MB6-00921

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / No de dossier de la SAR : MB6-00921 Private Proceeding / Huis clos Reasons and Decision? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered/heard at Montréal, Quebec Appel instruit à Date of decision December 20, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Jacques Beauchemin Conseil de la personne en cause Designated representative N/A Représentante désignée Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Israel, is appealing against a decision of the Refugee Protection Division (RPD). He submits that the RPD erred in its assessment of state protection. II. DETERMINATION OF THE APPEAL [2] Pursuant to section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 or a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Summary of alleged facts [3] In his memorandum of appeal, the appellant presents the following facts: * He is an Israeli citizen of Palestinian origin who practises Christianity. * He worked as a XXXX XXXX throughout Israel and the West Bank. * During his trips in the West Bank, he was approached by Palestinian extremists about smuggling weapons into Israeli territory. * When he refused, he was threatened first in Palestinian territory and then in Israel. * Those responsible for the threats managed to determine the location of his home and that of his parents in Israel. * He fears for his safety because when he arrived in Canada, his brother was contacted for information about his comings and goings.1 [4] In addition to his Basis of Claim Form,2 the appellant, then known as the claimant, submitted documents to the RPD.3 B. RPD decision [5] The RPD heard the refugee protection claim on December 17, 2015, and the decision rejecting the refugee protection claim was rendered on January 7, 2016.4 [6] In its reasons for decision, the RPD concluded that since the claimant did not ask for assistance from the police when he was threatened in Israel, the presumption that a democratic state offers protection to its nationals was not rebutted. And that is despite the fact that Israeli police forces are not perfect, that Israeli forces have employed excessive force in Palestinian territory and that Hamas has been accused of killing, in Palestinian territory, people who were accused of collaborating with Israel.5 C. The grounds of appeal and decision sought [7] In his memorandum, the appellant argues that the RPD erred in its assessment of state protection. To begin, it should have commented on the documentary evidence indicating that human rights are not upheld by the Israeli government and that, in combination with his fears, left him untrusting of the police authorities. What is more, in its analysis of the democratic character of the Israeli state, the RPD should have noted the human rights abuses that have been committed, particularly given that those abuses involve Palestinians, a group to which he belongs.6 [8] The appellant is not submitting new evidence and is not requesting that a hearing be held before the RAD; however, he is asking that the appeal be allowed, that the RPD determination be set aside and that the matter be referred to the RPD for a new hearing before a different decision-maker.7 IV. APPROACH TO BE TAKEN IN THIS APPEAL A. The appellant's position [9] In his memorandum, the appellant does not specify what approach the RAD must take in his appeal. He submits, however, that the RPD's errors are reviewable.8 B. A brief summary of the Federal Court decision in Huruglica [10] Following an exhaustive analysis of the legislative history and various arguments used to date, in a long-awaited decision, the Federal Court of Appeal states that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law.9 It also rules that the appeal before the RAD is not a true de novo proceeding.10 Furthermore, it clearly lays out the approach that the RAD must take: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.11 C. An independent assessment to correct the errors identified by the appellant [11] Based on the Federal Court of Appeal decision, it is clear that I must fully exercise the role that is assigned to the RAD, namely, to correct errors that, according to the appellant, may have been committed by the RPD and to render the determination that should have been made or that must be made in light of the most recent evidence on the record.12 V. ANALYSIS OF THE MERITS OF THE APPEAL [12] Having read the arguments put forward by the appellant in his memorandum of appeal, having read the RPD decision and having conducted my own assessment of the record, notably by reading the documentary evidence, I am of the opinion that the RPD finding on state protection is determinative and that it did not err on this point. Here is why. [13] In rendering its decision, the RPD clearly expressed its reasons for concluding that the claimant did not rebut the presumption that Israeli authorities are capable of offering adequate protection to their citizens: [translation] [12] Israel is a democracy that controls the police forces in its territory.13 [13] Of course, Israeli's police forces do not have a perfect track record. It has been noted that, at times, they are racist toward nationals of Arab origin.14 [14] The claimant's lawyer also ably argued that Israeli forces have used excessive force on Palestinian territory and that Hamas has previously been accused of killing, on Palestinian territory, people who were accused of collaborating with Israel.15 He stated that the claimant found himself stuck between a rock and a hard place, knowing that he would not receive assistance from the Israeli authorities and that he was in danger of being perceived as collaborating with them if he went to them. [15] However, the panel is still of the opinion that this is insufficient to rebut the presumption of state protection. It notes that this is not [translation] "just a fight between Arabs," as the claimant wished to characterize it. The claimant alleges that they wished to force him to smuggle arms into Israeli territory. Israeli authorities are particularly cautious when it comes to security on their territory, and the panel does not believe that they would have simply rejected the allegations put forward by the claimant who, it is important to recall, did not live in Palestine, but in Israel, and who has citizenship in that country. [16] The fact that he once mentioned the threats he received to the border guards is insufficient, in the circumstances of this case, to demonstrate that the claimant could not avail himself of state protection.16 [14] Having carefully read those paragraphs of the RPD decision, I am of the opinion that the argument to the effect that it did not sufficiently comment on the documentary evidence about human rights violations committed by the Israeli government is unfounded. In reading those paragraphs, it is clear that the RPD was vigilant and understood the claimant's lawyer's arguments. It is my opinion that, in the circumstances, the RPD's assessment is sufficient. [15] In the matter at hand, the appellant believes that he would not receive protection from the Israeli authorities. However, according to case law, such a belief is insufficient to rebut the presumption that the authorities are capable of providing adequate protection.17 [16] That being said, it is true that the presumption of state protection can be rebutted by clear and convincing evidence and that the experiences of individuals in a situation similar to that of the claimant, as well as his own experiences, may provide such evidence. Therefore, it is necessary to consider the documentary evidence as it relates to the claimant's personal situation as an Israeli citizen of Arab origin who practises Christianity and to examine the attitude of the authorities, including police, toward Israeli citizens who are in a situation comparable to his.18 [17] In his memorandum, the appellant refers to the documentary evidence included in the National Documentation Package on Israel, which indicates that the state of Israel has committed numerous human rights violations.19 However, he does not state how the documentary evidence relates to his personal situation as an Israeli citizen of Arab origin who practises Christianity. [18] For my part, I closely read the three documents cited by the appellant in his memorandum.20 In the first and second, I found no information about the response of Israeli police toward acts of violence committed against Israeli citizens of Arab origin who practise Christianity. That being said, these two documents contain plenty of information about the human rights violations committed by Israel against Palestinians living in the occupied territories. The third document notes that, in response to a question from Canada, the head of the Israeli delegation referred to affirmative action regarding the Arab minority, in particular an increase of directors in public companies, and the intention to increase annually the number of minority individuals employed in the civil service and as judges.21 [19] However, another document that is part of the same national documentation package states that in its Concluding Observations on the Fourth Periodic Report of Israel, the Human Rights Council states that it is concerned about the fact that the principle of equality and non-discrimination is not explicitly codified in the Basic Law: Human Dignity and Liberty 5752-1992. Acknowledging that the legislation is being reviewed, the Committee notes that, currently, the Jewish and non-Jewish populations are treated differently in several regards and that the domestic legal framework maintains a three-tiered system of laws affording different civil status, rights and legal protection for Jewish Israeli citizens, Palestinian citizens of Israel and Palestinian residents of East Jerusalem.22 The Committee also states that it is concerned by the fact that despite the steps taken by Israel, Israelis of Arab origin will continue to be underrepresented in the civil service, notably in decision-making positions.23 [20] According to the documentary evidence, the vast majority of Israeli police officers are Jewish (93%), which demonstrates that Israeli citizens of Arab origin are underrepresented, considering that they make up 17% of the Israeli population.24 That being said, it is possible to file complaints against police officers, who may be subject to disciplinary measures, and the state comptroller, who works through the ombudsman, investigates cases of unlawful, unjust or improper actions made by state authorities, including omissions and delays in action. Complaints may be filed in person or via mail, email or fax. However, it is true that criticism has been levelled against the way complaints, particularly those filed by Israeli Arabs, are sometimes handled-there are long delays and there is a perception that the system tends to protect the police officers as opposed to the victims.25 [21] It is well established that merely because a country purports to conduct itself in a democratic manner does not end the analysis. Rather, it is important to determine, in light of the documentary evidence, whether, and the degree to which, its state institutions uphold the democratic protections and ideas.26 According to the documentary evidence, Israel is a democratic country that has serious human rights issues.27 That being said, security and police forces are under the effective control of civilian authorities,28 and when their basic rights are violated, Israeli citizens, including those of Arab origin or those who practise Christianity, can take administrative and legal action, being that judges are independent,29 and government and non-government organizations conduct investigations and can provide assistance to individuals whose rights have been undermined.30 [22] The threats that the appellant claims to have received came from Palestinian extremists who approached him about smuggling weapons from the West Bank into Israeli territory. That type of situation directly concerns the Israeli Security Agency (ISA) which, under the prime minister's authority, fights terrorism and espionage.31 Like the RPD, I am of the opinion that the discrimination demonstrated toward Israeli citizens of Arab origin would not have prevented the appellant from formally informing members of the ISA or police officers of the threats he received. If the appellant were to return to live in his country, it is also my opinion that he could provide his country's authorities with information about the fact that he was targeted with threats from Palestinian extremists who want him to smuggle weapons from the West Bank into Israeli territory. In my opinion, if the appellant were to provide that information to the authorities in his country in the future, it would be taken seriously and he could ask to be put into a witness protection program.32 [23] In short, having conducted my own analysis of the record and having considered both the positive and negative aspects of the documentary evidence, I am of the opinion that the appellant did not discharge his burden of establishing, with clear and convincing evidence, that in his case, the presumption of state protection was rebutted. I am also of the opinion that the appellant did not make use of all the options available to him to obtain protection from the authorities in his country. VI. CONCLUSION [24] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" under section 96 nor a "person in need of protection" within the meaning of section 97 of the IRPA. [25] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette December 20, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, March 9, 2016, page 24 of the appeal record. 2 The Basis of Claim Form is reproduced on pages 22 to 33 of the Refugee Protection Division (RPD) record. 3 The list of these documents is reproduced on page 75 of the RPD record. The documents themselves are reproduced on pages 76 to 98. 4 RPD reasons and decision, pages 3 to 6 of the RPD record. 5 Idem, paragraphs 9 to 16, pages 5 and 6 of the RPD record. 6 Appellant's memorandum, pages 25 and 26 of the appeal record. 7 Idem, pages 26 and 27 of the appeal record. 8 Idem, pages 25 and 26 of the appeal record. 9 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraphs 36 to 103. 10 Idem, paragraph 79. 11 Idem, paragraph 103. 12 Idem, paragraphs 96, 97 and 98. 13 Document 3 - National Documentation Package on Israel, July 17, 2015, Tab 2.1: Israel. Country Reports on Human Practices for 2014, United States. Department of State. June 25, 2015. 14 Idem. 15 Document 3 - National Documentation Package on Israel, July 17, 2015, Tab 2.3: Israel/Palestine. World Report 2015: Events of 2014. Human Rights Watch, January 2015. 16 RPD's reasons and decision, paragraph 12, pages 5 and 6 of the RPD record. 17 Galamb v. Canada (Minister of Citizenship and Immigration), No. IMM-1243-16, Gascon, November 3, 2016; 2016 FC 1230, paragraphs 38 and 39. 18 Zaatreh v. Canada (Minister of Citizenship and Immigration), No. IMM-3846-09, Russell, February 23, 2010, 2010 FC 211, at paragraph 27, 28 and 30. 19 Appellant's memorandum, page 25 of the appeal record. 20 Immigration and Refugee Board of Canada (IRB), National Documentation Package on Israel, July 17, 2015, Document 2.2: Amnesty International, Annual Report 2014/15. Israel and the Occupied Palestinian Territories, March 31, 2015, 9 pages (hereafter referred to as the first document). Idem, Document 2.3: Human Rights Watch, Israel/Palestine. World Report 2015: Events of 2014, January 2015, 10 pages (hereafter referred to as the second document). Idem, Document 2.5: Human Rights Council, Report of the Working Group on the Universal Periodic Review: Israel, A/HRC/125/15, December 19, 2013, 32 pages (hereafter referred to as the third document). 21 Third document, paragraph 121, page 12. 22 IRB, supra, footnote 20, Document 2.7: Human Rights Council, Concluding Observations on the Fourth Periodic Report of Israel, CCPR/C/ISR/CO/4, 11 pages, at paragraph 7, page 3. 23 Idem, paragraph 8, page 3. 24 IRB, supra, footnote 20, Document 10.2: Research Directorate, IRB, Israel: The presence and roles of Druze Arabs and Israeli Arabs in the Israeli police force, February 25, 2010, 3 pages. 25 Idem, Document 10.3: Research Directorate, IRB, Israel: Avenues of recourse for filing complaints against the police; organizations that assist with filing complaints against police; effectiveness of filing such complaints (2008-2011), March 3, 2011, 9 pages. 26 Masalov v. Canada (Minister of Citizenship and Immigration), No. IMM-7207-13, Diner, March 4, 2015; 2015 FC 277, paragraph 23. 27 IRB, supra, footnote 20, Document 2.1: United States, Department of State, Israel 2014 Human Rights Report, June 25, 2015, 119 pages, on page 1. 28 Idem, pages 7 and 8. 29 Idem, page 13. 30 Idem, pages 26 and 27. 31 Idem, page 7. 32 Idem, Document 9.2: Research Directorate, IRB, Israel: The witness protection program, including the type of protection offered, the requirements and procedures to access the program, and the program's effectiveness, February 29, 2012, 10 pages. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB6-00921 9