2023 RLLR 87
Citation: 2023 RLLR 87
Tribunal: Refugee Protection Division
Date of Decision: June 8, 2023
Panel: Zonia M. Ouchakov
Counsel for the Claimant(s): Mirna Farahat
Country: Israel
RPD Number: VC3-00122
Associated RPD Number(s): VC3-00123, VC3-00125, VC2-11202, VC3-00124
ATIP Number: A-2023-01721
ATIP Pages: N/A
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claims of XXXX XXXX (the “principal claimant”), his wife, XXXX XXXX (the “first associate claimant”), and their children, XXXX XXXX (the “second associate claimant”), XXXX XXXX (the “third associate claimant”), and XXXX XXXX (the fourth associate claimant”). The claimants are citizens of Israel, and they are making claims for refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
ALLEGATIONS
[2] The claimants’ allegations are fully set out in their Basis of Claim (BOC) forms and the accompanying narrative.[2] In summary, the claimants fear returning to Israel because they have been threatened by a criminal group.
[3] The claimants lived in the Northern District of Israel. The principal claimant successfully ran a XXXX XXXX and a XXXX XXXX, while the associate claimant was a XXXX at a XXXX XXXX. The other associate claimants were either in university or registered to being their university studies.
[4] In XXXX 2022, the principal claimant was approached by an unknown person to XXXX XXXX XXXX XXXX XXXX. As part of the process, the principal claimant required the XXXX XXXX XXXX XXXX XXXX XXXX XXXX, however, the man refused to do so. The principal claimant opted not to do the job. Hours later, armed men entered his office threatening the principal claimant, saying that the XXXX belonged to A.L. family and he better do the job, or they would come after him and his family.
[5] The principal claimant called his brother who owned a XXXX XXXX XXXX and told him what had happened. His brother confided that he was approached weeks earlier to support some illegal business which he refused to do and reported to the police. With the encouragement of his brother, the principal claimant went to the police and filed a complaint. A few days later, a person called on behalf of the A.L. family, threatening that the principal claimant would regret reporting them to the police and that his family would pay the price. The principal claimant reported the threats to the police. The principal claimant was scared, thus he stopped going to work for a few weeks. When he returned, he found that the tires on his trucks had been slashed and there was a note on his window indicating that this was only the beginning. In early XXXX 2022, the vehicles belonging to the principal claimant’s brother were set on fire.
[6] A.L. is a criminal group comprised of one family, who controls the north of the country and are connected to other gangs in the rest of Israel. They engage in threats, extortion, indiscriminate shootings, and offering protection in exchange of money. The A.L. family began to infiltrate government institutions and people are afraid to file complaints against them because the police do not take action against them.
[7] On XXXX XXXX, 2022, the principal claimant received a call from the police indicating that his brother had died from a shooting incident. The principal claimant was very scared because of what happened to his brother, particularly since the A.L. family knew where he lived and worked. On XXXX XXXX, 2022, the principal claimant found a note on his car windshield which said “you and your family are next in line to be killed. We will kill you one by one.”
[8]
The principal claimant applied for electronic travel authorization (eTA) the same day and purchased his children’s tickets to Calgary. They left on XXXX XXXX, 2022. The first associate claimant’s passport had to be renewed, so the principal claimant stayed with her until the passport was renewed. The principal and first associate claimant left Israel on XXXX XXXX, 2022. The claimants made claims for protection shortly after their arrival in Canada.
DETERMINATION
[9] I find that the claimants are persons in need of protection pursuant to section 97(1), as they have satisfied, on a balance of probabilities, that they would personally be subjected to a risk to their life or a risk of cruel and unusual treatment or punishment, or a danger of torture, should they return to Israel.
ANALYSIS
Identity
[10] The claimants’ identities as nationals of Israel are established by the sworn statements in their BOC form[3] and the certified copies of their Israeli passports in evidence.[4]
Nexus
[11] For claimants to be considered Convention refugees, the well-founded fear of persecution must be by reason of one or more of the five grounds enumerated in the Convention: race, religion, nationality, membership in a particular social group or political opinion. The fear that the claimants face is due to threats by a criminal group, after the principal claimant refused to work with them. I find that there is no nexus between the claimants’ allegations and the Convention. Although the claimants are Arab and Christian, their issues in Israel do not arose because of their nationality or their religion. Their problems are criminal in nature. As such, I find that there is no nexus to the Convention in these cases. Therefore, I have assessed these claims under section 97(1) of IRPA.
Credibility
[12] There is a presumption that sworn testimony is true unless there is sufficient reason to doubt its truthfulness.[5] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.[6]
[13] The principal claimant provided most of the testimony at the hearing, and all other claimants based their allegations on his narrative. I found the principal claimant to be a credible witness. His testimony was consistent and forthright. He testified in a clear and concise manner and did not embellish his testimony. Furthermore, he provided ample details and expanded upon his allegations.
[14] The principal claimant testified that he lived in an Arab town. He experienced discrimination due to his nationality as it relates to work. The principal claimant owned a XXXX XXXX, and he was not allowed to do work with Jewish people, he could only work with Arab companies. The principal claimant’s parents live in Israel, and he has 3 brothers. One lives in Canada, one lives in Jerusalem, and one has died. The principal claimant does not have a close relationship with the brother who lives in Jerusalem, and in fact, they had not communicated for approximately 20 years. The principal claimant saw this brother when they held the funeral for his other brother; however, the relationship is not close.
[15] The principal claimant testified that he fears the A.L. family because they have threatened his life, and the life of his family. The principal claimant refused to perform work for the A.L. family, which resulted in them targeting the claimants. The principal claimant reported the threats to the police; however, nothing was done. On the contrary, the threats increased because the A.L. family found out that they had been reported to the police. The principal claimant explained that this family is involved in the military and that they have access to government services, including the police. Thus, they become aware when they are reported to police. Furthermore, after the principal claimant went to the police, the A.L. family told him that he would be sorry that he went and complained to the police.
[16] The principal claimant explained that the A.L. family is comprised of 4 brothers who have approximately 800 persons working for them. He learned of the A.L. structure through the news. The A.L. family controls the northern portion of Israel, and they have close ties with the criminal family who controls the southern portion of the country. The principal claimant described the A.L. family as having no mercy and having no fear to kill anyone. He mentioned an example of a case where a child was murdered by the A.L. family in front of his father. In addition, the principal claimant testified that the A.L. family has a lot of money and are very well connected with the police and Israeli authorities.
[17] The principal claimant testified that his brother had been experiencing difficulties due to the A.L. family as well, and in fact, he encouraged the principal claimant to report the A.L. family to the police. In XXXX 2022, the principal claimant’s brother was killed. A few months later, the principal claimant received a note on his vehicle which said that he was next. The principal claimant believes this is clear indication that the A.L. family is responsible for his brother’s murder.
[18] In addition to the credible testimony before me, I have considered the documentary evidence submitted in this case.[7] In support of their claim, the claimants have submitted evidence of their religion, evidence of the death of the principal claimant’s brother, evidence of the damage done to the principal claimant’s truck, a copy of the threatening message left for the claimants, evidence of the claimants’ businesses, and letters of support. I find that the documentary evidence corroborates the claimant’s allegations.
[19] I note that the principal claimant’s brother, who resides in Canada, was available to testify; however, his testimony was not required.
[20] Based on the totality of the evidence before me, I find that the claimants are credible and as such, I accept their allegations.
Well-Founded Fear of Persecution and Risk of Harm
[21] In Ward[8], the Supreme Court of Canada held that the test for establishing a fear of persecution is bi-partite in nature. Refugee claimants must establish both that they have a subjective fear of persecution if they return to their home country and that their fear is well-founded in an objective sense. The subjective component relates to the existence of fear of persecution in the mind of the refugee and the objective component requires that the refugee’s fear be evaluated objectively to determine if there is a valid basis for that fear.[9]
[22] Based on the claimants’ testimony and evidence, I find that they have established with credible and trustworthy evidence, that they genuinely fear returning to Israel. I have also considered that the claimants left Israel shortly after the threats intensified and they made claims for protection a couple months after arriving in Canada. I find that their actions demonstrate a subjective fear.
[23] In addition to showing that they have a genuine fear, the claimants must show that their fear is well-founded in an objective sense. I have reviewed the evidence submitted by counsel, which indicates that Arab society is witnessing an escalation in violence and crime in Arab towns, despite the presence of the police.[10] The evidence before me is that there is growing strength of organized crime in Israeli Arab society, and the Israeli police allow members of crime organizations to operate freely.[11] This is consistent with the claimants’ experience, given that nothing was done after they reported the threats by the A.L. family to police. Gang leaders in Palestinian communities feel that there are no repercussions for their actions, which has led to a spike in crime in those areas. [12]
[24] The United States Overseas Security Advisory Council report before me states the following:
Israel-based organized crime syndicates remain a serious concern to Israeli law enforcement, and the country saw an increase of such incidents in 2020. There were 65 assassination attempts related to these criminal organizations, including 18 car bombs and 47 shootings resulting in 31 deaths and 48 injuries, including five civilian deaths.[13]
[25] I find that the country condition evidence before me establishes that criminal organization are a serious problem in Israel. The information before me is also consistent with the claimants’ experiences. As such, I find that the claimants have established that their fear is objectively well-founded.
State Protection
[26] There is a presumption that countries can protect their citizens. The claimant bears the burden of rebutting that presumption. The evidence before me is that the Israeli government has created a two tiered-citizenship structure, resulting in Palestinian citizens, such as the claimants, having a status inferior to Jewish citizens by law.[14] The newly adopted “Basic Law: Israel – The Nation State of the Jewish People” declares Israel to be a Jewish state. It defines Israel as the historical homeland of the Jewish people and exclusively grants the Jewish people the right to national self-determination in the country.[15]
[27] Furthermore, Israeli authorities did not always apply the same laws to all residents, and they disproportionally devote enforcement actions to Palestinian neighbourhoods. Furthermore, there is serious violent behavior by Israeli police cited as occurring against Palestinians in Jerusalem.[16] Israeli police are reported to have failed to protect Palestinian citizens of Israel from premeditated attacks, even when plans were publicized.[17]’
[28] I have also considered that the claimants sought police protection as the principal claimant reported the threats to police. However, rather than help them, it appears that the police disclosed the reports to the agent of harm. As a result of the reports to police, the threats against the claimants increased in seriousness.
[29] Given the police’s failure to help the claimants, their disclosure of the police reports to the agent of harm, and the discrimination faced by Palestinian Israelis at the hands of the police, I find that state protection is not available in this case. As such, I find that the claimants have rebutted the presumption of state protection as there is clear and convincing evidence before me that it would be unreasonable for them to seek the protection of the Israeli state.
Internal Flight Alternative
[30] Section 97(1) of the Act states the following:
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.[18]
[31] According to 97(1)(b)(ii), the risk to the claimants must be faced in every part of that country and is not faced generally by other individuals in that country. The Federal Court has accepted, in several decisions, that the IFA analysis is the same under section 97(1) as under section 96.[19]
[32] The Federal Court of Appeal in Rasaratnam,[20] developed a two-prong test when assessing whether an internal flight alternative (IFA) is viable, this test entails a consideration of two matters: (1) would the claimant be at risk in the IFA, and (2) is it reasonable for the claimant to relocate there. Both prongs of the test must be satisfied to find that a claimant has an IFA. Once the issue of IFA has been raised and potential IFAs identified, the burden of proof rests with the claimant to show that they do not have an IFA.
[33] The cities identified as possible IFAs in this case are Tel Aviv and Jerusalem.
Risk
[34] The principal claimant testified that the claimants cannot relocate to Tel Aviv or to Jerusalem because the A.L. family would be able to find them anywhere in the country. First, the principal claimant explained that Israel is very small. He likened it to driving from one end of Calgary to another, which takes approximately 1 hour. He stated that in this same time, you could travel through three fourths of Israel. The cities identified as IFAs are close to his hometown. Tel Aviv is approximately 65 kilometers away and Jerusalem is approximately 100 kilometers away,
[35] The principal claimant testified that the A.L. family is very powerful. They have infiltrated government departments and in fact, one of their leaders is a retired government employee. The A.L. family also has close ties to the criminal family who controls the south of Israel, thus the claimants fear that through their connections, the A.L. family would be able to find them anywhere. The principal claimant explained that if he relocated, he would have to register his new address with the government. Similarly, if he opened a new business, by law, he must register the business. He fears that the A.L. family would have access to that information, thus they would be able to locate him.
[36] The principal claimant testified that since his departure from Israel, unknown persons have been seen around his home. Furthermore, the first associate claimant’s brother-in-law was directly contacted asking for the whereabouts of the claimants. The principal claimant believes that the A.L. family will look for him because when they decide that someone needs to be eliminated, they need to follow through in order to keep their powerful image in front of others. They need to show the public that they deliver on their promises, and they use such cases as examples in order to control the population.
[37] I find that the claimants have established that the agent of harm is motivated to find them and that they have the means and resources to do so. The A.L. family is large, they have approximately 800 members. Furthermore, they are well connected. One of the leaders worked for the government, and they have clearly infiltrated the police given that they were able to find out that the principal claimant reported them to the police. In addition, they have a reputation to uphold. I find it credible that the organization’s modus operandi is to keep control over the population through fear. Therefore, it is important for the organization to act on their threats. I also find that the evidence before me establishes that the A.L. family is able to and willing to act on their threats, as evidenced by the murder of the principal claimant’s brother. Given the A.L. family’s infiltration within the police and government, I find it credible that they would be able to find information regarding the claimants, such as their new address, given that they would have to register their relocation with government authorities. Based on the totality of the evidence before me, I find that the claimants have established that the A.L. family has the means and motivation to find them throughout Israel. As such, I find that they would be at risk anywhere in the country.
Reasonableness
[38] Although I have found that the IFA test fails on the first prong, I have also assessed the second prong, and I find that the test also fails on the second prong. The second prong of the IFA analysis is whether it is objectively reasonable, in all the circumstances, including those particular to the claimant, for the claimant to seek refuge elsewhere. The burden placed on the claimant is high to show that the IFA is unreasonable. It requires nothing less than the existence of conditions that would jeopardize the claimant’s life and safety in the IFA location.[21]
[39] The principal claimant testified that discrimination exists against Arabs in Israel. For example, the village next to his is Jewish, and Arabs are not allowed to rent or purchase homes there. He testified that Tel Aviv is predominantly Jewish, and that Arabs in Jerusalem are segregated. Therefore, the claimants would be unable to live in either city.
[40] The evidence before me is that Palestinian citizens of Israel continue to experience marginalization in a range of areas, including housing, access to services, and employment.[22] Arabs remain segregated from the Jewish majority, with most living in Palestinian majority towns, what are among the poorest and most marginalized areas in the country.[23] Furthermore, Palestinian Israelis are subjected to wide-ranging discrimination in housing, social welfare, education, criminal justice, and other areas.[24]
[41] The claimants are Arab and have lived in an Arab-majority town. They were able to thrive in that environment; however, if they had to relocate, I find that they would be subjected to discrimination which would hamper their ability to find employment and housing. Therefore, I find that relocation within Israel is not reasonable in the claimants’ particular circumstances.
[42] Having found that the claimants face a risk throughout Israel, and that relocation is unreasonable, I find that an IFA is not viable for the claimants.
CONCLUSION
[43] For the above noted reasons, I find that the claimants are persons in need of protection as per section 97(1) of IRPA. As such, their claims are accepted.
(signed) Zonia M. Ouchakov
June 8, 2023
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Exhibits 2.1 – 2.5, Basis of Claim forms signed November 1, 2022.
[3] Supra, footnote 2.
[4] Exhibit 1, Israeli passports: XXXX, XXXX, XXXX, XXXX, and XXXX.
[5] Maldonado v Canada (Minister of Employment and Immigration), 1979 CanLII 4098 (FCA), [1980] 2 FC 302
(CA).
[6] Supra, footnote 5.
[7] Exhibit 4, Personal and Country condition documents, May 16, 2023.
[8] Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
[9] Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), at 134.
[10] Supra, footnote 7.
[11] Supra, footnote 7.
[12] Supra, footnote 7.
[13] Exhibit 3, National Documentation Package (NDP), Israel, December 21, 2022, tab 7.1: OSAC Country Security Report. Israel, The West Bank and Gaza. United States. Overseas Security Advisory Council. 5 November 2021.
[14] Exhibit 3, NDP, tab 7.5: A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution. Human Rights Watch. 27 April 2021.
[15] Exhibit 3, NDP, tab 13.2: Israel’s Nation-State Law: Netanyahu Government Lays the Foundations for a Majoritarian System. German Institute for International and Security Affairs. Peter Lintl; Stefan Wolfrum. October 2018.
[16] Exhibit 3, NDP, tab 2.1: Israel. Country Reports on Human Rights Practices for 2021. United States. Department of State. 12 April 2022.
[17] Exhibit 3, NDP, tab 10.2: Israeli police targeted Palestinians with discriminatory arrests, torture and unlawful force. Amnesty International. 24 June 2021.
[18] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[19] Rosales, Marcela Ivet Gonzalez v. M.C.I. (F.C., no. IMM-5331-04), O’Reilly, October 11, 2005; 2005 FC 1375; Hinostroza Soto, Elena v. M.C.I. (F.C., no. IMM-2149-05), Blais, September 27, 2005; 2005 FC 1325; Varela Soto, Julio Cesar v. M.C.I. (F.C., no. IMM-2357-08), Pinard, January 29, 2009; 2009 FC 92; Valdez, Pedro Escarballeda v. M.C.I. (F.C., no. IMM-6424-10), Shore, May 19, 2011; 2011 FC 580.
[20] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
[21] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.).
[22] Exhibit 3, NDP, tab 13.11: Israel. World Directory of Minorities and Indigenous Peoples. Minority Rights Group International. May 2020.
[23] Supra, footnote 22.
[24] Supra, footnote 22.