Date:
20130604
Docket:
IMM-7844-12
Citation:
2013 FC 598
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
June 4, 2013
PRESENT: The
Honourable Mr. Justice Roy
BETWEEN:
Ertugrul SAVAS
Funda SAVAS
Ata Cem SAVAS
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review
of a decision by the Refugee Protection Division of the Immigration and Refugee
Board (the panel) that the applicants are neither Convention refugees nor
persons in need of protection under sections 96 and 97 of the Act.
[2]
The
panel agreed that the applicants had been subjected to acts of discrimination
and harassment over the years. It nonetheless found that, cumulatively, these
acts of persecution and harassment did not amount to persecution.
[3]
Thus,
the panel, after reviewing the evidence, concluded that the applicants had not
demonstrated the subjective fear required to qualify for protection under the
Act. To this effect, the evidence indicated that these incidents had occurred
over a long period of time during which the applicants had considered their
options. In fact, one attempt to acquire a visitor’s visa to Canada was refused
in 2006; in 2007 the principal applicant inquired about the possibility of
making a refugee claim in England but abandoned the project when he was advised
by a lawyer that his chances of success were minimal. He continued to work at
his job in Turkey and it was only at the end of 2009, some 14 months after the
last incident involving the applicant that he obtained a visitor’s visa for the
United States, ending up in New York, on December 11, 2009. It seems likely
that his real destination was Canada, given that he crossed the border on
December 19, 2009, although he did not claim refugee protection until two days later.
His spouse and son did not arrive in Canada until September 6, 2011, and they
too claimed refugee protection, but they did so as soon as they arrived at the
Canadian border.
[4]
The
panel, after reviewing the documentation available on June 29, 2011, was also
of the view that it was less likely that Turkish citizens of the applicants’
religious denomination would be subject to persecution if they were to return
to Turkey, thereby concluding that there was no objective basis to their fear.
[5]
Lastly,
the panel determined that the applicants would not be at risk of torture or
cruel and unusual treatment or punishment.
[6]
It
should be noted once again that discrimination and harassment do not amount to persecution.
[7]
Justice
Michel Beaudry of this Court aptly summarized the state of the law in Yurteri
v The Minister of Citizenship and Immigration, 2008 FC 478, at paragraph 34:
[34] Persecution
has been defined by the Courts as an affliction of repeated acts of cruelty or
a particular course or period of systematic infliction of punishment. Mere
harassment or discrimination is insufficient (Rajudeen v. Canada (Minister
of Employment and Immigration) (1984),
55 N.R. 129 (F.C.A.), Olearczyk v. Canada (Minister of Employment and
Immigration) (1989), 8 Imm. L.R. (2d)
18 (F.C.A.), Murugiah v. Canada (Minister of Employment and Immigration)(1993), 63 F.T.R. 230,
and Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689).
[8]
In
this case, the panel concluded that discrimination and harassment, in and of
themselves, do not rise to the requisite level of severity.
[9]
The
standard of review in matters such as these is reasonableness. They involve
questions mixed fact and law. The applicants are relying on Gur v The Minister
of Citizenship and Immigration, 2012 FC 992, to argue that a correctness
standard ought to be applied when a panel fails to consider the cumulative effects
of incidents of discrimination.
[10] I
agree that failing to consider the cumulative effects could be a question of
law calling for a correctness standard. Conversely, the application of the
accumulation will be a question of mixed fact and law reviewable on a
reasonableness standard. Put another way, the question of weighing the evidence
in order to determine whether there was a sufficient accumulation so as to
constitute persecution will be a mixed question. In this case, the panel concluded
on two occasions that the accumulation of incidents did not amount to persecution.
Indeed, the applicants complain that the “theory of accumulation” was not
adequately applied. It is not that the theory of accumulation was ignored but
rather, that the applicants are not satisfied with the result.
[11] It
therefore follows that the panel’s decision must be reviewed on a
reasonableness standard. Has the deference owed to the decision rendered been
overcome by the applicants? I think not. As it is stated in Dunsmuir v New Brunswick,
[2008] 1 S.C.R. 190, at paragraph 47, “[t]ribunals have a
margin of appreciation within the range of acceptable and rational solutions”. This
is just such a case.
[12] It
was reasonable for the panel to conclude that the applicants’ behaviour was not
consistent with a subjective fear. It was a finding at which the panel could
rationally have arrived. The objective evidence did not favour the applicants,
even if the panel had agreed that a subjective fear existed. The finding on
subjective fear and that regarding an objective basis to that fear were
reasonable because they were based on the evidence before the panel.
[13] The
facts before the panel were such that, even when added together, the incidents
of discrimination and harassment did not amount to the cruelty or the
systematic infliction of punishment required to conclude that there was
persecution. It was reasonable to find that there was a lack of persecution.
[14] Accordingly,
the application for judicial review is dismissed. There is no question for
certification.
JUDGMENT
The
application for judicial review of a decision of the Immigration and Refugee
Board’s Refugee Protection Division dated July 11, 2012 is dismissed.
“Yvan Roy”
Certified
true translation
Sebastian
Desbarats, Translator
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