or discrimination, but not persecution; the tribunal erred in not properly considering the treatment that the applicant anticipates will be meted out to her for deserting from the Israeli army.
Reasonable Apprehension of Bias
[4] Counsel for the applicant submits that interjection by panel members of their own questions throughout the direct-examination of the applicant was not only inappropriate but gives rise to a reasonable apprehension of bias. The applicant in her affidavit states:
| There was no Refugee Claim Officer present to assist the panel at my hearing and from the outset of the hearing the Board members' attitude towards me was hostile and aggressive. Throughout the whole time that my counsel was asking me questions, for every question that he asked one or the other of the Board Members would interrupt with three or four more questions of their own. I found their attitude oppressive and intimidating and their constant interruptions made it very difficult for me to follow my counsel's line of questions and the result was very confusing for me. Because of these problems I felt that my case was not being dealt with fairly and as a result, their negative decision came as no real surprise to me. [Footnote omitted.] |
[5] Applicant's counsel refers to the case of Zheng v. Canada (Minister of Employment and Immigration) (1994), 28 Imm.L.R. (2d) 191; Del Castillo v. M.E.I. (1994), 79 F.T.R. 207 and Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300.
[6] A review of the transcript reveals that the Board members did ask frequent questions but, in general, they were seeking clarification of the applicant's evidence; they did not take over counsel's role; they did not impede the applicant and her counsel's ability to present the case as they wished; there were no abusive or rude remarks.
[7] The relevant parts of the transcript are quoted:
PRESIDING MEMBER: I would also like the Claimant to testify as to her citizenship.
| MR. DARWENT [applicant's counsel]: Yeah. |
| MS. DE ROUSSEAU [Board member]: She's also indicated in Question 13 of her Personal Information Form that she appears to be advancing a claim against Ukraine. |
| PRESIDING MEMBER: That's why we need her testimony. We only have documentary evidence and we'll weigh both documentary evidence and the oral evidence to determine the outcome of that particular issue. |
. . .
| PRESIDING MEMBER: That's in 1991? |
. . .
| PRESIDING MEMBER: ... There were three questions. I think counsel may have to address them one by one. |
| MR. DARWENT: I'll go one by one. |
. . .
| PRESIDING MEMBER: Please address the conflicting evidence that we have in the PIF as to why would she put what she did. |
| PRESIDING MEMBER: Perhaps you can just show her the question. Start with 13, I guess. |
| PRESIDING MEMBER: Yeah -- or 12, sorry. Start with 12. |
| THE CLAIMANT: Oh, because I was born there, so I guess I'm a citizen of Ukraine too. But I don't have a passport. |
| PRESIDING MEMBER: Have you ever renounced your citizenship? |
THE CLAIMANT: No.
| PRESIDING MEMBER: So on one hand you do believe that you are a citizen of the Ukraine, and on the other hand -- |
| THE CLAIMANT: Yes and no. |
| PRESIDING MEMBER: So basically you don't know? |
| THE CLAIMANT: Basically I don't know. Not really. |
| PRESIDING MEMBER: Okay, well, you do have the documentary evidence that indicates an individual holding an Israeli citizenship who wishes to obtain Ukrainian citizenship must renounce his or her Israeli citizenship. And we have indication that the Ukraine does not allow dual citizenship. So it seems to me that there's evidence to show that once you received your Israeli citizenship, your Ukrainian citizenship had been revoked. Is that possible? Do you know? Have you -- you've had no indication whatsoever? |
| THE CLAIMANT: I have no idea. I don't know the laws. |
| PRESIDING MEMBER: Okay. Have you any questions on that? |
| MS. DE ROUSSEAU: How old were you when you came to Israel? |
| THE CLAIMANT: 12 years old, 13. |
| MS. DE ROUSSEAU: Did you have your own passport or were you on your parents' passport? |
| THE CLAIMANT: No, my parent's passport. |
| MS. DE ROUSSEAU: And the documentation that brought you to Israel, was there anything done separately for you or were you down as part -- |
| THE CLAIMANT: No, I was part of the family, nothing separately. That's what my parents told me. I was separately. |
| MS. DE ROUSSEAU: I have nothing further. |
| MR. DARWENT: Thank you. so I take it that that's now resolved, that issue? We are dealing solely with Israel? |
| PRESIDING MEMBER: Unless you have some submissions on that regard. |
. . .
| PRESIDING MEMBER: I'm sorry, you didn't what? |
| THE CLAIMANT: I don't know if there were any non-Jewish people in my school. |
| PRESIDING MEMBER: Sorry, to interrupt, but, counsel, could we clarify the age? You just said 12 years old. |
| THE CLAIMANT: 12 or 13. I was born in '78, so ... |
| PRESIDING MEMBER: It's just that on the CIC document written by the Claimant it indicates 13. |
| THE CLAIMANT: Yeah, 12 or 13. I wasn't 13. My birthday is in March, so we came there in December. so I was turning 13. |
| PRESIDING MEMBER: Okay. Thank you. |
. . .
| MS. DE ROUSSEAU: And where you had this interview, is that a part of the army or is it something outside of the army? |
| THE CLAIMANT: That's a part of the army. Well, before you really join the army, they give you some kind of an idea what the army is and interviews and medical examinations. |
| MS. DE ROUSSEAU: So if you're asking to be exempted from service, you actually have to ask the army itself or the military itself? |
| THE CLAIMANT: Yeah. well, it is the military. |
| Q. And they said no, you've got to go? |
| THE PRESIDING MEMBER: Are you aware of the International Movement of Conscientious War Resistance in Israel? |
| THE CLAIMANT: What does that mean? |
| THE PRESIDING MEMBER: It's a group that counsel people in their attempts to obtain exemptions. |
| THE PRESIDING MEMBER: No. Okay, so you only spoke to someone when they were recruiting you? |
| THE CLAIMANT: Well, I wrote letters, Yeah. |
| THE PRESIDING MEMBER: Okay. Let's get the details. Perhaps counsel can take you through it. |
| THE PRESIDING MEMBER: Did you tell them why you didn't want to join the army? |
| THE PRESIDING MEMBER: And what did you tell them? |
| THE CLAIMANT: I told them that I was afraid because I'm not Jewish, because I know how people treated me when I was in high school so the army is really different from high school. |
| THE PRESIDING MEMBER: Counsel, I don't know that that's the evidence. I think it - I just caution you not to lead the witness. |
| MR. DARWENT: Well, the evidence is that she left the army. |
| THE PRESIDING MEMBER: Yes. |
| MS. DE ROUSSEAU: Say that again. |
| THE CLAIMANT: It happened a couple of months later when I almost was raped. |
| MS. DE ROUSSEAU: Do you know the date or -- I'm just trying to figure out when this was because we don't know -- |
| THE CLAIMANT: It was in the summer, something like that. |
| MS. DE ROUSSEAU: Summer of what year? |
| THE CLAIMANT: Well, I went to the army in '97 -- no, '96. I guess it was in '97, in the summer, something like that. I don't remember the dates. I'm not good at those things. |
| THE PRESIDING MEMBER: So sometimes in the summer of 1997 is what you believe? |
| THE CLAIMANT: Yeah, I think so. When the first months of them, year. I don't remember. Don't ask me to remember that. |
. . .
| MS. DE ROUSSEAU: I didn't hear her say she applied for leave, and that's the part that I'm confused about. |
| THE CLAIMANT: Yeah, I did apply for a leave. |
| MR. DARWENT: Well, sure she did. |
| THE CLAIMANT: And I still have the paper from the -- |
| MR. DARWENT: That's why she went to the other base, to apply. |
| MS. DE ROUSSEAU: And so was this like a regular holiday leave or were you given some sort of special leave to go? |
| THE CLAIMANT: No, it's a -- you take this month off and you have to complete it when you come back from the army. |
| MS. DE ROUSSEAU: So is this something that all soldiers get some time off during the course of their service? |
| THE CLAIMANT: They do, but not a month. |
| MS. DE ROUSSEAU: So this was something special that you applied for? |
| THE PRESIDING MEMBER: And you said you didn't have to give reasons, that it was just granted? |
| THE CLAIMANT: Yeah. If they like you, they'll give you the permission. If they not -- |
| THE PRESIDING MEMBER: So what was your understanding as to why you got the leave? |
| THE CLAIMANT: Because they wanted me out of the country. I don't know. |
| THE PRESIDING MEMBER: You don't know. So anyway, you got the leave without any problem? |
| THE CLAIMANT: Well, I got it after a long time after I applied. |
| THE PRESIDING MEMBER: So you applied when, sometime in the summer of '97 you thought? |
| THE CLAIMANT: No, I applied in September, I think, in like -- in four months. |
| THE PRESIDING MEMBER: So you had to wait for the response or did they tell you right away? |
| THE CLAIMANT: No, I had to wait. |
| THE PRESIDING MEMBER: Did you give a time frame as to when you wanted to take this month off? |
| THE CLAIMANT: No, they just give you whenever it's feels -- |
| THE PRESIDING MEMBER: Okay. So they gave it to you -- |
| THE CLAIMANT: In December. |
| THE PRESIDING MEMBER: December. |
| MS. DE ROUSSEAU: So just to be clear then, you had permission to leave the army and permission to leave the country? |
| THE CLAIMANT: Yes, I did. |
| MR. DARWENT: No, she did not have permission to leave the army. |
| THE CLAIMANT: I mean leave the army for a month, for a whole month. |
| MS. DE ROUSSEAU: Yes, yes, that's what I meant. |
| THE CLAIMANT: Not for the whole time. |
| THE PRESIDING MEMBER: And the understanding was you would make up that month at the end? |
| THE PRESIDING MEMBER: Do you know how many months you had left to serve? |
| THE CLAIMANT: Well, it's two or two and a half years for all girls, so. |
| THE PRESIDING MEMBER: Two and a half years? |
| THE CLAIMANT: Yeah, two -- |
| THE PRESIDING MEMBER: Or two and a half? |
| THE CLAIMANT: Yeah, it depends on them, maybe they can just extend your thing there. |
| THE PRESIDING MEMBER: Okay. |
. . .
| THE PRESIDING MEMBER: Sorry. Could you just clarify what the reference to 45 days. |
| MR. DARWENT: She was granted 45 days' leave. She has been away longer than 45 days. |
THE PRESIDING MEMBER: Okay. I had understood it was a month.
| MR. DARWENT: She's now absent - |
| THE CLAIMANT: Yeah, from December 15th till January the 12th, something like that. |
| MR. DARWENT: I thought I had seen 45 days somewhere. |
| THE PRESIDING MEMBER: Okay. I would just like to clarify that. You were granted from December 15th to January 12th? |
| THE PRESIDING MEMBER: Okay. |
. . .
[8] At the end of counsel's examination of his client the Board members asked additional questions, as is their usual practice. None of these appear to have been asked in hostile or confrontational terms.
[9] Counsel also points to the responses of the presiding member at the opening of the hearing when the Board members asked his client whether she preferred to take an oath on a holy book or to affirm ...
| So, Ms. Weiss, it'll be necessary for you to give your evidence under oath. Would you like to swear on a Holy Book or make a solemn affirmation? |
| THE CLAIMANT: It doesn't matter. I'll -- which better do you prefer? |
| PRESIDING MEMBER: It's not our decision. It's your decision. And I would have expected counsel would have reviewed this as it's a procedural matter with you prior to the Hearing. |
| THE CLAIMANT: Okay, well, you want me to say I said to say the truth. |
| PRESIDING MEMBER: Perhaps you can discuss it with your counsel. |
[10] Counsel may be correct that a more appropriate response to the applicant's uncertainty as to whether she should take an oath on a holy book or affirm would have been to tell her to do whichever was more binding on her conscience. At the same time, the Board member is not incorrect in pointing out that counsel usually explains the oath procedure to clients ahead of time. I can understand that the board member would be rather surprised to have an applicant asking them which method of oath taking they want the applicant to use. The Board member's response is not evidence of bias.
[11] Counsel refers to the Board member's reaction to his complaint that RCOs should be required to disclose the documents on which they intend to rely ahead of the Board hearing, in the same manner as applicants must:
| ... But I do find it objectionable that the Board insists that I provide everything 20 days before the Hearing and the Board's employee can just drop material on this desk in the hope that I'll find it on the day of the Hearing itself. Rules are rules and should apply equally to the Board -- |
| PRESIDING MEMBER: Sir, this is not a forum to discuss the policy of the Board which is disclosure by counsel should be 20 prior to the Hearing and there is no equal disclosure constraint on the RCO. I agree with your view insofar as you're entitled to your opinion, but I'm sorry, this is not the forum in which to voice you displeasure with that policy. I would suggest you contact the coordinating member for this region and take it up with her. |
| MR. DARWENT: I mostly certainly will do that. |
| PRESIDING MEMBER: That's fine. [Emphasis added.] |
. . .
[12] Again this is not evidence of bias. Indeed, the presiding member appears to have agreed with counsel's position.
Discrimination/Persecution
[13] Counsel argues that the Board's finding that the treatment the applicant received in Israel was harassment, not persecution, is perverse. The Board found the applicant to be a credible witness, and the applicant said that as a schoolgirl she had been stoned every day:
| Q. Outside of school, did you encounter any problems? |
| A. Yeah. Well, there's always the kids bugging you and throwing stones at you. And... |
| Q. How often would the kids throw stones at you? |
| Q. And this would happen when you were -- was this only when you were in school or would it be out on the weekends, for example if you're going shopping or something like that? |
| Q. Okay. Were you ever hit by stones? |
| A. No. Not that it's serious. I was hit, but I've never been in a hospital. |
| Q. Okay, but you were hit by stones? |
| Q. Not injured enough to go to a hospital? |
. . .
[14] The Board's decision reads:
| The evidence is that the claimant upon arrival in Israel in 1991 attended school and completed her high school in 1996. She alleges that during this time she was continually harassed by other students. She testified that while at school she did not have many friends because she was not Jewish. Once she was in a fight and she tried to defend herself. She did not complain to teachers because she felt no one would help her because she was not Jewish. She stated that other students threw stones at her. This occurred at school as well as outside of school. She testified that it occurred every day but she was never injured seriously, never hospitalized, and never complained to teachers about this treatment. |
| The panel finds that this treatment by other students was hurtful and unpleasant and that the harm suffered constitutes discrimination and is not harm amounting to persecution, even when considered cumulatively. |
. . .
[15] There is no definition of persecution in the Convention relating to the Status of Refugees. The Handbook on Procedures and Criteria for Determining Refugee Status published by the United Nations High Commissioner for Refugees states:
| 51. There is no universally accepted definition of persecution and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights"for the same reasons"would also constitute persecution. |
| 54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g., serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. |
[16] Canadian jurisprudence has described persecution as the systematic and persistent infliction of threats and injury requiring an element of repetition and relentlessness (see, Rajudeen v. Canada (Minister of Employment and Immigration), (1984), 55 N.R. 129 (F.C.A.); Stephan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 390 (C.A.). In Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, persecution was ascribed the meaning of "sustained or systemic violation of basic human rights demonstrative of a failure of state protection."
[17] In finding that the treatment by the applicant was discriminatory, the Board considered the applicant's testimony, specifically, that she was never seriously injured and never complained about the treatment to persons in authority. As noted by the Federal Court of Appeal in Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398, while the dividing line between persecution and discrimination is difficult to establish, it remains, 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 or unreasonable. I cannot conclude that the Board's finding was capricious or unreasonable in light of the applicant's testimony.
Desertion From the Military
[18] The Board's decision reads:
| The claimant began her military service October 31, 1996, and served until December 13, 1997. She obtained permission from the military to leave the country form December 15, 1997, to January 12, 1998. She did not return and therefore she also alleges a well-founded fear of persecution because she deserted the Israeli army. She testified she would most likely receive a jail penalty of about one year for her failure to return to the military. |
| The panel reviewed the documentary evidence which confirms the jail penalty would likely be imposed. Based on the documentary evidence, as well as the claimant's evidence, the panel finds that there is insufficient evidence to establish that the penalty would be disproportionate or would be greater because the claimant is non-Jewish. The panel concludes that there is not a well-founded fear of persecution on this ground and that the penalty is not severe enough to constitute persecution per se. |
| While there is some evidence of human rights abuses in Israeli military prisons, there is insufficient evidence to establish a serious possibility that this claimant would suffer harm amounting to persecution in military prison because she is non-Jewish or because she deserted the military. |
[19] Counsel for the applicant argues that the Board's conclusion is perverse because it believed the applicant's evidence concerning the treatment she had received as a non-Jew. Counsel argues that it was perverse for the Board to conclude that the treatment the applicant would encounter as a result of her desertion would not be worse than that imposed on other deserters, when it beleived her evidence of the stone throwing. This argument relies heavily on counsel's characterization of the harassment the applicant described, as persecution, not discrimination. As indicated, the Board's characterization of this treatment as discriminaiton or harassment, but not persecution, is supported by both the evidence before it and the law. The Board's conclusion that there is insufficient evidence to support the applicant's claim that she would be persecuted, as opposed to harassed, in prison, is not erroneous. The applicant's claim in this regard is based on speculation, without any supporting foundation. I cannot find that the Board erred in the decision it made.
[20] For the reasons given, the application will be dismissed.
Judge
OTTAWA, ONTARIO
July 7, 2000