Date: 20101126
Docket: IMM-1660-10
Citation: 2010 FC 1190
Ottawa,
Ontario, November 26, 2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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STEVEN SEFA, MIRA SEFA
and MONIKA SEFA
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated February 16,
2010, concluding that the applicants are not Convention refugees or persons in
need of protection pursuant to sections 96 or 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c.27 (the Act) because the applicants
had not established a well-founded fear of persecution based on a Convention
ground, nor that they would be personally subjected to a risk of life, or cruel
or unusual treatment or punishment, or a danger of torture, if returned to
their country of citizenship, Macedonia.
FACTS
Background
[2]
The
applicants are three Macedonia citizens: Steven Sefa,
the principal applicant, Mira Sefa, the principal applicant’s spouse, and
Monika Sefa, Mr. and Mrs. Sefa’s daughter. The applicants arrived in Canada on October
10, 2007, from the United States, where they had been living for 11 years since
1996. They immediately filed for refugee protection. The claims of all three
individuals were heard jointly by the Board.
[3]
The
principal applicant is a 58 year-old Catholic Albanian and his wife is a 54 year-old
Orthodox Serb. Both are Macedonian citizens. They married in 1979 and lived in
what is now Macedonia’s capital city, Skopje. As a result of their
mixed marriage, the applicants were effectively disowned by their families and
faced discrimination and harassment from their neighbours and colleagues. Both spouses
were discriminated against in their employment. Mrs. Sefa was consistently deprived
wage increases and relocated among the stores at which she worked. When private
enterprise became available in Yugoslavia, she tried to open her
own store to avoid these problems, but the store was consistently vandalized
and customers would avoid it so long as there existed other shopping options.
As a result, she worked off hours, in order to be open when no one else was. The
principal applicant was dismissed from his job and began driving a taxi to earn
a living. He was also denied membership in Albanian political organizations
because his wife was not Albanian, but was likewise denied membership in non-Albanian
organizations because of his own ethnic Albanian heritage. Their daily lives
were characterized by constant verbal altercations with other citizens, which
would occasionally escalate to physical altercations. On the few occasions when
police were called, the police would diffuse the situation at hand but could
not deal with the broader problem. Moreover, the police themselves were
disrespectful and insulting towards the mixed couple.
[4]
Monika
Sefa was born in April 1988. She faced similar discrimination and harassment.
She was bullied at school by other students and ignored by her teachers.
[5]
When
Macedonia gained
independence, the applicants felt increased ethnic hatred and feared for their
lives. They obtained visitors’ visas and fled to the United States in 1996,
where they claimed asylum. These claims and subsequent appeals were denied in
October 2007, after which the applicants fled to Canada and made the
claim that forms the basis of this application.
[6]
The
applicants’ claim for protection is based on the discrimination that Mr. and
Mrs. Sefa suffer as a result of their mixed marriage and that Monika suffers as
a result of being the child of a mixed marriage. The applicants submit that the
discrimination that they suffer rises to the level of persecution.
Decision Under Review
[7]
On
February 16, 2010, the Board dismissed the applicants’ refugee claims because
it found that they did not establish a well-founded fear of persecution based
on a Convention ground should they be returned to Macedonia, nor did they
establish that they would be personally subjected to a risk to life, or cruel
or unusual punishment, or a danger of torture if returned to Macedonia.
[8]
All
three applicants relied on the principal applicant’s narrative, although Mrs.
Sefa also testified separately at the hearing and provided an individual affidavit.
The Board made an express finding that the principal applicant was a credible
witness.
[9]
At
para. 5 of its reasons, the Board stated the determinative issue before it:
¶5. The determinative issue is
whether or not the discrimination suffered by the claimants amounts to
persecution.
[10]
The
Board provided what the parties agree was a clear statement of the law
regarding when discrimination of the kind suffered by the applicants will rise
to the level of persecution sufficient to ground a claim for protection under
the Act:
¶9. To be considered persecution,
mistreatment suffered must be serious
and the inflicting harm occurs with repetition or persistence, or in a
systematic way.
To determine what qualifies as serious one must examine the harmed interest of
the claimant and to what extent the interest might be compromised. The courts
equate seriousness with a key denial of a core human right. It is the
requirement that the harm be serious that has led to a distinction between
persecution and harassment. Persecution is characterized by the greater
seriousness of the mistreatment involved. The courts have also distinguished between
persecution and mere unfairness.
At paragraph 54 of the UNHRC Handbook it is stated persons who receive
less favourable treatment as a result of differences are not necessarily
victims of persecution. It is only in certain circumstances that discrimination
will amount to persecution, such as serious restrictions on one’s right to earn
a livelihood, right to practice religion or access to normally available
educational facilities. Mistreatment may constitute discrimination or
harassment and not be serious enough to be regarded as persecution. A finding
of discrimination not persecution is within the jurisdiction of the RPD. Acts of
harassment, none amounting to persecution individually, may cumulatively
constitute persecution.
The repeated instances of harassment in the past may lead to a serious
possibility of persecution in the future. Whether or not measures of discrimination
amount to persecution must be determined in consideration of all the
circumstances.
The Court
finds that the Board set out a clear and correct statement of the law with
respect to this subject.
[11]
The
Board stated that refugee claimants bear the burden of rebutting the
presumption of state protection on a balance of probabilities. The Board
considered a 2008 United Stated Department of State Report that recognized the
continued strain in relations between ethnic Macedonians and ethnic Albanians
in Macedonia and
contained reports of agitation for ethnically separate schools. The Board held
in paragraph 10 that there is discrimination in Macedonia between the
majority Macedonians (64.2% of the population) and the minority Albanians
(25.2% of the population). Based on the government’s response to that unrest,
however, the Board found that the government is making serious efforts to
protect its citizens and to prevent ethnic tensions from escalating. The Board further
stated that the same report cited ongoing complaints by ethnic Albanians of
official discrimination against them in Macedonia.
[12]
The
Board then considered the applicants’ evidence regarding the discrimination
that they suffered. The Board noted that the applicants knew when they married
that they would face some discrimination. It recognized that their families did
not support them, and referred to the supporting evidence provided by a cousin,
both in oral testimony and in an affidavit, regarding the poor treatment that
the applicants received from their families as a result of their marriage.
[13]
The
Board considered, at para. 16, the principal applicant’s evidence regarding
“the most serious incident that caused them to leave Macedonia”. The
principal applicant’s ultimate response, which he provided only after being
pushed to identify a single “most serious incident,” involved an altercation
between himself and a neighbour who owned a competing convenience store. The
case was apparently resolved by the courts, and the principal applicant
ultimately sold his house and business to the same neighbour. The Board found
that this incident was explicable by the business competition between the two,
and that the state provided the applicants with help. As a result, the Board
concluded that state protection was available to the claimants and that their
problems did not amount to persecution.
[14]
At
para. 17 the Board recognized, however, that the principal applicant stated
that the incident with his neighbour was “not the deciding factor in leaving
for the United
States.”
It noted that although the principal applicant claimed that matters were worse
for them after the disintegration of the Yugoslavia, he was
“unable to clearly explain what was better or worse after the Federation
divided.” As a result, the Board found on a balance of probabilities that the
onus of establishing a well-founded fear of persecution had not been
discharged.
[15]
The
Board also considered evidence regarding the mistreatment suffered by the
principal applicant’s wife and daughter. The Board noted the evidence regarding
the employment problems suffered by Mrs. Sefa, and described the principal
applicant’s testimony regarding an incident where Monika’s shoes were taken by
bullies at school, which he told in response to a question regarding whether
anyone had ever physically attacked him.
[16]
The
Board reviewed the principal applicant’s testimony regarding why he felt that
persecution would persist were the family to return to Macedonia today.
[17]
The
Board concluded at para. 23:
¶23. Having considered all of the
evidence, I find the claimants are neither Convention refugees nor persons in
need of protection.
LEGISLATION
[18]
Section 96
of the Act grants protection to Convention refugees:
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96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by
reason of that fear, unwilling to avail themself of the protection of each
of those countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country
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96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne
qui, craignant avec raison d’être persécutée du fait de sa race, de sa
religion, de sa nationalité, de son appartenance à un groupe social ou de
ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou,
du fait de cette crainte, ne veut se réclamer de la protection de chacun de
ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte,
ne veut y retourner.
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[19]
Section 97
of the Act grants protection to persons whose removal from Canada would subject them personally
to a risk to their life, or of cruel and unusual punishment, or to a danger of
torture:
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97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them
personally
(a)
to a danger, believed on substantial grounds to exist, of torture within
the meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself
of the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed
in disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
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97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la nationalité
ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à
la torture au sens de l’article premier de la Convention contre la
torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce
pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci
ou occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir
des soins médicaux ou de santé adéquats.
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ISSUES
[20]
The
applicants raise two issues:
1. Did the Board
properly consider whether the discrimination suffered by the applicants
amounted to persecution?; and
2. Did the Board
err in its finding that there was state protection available?
STANDARD OF REVIEW
[21]
The
determination of whether incidents of discrimination or harassment amount to
persecution is a question of mixed fact and law: Liang v. Canada (Citizenship and Immigration), 2008 FC 450 at para. 12. Similarly,
questions of state protection concern determinations of fact and of mixed fact
and law. They concern the relative weight assigned to evidence, the
interpretation and assessment of such evidence, and whether the Board had
proper regard to all of the evidence when reaching its decision. It is clear as
a result of Dunsmuir and Khosa that questions of fact or mixed
fact and law are to be reviewed on a standard of reasonableness: see, for
example, Liang at para. 15; and my decisions in Corzas Monjaras v. Canada (Citizenship and Immigration), 2010 FC 771 at para. 15; and
Rodriguez Perez v. Canada (Citizenship and Immigration) 2009
FC 1029 at para. 25.
[22]
In
reviewing the Board's decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law”: Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 47; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 59.
ANALYSIS
Issue No. 1: Did the Board properly consider
whether the discrimination suffered by the applicants amounted to persecution?
[23]
The
applicants submit that although the Board correctly stated the law regarding
when acts of harassment or discrimination may constitute persecution, it failed
to apply this law to the facts of the case. The applicants stress that the law
is, as the Board stated, that “[a]cts of harassment, none amounting to
persecution individually, may cumulatively constitute persecution.” The
applicants submit that the Board did not consider whether the individual acts
of harassment that the Board recognized as evidence of discrimination could
together rise to the level of persecution.
[24]
The
applicants cite Soto v. Canada (Minister of Citizenship
and Immigration), 2002 FCT 768 (Fed. T.D.), at paragraph 10:
The distinction between persecution and
other acts of harassment not warranting international protection will not
always be easy to make. It is a mixed question of law and fact to be determined
on case-by-case basis by the Board.
[25]
In
Rajudeen v. Canada (Minister of Employment
and Immigration), [1984] F.C.J. No. 601, 55 N.R. 129 (Fed. C.A.), the
Federal Court of Appeal relied on the dictionary for guidance on the meaning of
persecution, which is not defined in the Act and was not defined in the
former version of the Act considered in Rajudeen. In Rajudeen the
Federal Court of Appeal stated that to “persecute” is:
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.
It continued that “persecution” is:
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.
[26]
The
applicants point to three aspects of the Board’s decision that they submit
demonstrate that the Board failed to properly determine the issue of whether
the discrimination found in this case rises to the level of persecution:
1.
the Board ignored
documentary evidence regarding the systemic and societal discrimination and
harassment prevalent and institutionalized in Macedonia;
2.
the Board failed
to consider whether the applicants’ evidence regarding the denial of employment
opportunities, the denial of opportunities to join political organizations, and
the denial of protection for the applicants’ daughter amounted to persecution
as a denial of their basic rights; and
3.
the
Board’s sustained consideration of certain aspects of the applicants’ narrative
– in particular, the principal applicant’s testimony with respect to a
particular instance of harassment at the hands of his neighbour – and its
erroneous findings regarding the principal applicant’s character – namely, its
finding that he is one who discriminates, which was based on a miscommunication
– demonstrate a failure to properly apply the law to the facts presented.
[27]
The
Board set out a comprehensive explanation of when mistreatment and harassment amounting
to discrimination rises to the level of persecution. To rise to the level of
persecution, the mistreatment must occur with repetition or persistence, and
must be “serious.” Serious mistreatment will be found where there is a severe
restriction or denial of a core right, including the right to participate in
the political process, earn a livelihood, practice a religion or access
normally available educational facilities.
[28]
With
regard to its assessment of the documentary evidence, it is generally assumed
that the Board has considered all of the evidence before it. However, the Board
does have an obligation to refer to relevant evidence with regard to disputed
facts, and may not dispense with this obligation by making a blanket statement
that is has considered all of the evidence: Cepeda-Gutierrez v. Canada (MCI)
(1998), [1998] F.C.J. No. 1425, 157 F.T.R. 35, at para. 17.
[29]
This
Court is satisfied that the Board’s reasons evince a consideration of all of the
documentary evidence. At para. 10, the Board recognizes that the documentary
material evidences discrimination and ethnic tensions in Macedonia. This could
include the Report entitled “Social Distance and Attitudes Towards Ethnically
Mixed Marriages” which is a Board document. The Board explicitly considered the
2008 U.S. Department of State Report on Macedonia, and
recognized that it indicates that there are “strained relations” between ethnic
Macedonians and ethnic Albanians. At para. 11, the Board notes reports of
ethnic agitation in schools, but finds that the same reports demonstrate that
“the government is making serious efforts to protect its citizens and to
prevent ethnic tensions from escalating.”
[30]
The
Board further recognizes that different ethnic groups complain of official
discrimination, of employment discrimination, and of political discrimination.
[31]
The
Board’s reasons also demonstrate that it considered the totality of the
applicants’ testimony regarding the discrimination that they faced in Macedonia. Although
the Board detailed specific incidents, in particular, the principal applicant’s
problems with his neighbour and business rival, its reasons demonstrate that
the Board focused upon these incidents only in order to explore the severity of
the discrimination faced, and not because the Board was neglecting to consider
whether the cumulative impact of the discrimination amounted to persecution.
[32]
The
Board considered the employment problems experienced by the principal
applicant’s spouse and the bullying that his daughter faced at school. Although
the Board did not explicitly connect the applicants’ evidence regarding their
difficulties of political participation or employment difficulties with its
consideration of the extent to which such infringements constitute a denial of
the applicants’ core rights, it is clear that the Board considered all of this
evidence in reaching its decision.
[33]
The
Board also explicitly referred to the principal applicant’s statements
regarding the danger that he fears upon returning to Macedonia, including
that he fears being killed and fears for his daughter’s future. At para. 21 the
Board concluded:
¶21. . . . I find on a balance of
probabilities that the claimant’s [sic] may face discrimination but not
persecution. . . .
[34]
While
the Board could have been clearer in its reasons regarding its factual finding
of the cumulative impact of the many incidents of discrimination provided in
the evidence, its reasons demonstrate that it considered all of the applicants’
evidence regarding discrimination, and nevertheless found that such acts did
not amount to persecution. Such a finding was reasonably open to the Board on
the evidence.
Issue No. 2: Did the Board err in its findings
regarding the adequacy of state protection in Macedonia?
[35]
The
applicants submit that the Board erred by failing to conduct a sustained and
focused assessment of the adequacy of state protection in Macedonia. The
applicants note that the Board’s findings regarding the availability of state
protection are scattered throughout the reasons and submit that the Board’s
statements are simply unsupported statements. The applicants further submit
that the Board ought to have been concerned with the effectiveness of the
government’s actions, and not merely its intent to control persecution. The
applicants submit that in cases where the alleged persecution is the result of
the cumulative effect of harassment, the Board must conduct a more nuanced
assessment of state protection, because individual instances of harassment may
not warrant attention by state authorities.
[36]
There
is a presumption that a state that is not in complete breakdown is capable of
protecting its citizens: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The onus
is upon the applicants to rebut this presumption with “clear and convincing”
evidence confirming the state's inability to provide protection: Ward,
supra, at 724-725. The evidence that state protection is unavailable must
satisfy the Board on a balance of probabilities that state protection is
inadequate – no state is expected to provide perfect protection to all its
citizens at all times (see, e.g., Canada (Minister of Employment and Immigration) v. Villafranca (1992) 18 Imm. L.R. (2d) 130, 99
D.L.R. (4th) 334 (F.C.A.)).
[37]
The Board
reasonably concluded that the applicants had failed to meet their burden of
rebutting the presumption of the availability to them of adequate state
protection. The Board stated that the applicants’ evidence was that on each
occasion that the applicants sought state protection the state authorities
acted to resolve the issue. For example, when the principal applicant
complained to the police about stones being thrown at him, the police took a
report and gave the perpetrators a warning. After the Board asked the principal
applicant to describe the “most serious incident” that caused them to leave Macedonia and received the story about
the problems with his neighbour, the Board considered the state’s response. The
Board found that the police were involved and that the courts ultimately
adjudicated the dispute and found both parties guilty.
[38]
As a
result of this evidence, the Board held that state protection was available to
the claimants. This Court is satisfied that this conclusion was reasonably open
to the Board based upon the evidence before it.
[39]
The Board
also attempted to explore whether there had been some change in conditions that
would put the applicants at risk should they be returned to Macedonia now,
after having spent 13 years outside of the country. The Board found, however,
that the applicants’ evidence in this regard was not convincing. At para. 22
the Board concluded:
¶22. I find the claimants are
citizens of Macedonia who have experienced
discrimination in the past. I conclude they have failed to establish they would
face a reasonable chance of persecution on a Convention ground or be personally
subjected to a risk to life, or cruel or unusual treatment or punishment, or a
danger of torture if they were to return to Macedonia.
[40]
This
conclusion makes clear that the Board recognized the discrimination but found
that the applicants had failed to demonstrate that the discrimination rose to
the level of persecution. The Court is satisfied that the reasons are
justifiable, transparent and intelligible and that the decision falls within
the range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
CONCLUSION
[41]
In
all of the evidence provided by the applicants, the applicants have not
satisfied, according to the finding of the Board, their onus to establish that
the discrimination did inflict the type of harm, did affect their core human
rights or was of such seriousness that it amounted to persecution. The Court reviews
this finding on a reasonableness standard, and finds that this conclusion of
the Board was reasonably open to it.
CERTIFIED QUESTION
[42]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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