Date: 20090205
Docket: IMM-5512-07
Citation: 2009 FC 121
Montréal, Quebec, February 5, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
MATTHEW HUND
MICHELLE HUND
MEGAN SANDERS
GERARD HUND
MARY HUND
VIRGINIA HUND
TELL SANDERS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review by the Minister pursuant to section 72 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)
of a decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated December 13, 2007, wherein the RPD determined that the respondents,
all citizens of the United States of America were “Convention refugees” under section
96 of the IRPA.
II. The Facts
[2]
The
respondents, four adults and three children, were born in the United
States.
The parents are: Matthew, father of three of the younger applicants, Gerard,
Mary and Virginia Hund; and Michelle Hund, the biological mother of Tell and
Megan Sanders born from a former marriage, and also biological mother of the
three younger applicants. The parents married in 1994.
[3]
The
respondents claimed that they were conservative Mennonites before
changing their religion to become members of the Old Order Benedictine Amish
community in 2002, but although having lived close to the said community,
they never lived within it.
[4]
Before
arriving in Canada, the respondents were living in Drake, North
Dakota,
United States,
a non‑Amish community. They lived in Kansas and Wisconsin
before moving to North Dakota. In Paxico, Kansas, they owned
and operated a farm for 7 years from 1995 to 2002. They subsequently moved to Cashton, Wisconsin, where
they operated a farm for 2 years (from October 2002 to April 2004).
[5]
From
May 2004 to September 2004, prior to their first arrival in Canada, the respondents
left the United
States
on a “spiritual journey” to find out how good or bad the rest of the world was.
In that pursuit they travelled across Europe to Portugal, Spain, France,
Switzerland, Austria, Poland, the Czech Republic, Slovakia, Italy, Germany,
Belgium, England, Ireland and finally Canada on their way back.
[6]
From
December 2004 to March 2005, the respondents owned and operated a small 5-acre
farm in Mansfield, Missouri. In
March 2005, they attempted to enter Canada at Sarnia, Ontario as
immigrants but were refused entry due to lack of proper documentation. From April
2005 to January 2006, the respondents rented and then owned a farm near the
city of Drake, North Dakota.
[7]
In
November 2005, they attempted to re-enter Canada as
immigrants without the appropriate visa and were admitted as temporary residents
until February 15, 2006. During that period, they lived in two farm houses in
Desboro and Durham, Ontario.
They did not seek an extension of their temporary resident visa.
[8]
In
January 2006, the respondents re-entered Canada at Sault
Ste. Marie, Ontario, with authentic American passports which they
subsequently burned after their entry. Upon their arrival, they falsely declared
to an immigration officer that the purpose of the trip was to visit a friend in
Canada. They have
lived in Saint-Raphaël-de-Bellechasse,
Quebec, near Québec City, until the
end of 2006 when they moved to Hull-Gatineau, Quebec. They moved again to Chatham-Brownsburg, Quebec, in the fall
of 2007.
[9]
After
this long pilgrimage, the respondents finally claimed Canadian refugee
protection for the first time on August 17, 2006, when they declared that they
were “conscientious objectors”. Their claims were heard before the RDP on October
2, 2007 in the absence of the Minister’s representative and the Refugee Protection
officer.
[10]
The
crux of the respondents’ fear of persecution in the United States resides in
their contention that too many people have guns. They also state that their
country is ruled by a President who believes in war and who leads their country
on a path of self-destruction and they do not share the political values of the
present administration. One of their greatest fears remains the war that the
United States government is waging in Iraq.
[11]
The
respondents allege that the various incidents of intimidation that they have
endured in their home country have formed a “blanket of snow” that instilled
fear into their lives and pushed them to seek to live in another country.
III. The Impugned Decision
[12]
Although
the RPD acknowledged that the United States is a democratic
country, it nevertheless determined that the respondents had established by
clear and convincing evidence the inability or unwillingness of the United
States
to offer them adequate protection.
[13]
Moreover,
the RPD held that the exceptional circumstances and uniqueness of this case rest
on the important fact that the respondents were persecuted by a sheriff’s officer
in January 2006, and this event combined to their belief system which prohibits
them from initiating legal procedures against anyone, as well as their motto of
turning the other cheek, of forgetting and forgiving and of moving on with
their lives.
IV. Issues
[14]
Did
the RPD err in deciding that the United States was unable to offer the respondents
adequate state protection, that they had established a serious possibility of
persecution on a Convention ground due to their membership in a particular
social group, and that they were Convention refugees entitled to obtain Canada’s protection
as “Convention refugees”?
V. Analysis
Standard of Review
[15]
The Court owes deference
to decisions of the RPD, an administrative decision maker with an
expertise in the application of the IRPA (Dunsmuir v. New Brunswick, 2008 SCC 9).
[16]
However,
the
present case involves questions of facts and weight of evidence intertwined
with legal issues which attract a standard of reasonableness. And “[i]n judicial review,
reasonableness is concerned mostly with the existence of justification, transparency and intelligibility
within the decision-making process”. It is also concerned with “whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above,
at para. 47; Hinzman v. Canada (Citizenship and
Immigration),
2007 FCA 171).
[17]
Was it reasonable for the RPD to decide that the United
States
was unable to offer the respondents adequate state protection, that they had
established a serious possibility of persecution on a Convention ground due to
their membership in a particular social group, and to conclude that they were
Convention refugees entitled to obtain Canada’s protection
as “Convention refugees”?
Objective Fear
of Persecution
[18]
The
respondents’ claims had to be considered against the unequivocal and
unchallenged documentary evidence that the United States is a
democratic country with a system of checks and balances among its three
branches of government, including an independent judiciary and constitutional
guarantees of due process. The RPD acknowledged this fact.
[19]
The
test to establish fear of persecution is bipartite. The respondents had to
demonstrate that they had in their mind a subjective fear of persecution and that
this fear was objectively well‑founded in the sense that a valid basis existed
for that fear (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689).
[20]
Although
subjective fear may very well be present, if it is not grounded in the
definition of the Refugee Convention or if it is determined that there is no
reasonable chance that the claimant will be persecuted on return because of the
existence of adequate state protection, a claimant fails to meet the test to be
recognized as a Convention refugee (Ward, above, at pages 712, 723, 726;
Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R.
593, at para. 119).
[21]
The
applicant does not challenge, and neither does the RPD, the respondents’
credibility in the description of their fear and apprehension. But while the
respondents may have established the subjective component of their well-founded
fear of persecution, they, on the other hand, have failed to demonstrate that
their fear is objectively well-founded given the availability of state
protection in the United States and the existence of other recourses against
the incidents of harassment or discriminatory remarks that they experienced
while living there.
[22]
Taken
independently or cumulatively, the alleged incidents reported by the respondents
do not amount to persecution under the Refugee Convention. With respect to the
incident of January 10, 2006, regarding a deputy sheriff, the respondents may
have been subjected to targeting from this individual, but this does not
dispute the fact that they had multiple ways of handling this situation within
the United
States
without having to flee their homeland to claim refugee status abroad.
State
Protection
[23]
Claimants,
such as the respondents, who claim against a democracy like the United States, bear a
heavy burden when attempting to establish a claim for refugee status and
protection. Not only must they establish an objective fear of
persecution, but they support the burden to rebut the general presumptions in
refugee law such as those of state protection (Hinzman, above).
[24]
When
the state in question is a democratic state, which is the undisputed situation
here, the claimant must do more than what the respondents did. The fact that
they denounced their fear and situation to their neighbouring or members of
their religious community does not suffice to demonstrate that they would not
have obtained adequate recourse from other state’s sources within their country
of origin.
[25]
One
of the factors upon which the RPD based its finding of the non-availability of
state protection, is that the respondents used horse buggies for transport
which made it more difficult for them to travel to big cities where state
central agencies are located. However, the respondents’ membership in the Amish
community does not relieve them from the obligation to avail themselves of the
protection of their country of nationality, despite the fact that other state
agencies might be situated at some distance from their place of residence.
[26]
The
RPD should have taken note that the lifestyle of the respondents as members of
the Amish community did not preclude them to travel extensively through Europe
and Canada by other means
than their usual mode of transportation. The pilgrimage the respondents engaged
into, before deciding finally to seek refugee protection from Canada against
amongst others the harassment on the part of a local sheriff, has proved to be
a much longer journey than traveling to a city in North Dakota in their
home country or directly to Canada. Claiming refugee protection is not a
question of choice; if the fear is real, the claim for protection must be made
at the first opportunity, not when the claimant finds a better place to live as
appears to be the case here.
[27]
“[I]t is not sufficient that the
evidence adduced be reliable. It must have probative value […] a claimant seeking to rebut the
presumption of state protection must adduce relevant, reliable and convincing
evidence which satisfies the trier of fact on a balance of probabilities that
the state protection is inadequate.” (Carillo v. Canada (Minister of Citizenship and
Immigration),
[2008] F.C.J. No. 399 (F.C.A.) (QL), at para. 30).
[28]
The
“appellants have failed to satisfy the fundamental requirement in refugee law
that claimants seek protection from their home state before going abroad to
obtain protection through the refugee system. Several protective mechanisms are
potentially available to the appellants in the United States. Because the appellants have not
adequately attempted to access these protections […] it is impossible for a
Canadian court or tribunal to assess the availability of protections in the United States” (Hinzman, above, at
para. 62).
[29]
The RPD clearly failed to take into consideration that the
respondents had not exhausted all of their recourses to obtain protection
against the problems they were facing, and failed to properly analyze
whether the respondents could find a safe place to live in the United States
such as in one of the Amish farming communities which exist in many rural parts
of the United States. This failure of the RPD constitutes another reviewable
error.
Exceptional
and Unique Circumstances
[30]
The
RPD also erred in holding that the respondents have shown “exceptional and
unique” circumstances to rebut the presumption of a state protection in a
democratic country like the United States, especially after
having acknowledged that they could have reported the incident involving a
deputy sheriff to higher authorities. The fact that the respondents chose not
to do this, because of their belief system which endorses not pursuing matters
before a Court, to forgive and forget, and to move on, cannot be used as an
excuse for not doing so.
[31]
Sharing
their community religious motto of “turning the other cheek, of forgetting and
forgiving and of moving on with their lives” does not equate to exceptional
circumstances that could justify the respondents’ claim of refugee protection.
The negative approach they chose to face their problems remained their own
choice; as a result they must now bear and live with the consequence of that
choice since a refugee claim in Canada does not constitute a
valid solution to their problems.
[32]
Surprisingly,
this traditional Amish attitude invoked by the respondents for failing to seek
state protection, appears incompatible with prior actions they took to higher
authorities and to the judiciary when they had to enforce their rights.
Discrimination
is Not Persecution
[33]
The
RPD concluded in its decision that the respondents have been victims of acts of
harassment and discrimination which cumulatively amount to persecution.
[34]
The
Court can accept that while various incidents of “lesser” Convention-related
harms may not amount to persecution when taken individually; their “cumulative
effect” might be sufficiently serious nevertheless to constitute persecution (Madelat
v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49
(F.C.A.) (QL); Sarmis v. Canada (Minister of Citizenship and Immigration)
(2004), 245 F.T.R. 312; Mohacsi v. Canada (Minister of Citizenship and
Immigration), [2003] 4 F.C.R. 771 (T.D.)).
[35]
However,
a “cumulative effect” analysis should only consider incidents related to a
Convention reason since the ultimate goal is to determine if a claimant has a
well-founded fear of persecution for a Convention reason.
[36]
Here,
the RPD refers in its decision to several incidents that the respondents
allegedly endured and which were erroneously classified as cumulative acts of
discrimination amounting to persecution such as: abandonment by the respondents’
own family; targets and attacks by a deputy sheriff; threats made at public
meetings by members of their community; and several relocations over a span of
four years.
[37]
Most
of the incidents enumerated by the RPD, in its reasons, do not fall within the definitions
of discrimination and persecution. Abandonment by one’s own family, though an
unpleasant occurrence, remains an unfortunate social and familial dynamic faced
in the best families regardless of the religious beliefs and political
opinions; as such it does not equate to discrimination. Uncorroborated
allegation of threats made at public meetings of the respondents’ community,
although unfortunate incidents, also cannot be equated to acts of discrimination
towards these particular individuals.
[38]
As
to the incident allegedly involving a deputy sheriff, the respondents may have
felt then that their “sensibilities of polite reserve” were offended by a
police car patrolling the neighbourhood of their property; yet regardless of
the nature of this incident, whether the respondents perceived such actions as
harassment, or whether it was nothing more than an officer doing his duty, the
fact remains that the respondents declared having moved to a neighbouring
county following this episode without further incident on the part of the deputy
sheriff in question. Let us not also forget that prior to the sheriff’s incident,
unidentified gun shots had been heard in the neighbourhood; so that these
unidentified gun shots could just as well explain the presence of the deputy sheriff’s
patrol car. This random incident has not proved to be related to the
respondent’s political beliefs, as they stated having kept them a secret. There
is also no evidence that the deputy sheriff would have been targeting them for
their religious beliefs. It is not because, as members of a minority community
they felt targeted, that in fact they were.
[39]
It
cannot for these reasons be reasonably inferred, as the RPD did, that there is
a link between those incidents and a Convention ground. It therefore follows
that these incidents could not be considered as part of an analysis of the
“cumulative effect” of past incidents of mistreatment.
[40]
An
analysis of the transcript of the hearing and of the decision has convinced the
Court that the RPD, by its Member’s remarks, shared the respondents’ claim that
they feared persecution because of the general political and cultural climate
that prevails in United States, or at the very least demonstrated a
receptive attitude with the respondents’ anti-Bush political stance.
[41]
However,
the respondents adduced no evidence that they would face personal risk in the United
States
because of their religious or political beliefs. Nothing in the evidence distinguishes
them from other American citizens dissatisfied with the then Bush administration
and with the evolution of the American social fabric.
[42]
Indeed,
the respondents have a right to their own political, religious beliefs and way
of living: however, the fact that fellow citizens do not share their convictions
and that the respondents feel threatened by these opposing views, does not
constitute discriminatory or persecutory behaviour against them. When a citizen
of a democratic country is not satisfied with the administration of his
country, the solution is not to seek refuge elsewhere but to vote in favour of
another administration.
[43]
In
any event, the definition of Convention refugee is forward looking, so that in
light of recent political developments in the United Stated with the new
Presidency, it remains to be seen if the Respondents’ political fear will be
objectively upheld.
[44]
To
support his finding regarding persecution, the RPD’s Member referred to general
newspaper articles regarding the political situation in the United
States
government. Although these articles may indeed support the respondents’
political views, they fail on the other hand to demonstrate that the
respondents would face a personal threat of persecution as a result
thereof. The RPD Member’s reliance upon these documentary sources to support
his conclusions is therefore unacceptable (Sinora v. Minister of Employment
and Immigration, [1993] 66 F.T.R. 113 (F.C.A.); Alexibich v. Canada
(Minister of Citizenship and Immigration), [2002] F.C.J. No. 57 (QL)).
[45]
By
erroneously construing the facts of this case to what constitutes persecution
on cumulative grounds, and by erroneously equating to persecution the political
and moral opposition with the politics of a country, the RPD acted manifestly
in an unreasonable manner justifying the intervention of this Court.
Internal
Flight Alternative
[46]
Before
deciding that the respondents were Convention refugees, the RPD had to consider
whether they had an Internal Flight Alternative (IFA) in their country of
origin and if they made serious efforts to look for one.
[47]
The
respondents had to meet here a very high threshold in order to establish that
it would be unreasonable for them to seek refuge elsewhere in their country. It
required nothing less than the existence of conditions which would have
jeopardized their life and safety in traveling or temporarily relocating to a
safe area. In addition, it required actual and concrete evidence of such
conditions that the Court does not find in the evidence (Ranganathan v. Canada (Minister of
Citizenship and Immigration),
[2001] 2 F.C. 164 (F.C.A.)).
[48]
The
RPD committed a reviewable error here by failing to properly analyse
whether the respondents could find or not or made any serious efforts to find a
safe place for them to live in United States, such as in one of the Amish
farming communities which exists in many rural parts of the United
States.
Failure to Claim Protection
Elsewhere
[49]
Finally,
the RPD made another reviewable error when it decided that the respondent’s
failure to claim protection at the first opportunity while they travelled in
Europe and in Canada, coupled
with their return to the United States, did not negate their
subjective fear of persecution.
[50]
The
respondents’ itinerary during their pilgrimage in Europe and Canada before
claiming refugee protection is incompatible with the behaviour of one who fears
persecution or risk for his life or his security in his country of origin. This
behaviour goes to the core of the respondents’ claim and annihilates the
existence of the subjective fear of persecution they may have had (Caballero
v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 345
(F.C.A.); Huerta v. Canada (Minister of Employment and Immigration)
(1994), 157 N.R. 225 (F.C.A.); Pan v. Canada (Minister of Employment
and Immigration), [1994]
F.C.J. No. 1116 (F.C.A.) (QL); Ilie v. Canada (Minister of Citizenship and
Immigration), 88 F.T.R. 220 (F.C.T.D.)).
VI. Conclusion
[51]
These
cumulative errors of the RPD justify this Court to intervene. The impugned decision is
way out of the range of possible and acceptable outcomes which are justified in
respect of the facts and the law, and therefore does not deserve the deference of
this Court since it is unreasonable.
[52]
Therefore,
the judicial review application will be granted and the impugned decision of December
13, 2007, set aside.The Court
agrees with the parties that there is no serious question of general importance to certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for
judicial review is allowed, the decision of the Refugee Protection Division,
dated December
13, 2007, is set aside, and the application for Convention refugee status is
referred to a differently constituted panel of the Convention Refugee
Determination Division for re‑determination in accordance with the law.
“Maurice
E. Lagacé”
Email this Content