Date: 20090320
Docket: IMM-3538-08
Citation: 2009 FC 285
Ottawa, Ontario, March
20, 2009
PRESENT: The Honourable
Mr. Justice Orville Frenette
BETWEEN:
ANTRANIK
MAKSOUDIAN,
ARDA AGOPJIAN,
ANI MAKSOUDIAN,
KRIKOUR MARKSOUDIAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of the decision by
the Refugee Protection Division of the Immigration and Refugee Board (panel),
dated July 14, 2008, that the applicants are neither “Convention refugees” nor
“persons in need of protection” under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. (2001), c. 27 (Act).
Facts
[2]
The
evidence in the record shows that the applicants, a man, a woman and their two
adult children, are citizens of Syria who came to Canada in 2005.
They claim that they were persecuted by Syrian society in general because they
are Christians. The vast majority of the population is Muslim.
[3]
According
to the “U.S. Department of State, Country Reports on Human Rights Practices” issued
on March 11, 2008, the Constitution of Syria provides for freedom of religion.
However, this report discloses human rights abuses, violence and discrimination
against women. Specifically, the applicants allege that they were harassed on
many occasions by the Muslim majority in Syria. They claim
that they were discriminated against by the police, jeered at by strangers in
the street and threatened with assault. The female applicants also claim that
they were victims of harassment and unwanted sexual touching.
Impugned decision
[4]
The
panel recounted the factual versions, as presented by the applicants. The
applicants’ credibility was not questioned, and therefore their narrative
appeared to be true. However, further to the analysis of the specific situation
of the applicants and that of the country in general, as revealed in the
general documentation, the panel found that the events experienced, even taken
cumulatively, did not amount to persecution.
[5]
In
short, it was a situation commonly experienced by Christians in that country.
Consequently, their situation did not amount to persecution within the meaning
of the Act.
Standard of judicial
review
[6]
This
decision is a question of mixed fact and law and is consequently subject to the
reasonableness standard (Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190; Liang v. Minister of Citizenship and Immigration, 2008 FC 450, at paragraphs
12 to 15). The Supreme Court of Canada defined the nature of this standard in the
recent decision Canada (Citizenship and Immigration) v. Khosa, 2009 SCC
12, stating that the reasonableness standard meant that deference was owed to
the decisions of administrative tribunals.
Issue
[7]
Was
the decision reasonable?
Analysis
[8]
The
applicants rely on the following ground to impugn the decision, namely, that
the panel did not comply with the Convention standards concerning persecution.
[9]
The
Geneva Convention relating the Status of Refugees defines persecution. Specifically,
it emphasizes the importance of analyzing the subjective and objective elements
of a situation to determine whether the circumstances are such that they amount
to persecution (Handbook on Procedures and Criteria for Determining Refugee
Status under the 1951 Convention and the 1967 Protocol relating to the Status
of Refugees, UNHCR, document HCR/1P/4/ENG/REV.1 (1992)) :
41. Due to the importance that the
definition attaches to the subjective element, an assessment of credibility is
indispensable where the case is not sufficiently clear from the facts on
record. It will be necessary to take into account the personal and family
background of the applicant, his membership of a particular racial, religious,
national, social or political group, his own interpretation of his situation,
and his personal experiences – in other words, everything that may serve to
indicate that the predominant motive for his application is fear. Fear must be
reasonable. Exaggerated fear, however, may be well-founded if, in all the
circumstances of the case, such a state of mind can be regarded as justified.
42. As regards the objective element, it
is necessary to evaluate the statements made by the applicant. The competent
authorities that are called upon to determine refugee status are not required
to pass judgement on conditions in the applicant’s country of origin. The
applicant’s statements cannot, however, be considered in the abstract, and must
be viewed in the context of the relevant background situation. A knowledge of
conditions in the applicant’s country of origin – while not a primary objective
– is an important element in assessing the applicant’s credibility. In general,
the applicant’s fear should be considered well-founded if he can establish, to
a reasonable degree, that his continued stay in his country of origin has
become intolerable to him for the reasons stated in the definition, or would
for the same reasons be intolerable if he returned there.
[10] The
Convention also stresses the difference between persecution and discrimination,
as follows:
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 the 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.
[11] Although the
panel found the applicants’ account of the events they experienced to be
credible, the panel could not find, based on the inferences drawn from these facts,
that the applicants had a reasonable fear of persecution if they were to
return to their country.
[12] According to
the case law, for the mistreatment suffered or anticipated to be considered
persecution, it must meet two criteria: it must be serious and it must be
repetitive or systematic.
[13] First, the
mistreatment must be serious, as set out by the Supreme Court of Canada in Chan
v. Canada (M.E.I.), [1995] 3 S.C.R. 593 :
69 This
approach is, in my view, eminently sensible. It returns the focus of a
refugee hearing to the essential question of whether the claimant's basic human
rights are in fundamental jeopardy. This point was underscored in Ward
where it was stated, at p. 733, that "[u]nderlying the Convention is the
international community's commitment to the assurance of basic human rights
without discrimination". In that case, this Court endorsed an
approach in which the concern of refugee law ought to be the denial of human
dignity in any key way with the sustained or systemic denial of core human
rights as the appropriate standard. The Court there noted, at pp. 733-34:
This theme sets the boundaries for many
of the elements of the definition of "Convention refugee".
"Persecution", for example, undefined in the Convention, has been
ascribed the meaning of "sustained or systemic violation of basic human rights
demonstrative of a failure of state protection"; see Hathaway [The Law
of Refugee Status (Toronto: 1991)], at pp. 104‑5.
So too Goodwin‑Gill [The Refugee in International Law (Oxford: 1983)], at p. 38
observes that "comprehensive analysis requires the general notion (of
persecution) to be related to developments within the broad field of human
rights". This has recently been recognized by the Federal Court of
Appeal in the Cheung case.
70 Both Canada (Minister of Employment and Immigration) v. Mayers,
[1993] 1 F.C. 154, and Cheung were approved in Ward for
developing tests making the consideration of basic human rights the appropriate
focus of a refugee inquiry. It was noted that groups defined by a
characteristic that is changeable or from which disassociation is possible, so
long as neither option requires renunciation of basic human rights, were beyond
Canada's obligation and
responsibility. The essential question is whether the persecution alleged
by the claimant threatens his or her basic human rights in a fundamental
way. This question must be asked of the present appellant's allegations.
[14] Second, the
mistreatment must be repetitive or systematic, and not consist of isolated acts
(Rajudeen v. Canada (M.E.I.) (1984), 55 N.R. 129 (F.C.A.)):
[14] The first
question to be answered is whether the applicant had a fear of persecution. The
definition of Convention Refugee in the Immigration Act does not include
a definition of "persecution". Accordingly, ordinary dictionary
definitions may be considered. The Living Webster Encyclopedic Dictionary
defines "persecute" as:
"To harass or afflict with repeated
acts of cruelty or annoyance; to afflict persistently, to afflict or punish
because of particular opinions or adherence to a particular creed or mode of
worship."
The Shorter Oxford English Dictionary contains
inter alia, the following definitions of "persecution":
"A particular course or period of
systematic infliction of punishment directed against those holding a particular
(religious belief); persistent injury or annoyance from any source."
[15] I believe, as
the respondent argues, that the events, although unfortunate, cannot be
considered to amount to persecution. These events are not “serious” within the
meaning of the Convention; these events simply cannot be considered a sustained
or systemic denial of core human rights as set out in Chan, above.
[16] I wish to
point out that a reading of the record discloses no objective evidence to
corroborate the female applicant’s account as to her personal or even general
risk of being a victim of public assault.
[17] In addition,
the panel asked the applicants about this objective evidence in order to
reconcile it with the facts; specifically, they were questioned about the fact
that “there was little evidence of societal discrimination or violence against
religious minorities”, but the applicants had no comment. Their counsel
explained, however, that this lack of evidence is due to the fact that people do
not complain because the message in the Armenian community is that there would
be no use in doing so; therefore, in addition to a fear of persecution by
Syrian society in general because of their religion, the applicants have a fear
of going to the authorities (panel record at pages 576 to 578).
[18] Essentially,
the applicants are arguing that, as part of the Christian minority in a country
with a Muslim majority, they have been victims of harassment, assault and
threats by [TRANSLATION] “certain Muslims”. The result is a family living in a
state of distress, resulting in symptoms of severely traumatic anxiety that may
compromise their mental health. The problem with this reasoning as
justification for judicial review is that it would generally apply to all
Christians in Syria, a proposal that would be unacceptable (see Makhtar et
al. v. Minister of Citizenship and Immigration, 2004 FC 16, concerning the
situation of Christians in Syria).
[19] It is well
established that, in law, harassment does not constitute persecution, unless
the above-mentioned conditions are established by the evidence, which was not the
case here. The only issue is to decide whether the decision falls within the
range of outcomes that are defensible by a reasonable analysis of the evidence (see
Dunsmuir, above).
[20] In my
opinion, the decision meets this standard; consequently, the application cannot
be allowed.
JUDGMENT
The
application for judicial review of the decision of the Refugee Protection Division
of the Immigration and Refugee Board dated July 14, 2008, is dismissed.
No question
will be certified.
“Orville
Frenette”
Certified
true translation
Susan
Deichert, LLB
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