Date: 20000907
Docket: IMM-15-00
BETWEEN:
Abdillahi Abdi Ahmed
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Refugee Division) dated December 14, 1999, dismissing the applicant's refugee claim.
[2] The applicant, a citizen of Djibouti, claimed refugee status on the ground that, if he has to return to his country, he fears being arrested, tortured, or even killed, by reason of his race or his nationality, or as a member of the Gadaboursi tribe, or by reason of his political opinion. He is an activist in the Party for Democratic Renewal and in the Syndicat des enseignants du premier degré (elementary school teachers' union).
[3] The applicant alleges that on November 12, 1995, during a strike, he was arrested and detained in prison for 48 hours, along with 200 other teachers. At the beginning of a demonstration on October 3, 1996, he was arrested, along with some 300 other teachers, and detained in prison for four days. In January 1997, during a march protesting the elimination of subsidized housing for teachers, he was arrested, taken to the central police station, charged with disturbing the peace, sprayed with urine and released, as a result of pressure from his union, after being detained for 30 hours.
[4] Eventually, in September 1997, the authorities seized his passport during a search of his home. On August 14, 1998, he left the country to seek asylum in Canada, travelling by way of Ethiopia, Italy and the United States.
[5] In a very detailed decision, the Board analyzed the three fundamental issues in this case, which are: whether Gadaboursis are subject to persecution in Djibouti, whether political and union activists are subject to persecution, and whether the applicant demonstrated a subjective fear of persecution. The Board answered no to all three questions.
[6] It is apparent from reading the transcript of the Refugee Division hearing that the applicant is an articulate, political and committed individual. The Board did not doubt his credibility and the members accepted that the events he described had happened. The Board accepted that the applicant was arrested and detained three times (once for 48 hours, the second time for 4 days and the third time for 30 hours). When the applicant was detained on those occasions, he was charged with disturbing the peace, grabbed by his shirt, searched, insulted, struck, threatened, beaten with a baton, sprayed with urine and held in a foul-smelling room with no ventilation, no light and no bed.
[7] The Board nonetheless concluded that these arrests and detentions were not of such a serious or systematic nature as to constitute persecution. It found that [TRANSLATION] "this mistreatment is certainly deplorable and unfortunate, but it did not seriously violate the applicant's physical security and, in our view, does not amount to persecution."
[8] The Board also noted that the applicant spent time in Egypt and in the United States before arriving in Canada and yet did not claim refugee status while there. It therefore concluded that the applicant's behaviour did not demonstrate a subjective fear.
[9] At the outset, it must be acknowledged that it is not easy to establish the dividing line between persecution and discrimination. In this case, the Board found that the treatment inflicted on the applicant, on three occasions, did not constitute persecution because it was not serious or systematic enough to be characterized as persecution within the meaning of the Convention. The distinction between persecution and discrimination is not purely a question of fact but a mixed question of law and fact. It is for the Board to draw the conclusion as to what really constitutes persecution,[1] after analyzing the evidence and the events. The Court may not interfere unless the conclusion reached by the Board is capricious or unreasonable.
[10] In a more recent judgment of my colleague Mr. Justice Cullen, in Omar v. Canada (Minister of Citizenship and Immigration),[2] a refugee claim by Djibouti citizens was rejected. The facts in that case are similar to those in the present case. The Refugee Division found that the applicants were generally credible. That panel considered almost the same issues as in this case. The learned Judge, relying on the Federal Court of Appeal decision in Sagharichi, supra, concluded that the Refugee Division had not made a reviewable error. He held that the Board was correct in finding that the applicants had not demonstrated a subjective fear of persecution.
[11] Therefore, even though the treatment inflicted on the applicant is completely reprehensible, it does not necessarily constitute persecution within the meaning of the Convention. The term "persecution" is not defined in the Act. The Court has attempted to define it many times, and more specifically in Rajudeen v. Minister of Citizenship and Immigration,[3] a decision of the Federal Court of Canada. The following passage by Mr. Justice Heald should be noted:
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 Dictionarycontains 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."
[12] In Valentin v. Canada,[4] Mr. Justice Marceau, writing for the Federal Court of Appeal, emphasized the need to satisfy the element of repetition as follows: "because it seems to me, first, that an isolated sentence can only in very exceptional cases satisfy the element of repetition and relentlessness found at the heart of persecution."
[13] In Ihaddadene and Nacera Goucem v. Minister of Employment and Immigration,[5] Madam Justice Desjardins, writing for the Federal Court of Appeal, confirmed the distinction between discrimination and persecution as follows:
The Refugee Division did not doubt the female appellant's testimony. However, it refused her claim on the ground that the "unpleasantness" to which the appellant referred in her testimony,[6] the insults, shoving and even assaults to which she was subjected did not amount to persecution, even if the various incidents related by her were taken cumulatively or added up. The Board was of the opinion that the climate of intolerance that was observed as a result of the rise of fundamentalism had brought about discrimination, and not persecution.
[14] Under the circumstances, it was not unreasonable for the Refugee Division to find that the treatment inflicted on the applicant, however reprehensible it may be, did not constitute persecution within the meaning of the Convention. It is therefore not for the judge to substitute his opinion for that of the Refugee Division.
[15] It must also be noted that the Board found that the applicant had not demonstrated a subjective fear because he failed to make a claim in Italy or in the United States.
[16] Accordingly, this application for judicial review cannot be allowed. Both parties agree that there is no question of general importance to be certified in this case.
OTTAWA, Ontario
September 7, 2000
Judge
Certified true translation
Mary Jo Egan, LLB
Date: 20000907
Docket: IMM-15-00
OTTAWA, ONTARIO, THE 7th DAY OF SEPTEMBER 2000
Present: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
Between:
Abdillahi Abdi Ahmed
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-15-00
STYLE OF CAUSE: ABDILLAHI ABDI AHMED
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: SEPTEMBER 1, 2000
REASONS FOR ORDER OF DUBÉ J.
DATED SEPTEMBER 7, 2000
APPEARANCES;
MICHELLE LANGELIER FOR THE APPLICANT
MARIE-CLAUDE DEMERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
EVELINE FISET
Saulniers, Robillard, Pelletier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
[1] see Sagharichi v. M.E.I. (1993), 182 N.R. 398 (F.C.A.).
[2] [2000] F.C.J. No. 97.
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