Date:
20121207
Docket:
IMM-3837-12
Citation:
2012 FC 1447
Ottawa, Ontario,
December 7, 2012
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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ALEXANDRU MORTOCIAN
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Applicant
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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]
The
applicant seeks judicial review of a decision pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act] of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board [the Board] made on January 13, 2012, wherein the Board determined that
the Applicant was not a Convention Refugee pursuant to section 96 of IRPA,
nor a person in need of protection pursuant to section 97 of the Act. For the reasons that
follow the application is dismissed.
Background
[2]
The
Applicant is a Romanian national of Roma ethnicity who sought protection in Canada due to his experiences of discrimination. The Applicant asserted that he
suffered discrimination throughout his life including in education, employment,
housing and socially. He highlighted the discrimination he faced in the
employment context, and argues that if he returns to Romania he will face
persecution as he will not be able to work in his area of skill and will be
paid at a much lower wage than other, non-Roma, workers. The Applicant worked for 20 years as
a crane operator in Romania but was laid off in 2000, which may have been due
to the availability of young Romanians for this work. The Applicant
subsequently worked as a temporary foreign worker in Germany, Israel, Spain and Canada, and would return to Romania between these jobs and work as a labourer.
[3]
The
Applicant also claimed discrimination in housing, noting that the land for his
home had to be purchased by his wife, a non-Roma Romanian, and that following
her death he had to sell the home to pay medical bills at a low price due to
interference from the town’s mayor who demanded that he sell it to a Romanian.
As a Roma he could not purchase a home in the town and he subsequently
purchased a small apartment outside the town.
[4]
The
Applicant also highlighted
an incident in 1987 in which he was attacked and stabbed and spent eight months
recovering in hospital. The Applicant indicated that the prosecutors did
nothing and warned him not to pursue the matter.
[5]
The
Board found the Applicant to be credible but found that while he may have
suffered discrimination, the discrimination did not amount to persecution and,
therefore, he was not a Convention Refugee or a person in need of protection.
With regard to the 1987 incident, the Board noted that the attack occurred over 20 years
ago and was initially directed at his wife, who was not Roma, and that the
Applicant was harmed when he came to her defence.
[6]
The Board
recognized the “dire” situation facing some Roma in Romania, but noted that
the Applicant’s circumstances appeared to be better than others as documented
in the country evidence as he had owned a home with his wife, acquired training
in a trade, and had worked for 20 years for the same employer.
[7]
The Applicant
submits that the Board made its decision without regard to the Applicant’s real
and future circumstances and failed to considered critical parts of his claim.
Specifically, the Applicant argues that the Board erroneously found that he had
not faced housing difficulties, improperly weighed the Applicant’s job
opportunities outside of Romania and his ability to work at a lower wage on the
basis of his ethnicity, failed to consider the likely impact of his wife’s
death on his future circumstances, and failed to consider evidence of his
children, who are “similarly situated individuals” and who cannot find
employment, which demonstrates the situation he will face.
[8]
The
Respondent submits that the Board did consider these issues and its analysis
and decision were reasonable.
Issue and
Standard of Review
[9]
The
issue in this judicial review is the reasonableness of the Board’s
determination that the discrimination faced by the Applicant did not rise to
the level of persecution and that he was, consequently, not a refugee or a
person in need of protection.
[10]
I
have therefore considered the justification, transparency and intelligibility
of the decision-making process, and whether the decision falls within a range
of possible acceptable outcomes which are defensible in light of the facts and
the law: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para
47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339 at para 59. The Court
will intervene only where it finds that the decision is not reasonable and
falls outside the range of possible, acceptable outcomes.
Analysis
[11]
In my view,
the Board’s decision falls within the range of possible acceptable outcomes
which the Board justified in its reasons with clear findings and references to
the evidence before it.
[12]
With respect
to housing, contrary to the Applicant’s submission that the Board misstated the
Applicant’s housing issues, the
Board did not find that the Applicant did not face any problems, but rather
found that he did not face the extreme problems noted in the country
documentation such as “denial of access to adequate housing” and “forced
evictions”. The Board acknowledged the dismal conditions for Roma in Romania and that the Applicant faced social and economic discrimination but concluded that
the Applicant’s experiences did not rise to the level of persecution.
[13]
In
terms of the Applicant argument that the Board did not fully consider the impact
of the wife’s death on his future life and risk of persecution in Romania,
while the Applicant did not provide evidence of additional risks he might face,
and the Board is not required to speculate on possible future risks, the Board
was aware that the Applicant had relied upon his wife to obtain better
treatment in Romania, including the purchase of land for their home. The Board
did not ignore the impact of his wife’s unfortunate death but still determined
that his experiences of discrimination did not constitute a risk of
persecution. It was open to the Board to come to this conclusion.
[14]
As noted, the
Applicant also submits that the Board failed to consider the letters from his
children and friend which described their bleak employment opportunities, which
he argues are reflective of what he will experience upon his return. The
decision indicates that the Board did consider this evidence. In addition, the
Board noted the country condition documents that described denial of access to
adequate housing, and the broad spectrum of social disadvantages, including
with respect to employment. While the Applicant may suggest that insufficient
weight was given to this evidence, it is not the role of the Court to re- weigh
the evidence considered by the Board.
[15]
Regarding
discrimination in employment, the Applicant submits that the Board, in essence,
relied on an External Flight Alternative, suggesting that the Applicant could
be employed elsewhere in the European Union. In addition, the Applicant submits
that the Board failed to consider that the Applicant would be forced to work at
menial jobs and or at a lesser wage in Romania and that this constitutes
persecution.
[16]
With
respect to the notion of an External Flight Alternative, I agree with the
Applicant that there is no such requirement. An Applicant need not demonstrate
that they are unable to go to any country where they may have the right to work
in order to establish that they satisfy the Convention refugee definition.
Despite the increased mobility within the European Union [EU], those who work
in other countries do not enjoy all the privileges of nationals and while they
may be permitted to work, the periods of employment are limited. The European
Union is a union of several distinct countries and is not one country. Whether
this argument is cast as an Internal Flight Alternative within the EU or an
External Flight Alternative beyond the country of origin, there is no
requirement on an Applicant to exhaust employment opportunities in other
countries.
[17]
However,
I do not find that the Board made such a determination. The Board’s reference
at paragraph 24 of the decision to the Applicant’s past work both in Romania at
a lower wage and abroad is simply a statement of fact of the options that have
been exercised by the Applicant in the past and does not change the Board’s
conclusion that the Applicant’s experience of discrimination did not rise to
the level of persecution.
[18]
With
respect to the issue of whether the current and prospective under-employment of
the Applicant constitutes persecution, I have carefully considered Horvath v
Canada (Minister of Citizenship and Immigration), 2011 FC 1350, 2011 FCJ
No 1649 [Horvath]. In Horvath, Justice Mandamin found that the
Board had failed to consider whether the Applicant’s inability to do the work
he was trained to do, because of discrimination on the basis of his ethnicity,
amounted to persecution. Justice Mandamin found that the Board merely referred
to the situation but had not analysed the Applicant’s evidence or the country
conditions and the impact on the Applicant’s livelihood.
[19]
This
case differs from Horvath in that the Board’s reasons indicate that it
did consider the country conditions and the lack of employment opportunities.
In addition, the Board noted that the Applicant had been able to work within Romania and abroad. While the Applicant may not have been able to return to his preferred
work as a crane operator, he was employed in other trades.
[20]
In
Horvath, Justice Mandamin noted the guidance provided by the UNHCR Handbook on Procedures
and Criteria for Determining Refugee Status under the 1951 Convention and 1967
Protocol relating to the Status of Refugees (Re-edited, Geneva, January
1992) in
considering the distinction between discrimination and persecution. The
Handbook states that, “It is only in certain circumstances that discrimination
would amount to persecution. This would be so 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 practise his religion, or his access to normally available educational
facilities”.
[21]
As
the Respondent submits, the Board is further guided in its determinations of
persecution by the definitions established by the Supreme Court of Canada in Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689 (QL). Persecution within the
Convention Refugee definition means a “sustained or systemic violation of basic
human rights demonstrative of a failure of state protection” (Ward at para
63(QL)).
[22]
The
Board’s decision reveals that after considering all the evidence related to the
incidents of discrimination experienced by the Applicant, in particular related
to his employment, the Board did not find that the discrimination in employment
amounted to persecution. This was a determination that was open to the Board,
is supported by the evidence and communicated in the reasons, and is consistent
with the definitions noted above.
Conclusion
[23]
The
Court’s judgment is that the application for judicial review is dismissed.
There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The Court’s judgment
is that the application for judicial review is dismissed. There is no question
for certification.
"Catherine M.
Kane"
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