IMM-3837-96
OTTAWA, ONTARIO, THIS 27th DAY OF OCTOBER 1997
PRESENT: MR. JUSTICE J.E. DUBÉ
BETWEEN:
LEV MENAKER,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
O R D E R
The application is dismissed.
Judge
Certified true translation
C. Delon, LL.L.
IMM-3837-96
BETWEEN:
LEV MENAKER,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBÉ J.:
The applicant, who is originally from Russia and is now a citizen of Israel, is seeking judicial review of a decision of the Refugee Determination Division ("the Tribunal") dated October 3, 1996, determining that he is not a Convention refugee.
He alleges that he suffered discrimination and physical abuse during his time in Israel, and that the Israeli police took no action in response to the complaints he filed in respect of the acts of aggression committed against him. The culmination of the events that caused him to leave Israel occurred in 1994 when he was [translation] "attacked by a crowd of Jews who beat him into unconsciousness".
First, the Tribunal decided that the applicant's testimony was not credible. Second, there is a large quantity of documentation describing the political and social situation in Israel which, contrary to the applicant's testimonial evidence, indicates that there is no form of organized persecution against immigrants of Russian origin in that country. Third, the Tribunal determined that the applicant had not established that Israel was not capable of protecting him.
The applicant argues that the Tribunal erred in relying on the general documentary evidence without having regard to his own testimony and the evidence he submitted in support of his claim. On this point, it must be noted that it is entirely open to the Tribunal to base its decision on the documentary evidence rather than on the testimonial evidence (see the decision in Zhou1). The Tribunal has jurisdiction to assess the probative value of the evidence, and so this Court could intervene only where the Tribunal reached an unreasonable conclusion. In the instant case, the Tribunal's assessment was reasonable, having regard to the inconsistencies between the documentary and testimonial evidence.
With respect to state protection, the Tribunal noted that the claimant complained that he had not been protected by the police despite the complaints he filed. The Tribunal accepted the documentation, instead, which indicated that the Israeli police does its work in a professional manner. If a citizen is not satisfied with the work done by a police officer, he or she may complain to the higher level and may ultimately apply to the Supreme Court of Israel for the redress sought.
According to the recent decision of the Federal Court of Appeal in Kadenko v. M.C.I.,2 relating to an applicant who, as in this case, alleged that the state of Israel was incapable of protecting him on the ground that some police officers had refused to act on his complaints, the Court held that a modern democratic state is presumed to be capable of protecting its citizens. The Court added that the burden of proof rests on the applicant, who must establish, in a manner that is proportionate to the level of democratic development of the state in question, that the state is unable to protect him or her. The applicant must exhaust all available legal means before claiming that a state cannot or will not protect him or her. It is not sufficient to hail a constable on the corner or to go to the police station. As La Forest J. of the Supreme Court of Canada said in Ward,3 at page 725:
| In the absence of exceptional circumstances established by the claimant, it seems to me that in a Convention refugee hearing, as in an extradition hearing, Canadian tribunals have to assume a fair and independent judicial process in the foreign country. |
Accordingly, this application for judicial review cannot be allowed.
O T T A W A
October 27, 1997
Judge
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-3837-96
STYLE OF CAUSE: LEV MENAKER v. MCI
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: OCTOBER 20, 1997
REASONS FOR ORDER OF DUBÉ J.
DATED: OCTOBER 27, 1997
APPEARANCES:
Michelle Langelier FOR THE APPLICANT
Sébastien DaSylva FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANT
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 A-402-91 (1994), F.C.A.
2 A-388-95, October 15, 1996.
3 [1993] 2 S.C.R. 689.