Federal Court Decisions

Date: 20050705

Docket: IMM-287-05

Citation: 2005 FC 945

EDMONTON, ALBERTA, JULY 5, 2005.

PRESENT:    THE HONOURABLE MR. JUSTICE von FINCKENSTEIN

BETWEEN:

SLIMAN MOREB, RABIA MURAB, HADIA MURAB,

MARYO MURAB, FADIA MOREB, ISA MOREB,

HAYA MOREB, TALA MOREB

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

Background

[1]         The Applicants are Christian Arabs, citizens of Israel, who all claim they have been persecuted by the Druze in their village of Rama in the Haifa District due to their religious beliefs.

[2]         In December of 1996, a group of Druze stopped their van and smashed the windows with iron bars and sticks. They beat the occupants, stabbing Rabia Murab with a screwdriver. The

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attack was reported to the police. A week later, they received phone calls threatening to kill them. They believe the calls were made by the Druze that stopped their van.

[3]         In June of 1997, Rabia and his brother in law were seriously beaten again by Druze carrying knives and sticks. Rabia was stabbed five times and his brother in law was beaten with an iron bar. This incident was also reported but the police did nothing.

[4]         In May of 2002, Rabia and Moris were sworn and spat at by Druze. Again, Rabia reported the incident to the police but they took no action. The following evening, the Druze threw a hand grenade at some natural gas tanks near their home which resulted in an explosion and a fire. The police were called and did nothing and the family continued to receive death threats by phone and on the street. The Applicants subsequently received a bill for $8,000 shekkels from the fire department.

[5]         In February of 2003, Moris, Sliman and Rabia were stopped and seriously beaten by Druze. That same night, Druze shot at the Applicant's parents' house and fired a missile at their church. Three nuns were injured in that attack. The Applicants believe that the police are not acting on their complaints as there are Druze on the police force. A week after the church was bombed, five busloads of people travelled to Jerusalem to protest against the police's inability and unwillingness to protect its citizens.

[6]         As a result of the attacks, several of the Applicants spent a number of days in the hospital

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on various occasions.    Subsequent to his stay in hospital in 2003 Rabia went to stay at a relative's home in Peqin for one and a half months. He thought his family might be able to settle in Peqin which is populated mostly by Christians. but in June of 2003 Druze attacked the village using machine guns and knives.

[7]         The Applicants believe there is an agreement in place wherein Druze serve in the Israeli army and therefore the Druze are allies of the Israeli Government. They state that in the last two years, 65 grenades have been thrown at Christian homes in Rama by the Druze. This does not include missiles and bombs that are planted in Christian owned cars.

[8]         The Applicants came to canda in May and June of 2003 and claimed refugee status on July 11, 2003.

Decision in Issue

[9]         The Board:

- found that the Applicants had established their identities as nationals of Israel and found that Rabia was a forthcoming witness and did not doubt his account of events attacks that occurred at the hands of the Druze. The Board also acknowledged several incidents where Druze attacked various Christian areas.

- accepted that the Applicants had suffered mistreatment due to Druze in Rama but stated that the

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Applicants had a viable internal flight alternative ("IFA") in Tel Aviv-Yafo (Jaffa).

-    found that there was no reliable objective information that showed the Applicants would be persecuted outside Rama or that the Applicants would be pursued from one area to another. The Board also found that if the Druze were a nationally organized group, their activities would be reported in the press.

- found that Israeli law allows freedom of worship and that Christians also benefit from legal protection from persecution. They also mentioned that a Christian Supreme Court Judge had been elected.

- noted that differences in treatment of various groups exist in many societies and those who receive less favourable treatment are not necessarily victims of persecution. Measures that lead to restrictions on the right to earn a living, practice one's religion or access educational facilities amount to persecution. There was no evidence of these measures.

- found the Applicants to be in good health and noted that they had travelled in the past, were well educated and possessed a variety of skills. The Applicants had not demonstrated substantial grounds to believe they would be subjected to a danger of torture or a risk to life or cruel and unusual treatment or punishment and, in the alternative, found they had a viable IFA in Tel Aviv-Yafo (Jaffa).

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Issues

[10]       The Applicants argue three points:

1.         The Board did not give them a fair hearing by never raising Tel Aviv-Yafno as an

            IFA;

2.         The Board erred in not finding that institutionalized discrimination as amounts to persecution; and

3.         Erred in finding Applicant, Rabia credible but preferring documentary

evidence over his testimony.

Standard of Review

[11]       There is no dispute that the applicable standard of review for internal flight alternative is patent unreasonableness (see Chorny v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263) and that the standard of review for issues relating to the assessment of the evidence is also patent unreasonableness (see Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17).

Analysis

Issue I:           Was the Board required to provide the Applicants with an opportunity to respond to the Board's suggestion of Tel Aviv-Yafo as an IFA?

[12]       The Applicants submit that while the IFA was marked on the File Screening Form

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provided to the Applicants by the Board no specific locale was indicated. . Furthermore at the beginning of the hearing, the Board said she would consider Jerusalem and Nazareth as potential IFAs. At no point did the Board ask the Applicants whether Tel Aviv-Yafo would be a reasonable IFA yet the claims were rejected on that basis.

[13]       An examination of the record shows that the Chairperson stated:

"Now, we're also going to consider whether there is state protection for you in Israel, and whether there is a safe place for you to move to, an internal flight alternative. So perhaps you would be safe living in Nazareth or in Jerusalem."

Tribunal Record p. 885

[14]       In Rasaratnam v. Canada (Minister of Employment and Immigration) (C.A.), [1992] 1 F.C. 706, the Court of Appeal stated the following at paragraphs 8 and 9:

(S)ince by definition a Convention refugee must be a refugee from a country, not from some subdivision or region of a country, a claimant cannot be a Convention refugee if there is an IFA. It follows that the determination of whether or not there is an IFA is integral to the determination whether or not a claimant is a Convention refugee. I see no justification for departing from the norms established by the legislation and jurisprudence and treating an IFA question as though it were a cessation of or exclusion from Convention refugee status. (...)

That said, however, a claimant is not to be expected to raise the question of an IFA nor is an allegation that none exists simply to be inferred from the claim itself. The question must be expressly raised at the hearing by the refugee hearing officer or the Board and the claimant afforded the opportunity to address it with evidence and argument. (Underlining added)

[15]       It is clear that in making a refugee claim, an individual must be a refugee from a country and not a region, however, the Court of Appeal was clear that an applicant must be afforded the opportunity to address the issue. At the hearing, the following exchange occurred:

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PRESIDING MEMBER: What if you moved to a larger area, to a big city, bigger area anyway,

where there is a large Christian population, would you be able to live there safely? I was looking

at the documentary evidence and there seems to be some large Christian organizations in Nazareth

and some in Jerusalem.

(...)

THE CLAIMANT: In Nazareth there are bigger problems, many and bigger problems.

(...)

THE CLAIMANT: Problems among sects.

(...)

THE CLAIMANT: These problems are big, and there are many problems among Christians and Muslims in (INDISCERNIBLE). And those    there is a problem every Friday or every other Friday there is a problem. I want to (INDISCERNIBLE) where I can comfortable, not to a place where there are problems.

(See Tribunal Record at pp. 906-907)

[16]       A further exchange took place between counsel and claimant:

BY MR. YU:

Q. How is the relationship between Druze and Christians in say Jerusalem and Nazareth?

A. There is no Druze in Nazareth or in Jerusalem. There is very, very miniscule percentage.

But the problem is that if there is a problem with one Christian (INDISCERNIBLE)

problem is with all the Druze. And they try always to avenge themselves against any

person who stands in their way. Even wherever he is in that state because the state itself

is very small. What I mean to say is that (INDISCERNIBLE) Druze are like a big family

in Israel.

Q. So if there are not very many Druze in, - I just want to be clear, if there are not very many Druze in Nazareth or Jerusalem, if you moved there why would it not be safe for you?

A. No, because Nazareth is half an hour way, Jerusalem is two hours away. They can get any person if they want to.

Q. Nazareth is how far away?

A. Half an hour.

MR. YU:      Okay, and Jerusalem is two hours did you say?

THE INTERPRETER:            Two hours.

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BY MR. YU:

Q.     Now earlier on, I believe you said that in Nazareth, they are part of bigger problems between Christians and Muslims. And I want you to tell us more about what problems Christians have with Muslim there.

A.      They are considered religious problems.

Q.     Can you give us some examples of the problems they have?

A.      Yes.

Q.     Please.

A.      For example, Muslims in Nazareth built a mosque in front of a church with - and this church is very important, and a problem happened because of the building the mosque in front of the church. The problem start - started from this point on and they got bigger and bigger and bigger.

Q.     As far as you know, was there any violence between the two groups?

A.      Yes, I got to the extent where each one of them would lead the other for the hospital, end up in the hospital, one of them.

A.      Now in Jerusalem, was there any problems between Christians and Muslims?

A. I'm not really following the news over there" ¼

Tribunal Record pp 911-913

[17]       From the above it seems clear that the Applicant was provided with an opportunity to respond to the issue of IFA. The issue was flagged in the pre-screening form, it was raised at the outset by the chairperson. Unfortunately she raised it in such a way that it appears that Jerusalem and Nazareth are the only possibilities of an IFA to be considered. The record before the tribunal shows that the discussion was focused entirely on these two cities. Tel Aviv-Yafo never came up.

[18]       The chairperson should have either raised the issue of IFA generically without referring to

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any location, or alternatively also mentioned Tel Aviv-Yafo if she was going to consider that location. She did neither, but subsequent to the hearing focused on Tel Aviv-Yafo (presumably after studying the documentary evidence). She should have afforded the Applicants an opportunity to present evidence regarding Tel Aviv-Yafo.

[19]       Having failed to do so effectively means that the Applicants were not to be "afforded the opportunity to address it with evidence and argument" as required by Rasaratnam, supra. This constitutes a reversible error.

[20]       Having ruled in favour of the Applicants with regard to issue 1 there is no need to consider the other two points raised by the Applicants.

ORDER

THIS COURT ORDERS that the decision of the Board of December 29, 2004, is set aside and the matter is referred back to the Board for reconsideration by a differently constituted panel.

"Konrad W. von Finckenstein"