Date: 20091110
Docket: IMM-1112-09
Citation: 2009 FC 1151
Montréal, Quebec, November 10,
2009
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
JONES
ERNEST AM NWAEZE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application by
Jones Ernest Am Nwaeze (the “Applicant”) pursuant to subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”),
for judicial review of a decision of the Refugee Protection Division of the Immigration
and Refugee Board (the “Tribunal”) dated February 23, 2009, denying the
Applicant’s claim for refugee protection pursuant to ss. 96 and 97 of the IRPA.
BACKGROUND FACTS
[2]
The
Applicant is a citizen of Nigeria. On September 13, 2001, he
obtained permanent residency in Hungary,
following his marriage to a Hungarian citizen a year earlier.
[3]
However,
the Applicant was convicted for fraud and, following a prison term, in December
2004, he was ordered deported from Hungary
and became inadmissible to that country.
[4]
The
Applicant returned to Nigeria. He then went to Italy and Austria for brief stays, and finally
came to Canada on May 12, 2006. He claimed
asylum on that date.
[5]
On May 17,
2006, the Applicant was pardoned by the President of Hungary. As a result, he
became admissible to Hungary again. However, he did not
return to that country and pursued his asylum claim in Canada.
[6]
The
Applicant alleged that while he lived in Hungary he was at all times the victim of
persistent discrimination. He claimed that he was refused entry or ostracized
wherever he went: in restaurants, in public pools, buses, taxis, and subways.
He and his wife had difficulty finding an apartment, although they did find one
with a more open-minded landlord. The Applicant also alleged that he was unable
to find a job, and had to open his own business because of this. He also
claimed that he was not accepted by his in-laws, and was harassed by police. Finally,
he stated that he was insulted, because of his race, at a soccer game which he
attended.
DECISION UNDER REVIEW
[7]
The
Tribunal denied the Applicant’s asylum claim, finding that his alleged fear of
persecution in Hungary was not reasonable.
[8]
The Tribunal
noted that “persecution” means mistreatment more serious than mere harassment
or discrimination, although repeated incidents of harassment or discrimination
can, by accumulation, amount to persecution.
[9]
The
Tribunal concluded that “none of the incidents alleged by the claimant can
constitute persecution if taken individually; and even when considering the
cumulative effects of the various discrimination measures suffered, the
Tribunal concludes that it does not establish a reasonable fear of persecution.”
More specifically, the day-to-day manifestations of discrimination (e.g.
in bars and restaurants) “did not rise to the level of depriving the
[Applicant] of any fundamental right”; that he “is not credible about his
alleged impossibility to find a job in Hungary”; that he was able to open a
business without any difficulty, and was helped by his wife’s family; and that
he got married and obtained permanent residence in Hungary without problems.
[10]
The
Tribunal accepted the Applicant’s claims about the difficulties he had finding
an apartment, but noted that the Applicant was able to find one after all. The
Tribunal also accepted the Applicant’s claims about the insults his children
were subjected to, but found that while such incidents were deplorable, the
children were not denied their right to education. As for controls by police,
the Tribunal considered that the Applicant failed to prove that these were due
to his race, and were not also directed at other marginalized groups, or “a
general attitude of police” that is “a residue of the communist era”.
[11]
In
response to the Applicant’s claims of having been the victim of discrimination
in the course of his criminal proceedings, the Tribunal noted that the
Applicant had been released pending an appeal, and then released for good
behaviour after completing part of his sentence. In any case, such
discrimination “is clearly not a prospective risk, because there is no evidence
to suggest that the [Applicant] will be accused, condemned and jailed again if
returned to Hungary.”
[12]
Finally,
the Tribunal found that the evidence before it was not sufficient to conclude
that extremist groups existing in Hungary, including the neo-Nazi “National
Guard,” “would pose a risk to the claimant’s life or a risk of cruel and unusual
treatment or punishment,” because such groups mostly engage in acts of
intimidation, not violence.
[13]
The
Tribunal concluded that the “treatment suffered by the [Applicant] is
deplorable; it is disgraceful that such experiences of racism still occur;” but
deplorable though they are, they do not amount to persecution.
ISSUES
1) Did the Tribunal err in law by
taking the wrong approach to the issue of persecution?
2) Did the Tribunal fail to
consider all relevant evidence?
ANALYSIS
1) Did the
Tribunal err in law by taking the wrong approach to the issue of persecution?
[14]
The
Applicant argues that the Tribunal wrongly concluded that only a complete
denial or deprivation of a fundamental right could constitute persecution.
According to the Applicant, the Tribunal thus failed to consider the
possibility that an accumulation of acts of harassment and discrimination none
of which, taken in isolation, amounts to a complete denial of a right can also
constitute persecution. I disagree.
[15]
As I
stated in Liang v. Canada (Citizenship and Immigration), 2008 FC 450, at para. 19, that “the determination of what
constitutes persecution involves an analysis of many factors, including
persistence, seriousness, and the quality of the alleged incidents.” In its
reasons, the tribunal points to nine different defects in the Applicant’s
evidence.
[16]
For instance,
the Tribunal notes his lack of credibility about his alleged
impossibility to find a job in Hungary. The Applicant’s wife
contradicted his testimony about the job interviews which he underwent; he then
changed his story. He also changed his testimony about the work permits
required for a foreigner in Hungary. The Tribunal found that the
applicant was “adjusting his testimony when faced with contradictions [and] has
not credibly established that he suffered discrimination related to employment”.
[17]
As submitted
by the Minister, the “persistence, seriousness and quality” of the
discrimination suffered by the Applicant were “quite relative.” Thus the
Tribunal was entitled to find that the various incidents of discrimination did
not amount to persecution.
[18]
Contrary
to the Applicant’s assertion, the Tribunal did not “require” a complete
“deprivation” or “denial” of the Applicant’s rights, but rather found that they
were not “seriously” restricted.
[19]
The
Tribunal was well aware of the correct test when it cited the Federal Court of
Appeal’s decision in Madelat
v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. No. 49
(QL), for the proposition that “the cumulative effect of repeated experiences
of harassment and discrimination can amount to persecution.”
[20]
However,
the Tribunal denied the Applicant’s claim because it found that the
discrimination which he suffered was not as serious and constant to amount to
persecution. The Tribunal did not misdirect itself in law. The Applicant’s real
quarrel seems to be with its factual conclusions, but these cannot be said to
be unreasonable.
2) Did the
Tribunal fail to consider all relevant evidence?
[21]
First,
the Applicant claims that the Tribunal improperly failed to take into account
evidence of his harassment by the police. The Tribunal doubted whether police
harassment was directed only at racial minorities and not at other minority or
unpopular groups.
[22]
Second,
the Applicant contends that the Tribunal failed to consider under s. 96 of the IRPA
the risk that he would be attacked by members of the “National Guard,” which he
submits is “clearly racist and targets visible minorities such as [him].”
[23]
Third,
the Applicant claims to have submitted “evidence to show that his trial … was
marred by racism” and that he was mistreated in prison because of his race. The
Applicant argues that the Tribunal was wrong to dismiss this risk as
non-prospective, because, being targeted by the police, he would be more likely
than others to come into contact with the criminal justice system.
[24]
According
to the Applicant, failure to take these risk factors into account is an error
of law and justifies this Court’s intervention.
[25]
The
tribunal found that on the basis of the evidence before it, it “cannot
appreciate if [harassment] is a general attitude of police, or if it is
discrimination based on the [Applicant’s] race.” [My emphasis.] The
Applicant does not point to any evidence in the record which would have warranted
a contrary finding. The link to a Convention ground is thus not made out.
[26]
Regarding
the threat posed by the National Guard (and other extremists), I am not
satisfied that the Tribunal simply ignored this evidence, because it addressed
it at later stage of its reasons. The Tribunal was obviously aware of that
evidence, and estimated that extremists posed a risk, but a limited one, to the
Applicant. Therefore, although it could have addressed this issue more clearly,
I agree with the Minister’s submission that the Tribunal did not commit a
material error that would warrant this Court’s intervention.
[27]
As for
the alleged risk that the Applicant will again be discriminated against by the
Hungarian criminal justice system, it is doubly unproven. The Tribunal found
that there was not enough evidence to conclude that the Hungarian police were
motivated by racism; and it found that there was no evidence of racism in the
judicial system. As the Minister points out, the Applicant’s argument is mere
conjecture.
[28]
For
these reasons, the application for judicial review of the decision will be
dismissed.
JUDGMENT
THIS
COURT ORDERS that the judicial review is
dismissed.
“Danièle
Tremblay-Lamer”
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