Date: 20051109
Docket: IMM-10058-04
Citation: 2005 FC 1527
Toronto, Ontario, November 9, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
NIKOLAY HARALAM TOMOV
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Tomov, a 30 year-old Bulgarian medical doctor, claimed a well-founded fear of persecution based on his family relationship with his common-law spouse, Mariya. The couple began to live together in November 2001 in Sofia. As a result of several incidents which arose because of Mariya's Rom ethnicity, they left Bulgaria and claimed protection in Canada in May 2002. Mariya's mother arrived in Canada and claimed protection in October 2002. The three had a joint hearing before the Immigration and Refugee Board, Refugee Protection Division, (the Board). Mariya and her mother were found to be Convention refugees because of the persecution experienced by both as Roma. Mr. Tomov's claim was denied on the grounds that he was not a member of a persecuted group and was not personally at risk.
[2] The issues in this application for judicial review are whether the Board erred in finding that Mr. Tomov was not himself persecuted, whether it erred in requiring personal targeting and erred in failing to conduct a separate analysis under subsection 97(1) of the Immigration and Refugee Protection Act.
[3] The Board, for the most part, accepted the evidence of the claimants. There was a collateral issue about parental acceptance of the couple's relationship but that was not pressed by the applicant at this hearing and I do not, in any event, find that it made any material difference to the outcome. Accordingly, there were no findings of fact requiring review on a standard of patent unreasonableness.
[4] 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. The intervention of the court on that finding will not be warranted unless the conclusion reached by the Board appears to be unreasonable. (Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398, [1993] F.C.J. No. 796 (QL) (F.C.A); Al-Mahmud 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; Bela v. (Canada) Minister of Citizenship and Immigration, 2001 FCT 581, [2001] F.C.J. No. 92 (QL)).
[5] The narrative provided in the applicant's personal information form is a reproduction of his wife's story. She recounts a history of lifelong discrimination. The main incident that concerned Mr. Tomov directly was in September 2001. The applicant and Mariya were eating at a bistro. Four skinheads sat nearby and began insulting the applicant and Mariya with anti-Rom statements. Mr. Tomov was beaten by the men and sought medical attention. He reported the assault to the police who did nothing other than to receive the complaint.
[6] In 2002, Mariya was detained by the police on suspicion of dealing in stolen goods. During the night she was raped by two officers. Mr.Tomov tried to file a complaint with the police but it was denied, he was "brutally thrown out" of the station and no action was taken. A lawyer advised them not to pursue the matter for fear of repercussions. This incident prompted their departure for Canada.
[7] Without more, these two incidents, while deplorable, would not establish persecution in respect of the applicant. The physical assault by skinheads was a single isolated incident that occurred when the applicant was in Mariya's company. There was no evidence to suggest that he had been the victim of such attacks previously or that these were repeated or systemic. His inability to file a complaint with the police, while clearly frustrating, also does not rise to the level of persecution.
[8] The Board rightly noted that the applicant's inability to protect his wife from persecution, did not make him a Convention refugee, nor a person in need of protection. As was recently stated by this court in Sivamoorthy v. Canada(Minister of Citizenship and Immigration.), 2005 FC 199 at paragraph 10
[c]laims for refugee or protected person status cannot be based on persecution or threats of persecution on relatives. Indirect persecution does not constitute persecution within the definition of Convention refugee and a claim based on it should not be allowed
[9] The applicant submits, however, that he is directly at risk of persecution or physical harm now because of his membership in a Roma family. This is not a case of indirect persecution. Mr. Tomov is not just an "unwilling spectator of violence" against other members of his family, as described by Martineau J., in Granadav. Canada (Minister of Citizenship and Immigration), 2004 FCC 1766, [2004] F.C.J. No. 2164 (QL) at paragraph 15. He himself is at risk so long as he is in a marital relationship with his wife.
[10] That the family is a valid social group for the purposes of seeking refugee protection is well established: Pour-Shariati v. Canada (Minister of Employment and Immigration) [1995] 1 F.C 767, [1994] F.C.J. No 1928 (F.C.T.D.) (QL); aff'd [1997] F.C.J. No. 810 (F.C.A.) (QL).
[11] Where membership in a family group is the basis for the claim, the Court of Appeal in Pour-Shariati, required that a personal nexus be established between the claimant and the alleged persecution on Convention grounds. It is not enough to point to the persecution suffered by family members if it is unlikely to affect the claimant directly. In this case, I am satisfied that there is a sufficient nexus between the applicant's claim and his wife's persecution. So long as they remained together, he would directly be at risk.
[12] In my view, therefore, the Board erred in requiring evidence of personal targeting outside of their relationship. It failed to consider whether he had a well founded fear of persecution by reason of his membership in his wife's family. Accordingly, I find that the decision was unreasonable and the application will be granted and the matter remitted for reconsideration by a different panel.
[13] I do not need to deal, therefore, with the question of whether a separate analysis of the applicant's claim to protection under subsection 97(1) of the Act was required. None was conducted in this case. Indeed, the Board's reasons do not deal with the applicant in any detail. There are only two sentences that address the merits of his claim. As I noted in Soleimanian v. Canada (Minister of Citizenship and Immigration), 2004 FC 1660, a separate analysis is not required if there is no evidence beyond that considered in the section 96 analysis that could establish that the claimant is in need of protection. The panel that reconsiders the claim will have to address that question.
[14] No questions of general importance were proposed and none are certified.
ORDER
THIS COURT ORDERS that this application is granted and the matter is remitted for reconsideration by a differently constituted panel. No questions are certified.
"Richard G. Mosley"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10058-04
STYLE OF CAUSE: NIKOLAY HARALAM TOMOV
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 8, 2005
REASONS FOR ORDER: MOSLEY, J.
DATED: NOVEMBER 9, 2005
APPEARANCES:
Robert E. Moores FOR THE APPLICANT
Alison Engel Yan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Robert E. Moores FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT
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