Machedon v. Canada (Minister of Citizenship and Immigration), 2004 FC 1104

Date: 20040811

Docket: IMM-3520-03

Citation: 2004 FC 1104

Ottawa, Ontario, this 11th day of August, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                          ION MACHEDON and

MIHAELA MACHEDON

                                                                                                                                           Applicants

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated April 22, 2003, wherein it was determined that the applicants are not Convention refugees or persons in need of protection.

[2]                The applicants request a writ of certiorari quashing the decision of the Board, a declaration that they are Convention refugees, or an order remitting their claim back to the Board for hearing by a differently constituted panel.

Background

[3]                The applicants, Ion Machedon (the "male applicant") and Mihaela Machedon (the "female applicant") are husband and wife citizens of Romania. They claim Convention refugee status on the basis of a fear of persecution in Romania due to their Roma ethnicity.

[4]                Alternatively, the applicants claim to be persons in need of protection who, if removed to Romania, would personally be subjected to a danger of torture, a risk to their life or a risk of cruel and unusual treatment or punishment.

The male applicant

[5]                The male applicant is of dual Hungarian/Roma ethnicity who claims to have been subjected to persecution his entire life in Romania. Before the Board, the male applicant described mistreatment he suffered while growing up, including being called derogatory names and being singled out at school based on his ethnicity.

[6]                After graduating from a specialized electrician's course, the male applicant worked for a state company where he was constantly harassed by his co-workers. In the summer of 1988, he was unjustly fired from his job and prevented from working at a new job because of the negative reference letter written by the state company.

[7]                In the fall of 1988, the male applicant decided to do construction work with his father travelling from village to village, mostly working for members of the Roma community. The male applicant and his father were often harassed or otherwise treated poorly during their travels.

[8]                In 1995, in the town of Gherla, the male applicant and his father were stopped by the police and two soldiers, harassed, forced to pay a bribe, the male applicant was slapped, and both were warned to never return to that town.

[9]                In September 1997, the male applicant travelled to Onestj, where he met his future wife (the female applicant). After relocating to Onestj in January 1998, the male applicant began to work in the female applicant's store.

[10]            The male applicant began encountering problems with a policeman named Valentin Popa who had been extorting bribe payments from his wife for a number of months. At the male applicant's insistence, the female applicant stopped making the payments in March 1999, after which her store was repeatedly vandalized. The male applicant suspected Popa of being the culprit.

[11]            In May 1999, the male applicant and about 200 other Roma organized a protest and demonstrated at Onestj city hall in support of Roma rights. Romanian bystanders threw rocks at the protesters and the riot police were dispatched to deal with the protest. Around twenty protesters, including the male applicant, were arrested and detained at the local police station. The male applicant was detained for eleven days, during the first three of which he was beaten, then released with a warning that he was blacklisted.

[12]            After the male applicant was released and he learned of his wife's beating, the applicants decided to close their store and leave Onestj. In June 1999, they moved to Bucharest to live with the female applicant's cousin and hid until they could make their way to Canada.

[13]            The male applicant states that he fears that if he were forced to return to Romania, having to apply for a residency permit would alert the police to his return and the beatings and harassment associated with being Hungarian/Roma ethnicity would begin again.

The female applicant

[14]            The female applicant is of Roma ethnicity and was raised in the city of Onestj in eastern Romania.

[15]            Throughout school and her working life in Romania, the female applicant suffered mistreatment, harassment and name-calling. She recalls that in grade nine her teacher shouted ethnic slurs at her and when she rebelled, she was suspended. In 1990, the female applicant was fired from her job at the post office, which she believes happened because of her Roma ethnicity.

[16]            In March 1997 the female applicant opened a grocery store and was granted a business permit from the Department of Commerce. To stay in business, the female applicant states that she had to continuously bribe officials with coffee, cigarettes, alcohol or money. In July 1997 she began to be harassed and extorted by a police officer named Valentin Popa, who was sexually interested in her and, in her view, caused her to be harassed and extorted by traffic police as well.

[17]            In June 1998, the female applicant converted her business to a clothing store. Both she and the male applicant worked there. The policeman, Popa, continued to demand bribe payments and when the female applicant stopped making payments to him in March of 1999, her store and car were vandalized. The female applicant stated that making reports to the police was useless.

[18]            When her husband was arrested in connection with the Roma protest in May 1999, Popa visited the female applicant at home, argued with her and then beat her severely to the point where she had to be hospitalized. Hospital records show that the female applicant miscarried her pregnancy, and was badly beaten on her face and body. The female applicant states that the nursing staff was nasty to her, and that later a dentist refused to fix her broken teeth because she was Roma.

[19]            The female applicant states that she and her husband moved to Bucharest in June 1999 where they lived with her cousin and his wife, and then fled the country in January 2000.

[20]            The female applicant states that she had been advised by a Romanian contact to travel to Canada via Ireland because it would be easier than travelling through continental Europe. Once in Dublin, Ireland, the applicants were caught by immigration officials because they had false Hungarian passports. To avoid being deported back to Romania, the applicants made refugee claims in Ireland. The applicants say they heard that Romanians were not successful in their refugee claims and were deported back to Romania by Irish authorities. The applicants abandoned their Irish refugee applications to come to Canada in June 2001, their intended destination since leaving Romania.

[21]            The female applicant states that she fears for her life should she return to Romania, because she would be required to register with local authorities, who would then learn of her ethnicity and the problems would start all over again.

[22]            The applicants arrived in Halifax, Nova Scotia on June 7, 2001 and claimed refugee status four days later.

[23]            A hearing into the applicants' claims was held on December 3, 2002 before a single-member panel of the Board.

Reasons of the Immigration and Refugee Board (Refugee Protection Division)

[24]            In a decision dated April 22, 2003, the Board determined that the applicants were neither Convention refugees nor persons in need of protection within the meaning of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").

[25]            The Board accepted the applicants' evidence that they were Roma from Romania, but held that they did not have a well-founded fear of persecution in Romania today as a result of their ethnicity or for any other Convention ground.

[26]            The Board rejected the applicants' claims on four bases:

1.          The applicants suffered discrimination which did not amount to persecution;

2.          The applicants could have availed themselves of state protection in Romania;

3.          The applicants had a viable internal flight alternative in Bucharest; and

4.          The applicants' abandonment of their refugee claims in Ireland indicated a lack of subjective fear of persecution.

Discrimination not persecution

[27]            Relying on the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, January 1992) (the "UNHCR Handbook"), the Board drew a distinction between the discrimination experienced by the applicants and persecution within the meaning of the Convention. In the Board's view, only when discrimination seriously restricts on an individual's right to earn a livelihood, practice their religion or access normally available educational facilities, does it amount to persecution.

[28]            On the facts of this case, the Board found that the applicants may have experienced discrimination, but did not have a well-founded fear of persecution, even when the events in question were viewed cumulatively. The Board noted that the applicants were able to obtain post-secondary education and were continuously employed while in Romania, signs the restrictions mentioned in the UNHCR Handbook were not present.

[29]            In considering the available documentary evidence, the Board placed significant weight on the British Home Office Country Assessment Report: Romania (Immigration & Nationality Directorate, April 2002), which described the government of Romania's "vigorous attempts to assimilate and integrate the Roma population into mainstream Romanian society", as evidenced by an initiative called the "National Strategy for Improving the Condition of Roma".

[30]            The Board also placed great weight on the U.S. Department of State Country Reports on Human Rights Practices: Romania (2002), which indicated the Roma were discriminated against, but did not persuasively establish a serious risk of persecution in Romania on the basis of Roma ethnicity.

The availability of state protection in Romania

[31]            The Board concluded that the applicants had not established that state protection was not or would not be forthcoming if they returned to Romania.

[32]            Commenting that the applicants appeared to be "highly resourceful", the Board looked to the documentary evidence regarding government attempts to redress the situation of Roma citizens and found it implausible that the applicants were unable to address the problems with police officer Popa. Furthermore, the Board found it unreasonable that the female applicant did not want to have anything to do with the gypsy Roma court in Onestj that existed to help the Roma community.

[33]            In sum, the Board was not persuaded that state protection was unavailable to the applicants in Onestj.

Internal flight alternative

[34]            The Board found that the applicants had a viable internal flight alternative in Bucharest, therefore, by definition, their fear of persecution in Romania is not objectively well-founded.

[35]            The Board held that there is no serious possibility of persecution, risk to life, risk of cruel and unusual treatment or punishment, or danger of torture in Bucharest and it would not be unreasonable for the claimants to seek refuge there.

[36]            The Board reviewed the fact that the applicants lived with relatives in Bucharest from June 1999 to January 2000. The female applicant's cousin housed and employed both her and the male applicant during this period of time. Neither of the applicants encountered problems with violence or harassment while in Bucharest, although extortion was rampant that targeted Roma business people.

[37]            At the hearing, the applicants rejected the idea outright that it would have been possible for them to stay in Bucharest permanently rather than seek international protection. Since the male applicant had participated in a protest, he would be known to police departments throughout Romania and targeted again once the applicants registered a new address in Bucharest. The applicants admitted that they did not attempt to register an address in Bucharest.

[38]            The Board found the applicants' reasons for not wanting to settle in Bucharest unsatisfactory for three reasons. First, the Board found there was no evidence that any attempt by the applicants to register an address in Bucharest would lead to further mistreatment by the police. Second, the documentary evidence and the applicants' testimony indicate that Bucharest is the most populous city in Romania, is home to many Romas (including wealthy relatives of the applicants who are willing to employ them), and the applicants are educated, sophisticated people. Lastly, the Board stated that the applicants lived in Bucharest for a year and a half before leaving Romania and had not encountered any harassment based on their ethnicity.

Abandoning their refugee claims in Ireland negate the applicants' subjective fear of persecution

[39]            The Board found that the mere fact that the applicants abandoned their refugee claims in Ireland, a signatory to the Convention, clearly pointed to a lack of subjective fear of persecution on their parts.

[40]            Although the applicants explained the abandonment of their refugee claims by stating that their initial intention was to come to Canada and that they were told Romanian refugee claimants were not successful in obtaining protection from Irish authorities, the Board did not accept these explanations. The Board noted there was no persuasive, trustworthy and reliable evidence to support the allegation that Ireland does not operate within the scope and obligations of the Convention.

[41]            This is the judicial review of the Board's decision.

Applicants' Submissions

[42]            The applicants submit that the Board erred in concluding that their fear of persecution was not objectively well-founded based on the reports that the Romanian government is making attempts to address the situation of the Roma population.

[43]            The applicants point to portions of the British Home Office Report that was relied on by the Board as also establishing that discrimination against Roma people is ongoing. Furthermore, the European Commission against Racism and Intolerance, Second Report on Romania (Council of Europe, 23 April 2002), which was part of the Board's disclosure package, states that police abuses of power are not sufficiently investigated, curbed or punished.

[44]            The applicants also point to the Human Rights Watch World Report 2002: Europe & Central Asia: Romania, (starting at page 209 of the Certified Tribunal Record), which objectively documents that Romania's human rights record remained uneven in 2001, legislation designed to enhance minority rights was not implemented, police misconduct continued and the problem of discrimination against the Roma population continued to permeate society. The applicants also highlight the Board's own research documents that state police protection of Roma is often not forthcoming and that Roma are often refused registration, along with the social and medical services linked to registration.

[45]            The applicants submit that whether discrimination amounts to persecution is a question of mixed fact and law reviewable by this Court on a standard of reasonableness: Wickramasinghe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 470, [2002] F.C.J. No. 601 (QL).

[46]            Relying on the UNHCR Handbook, Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 and Soto v. Canada (Minister of Citizenship and Immigration), 2002 FCT 768, [2002] F.C.J. No. 1033 (QL), the applicants submit that the Board's finding was unreasonable, as it did not recognize that acts of discrimination may give rise to a reasonable fear of persecution if they produce a feeling of apprehension in the mind of the targeted person.

[47]            The applicants argue that the Board failed to apply the UNHCR Handbook guidelines appropriately. The Board acknowledged that the applicants were mistreated at school, were required to pay bribes, were victimized by one police officer in particular, their police complaints were ignored, the female applicant was beaten, and the male applicant was detained and beaten. In the applicants' submission, these events, along with the restrictions on their ability to earn a livelihood, fulfill the requirements of the UNHCR Handbook so as to rise to the level of persecution.

[48]            The applicants argue that the Board preferred the documentary evidence over their testimony, which amounts to a negative credibility finding against them, without any reasons being given. This, the applicants allege, is a reviewable error on the part of the Board.

[49]            The applicants submit that given the country conditions for Roma in Romania, there was no reasonable internal flight alternative. The documentary evidence showed substantial discrimination throughout Romania and no evidence was led by the Board that Bucharest was a safe haven. The applicants submit that the absence of any acts of persecution while they were in hiding in Bucharest cannot be equated to an absence of an objective or subjective fear of persecution.

[50]            Relying on the test set out in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), the applicants argue that the Board erred in concluding that Bucharest was an internal flight alternative. In the applicants' view, since they could not register with the local authorities for fear of continued harassment, they could not legally reside in the city or access social services. The applicants submit that the Board did not consider whether it was reasonable for them to seek refuge in Bucharest, or if there was a serious possibility of being persecuted there.

[51]            The applicants submit that the Board's dismissal of their evidence that they feared persecution by the police in Bucharest amounts to a tacit negative assessment of credibility without reasons being given.

[52]            The applicants submit that the Board's assessment of credibility was based, in part, on erroneous facts. The Board states that the applicants lived in Bucharest for one and a half years, however the uncontradicted evidence was that they spent only six months in Bucharest (June 1999 until January 2000).

[53]            The applicants rely on Muresan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 819, [2002] F.C.J. No. 1097 (QL), as a case decided on similar facts regarding an internal flight alternative.

[54]            Based on previous decisions of the Board, the applicants submit that where a plausible explanation is offered why a claimant did not claim refugee status elsewhere, their failure to do so cannot then be construed against them.

[55]            The applicants argue that the Board erred in rejecting their explanations for abandoning their Irish refugee claims without determining whether their account was plausible. The Board held that there was no persuasive evidence that Ireland treated refugee claimants differently than Canada. The applicants argue that they offered a plausible explanation, that is, other refugees informed them that there was no possibility of success and they always intended to come to Canada. The applicants allege that the Board erred by applying an objective, rather than subjective test of plausibility.

[56]            Furthermore, the applicants state that it is entirely consistent with a subjective fear of persecution to have abandoned their refugee claims in Ireland when faced with the prospect of being returned to Romania. The applicants allege that the Board made a negative credibility finding on this issue without providing reasons or analysis.

[57]            For these reasons, the applicants request that the Board's decision be quashed, they be declared Convention refugees, or alternatively, that their claims be remitted back to the Board for hearing by a differently constituted panel.

Respondent's Submissions

[58]            The respondent submits that the onus remains on the applicants throughout the Board's hearing to establish on a balance of probabilities that they fit IRPA's definition of Convention refugee or person in need of protection.

[59]            Relying on Zsuzsanna v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1206, [2002] F.C.J. No. 1642 (QL), the respondent submits that the standard of review to be applied to all of impugned conclusions of the Board in this case is patent unreasonableness.

[60]            The respondent submits that the Board's finding that the applicants experienced incidents of discrimination in Romania that did not cumulatively amount to persecution was based on a careful review of the facts applied to the appropriate legal test. The respondent denies that any reviewable error exists in this aspect of the Board's decision.

[61]            The respondent submits that the Board did not err in concluding that state protection was available to the applicants and that they had not exhausted all avenues of state protection available to them in Romania. The respondent points to the evidence that the Romanian government was making determined efforts to address the situation of the Roma population and that the applicants had not sought out government organizations for assistance. Furthermore, the respondent emphasizes that state protection need not be perfect to offer sufficient protection so as to negate the applicants' claims to be refugees.

[62]            The respondent also argues that it was open to the Board to choose which documentary evidence it relied upon.

[63]            The respondent submits that the applicants have not shown that the Board's ruling on the availability of an internal flight alternative was patently unreasonable.

[64]            The appropriate test to determine whether a proposed internal flight alternative was viable, in the respondent's submission, is whether it was objectively unreasonable for the claimant to have sought refuge there: Ayisi-Nyarko v. Canada (Minister of Citizenship and Immigration), 2003 FC 1425, [2003] F.C.J. No. 1833 (QL).

[65]            In this case, the respondent submits that based on the evidence before it, it was not patently unreasonable for the Board to conclude that Bucharest was a viable internal flight alternative for the applicants.

[66]            Finally, the respondent submits that the applicants' abandonment of refugee claims in Ireland was a relevant consideration in assessing their subjective fear. Furthermore, the respondent submits that the Board properly assumed that Ireland would meet its obligations under the Convention since there was only conjecture and opinion offered to establish the contrary.

[67]            The respondent requests that this application for judicial review be dismissed.

Issues

[68]            1.         Did the Board err in its analysis of whether the discrimination suffered by the applicants amounted to persecution?

2.         Did the Board err in its finding of adequate state protection in Romania?

3.         Did the Board err in finding that there was an internal flight alternative to Bucharest?

4.         Did the Board err in finding that the abandonment of the applicants' Irish refugee claims negated their subjective fear of persecution?

Relevant Statutory Provisions

[69]          Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, supra, define "Convention refugee" and "person in need of protection" as follows:

Analysis and Decision

[70]            Issue 1

Did the Board err in its analysis of whether the discrimination suffered by the applicants amounted to persecution?

The applicants and the respondent disagree as to the standard of review to be applied to this issue. The applicants state that the standard to be applied is reasonableness simpliciter, to which the respondent states that the Court should only intervene if the Board's conclusion was patently unreasonable. I am of the view that the determination of whether or not certain conduct amount to persecution is a question of mixed law and fact which should be reviewed on a standard of reasonableness simpliciter: Wickramasinghe, supra.

[71]            In this case, the Board did not disbelieve the applicants' accounts of harassment and discrimination but concluded that they did not amount to persecution. The Board did seem to be aware of the need for it to view the incidents cumulatively but took a narrow view of the UNHCR Handbook Guidelines. The Board stated at page 5 of its decision:

The UNHCR Handbook in distinguishing persecution from discrimination states that in many societies, differences in the treatment of various groups do exist to a greater or lesser extent. It is only in certain circumstances such as serious restriction on rights to earn a livelihood, rights to practice religion, or access to normally available educational facilities, discrimination can amount to persecution.

After careful examination of all the evidence and the circumstances of these claims, the panel does not find that such restrictions exist even considered cumulatively . . .

[72]            The relevant sections of the UNHCR Handbook were recently quoted in Mohacsi v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 771, 2003 FCT 429 at paragraph 34:

The Office of the United Nations High Commission for Refugees has published a book entitled "Handbook on Procedures and Criteria for Determining Refugee Status", (Reedited Geneva, January 1992) (the "Handbook") which provides guidance for the consideration of claims of persecution based on the cumulative effects of discrimination. The relevant paragraphs are paragraphs 53 through 55. Paragraph 52 is also quoted below to provide context to the discussion of what should be factored into a cumulative analysis in light of the broader goal of determining whether persecution exists:

(b) Persecution

[...]

52. Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case [...]. The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary.          

53. In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on "cumulative grounds". Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context.

(c) Discrimination

54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.

55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.

[73]            The Board, in its decision, did not address paragraph 55 of the UNHCR Handbook and the possibility that the incidents described by the applicants created "a feeling of apprehension and insecurity as regards . . . [their] . . . future existence".

[74]            The Board noted that the applicants obtained post-secondary education and were continuously employed while in Romania in concluding there was not persecution. However, the Board did not deal with the beatings and detention suffered by the applicants because of their ethnicity. There was uncontradicted evidence the female applicant was beaten to the point of requiring over a week of hospitalization, suffered a miscarriage and required dental repair. There was also evidence that the male applicant was detained for eleven days and received three days of beatings. This evidence should have been addressed in determining whether or not the applicants suffered persecution. Although the Board is not required to refer to all of the evidence in its decision, evidence such as the above evidence which is important to the final outcome of the case should be dealt with. I am of the view that the Board's decision is unreasonable in this respect.

[75]            Issue 2

Did the Board err in its finding of adequate state protection in Romania?

The prevailing view is that while the underlying factual findings are subject to the standard of patent unreasonableness, the Board's findings on the adequacy of state protection is a mixed question of law and fact that is reviewed on a standard of reasonableness simpliciter.

[76]            In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada held that claimants must bring "clear and convincing proof" of their state's inability to protect them as part of meeting the definition of a Convention refugee. In this case, the Board relied on documentary evidence to conclude that the Romanian government was making great efforts to improve the situation of the Roma population, as well as other minorities. I have two concerns regarding the Board's findings on this issue. First, the Board made no reference to the documentary evidence which stated that legislation to improve conditions was not passed, police misconduct continues and that police protection of Romani is often not forthcoming. Although the Board is presumed to have considered all the evidence put before it, Evans J. recognized in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.)(QL) that where critical evidence is not mentioned or analyzed, the more willing the Court will be to infer from the silence that a finding of fact was made without regard to the evidence. I would apply Cepeda-Gutierrez, supra, in this case and find that the Board's findings regarding state protection were unreasonable in the circumstances.

[77]            Issue 3

Did the Board err in finding that there was an internal flight alternative to Bucharest?

The standard of review to be applied to internal flight alternative findings is patent unreasonableness (see Chorney v. Canada (Minsiter of Citizenship and Immigration), 2003 FC 999, [2003] F.C.J. No. 1263 (QL).

[78]            The Board stated as one of its reasons for finding Bucharest an internal flight alternative that the applicants had lived there for a year and a half and had not suffered any acts of persecution. It should be noted that the applicants were only in Bucharest for six months and were in hiding during this time. The testimony of the applicants was to the effect that if they registered with the police in order to legally reside in Bucharest, the police would learn of their Roma ethnicity from the authorities in Onestj and the targeting would continue. If they did not register, they are unable to access social services.

[79]            The Federal Court of Appeal in Rasaratnam, supra, stated at paragraph 10:

In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in Colombo and that, in all the circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the appellant to seek refuge there.

[80]            I have reviewed the Board's decision and I cannot find where the Board addressed the second part of the test, namely, that "in all the circumstances including circumstances particular to him [them] conditions in . . . [Bucharest] were such that it would not be unreasonable for the      . . . [applicants] to seek refuge there". I am of the view that the Board should have considered the impact on the applicants of their belief that they could not register and thus be unable to access social services. I am of the view that this was a reviewable error, even applying the standard of review of patent unreasonableness.

[81]            Issue 4

Did the Board err in finding that the abandonment of the applicants' Irish refugee claims negated their subjective fear of persecution?

The standard of review on this issue is patent unreasonableness. Numerous decisions of this court have stated that an applicant's failure to seek refuge in transit countries is relevant to a determination of their subjective fear of persecution (for example, MacKay J. In Ilie v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1758 (T.D.) (QL)). This Court has also held that when an applicant provides a reasonable explanation for not claiming refugee status in a transit country, their failure to do so will not be counted against them.

[82]            The applicants in this case made a refugee claim in Ireland but abandoned the claim because they were told that Romanians were not successful in their refugee claims and were deported back to Romania. The Board did not analyze this explanation for the abandonment or state that it disbelieved the explanation. The Board simply stated that since there was no "persuasive, trustworthy and reliable evidence" to show that Ireland would not fulfill its obligations under the Convention, "the mere fact that both claimants abandoned their refugee claims in Ireland clearly points to a lack of subjective fear of persecution on their part".

[83]            In this case, the applicants stated that they had a subjective fear of persecution in Romania and explained their conduct. The Board did not make a negative credibility finding against the applicants or otherwise deal with their explanation. In these circumstances, I am of the opinion that the Board drew a negative inference without regard to the evidence before it. The Board's decision on this issue is patently unreasonable.

[84]            The application for judicial review is therefore allowed. The decision of the Board is quashed and the applicants' claims are remitted back to the Board for redetermination.

[85]            Neither party wished to submit a serious question of general importance for my consideration for certification.

                                               ORDER

[86]            IT IS ORDERED that the application for judicial review is allowed. The decision of the Board is quashed and the applicants' claims are remitted back to the Board for redetermination.

                                                     

            "John A. O'Keefe"           

J.F.C.

Ottawa, Ontario

August 11, 2004

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-3520-03

STYLE OF CAUSE: ION MACHEDON and

MIHAELA MACHEDON

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                     

PLACE OF HEARING:                                 Halifax, Nova Scotia

DATE OF HEARING:                                   February 18, 2004

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                     August 11, 2004

APPEARANCES:

Eugene Y. S. Tan

FOR APPLICANT

Melissa R. Cameron

FOR RESPONDENT

SOLICITORS OF RECORD:

Cooper & McDonald

Halifax, Nova Scotia

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT