Date: 20040901
Docket: IMM-3230-02
Citation: 2004 FC 1203
Toronto, Ontario, September 1st, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MILENKO SUBOTIC AND ROSA SUBOTIC
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), reasons dated February 28, 2002. In that decision, the Board found that the applicants were not Convention refugees, pursuant to the former Immigration Act, R.S.C. 1985, c. I-2.
[2] I note at the outset that Mr. Subotic passed away on October 31, 2003, after leave to commence this judicial review was granted by order of this Court dated March 27, 2003. He had been suffering from Alzeimer's disease. Mrs. Subotic is 72-years old. The hearing of this application was adjourned on four occasions in 2003-2004: first, due to the illness of the male applicant and to allow the female applicant an opportunity to secure counsel or prepare to represent herself and her husband at the hearing, secondly, due to the fact that there was no translator available at the hearing to translate for the applicant's son who appeared on behalf of his parents and third, due to a sudden illness of the female applicant.
[3] This matter first came on for hearing before me on August 5, 2004. The applicant's son appeared on that date and indicated that efforts were being made to obtain counsel, one in particular being named as willing to take on the case. On that basis I agreed to adjourn the matter again and fixed to-days date for the hearing to proceed. No one appeared for the applicant to-day and I am advised by the court staff that the named counsel has indicated that he was not retained and efforts to contact the applicant or her son have been unsuccessful. The respondent quite properly opposing any further adjournment, I proceeded with the hearing.
[4] Rosa Subotic is a Bosnian Serb from Bosnia-Herzegovina and claimed to have a well-founded fear of persecution as a result of her ethnicity. She and her husband were from the town of Breza in Bosnia-Herzegovina. In 1992 Bosnia became an independent nation and their town became divided along ethnic lines. Breza fell under Muslim control and there was hatred and harassment against Serbs and vandalism of Serbian property.
[5] The applicants arrived in Canada on April 4, 2000 and made their refugee claims about a week later. Their hearing before the Board was held on January 16, 2002. The applicants' younger son and daughter live in Canada, however, their older son still lives in Bjeljina and is not in a position to care for them.
[6] The Board determined that the male applicant was incompetent to present evidence on his own behalf and therefore the female applicant acted as the designated representative for him. The Board accepted that the applicants were Bosnian Serbs and furthermore found that female applicant was a credible witness.
[7] The Board stated that, although there were attempts by the state of Bosnia-Herzegovina to end human rights abuses, there were still "serious problems". The Board found, however, that the applicants had suffered discrimination rather than persecution. The Board also concluded that the applicants themselves were not treated as deserters. For these reasons, the Board rejected their claim for Convention refugee status.
ISSUES
[8] 1. Did the Board deny the applicants procedural fairness when it did not allow the male applicant to testify?
2. Did the Board err by failing to recognize that the applicants were persecuted?
3. Did the Board err by not taking into consideration the absence of state protection?
ANALYSIS
Did the Board deny the applicants procedural fairness when it did not allow the male applicant to testify?
[9] The applicant submits that she and her husband were denied procedural fairness by the Board when it did not allow Mr. Subotic to testify. The respondent submits that there was no breach of procedural fairness by the Board, as the female applicant gave extensive testimony during the hearing and there was no objection brought at the hearing from the applicants' counsel to the Board's finding that the male applicant was incompetent to testify.
[10] Having reviewed the transcript of the hearing before the Board, there is nothing to ground the applicant's assertion that a principle of procedural fairness was violated. During the hearing, the applicant's counsel asked Mrs. Subotic whether she agreed that her husband was unable to answer questions and whether she would be comfortable acting as his spokesperson. She answered yes to both questions (tribunal record at 206-207). The Board, having found that Mr. Subotic was incompetent to testify, also made sure that Mrs. Subotic understood its finding, and agreed to be his spokesperson (tribunal record at 208). The Board and applicants' counsel seemed to go out of their way to ensure that Mrs. Subotic understood everything and agreed to be the designated representative. Under the circumstances, there was no breach in the duty of fairness in not allowing the Mr. Subotic to testify.
Did the Board err in finding that the applicants would not suffer persecution should they return to Bosnia-Herzegovina?
[11] In her written submissions, the applicant states that there is no proof provided by the panel that supports its conclusion that she and her husband would not encounter physical harm should they return to Bosnia-Herzegovina.
[12] While the documentary evidence referred to by the Board and by the applicants states that the police physically mistreat persons in detention, there is no evidence that the female applicant will be detained if returned. The decision of Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.) is not applicable to the case at bar.
Did the Board err by not taking into consideration the absence of state protection?
[13] The applicant submits that the Board failed to consider the absence of state protection for them, having accepted that the Subotics were verbally abused. However, upon my review of the record, the Board did ask itself the question as to whether there was an absence of state protection. It noted that documentary evidence indicated that there were still many problems in Bosnia-Herzegovina, however it appears that the Board did not make any finding at all on this issue because it found that the applicants would not be subject to persecution, but only discrimination. The issue of state protection was, therefore, irrelevant and not an issue which the Board was required to analyze.
Did the Board err in not recognizing that the applicants were persecuted?
[14] The applicant in her written submission states: "The panel states that the Applicants themselves were not treated themselves [sic] as deserters. The panel failed to take cultural values [sic] in this case and failed to identify that the Applicants in their home country are treated as guilty by association." It seems, here, that the applicant is saying that the Board erred because it did not recognize that she and her husband were perceived as deserters. However, she relies on Bhatti v. Canada (Secretary of State) (1994), 84 F.T.R. 145, a decision which deals with the concept of indirect persecution. Bhatti was expressly overruled by the Federal Court of Appeal in Pour-Shariati v. Canada (Minister of Employment and Immigration) (1997), 215 N.R. 174, which held that indirect persecution is not a principle that should be recognized in Canadian refugee law: The applicant's submission on this point, must therefore fail. Moreover, the Board did not make any finding of persecution of any family member of the applicants, and instead determined that they had faced discrimination and harassment rather than persecution.
[15] The respondent submits that in claiming that she faced persecution and not just discrimination, the female applicant is asking the Court to re-weigh the evidence. The standard of review of weight of evidence is patent unreasonableness, and here, the applicant has not given any reason why the Board's finding is patently unreasonable: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 319 (F.C.A.).
[16] Referring to Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), the respondent states that "persecution" has been defined by the Court of Appeal as an affliction of repeated acts of cruelty or a particular course or period of systematic infliction of punishment because of a Convention ground. Mere harassment or discrimination is not enough. The respondent submits that the Board found that the applicants had been verbally harassed, which amounted to discrimination and not persecution. If there was documentary evidence to demonstrate that the female applicant would be persecuted upon their return, then the onus was on the applicant to bring it forth. The respondent cites Adjei v. Canada (Minister of Employment and Immigration) (1989), 57 D.L.R. (4th) 153 (F.C.A.) in support of its submission.
[17] In Canada (Attorney General) v. Ward, [1993] 1 S.C.R. 689, the Supreme Court of Canada stated at paragraph 83:
Second, the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting persecution.
[18] The same can be said of other imputed beliefs. The applicant argues that the Board failed to consider whether she and her husband were treated as "guilty by association" as required by the Supreme Court, being viewed as deserters. However, in my opinion, the Board did consider this issue at pages 10-11 of its decision. It did not believe that the applicants were treated as deserters based on a comparison between the way deserters and non-deserters are treated in Serbia, as indicated in the documentary evidence.
[19] The Board's reasoning is not without error, as it partially bases its decision on the fact that the applicants were allowed to travel freely between Bosnia and Serbia. The documentary evidence quoted by the Board however, does not state that deserters face restrictions on travel. This error, however, does not invalidate the decision because the Board also found that the applicants were not treated as deserters because they had access to housing. This fact does appear in the documentary evidence, namely that deserters are not given access to housing.
[20] In conclusion, it is evident that Mrs. Subotic has been through a great deal of trauma in Bosnia-Herzegovina and that she has the care and support of her son and daughter here in Canada. Moreover, the Board found her a credible witness. Such factors, as the respondent's counsel fairly noted in his summation, indicate that she would be a strong candidate for a humanitarian and compassionate application.
ORDER
THIS COURT ORDERS that this application for judicial review be dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3230-02
STYLE OF CAUSE: MILENKO SUBOTIC AND ROSA SUBOTIC
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 1, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: SEPTEMBER 1, 2004
APPEARANCES BY :
SOLICITORS OF RECORD:
|
Rosa Subotic
Hamilton, Ontario
|
FOR THE APPLICANTS
(Self-Represented)
|
|
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
|
FOR THE RESPONDENT
|
FEDERAL COURT
Date: 20040901
Docket: IMM-3230-02
BETWEEN:
MILENKO SUBOTIC AND ROSA SUBOTIC
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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