Date: 20041102
Docket: IMM-1919-04
Citation: 2004 FC 1482
BETWEEN:
Everaldo GUERRERO PEREZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board on February 3, 2004, which dismissed the application for asylum by Everaldo Guerrero Perez, concluding that he was not a Convention "refugee" nor a "person in need of protection" pursuant to sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] The applicant is a citizen of Mexico who filed an application for asylum in Canada on the ground of his membership in a particular social group, namely the gay community.
[3] The IRB did not question the applicant's story. It considered his account credible and his identity fully established. However, in its view the harassment and discrimination suffered did not reach the level of persecution. The panel also considered that there was an internal flight alternative for the applicant elsewhere in Mexico, as for example in Mexico City, where the anonymity of a large city would protect him against troublesome people.
[4] The central issue is whether the harassment and discrimination attain the level of persecution. The question has often arisen in this Court. In a judgment in which discrimination resulted in the plaintiff's loss of employment in her country, Soto v. Canada (M.C.I.), [2002] F.C.J. No. 1033 (T.D.) (QL), Tremblay-Lamer J. set out the Federal Court of Appeal's position on the point.
[11] In Sagharichi v. Canada (M.E.I.), [1993] F.C.J. No. 796 at paras. 3 and 4 (C.A.), Marceau J. explains that in order to be characterized as persecution, incidents of discrimination or harassment must be serious or systematic or lead to a conclusion that there is a serious possibility of persecution in the future. He goes on to state that the intervention of the reviewing court is not warranted unless the conclusion reached appears to be capricious or unreasonable:
It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.
[5] Tremblay-Lamer J. then went on to say:
[12] Discriminatory acts may constitute persecution if they are sufficiently serious and occur over such a long period of time that it can be said that the claimant's physical or moral integrity is threatened (N.K. v. Canada (Solicitor General), [1995] F.C.J. No. 889 at para. 21).
[6] The Office of the United Nations High Commissioner for Refugees, in the Handbook on Procedures and Criteria for Determining Refugee Status (re-issue, Geneva, January 1992, paragraphs 54 and 55), states that although measures of discrimination may not in themselves necessarily constitute persecution, they may reach the level of persecution "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 practice his religion, or his access to normally available educational facilities".
[7] The IRB considered the evidence as a whole in arriving at the conclusion that the applicant was not being, and would not be, persecuted in Mexico. Despite his problems, he had completed his engineering studies. As an educated person, he had better chances of finding employment. He held employment in which he appeared to have attained a measure of success. He suffered mockery and disrespect, but he had his manager's support and sympathy. He had not been dismissed.
[8] In Soto, supra, the applicant was a blind person who was the victim of discrimination on account of her guide dog. She was dismissed from the only employment she had found with great difficulty because of her handicap. Tremblay-Lamer J. allowed the application for judicial review, as systematically preventing someone from working could constitute persecution.
[9] In the case at bar, the IRB found that it was possible for the applicant to work and to live in peace in another part of the country. Following the May 2003 incident, the police were prepared to intervene on his behalf. In view of the applicant's personal situation, the IRB's conclusion does not appear to be unreasonable.
[10] For all these reasons, the application for judicial review is dismissed.
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"Yvon Pinard"
Judge
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OTTAWA, ONTARIO
November 2, 2004
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1919-04
STYLE OF CAUSE: EVERALDO GUERRERO PEREZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 21, 2004
REASONS FOR ORDER BY: Pinard J.
DATED: November 2, 2004
APPEARANCES:
Brigitte Poirier FOR THE APPLICANT
Steve Bell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Brigitte Poirier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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