Date: 20040706
Citation: 2004 FC 962
BETWEEN:
OLEG OCHAKOVSKI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined the Applicant not to be a Convention Refugee or a person in need of protection, as those terms are defined in sections 96 and 97 of the Immigration and Refugee Protection Act[1]. The decision under review is dated the 28th of February, 2003.
[2] The Applicant was born on the 20th of June, 1966. He is therefore now 39 years of age. He is a citizen of Israel and bases his claim to Convention refugee status and to protection on the grounds of religion and political opinion, namely as a conscientious objector to military service.
[3] The Applicant was born in the Soviet Union. While he was first baptised as a Christian at the age of 2, he was baptised again and became an Evangelical Christian in or about 1994. Starting at the age of 18, he briefly served in the soviet military. He left from his home in Kazakhstan in 1995 and became an Israeli citizen. His fear as an Evangelical Christian is claimed to be of persecutory treatment by members of an ultra-orthodox Jewish group and of conscription into the Israeli Armed Forces or of differential persecutory punishment if he refuses to serve. He fled Israel and arrived in Canada in June of 2002.
[4] The RPD determined that there was insufficient credible and trustworthy evidence before it to support the Applicant's allegation that he faces persecution in Israel because he is an Evangelical Christian. That determination was not challenged before the Court.
[5] By contrast, the Applicant's claim that he fears persecution and is a person in need of protection by reason of his religious-based conscientious objection to military service in Israel, constitutes the basis of the application for judicial review.
[6] By reference to the UNHCR Handbook[2], the RPD wrote:
It indicates at paragraph 174 that the decision-maker in a refugee claim has to investigate a claimant's personality and background to establish "the genuineness of a person's political, religious, or moral convictions or his reasons of conscience for objecting to performing military service."[3]
[7] The RPD concluded:
In the panel's view the failure of the claimant to express his objection to military service on so many occasions is not conduct compatible with a genuine objection to performing Military Service. On the contrary, the claimant's compliant conduct demonstrates acquiescence and acceptance of his military obligation, as does his delay in leaving Israel. The claimant knew as early as 1997 that he was subject to conscription yet he remained in Israel for a further 5 years. Moreover he remained in Israel after the first phone call indicating his imminent call-up and then waited 2 months after the second phone call before leaving Israel. In the panel's view, these delays are not consistent with a person who has a genuine conscientious objection to performing military service and who fears persecution for it.[4]
[8] The RPD then went on in it's reasons to deal with specific issues, within the Applicant's's claim to protection as a conscientious objector, including the impact of his failure to manifest his conviction against military service, his expressed conviction against serving in the Canadian military and his expressed concern that he would be discriminated against in the application of a law of general application in Israel that provides for potential imprisonment on failing to comply with Israel's compulsory military service.
[9] In detailed submissions, counsel for the Applicant urged that the RPD erred in a reviewable manner in six aspects of it's more detailed findings supporting it's general conclusion that the Applicant is not a person with a genuine conscientious objection to performing military service giving rise on his part to a fear of persecution on a Convention ground.
[10] In Miranda v. The Minister of Employment and Immigration[5], my former colleague Justice Joyal wrote the following oft-quoted passage:
For purposes of judicial review, ... it is my view that a Refugee Board's decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable.
[11] I am satisfied that the foregoing quotation is apt on the facts of this matter. Counsel for the Applicant urged with great conviction that, on the facts of this matter, the RPD erred in a number of respects in the details supporting it's generalized conclusion regarding the Applicant's claim upon religious-based objection to compulsory military service. While counsel for the Applicant would clearly have reached different conclusions leading to a different generalized conclusion, and indeed I myself might also have reached different conclusions, that is not the issue. The issue, rather, is whether the generalized conclusion of the RPD that is quoted above was open to it based upon the totality of the evidence before it.
[12] I conclude that the RPD's generalized conclusion with regard to the Applicant's claim based upon his objection to compulsory military service, which itself was based on religious grounds, was, reasonably open to it. As the RPD noted, the Applicant lived in Israel for some seven years. For at least 5 of those years, he was well aware that he faced compulsory military service. Twice he underwent medical examinations in anticipation that he would be drafted. Twice he received telephone calls in which he was advised that he faced potentially imminent call-up. Only two months after the second telephone call warning of his potential imminent call-up, did he choose to flee Israel. As noted earlier in these reasons, on the basis of the foregoing, the RPD concluded:
...these delays are not consistent with [the conduct of] a person who has a genuine conscientious objection to performing military service and who fears persecution for it.
I am satisfied that the foregoing conclusion was reasonably open to the RPD on the totality of the evidence before it.
[13] In the result, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2114-03
STYLE OF CAUSE: OLEG OCHAKOVSKI
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 5, 2004
REASONS FOR ORDER: GIBSON J.
DATED: JULY 6, 2004
APPEARANCES:
Chantal Desloges FOR APPLICANT
Tamrat Gebeyehu FOR RESPONDENT
SOLICITORS OF RECORD:
GREEN AND SPIEGEL
Barristers and Solicitors
Toronto, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040706
Docket: IMM-2114-03
BETWEEN:
OLEG OCHAKOVSKI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1]S.C. 2001, c. 27.
[2]Office of the United Nations High Commissioner for Refugees, Handbook on procedures and criteria for determining refugee status, re-edited, Geneva, January, 1992.
[3]Applicant's application record, pg. 12.
[4]Applicant's application record, pg. 13.
[5](1993), F.T.R. 81 (F.C.T.D.).