Hitti v. Canada (Minister of Citizenship and Immigration)

Hitti v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2006-10-20
Neutral citation
2006 FC 1256
File numbers
IMM-4817-05
Decision Content
Date: 20061020
Docket: IMM-4817-05
Citation: 2006 FC 1256
Ottawa, Ontario, this 20th day of October, 2006
PRESENT: The Honourable Mr. James Russell
BETWEEN:
CHARLE HITTI, MUNA HITTI,
RANA HITTI AND ELIAS HITTI
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
INTRODUCTION
[1] Charle Hitti, his wife Muna Hitti, and their two minor children, Rana and Elias Hitti, are citizens of Israel and are Arab Christian Catholics. The family arrived in Canada in 2004 and made a claim for refugee status on the basis of ethnicity and religion. On July 4, 2005, the Refugee Protection Division of the Immigration and Refugee Board (Board) determined that the Applicants are neither Convention refugees nor persons in need of protection (Decision).
[2] In this application for judicial review, made pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, the Applicants challenge the Decision. They seek an order from the Court quashing the Decision and remitting their refugee claim back to a differently constituted panel of the Board for re-determination.
THE APPLICANTS’ REFUGEE CLAIM
[3] In their Personal Information Form (PIF), the Applicants state that they are making a refugee claim in Canada because of the constant harassment and danger that the family faces in Israel on a daily basis. In particular, they claim refugee protection from Muslims in Nazareth who are endangering their lives. The Applicants lived in an area in which 80 percent of the residents are Muslim. They claim that Christians in the neighbourhood are harassed by their Muslim neighbours.
[4] The Applicants say the problems in their neighbourhood started in the autumn of 1998 when a dispute erupted between Muslims and Christians over a property in downtown Nazareth. A Christian church and school had been built on the property, but the Muslims claimed that the property was holy. The Applicants say that tensions flared after Muslims tore down the school and erected a tent on the property. Muslim groups started interfering with Christian prayers, threw stones at Christians leaving their churches, burnt down Christian stores, and harassed many Christian females.
[5] In respect to their personal lives, the Applicants claim that, beginning in 2000, the whole family was constantly in danger. They claim that they were spit on when they left their house and that the tires on their car were flattened two to three times a week. They say they were unable to go to church on Sundays or special holidays because of the fear of being attacked. They claim that, in 2000, Muna Hitti began receiving threats: Muslims would telephone her or come to the door of her home threatening to attack her sexually. As a result, Muna Hitti was afraid to leave the house. The Applicants also say that Rana Hitti, who was then 10, witnessed the murder of a Muslim woman by her Muslim husband in their neighbourhood. After that, Rana refused to sleep in her own bedroom or walk or play in the neighbourhood.
[6] The Applicants say the situation became unbearable and, in March 2004, they were forced to sell their apartment at a loss and leave the neighbourhood. Despite moving to a different neighbourhood, the Applicants allege that the harassment of Muna Hitti did not stop.
[7] The Applicants say they could not go to the police because it would only put them in further danger. Moreover, they say most of the police in their neighbourhood are Muslim and are unable to prevent violent incidents such as shootings and killings. With respect to moving to another part of Israel, the Applicants say they did not have enough money to rent another apartment and, moreover, there are no cities that would be safe for them and which have Christian schools and churches.
[8] The Applicants’ claim was heard over three days: October 20, 2004, December 20, 2004 and March 14, 2005. Charle Hitti and Muna Hitti testified at the hearing into the merits of their claim. Neither of the minor applicants, Rana and Elias Hitti, testified. Written submissions were provided to the Board by the Refugee Protection Officer (RPO) and counsel for the Applicants following the final hearing.
PRELIMINARY MOTION
[9] At the beginning of the hearing into the Applicants’ refugee protection claim held on October 20, 2004, counsel for the Applicants made a motion asking the Board to reverse the order of questioning prescribed in the Immigration and Refugee Board Chairperson’s Guideline 7. Under Guideline 7, in cases where the Minister of Public Safety and Emergency Preparedness (Minister) does not intervene, the RPO questions the refugee claimant first, followed by the member sitting as the Board. Counsel representing the claimant then has an opportunity to question the claimant.
[10] In written submissions and oral arguments, counsel for the Applicants in the present case took the position that Guideline 7 violates the Applicants’ right to natural justice and procedural fairness. In particular, because the burden of proof is on the Applicants to establish that they are in need of refugee protection, counsel argued that natural justice requires that the Applicants be allowed to present their case as they see fit. They say that having counsel for the Applicants question after the RPO and the Board member creates problems with regards to the presentation of evidence and may create insurmountable and unfair difficulties in case presentation.
[11] The Board issued written reasons denying the Applicants’ motion on November 30, 2004. Stating that it had considered counsel’s arguments and the unique complexities presented by the refugee determination proceedings, the Board found that the order of questioning as set out in Guideline 7 does not infringe the principles of natural justice and procedural fairness. The Board also dismissed the Applicants’ motion that a different panel of the Board be appointed to hear the Applicants’ refugee claim because having the same panel member hear the merits of the claim creates a reasonable apprehension of bias. The Board held that no evidence of actual or reasonable apprehension of bias was presented and, moreover, that the Board’s decision on the order of questioning did not touch on the merits of the Applicants’ refugee claim.
[12] The Applicants subsequently filed for leave to judicially review the Board’s decision on the preliminary motion. On February 16, 2005, the Court dismissed the application without prejudice to the Applicants’ right to raise arguments of procedural fairness in the context of a judicial review of the Board’s Decision on the merits of the Applicants’ refugee claim should the Board’s final decision be unfavourable to the Applicants.
DECISION ON THE MERITS
[13] In its Decision, the Board determined that the Applicants were neither Convention refugees nor persons in need of protection. The Board concluded, considering the totality of the evidence and the relevant law, that there is no serious possibility that the Applicants would experience persecution without access to adequate state protection should they return to Israel. Hence, the Board dismissed their claim for refugee protection under section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). With respect to refugee protection under section 97 of the Act, the Board concluded that the existence of adequate state protection was determinative and, moreover, that the Applicants had not established that they would be personally in danger or at risk. The Board acknowledged, however, that there was a generalized risk to persons living in Israel at this difficult time.
[14] The Board questioned why the Applicants did not move from their neighbourhood until 2004 if they had feared for their lives since 2000. The Board found inadequate the Applicants’ explanation that they did not move sooner because they did not have enough money to do so. The Board noted that the principal claimant, Charle Hitti, vacationed with his family every year, had money to buy plane tickets to Canada for the whole family, and had $5,000 to settle in Canada.
[15] The Board also found it implausible that, after they moved, the Applicants continued to be threatened by the Muslims from their former neighbourhood who had wanted them to leave. Moreover, the Board found that neither the harm the family experienced when they lived with Charle Hitti’s mother, namely overcrowding, nor the trauma experienced by Rana Hitti on witnessing the murder of a Muslim woman by her husband, were related to the Applicants’ ethnicity or religion.
[16] In its reasons, the Board noted that there are persons similarly situated to the Applicants who remain in Israel, including Charle Hitti’s brother and mother. The Board reviewed the supporting documentary evidence and found that it did not assist the Applicants in establishing a subjective fear of persecution in Israel on the basis of their ethnicity and religion. Regarding the letter by Father Yusuf Essa, of the Maronite Church in Nazareth, the Board noted that Father Essa made no reference to any personal targeting of the family which led to their flight to Canada. Moreover, Father Essa stated that the principal applicant “decided to immigrate to Canada, in order to provide a better future for his kids.”
[17] The Board also found that an article provided by the Applicants after the hearings was not relevant to the Applicants’ case. That article spoke of an incident between Druze and Christians in Maghar. The Board noted that the country documentation makes a distinction between Druze and Muslims. Finally, with respect to a news article reporting that a robber stole a gold cross from a Coptic Church in Nazareth, the Board stated that there was no information in the article indicating any anti-Christian motive behind the theft.
[18] Regarding the existence of an internal flight alternative (IFA), the Board canvassed with the principal applicant the possibility of the family moving to Haifa. The Board noted that Charle Hitti had worked on the outskirts of Haifa for 18 years and had not experienced any problems. Mr. Hitti testified that his children could not obtain a proper Christian education in Haifa. The Board acknowledged that Human Rights Watch found state discrimination in Israel in relation to education and funding for education which disproportionately favours Jews. Nevertheless, the Board held that education for Arabs is available and that a lesser quality of education is not considered a restriction of a fundamental human right.
[19] Although the Board acknowledged that Arab Christians in Israel experience discrimination, the Board held that, even cumulatively, the ill treatment experienced by Christian Arabs generally, or the Applicants specifically, did not amount to persecution. The Board stated that there is no question that Arabs are not treated equally in terms of land ownership, access to services, and access to employment in higher levels of government. However, the Board also noted that while there is a higher unemployment rate for Arab Israelis, this does not mean Arab Israelis cannot get employment. Moreover, the Board found there is clear documentary evidence that serious efforts are being made by the Israeli government to protect its citizens, both Israeli and Arab.
[20] The Board also addressed the issue of delay in leaving Israel and the principal applicant’s failure to claim refugee protection in the United States when he went there in 2003. The Board held that, while not determinative on their own, the delay in leaving and the failure to claim refugee protection at the earliest opportunity were evidence of behaviour that does not support a genuine fear of persecution.
[21] Notwithstanding the above findings, the Board went on to address the issue of state protection. The Board found that the Applicants had not provided clear and convincing evidence that there is no adequate state protection for them or other Arabs in Israel. In its reasons, the Board noted that the Applicants had not given the police an opportunity to provide protection and to investigate the alleged incidents of harassment and assault. Specifically, the Board noted that, while the Applicants had asked a municipal social worker for assistance, they had not asked the police for help. Moreover, the Board held that it was reasonable to expect the Applicants to produce some supporting documentation of the social worker’s efforts or inability to assist them. Finally, regarding the Applicants’ evidence that a neighbour had gone to the police twice in 2001 but had received no help, the Board found that there was nothing in the reports indicating the intervention made by the police or the outcome of their investigation.
[22] The Board made the point that because Israel is a democratic country, there is a greater requirement on the Applicants to exhaust all reasonable remedies to obtain protection from the state before seeking international protection. The Board noted, among other things, that Israel has an independent judiciary, and that a wide variety of local and international human rights groups operate in Israel to assist Jewish and non-Jewish citizens, including the Association of Civil Rights and sexual assault centres. In summary, the Board held that the Applicants had not met their onus of rebutting the presumption of adequate state protection.
ISSUES
[23] The Applicants raise two general issues:
1. Does the Board’s order of questioning claimants violate the principles of natural justice and procedural fairness?
2. Did the Board err in concluding that the Applicants are not Convention refugees or persons in need of protection?
PERTINENT LEGISLATION
Order of Questioning
[24] On October 30, 2003, as part of his Action Plan to reduce the backlog of refugee claims before the Board, the Chairperson of the Immigration and Refugee Board issued Guideline 7 which sets out, among other things, the standard order of questioning in hearings before the Board. The specific paragraphs of Guideline 7 relevant to the present case are the following:
19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case.
[…]
23. The member may vary the order of questioning in exceptional circumstances. For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules.
24. The member will limit the questioning by the RPO and counsel for the parties according to the nature and complexity of the issues. Questioning must bring out relevant information that will help the member make an informed decision. Questions that are answered by the claimant just repeating what is written in the PIF do not help the member.
19. Dans toute demande d'asile, c'est généralement l'APR qui commence à interroger le demandeur d'asile. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet ainsi au demandeur d'asile de connaître rapidement les éléments de preuve qu'il doit présenter au commissaire pour établir le bien-fondé de son cas.
[…]
23. Le commissaire peut changer l'ordre des interrogatoires dans des circonstances exceptionnelles. Par exemple, la présence d'un examinateur inconnu peut intimider un demandeur d'asile très perturbé ou un très jeune enfant au point qu'il n'est pas en mesure de comprendre les questions ni d'y répondre convenablement. Dans de telles circonstances, le commissaire peut décider de permettre au conseil du demandeur de commencer l'interrogatoire. La partie qui estime que de telles circonstances exceptionnelles existent doit soumettre une demande en vue de changer l'ordre des interrogatoires avant l'audience. La demande est faite conformément aux Règles de la SPR.
24. Le commissaire limite la portée de l'interrogatoire par l'APR et le conseil des parties selon la nature et la complexité des questions à trancher. L'interrogatoire doit servir à obtenir l'information pertinente qui aidera le commissaire à rendre une décision éclairée. Les questions invitant le demandeur d'asile à simplement réciter l'exposé circonstancié du FRP n'aident pas le commissaire.
Refugee Protection
[25] The Applicants make their claim for refugee protection under sections 96 and 97 of the Act. Those provisions read as follows:
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
STANDARD OF REVIEW
[26] Regarding the first issue, in assessing allegations of denials of natural justice or procedural fairness, the Court is required to examine the specific circumstances of the case and determine whether the tribunal in question adhered to the rules of natural justice and procedural fairness. Thus, it is unnecessary for the Court to determine a particular standard of review: Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29. If the Court concludes that there has been a breach of natural justice or procedural fairness, no deference is due and the Court will set aside the Decision of the Board.
[27] Regarding the second issue, the essential finding of the Board being challenged in this application is that the experiences of the Applicants constitute discrimination but not persecution. In Canada (Minister of Citizenship and Immigration) v. Hamdan, 2006 FC 290 at paragraph 17, Justice Johanne Gauthier held that whether or not specific acts of discrimination amount to persecution are questions of mixed fact and law, so that the standard of reasonableness simpliciter applies. In support of her determination, Justice Gauthier cites the following cases: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A); Al-Mahamud v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm. L.R. (3d) 315, 2003 FCT 521; Tolu v. Canada (Minister of Citizenship and Immigration) (2002), 218 F.T.R. 205, 2002 FCT 334; and Bela v. Canada (Minister of Citizenship and Immigration), 2001 FCT 581.
[28] In Sagharichi at paragraph 3, the Federal Court of Appeal had this to say about reviewing a Board’s finding that discrimination does not amount to persecution:
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 or unreasonable.
[29] Drawing from the above jurisprudence, I am of the view that the appropriate standard for reviewing the Board’s decision that the Applicants were not persecuted is reasonableness.
[30] With respect to the Board’s findings that an IFA exists for the Applicants, such a determination is a finding of fact. In general, the Court must show significant deference to findings of fact made by the Board and only intervene where the decision is patently unreasonable: (see Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.) (QL)).
[31] In a recent decision, Ako v. Canada (Minister of Citizenship and Immigration), 2006 FC 647, Justice Yves de Montigny confirmed that the appropriate standard for reviewing the Board’s decision in respect of an IFA is patent unreasonableness. At paragraphs 20 and 21 of Ako, Justice de Montigny stated the following:
It is trite law that questions of fact falling within a tribunal’s area of expertise are generally reviewed against a standard of patent unreasonableness. More particularly, this Court has consistently found that this is the proper standard to apply with respect to the existence of a viable internal flight alternative: see, e.g., Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741; Kumar v. Canada (Minister of Citizenship and Immigration), 2004 FC 601, [2004] F.C.J. No. 731, (QL); Camargo v. Canada (Minister of Citizenship and Immigration) 2006 FC 472, [2006] F.C.J. No. 601, (QL); Shimokawa v. Canada (Minister of Citizenship and Immigration, 2006 FC 445, [2006] F.C.J. No. 555, (QL); Bhandal v. Canada (Minister of Citizenship and Immigration), 2006 FC 426, [2006] F.C.J. No. 527 (QL).
In considering all the relevant factors required under the pragmatic and functional analysis as explained by the Supreme Court of Canada (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20,; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63), it is my opinion that in this case, as well, the appropriate standard of review is patent unreasonableness. As a result, the decision of the Board should be accorded a high level of deference. Unless the decision is clearly irrational and cannot be supported by any line of analysis, it must therefore stand.
[32] In the circumstances of this case and in considering all of the relevant factors under the pragmatic and functional analysis, I see no reason to depart from the analysis and conclusion of Justice de Montigny. Consequently, I will adopt a standard of patent unreasonableness in reviewing the Board’s decision with respect to its IFA finding.
[33] With regards to adequate state protection, Justice Danielle Tremblay-Lamer conducted a pragmatic and functional analysis in Chaves v. Canada (Minister of Citizenship and Immigration) (2005), 45 Imm. L.R. (3d) 58, 2005 FC 193, and determined that the appropriate standard of review is reasonableness. This standard has also been applied in several recent decisions of the Court (see for example, Resulaj v. Canada (Minister of Citizenship and Immigration), 2006 FC 269; Robinson v. Canada (Minister of Citizenship and Immigration), 2006 FC 402; Larenas v. Canada (Minister of Citizenship and Immigration), 2006 FC 159; and Codogan v. Canada (Minister of Citizenship and Immigration), 2006 FC 739). In my view, after taking into account all of the relevant factors under the pragmatic and functional analysis, reasonableness is the appropriate standard for reviewing the Board’s state protection finding in this case.
ARGUMENTS
The Applicants
1. Order of questioning
[34] The Applicants argue that the Board erred in concluding that the order of questioning prescribed by Guideline 7 does not violate the principles of natural justice and procedural fairness. Specifically, the Applicants contend that not allowing counsel to conduct an “examination-in-chief” jeopardizes their ability to present their case fully and fairly.
[35] In coming to this conclusion, the Applicants make arguments in relation to the five factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 243 N.R. 22, for determining the content of procedural fairness in an administrative law context. In relation to each of the Baker factors, the Applicants submit the following:
1) The refugee determination process is quasi-judicial in nature; moreover, the Board is not a “board of inquiry” as the language of Guideline 7 implies;
2) There is no right to appeal a refugee determination decision of the Board, only a right of judicial review;
3) The interests at stake in refugee determination proceedings pertain to life, liberty and security of the person;
4) Given the wording of paragraph 170(e) of the Act – which provides that claimants are to be given a reasonable opportunity to present evidence, question witnesses and make representations – claimants have a legitimate expectation of an “examination-in-chief.” This legitimate expectation is heightened in the present case because the “right” to an “examination-in-chief” existed at the time the Applicants made their claim for refugee protection;
5) While the Board has the statutory right to set its own procedures, this right must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees.
[36] The Applicants highlight other factors which they submit point to the importance of providing refugee claimants with the right to an “examination-in-chief”, including the following:
1. Refugee protection hearings are highly adversarial;
2. The PIF is not an adequate substitute for an “examination-in-chief”, particularly because of the central role of credibility determinations in refugee hearings;
3. Refugee claimants inherently distrust state agents;
4. Traumatization and cultural variances are major issues affecting how refugee claimants are able to present themselves and how they are perceived; and
5. Giving evidence through an interpreter is fraught with the possibility of innocent misunderstanding.
[37] The Applicants argue that the Baker factors mandate that the highest order of procedural protections be applied in refugee determination hearings, and this includes providing claimants with a right to an “examination-in-chief.”
[38] Finally, on this issue, the Applicants submit that in several decisions, the Federal Court has found that “by systematically preventing counsel from leading their case, the Board has breached its duty to the applicants to provide them with a fair hearing and in doing so, has committed a reviewable error.” The cases cited by the Applicants are: Kante v. Canada (Minister of Employment and Immigration), [1994] F.CJ. No. 525 (QL); Ganji v. Canada (Minister of Citizenship and Immigration), (1997), 135 F.T.R. 283 [1997] F.C.J. No. 1120 (QL); Atwal v. Canada (Minister of Citizenship and Immigration), (1998), 157 F.T.R. 258 [1998] F.C.J. No. 1693 (QL); and Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124.
2. Merits
[39] The Applicants argue that the Board came to a patently unreasonably conclusion that the Applicants would not be subject to persecution in the form of cumulative discrimination and harassment if they returned to Israel. They submit that the Federal Court of Appeal has recognized that cumulative acts of discrimination may amount to persecution (Retnem v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 53, (1991), 13 Imm. L.R. (2d) 317; Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49 (QL); Oyarzo v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779; and Surujpal v. Canada (Minister of Employment and Immigration) (1985), 60 N.R. 73).
Personal Harassment
[40] The Applicants claim there was unrefuted evidence before the Board of the personal harassment they faced. They maintained in their submissions before the Board that they did not flee Israel prior to May 2004 because of their hope that the situation would improve and preclude the necessity to seek refuge. They submitted that this hope persisted until the situation worsened following the elections in November 2003. They also stated that they did not seek refugee in the United States because they were still hoping the situation would be resolved at that time. As evidence of this, they pointed out that they sought protection form Israel following Mr. Hitti’s visit to the United States.
IFA and State Protection
[41] The Applicants made several submissions regarding the unavailability of an IFA in their Personal Information Form (PIF) and in their submissions before the Board. In their PIF, the Applicants submitted that they could not go and live in another city in Israel because they did not have enough money to rent an apartment. They also submitted that there were bombings in other areas of Israel, and that there was no city in which they would be safe that also had Christian schools and churches.
[42] In the Applicants’ submissions before the Board, they expanded on their arguments, maintaining that the persecution they face does not emanate solely from the Muslim Arabs in Israel, but also stems from the relationship between Muslim Arabs in Israel and Jewish Israelis. The Applicants submitted that they would be subject to harassment, discrimination, and persecution in Jewish Israeli neighbourhoods throughout Israel because Arab Israelis have been persona non grata in Israel for 40 years. On the other hand, as Christian Catholics, the Applicants are also persona non grata amongst the Arabs who are almost all Muslims. The Applicants point out that there is a lack of facilities available for Christian Arabs to raise their children and live as devout Catholics without harassment and persecution. As a result of this combination of factors, the Applicants submit that it is untenable for them to live anywhere in Israel.
[43] The Applicants submit that it is for these same reasons that the Israeli authorities cannot provide them with protection. Furthermore, the Applicants submitted in their PIF that there were so many incidents in the Arab Muslim neighbourhood that the police were unable to deal with them. In the submissions before the Board, the Applicants noted that they sought the assistance of social workers to try and ease the tension between them and their Muslim neighbours. However, they did not seek protection from the police because the experience of others was that, when this was done, the persecution by the Muslims had only intensified.
[44] Finally, the Applicants argue that the subjective and objective evidence accepted by the Board “preclude the finding” of an IFA or of adequate state protection. As a result, the Applicants content that the Board erred in determining that they would not be subject to persecution in Israel.
The Respondent
1. Order of questioning
[45] The Respondent submits that, under the refugee determination process as prescribed in the Act, it is open to the Board to control its own hearing process. Further, the Respondent argues that the Applicants have not proffered any evidence to support a conclusion that the order of questioning under Guideline 7 prevented them from fully presenting the basis of their claim to the Board. The Respondent contends that the whole process leading up to the hearing affords claimants reasonable and ample opportunity to gather all information in support of their claim. Finally, the Respondent states that the jurisprudence of the Court indicates that there is nothing constitutionally deficient about “reverse order questioning” per se: (Liang v. Canada (Minister of Citizenship and Immigration), 2005 FC 622; Sy v. Canada (Minister of Citizenship and Immigration), 2005 FC 379; and Cortez Silva v. Canada (Minister of Citizenship and Immigration), 2005 FC 738.)
[46] As regards the present case, the Respondent submits that the Applicants had the opportunity to fully present the facts that would support their refugee claim. The failure to convince the Board of the merits of their claim had nothing to do with the order in which they were questioned.
2. Merits
[47] The Respondent argues that it was open to the Board to conclude that the problems faced by the Applicants are attributable to discrimination and not persecution. The Respondent submits that the Court should not interfere with the determination by the Board that the discriminatory practices which non-Jewish citizens of Israel face does not rise to the level of persecution deserving of protection in Canada, and that the problems in finding employment or in accessing Christian education are all attributable to discrimination and not persecution.
[48] The Respondent further submits that the Board’s findings that delay in leaving Israel pointed to a lack of subjective fear of persecution were reasonable. The Respondent maintains that there should be no interference with the decision of the Board whereby it held that the Applicants’ failure to make a refugee claim in the United States in 2003 was unreasonable. The fact that Mr. Hitti managed to bring his entire family to Canada a year later did not accord with his explanation that there were insufficient funds to do so in 2003.
ANALYSIS
1. Does the Board’s order of questioning claimants violate the principles of natural justice and procedural fairness?
[49] Subsequent to the parties filing their respective Memoranda of Fact and Law for this application, the Court, in two cases, considered in depth the question of whether Guideline 7 violates principles of natural justice and procedural fairness: Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 168, 2006 FC 16, and Benitez v. Canada (Minister of Citizenship and Immigration), (2006), 40 Admin. L.R. (4th) 159, 2006 FC 461. Reasons in Thamotharem and Benitez were issued, respectively, in February and April of this year.
[50] Although in the present case, the Court provided the parties with an opportunity to submit further arguments up until late May, neither party did so. As such, there is no reference to either of the above cases in the written submissions of the parties. Consequently, on July 12, 2006, I issued a direction to the parties instructing them to be prepared to discuss Thamotharem and Benitez at the hearing into this application for judicial review. Both counsel came prepared to do this and a full discussion ensued.
[51] Both Justice Edmond Blanchard in Thamotharem and Justice Richard Mosley in Benitez addressed the following issues in their judgments:
1. Do the principles of natural justice and procedural fairness require that refugee claimants be afforded the opportunity to conduct an “examination-in-chief?”
2. Does Guideline 7 fetter the discretion of the Board members?
Both Justice Blanchard and Justice Mosley agreed that the order of questioning in Guideline 7 did not breach natural justice or procedural fairness. However, Justice Blanchard found that Guideline 7 fettered the discretion of Board members, while Justice Mosley found that it did not.
ORDER OF QUESTIOING AND PROCEDURAL FAIRNESS
[52] In Thamotharem and in Benitez, Justice Blanchard and Justice Mosley, respectively, held that the principles of natural justice and procedural fairness do not require that refugee claimants be afforded the opportunity to conduct an “examination-in-chief,” unless the particular circumstances of the case so dictate. Moreover, in Benitez, Justice Mosley held that Guideline 7 does not violate section 7 of the Canadian Charter of Rights and Freedoms, and that the applicants in that case had not provided a sufficient factual basis on which he could determine whether refugee claimants are discriminated against through the implementation of Guideline 7 contrary to section 15 of the Charter. The Court in each case received lengthy submissions from the parties (and the intervener in Thamotharem) as well as extensive affidavit evidence on the issue of Guideline 7 and natural justice and procedural fairness.
[53] After considering the arguments of both parties in this case, I have come to the same conclusion reached by the Court in Thamotharem and in Benitez with respect to this first issue. While I am not bound by the decisions of other judges of this Court, judicial comity suggests that I should exercise restraint when dealing with legal