Date: 20010531
Docket: IMM-503-00
Neutral Citation: 2001 FCT 562
Ottawa, Ontario, this 31st day of May, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ZOLTAN BELA PIEL, ZOLTANNE PIEL, ZOLTAN PIEL
and VIVIEN PIEL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review, brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision dated December 20, 1999, of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board. In its decision, which was communicated to the applicants on January 20, 2000, the CRDD determined the applicants not to be Convention refugees.
Order Sought
[2] The applicants seek an Order setting aside the above decision. The applicants also seek a declaration that they are Convention refugees pursuant to subsections 18.1(1) and (3) of the Federal Court Act, R.S.C. 1985, c. F-7. In the alternative, the applicants seek an Order of mandamus pursuant to paragraph 18.1(3)(b) of the Federal Court Act, directing the CRDD to reconsider the matter on the existing record in accordance with the reasons of this Court. In the further alternative, the applicants seek an Order that the matter be referred to a differently constituted Board for a new hearing. The applicants also seek the costs of this application.
Background Facts
[3] The applicants, Zoltan Bela Piel, Zoltanne Piel, Zoltan Piel and Vivien Piel, are Hungarian citizens and of Roma ethnicity. The applicants entered Canada in October of 1998 and made claims for Convention refugee status. Zoltanne Piel is an ethnic Roma and alleged a well-founded fear of persecution based upon her ethnicity. Her husband, Zoltan Bela Piel, was the principal claimant alleging fear arising from being a member of a particular social group, that is, the spouse of a Roma. The minor claimants' fear arose from being members of a particular social group (the family and children of a Roma mother).
[4] The Board summarized the applicants' claims at pages 2 and 3 of its decision as follows:
The adult female claimant is the middle child of a Roma family with twelve children. While attending hospitality trade school - 1980 to 1983, she was molested by her teachers, who threatened her with expulsion if she did not, as a Roma, accede to their request. She left the school. She met her husband around this time.
After their marriage in 1985, skinheads harassed Roma families in the area in which they lived. The adult female claimant received insults from skinheads. The claimants', and others, house windows were broken by skinheads. Hungarian children insulted, humiliated, beat and bruised the minor claimants. On one occasion Vivien was injured. The teachers ignored the claimants' complaint.
The last incident was an attack by a group of men on the company's car which the principal claimant was driving. His company blamed the car damage on the fact that his wife, is a Roma. Because of the above incidents, the claimants decided to leave Hungary.
[5] The adult female applicant also testified at the hearing that she was fired from her job because the new owners discovered that she was a Roma. Furthermore, she travelled to Switzerland for a week in 1998 to visit a relative, after which she returned to Hungary. In reaching its decision, the Board stated in part the following at page 5:
Following my review of the totality of the evidence in this case, I prefer the documentary evidence, compiled from a variety of reliable sources with no vested interest in the outcome of the refugee claim, and which provides reliable evidence of the availability of state protection in Hungary, to the claimants' evidence regarding the treatment of Roma in that country, and their assertion that there is lack of state protection in Hungary. The adult female claimant's alleged molestation by a male teacher during her school days, happened in the mid-eighties. She testified that it was not physical, but classified it as abuse. That, together with the acts of harassment of the minor claimants at school, and alleged physical abuse by fellow students, are not condoned by the panel; however, in our view, they fall short of being systematic violations of human rights, and do not give rise to a well-founded fear of persecution for a Convention reason.
The evidence before the panel is that it is the female claimant and not the male or minor claimants who is mostly targeted, allegedly because of her Roma background. I find that she left her country of origin, and in spite of her fear, she returned to Hungary from Switzerland in May 1998; there is a reasonable inference to be drawn from that evidence, that being that she was not dissatisfied with the protection from the state.
The evidence is unequivocal that the claimants did not seek protection from the police or any other authoritative institutions . . .
And at page 10:
The pages and documentation in Exhibit C-5 referred to by counsel, deal more specifically with country and human rights conditions in Hungary vis-à-vis Romanies, at varying periods, as well as IRB decisions, the "lead cases", reports and statements by persons of note on the Roma situation. The panel has carefully noted and read counsel's comments, and has taken them into consideration, together with all the other evidence, in making a determination in this matter.
. . .
The panel reviewed comprehensively the documentary evidence presented both by counsel and the RCO. After reviewing the totality of that evidence, and reading it in conjunction with the claimant's oral testimonies, and in consideration of the legal test to be applied and relevant jurisprudence on this issue, I find that the claimants have not adduced clear and convincing proof of the state's inability to protect them.
Grounds for the Application
[6] The applicants' grounds are set out as follows:
1. The decision of the CRDD was unlawfully made in that it misconstrued the definition of a Convention refugee.
2. The decision of the CRDD was unlawfully made in that it ignored relevant evidence, misconstrued the evidence before it, and made findings that were so patently unreasonable as to constitute a reviewable error.
3. The decision was based on erroneous findings of fact made in a perverse and/or capricious manner and without due regard to the evidence properly before the CRDD.
Applicants' Submissions
[7] The applicants submit that while the CRDD will not err in law by failing to refer in detail to all the evidence before it in a decision, it will err if its conclusions of fact from all of the evidence can be characterized as capricious or perverse: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.) and Tawfik v. Canada (Minister of Employment and Immigration) (1993), 26 Imm. L.R. (2d) 148 (F.C.T.D.).
[8] The applicants submit the Federal Court of Appeal in Lachowski v. Canada (Minister of Employment and Immigration) (1992), 18 Imm. L.R. (2d) 134 (F.C.T.D.), questioned the Board's consideration of documentary evidence where its reasons selectively referred to some documentary evidence, but ignored other documentary evidence supportive of the claim. The applicants also offer Bouh v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 1685, A-842-92 (December 14, 1995) (F.C.T.D.), where the Court characterized the Board's findings based on selective use of documentary evidence as perverse and capricious. The applicants next cite Roudatchenko v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1231, IMM-3132-96 (September 19, 1997) (F.C.T.D.) for the proposition that the CRDD has a legal obligation to explain why it believes one conflicting document over another.
[9] The 1999 U.S. Department of State Report ("DOS") for 1998 is, in the applicants' submission, a credible, trustworthy and objective documentary source that was before the CRDD. The applicants submit this source is perhaps the most widely relied upon document in cases before the CRDD. Various portions of the DOS are quoted by the applicants in their memorandum of argument to support the argument that conditions in the Romani community are significantly worse than that of the general population, and that the underfunded minority self-governments cannot adequately meet their needs. The applicants also cite a passage stating that widespread popular prejudice against the Roma continues, and that they are commonly abused by the police. The applicants also submit that the 1998 Human Rights Watch Report for Hungary was before the CRDD, and that it further adds to the points made in the DOC.
[10] The applicants next submit the evidence before the CRDD included a document from the CRDD's own Research Directorate. This document states, according to the applicants, that among other things, the Hungarian Ombudsman found intolerance toward minorities had grown, and that skinhead violence against the Roma continued. The report also cited the International Helsinki Federation for Human Rights 1998 Report, which states that hostility towards the Roma was on the increase, and that the Roma faced discrimination and continuing police brutality.
[11] The applicants further submit the evidence before the CRDD included the credible, trustworthy and objective 1999 Human Rights Watch Report for Hungary. The applicants argue this document also supports their contention that there is official tolerance (by mayors of towns for example) of discrimination against the Roma, and that Roma families have been forced to relocate from towns and are barred from entering certain establishments.
Respondent's Submissions
[12] The respondent submits this Honourable Court should not interfere with the CRDD's finding of fact unless it was truly erroneous, made capriciously or without regard to the evidence, and it is the basis of the decision in issue. Rohm and Haas Canada Ltd. v. Anti-Dumping Tribunal (1978), 22 N.R. 175 (F.C.A.), Bhuiyan v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 310 (F.C.T.D.), and the Federal Court Act, R.S.C. 1985, c. F-7, s. 18.1 are offered in support of this submission.
[13] As the evidence cited by the CRDD on the availability of state protection discloses that its finding was open to it, the respondent submits its finding is not capricious. The respondent also argues that the CRDD quotes from U.S. DOS Report and as such, could not have overlooked it as the applicants claim.
[14] With respect to the other documents cited by the applicants in their submissions, the respondent submits they are part of the Refugee Claims Officer Disclosure Package that was before the CRDD. There is nothing to suggest that the CRDD ignored those sources. The documents describe discrimination faced by the Roma in Hungary; thus, the respondent argues the CRDD's recognition that Romas are discriminated against is an indication that it had considered these documents.
[15] The respondent submits the CRDD's finding of no persecution and adequate state protection was open to it as the evidence it cited so demonstrates. These findings were not based on an erroneous analysis of the evidence, and are not patently unreasonable. According to the respondent, nothing indicates that the CRDD ignored any evidence when making these findings. The CRDD's non-persecution finding was also open to it. Whether or not discrimination amounts to persecution is a question of fact, and should not be interfered with unless it is shown to be patently unreasonable. The applicants have not shown that the CRDD's finding is patently unreasonable so as to warrant review. The respondent offers Jakhovets v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 927, IMM-2640-96 (June 30, 1997) (F.C.T.D.) in support of this argument.
[16] Furthermore, the respondent argues in its further memorandum of argument that the CRDD has jurisdiction to judge if the discrimination faced by the claimants reaches the threshold of persecution. Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.) is offered in support of this submission.
[17] The respondent argues the CRDD considered the numerous bases of the applicants' claim: the molestation the female applicant faced in school; the skinhead riot that occurred shortly after the adult applicants married, the treatment the minor applicants faced in school, the insults they received and a final attack on the adult applicants while in their car. The respondent submits the evidence revealed the following:
4. The female applicant could not say that the molestation was due to her Roma ethnicity. She did not know if the teacher approached non-Roma girls. She never reported this incident to the authorities.
5. The skinhead riot was a one-time event.
6. The minor applicants faced verbal abuse by teachers and insults and physical harm by schoolmates.
7. The applicants only mentioned one incident when the female and minor applicants were attacked.
8. The panel found this fell short of the systematic violation of human rights that would be persecution.
9. With respect to the final attack, it was also a one time event. They did not report it to the police, as they could not identify the culprits.
[18] The respondent further notes the CRDD was not required to find that what the applicants faced was persecution. The evidence disclosed, in the respondent's submission, that the treatment they faced fell short of the threshold of persecution and that adequate state protection was available.
Relevant Statutory Provisions
[19] "Convention Refugee" as defined in the Immigration Act is as follows:
| "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
« réfugié au sens de la Convention » Toute personne_: a) 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_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
|
Issues
[20] 1. Did the CRDD ignore evidence or make a perverse finding?
2. In the circumstances of this case, does discrimination towards the applicants amount to persecution?
Analysis and Decision
[21] The applicants originally raised the argument that this application should be allowed because the tribunal breached the principles of natural justice in unlawfully delegating its decision-making powers by relying on a standardized "boilerplate" decision (Lead case) for Hungarian Roma claimants. This argument was, however, withdrawn at the hearing of this judicial review and need not be addressed.
[22] Issue 1
Did the CRDD ignore evidence or make a perverse finding?
The applicants have argued that the tribunal ignored certain documentary evidence relating to the conditions in Hungary and especially in relation to the state's unwillingness or ability to provide police protection to the Roma population in Hungary. I have reviewed the references referred to by the applicants and I note that the majority of the documents predate the applicants' departure from Hungary, however, there are documents such as the following which are more relevant to this case. The following are reproduced from the applicants' memorandum of argument:
The evidence before the Tribunal, from credible, trustworthy and objective sources also included the 1999 Human Rights Watch Report for Hungary, also a widely relied upon document in cases coming before the Tribunal, which stated as follows:
Human Rights Developments
A new government, formed on July 8, 1998, and led by Prime Minister Viktor Orban of the Federation of Young Democrats/Hungarian Civic Forum, took responsibility for the continuing legacy of discrimination against Roma and routine police abuse that threatened to undermine Hungary's progress in guaranteeing human rights in the post-communist period. The persistence of these abuses in 1998 led domestic human rights groups to criticize both the European Union (EU) and the North Atlantic Treaty Organization (NATO) for concluding accession agreements with Hungary in the face of strong evidence of Hungary's failure to protect minorities and to hold police accountable for human rights violations.
Official statements enforcing stereotypes about "gypsies" fueled anti-Roma sentiment in 1998. On January 30, 1998, seven Hungarian human rights groups addressed a public letter to parliament and then-Prime Minister Gyula Horn protesting a public appearance in which Horn accused Roma communities of embracing criminal elements. Addressing the congress of the Lungo DromNational Gypsy Interest Association in Szolnok on January 16, 1998, Horn had noted that Roma communities display strong internal solidarity but added, "It is undesirable . . . that this solidarity extends even to law-breakers. The gypsy community should also dissociate itself from crime." The protest letter criticized Horn for fostering prejudice against Roma and possibly even encouraging discrimination against them. The groups, including the Hungarian Helsinki Committee, claimed that "In democratic countries, this is called inciting racist sentiments."
On April 2, 1998, the daily Blikk (Budapest) reported that Vera Pacs, mayor of Isaszeg, had ordered an eighteen-member Roma family to leave the town stating that there were two types of Roma: "the good-for-nothing type and the completely wretched type." The refusal to permit the family to remain came after the December 1997 stabbing of an ethnic Hungarian by a Roma man and amidst growing anti-Roma sentiment in the town. The family later moved.
Official tolerance for discrimination against Roma gave some authorities license to take increasingly tough measures to keep Roma out of their communities. The forced relocation of thirteen Roma families who had been illegally occupying the "Radio Street 11" building in Szekesfehervar resulted in widespread anti-Roma rhetoric and action beginning in December 1997. The mayor of Patka, Karoly Hedlicska, reportedly gathered close to 1,000 signatures in support of keeping Roma families from Szekesfehervar–who had purchased or were interested in purchasing homes in Patka–out of the town. The mayors of forty-three Fejer County towns and villages in Hungary reportedly met and drafted a resolution that Szekesfehervar should keep its own "gypsies" and not export them to surrounding communities. On January 8, 1998, the Szekesfehervar government announced that the Roma families would be able to remain in the temporary accommodations they occupied after being removed from the Radio Street 11 building, and the mayor told Reuters that he hoped to find flats for the families.
On April 9, 1998, the Roma Press Center reported that the practice of barring entrance of Roma to popular discos continued in many nightclubs in Bekescaba. In December 1997, the Local Gypsy Self-Government in Bekescaba complained to local authorities about the lack of access to public establishments. Officials responded that they could not restrict the operation of private enterprises without a valid court decision. Local police stated that while discrimination against Roma is against the law, they had no right to force the owners to serve Roma. In April 1998, Imre Furmann, the director of the Legal Defence Bureau for National and Ethnic Minorities, announced that the police do have the legal means to act against club owners. Citing the Law on the Police, which states that the police can arrest a person who continues to commit a minor offense after being warned, and the Law on Consumer Protection, which requires local trade departments issuing licenses for the sale of alcohol to monitor the protection law's anti-discrimination clause, Furmann said that officials could halt discrimination against Roma in access to public establishments in Bekescaba.
Police brutality remained a significant human rights problem in Hungary. A joint survey by the Constitutional and Law Policy Institute and the Hungarian Helsinki Committee released on December 22, 1997, concluded that detainees at police stations were often held in substandard conditions and subjected to physical and psychological violence. With cooperation from the Hungarian Interior Ministry, monitors from the two groups were permitted access to police stations without advance notice. The group concluded that physical mistreatment was common and that foreigners, minors, and Roma were increasingly exposed to police violence. (emphasis added)
Affidavit of Zoltan Bela Piel, Exhibit "C"
There were 770 Romani minority self-governments elected in the local elections in October, a significant increase over the 477 elected self-governments in the first minority elections held in 1994. The new self-governments are to begin operating in January 1999. Of the 477 elected in 1994, 396 are still functioning; the discrepancy reflected the number that ceased functioning between 1994 and 1998 due to a lack of funds. With funding from the central budget of $75 million (Huf 1.5 billion) in 1997 and logistical support from local governments, these bodies seek to influence and oversee matters affecting minorities. However, the national minority self-government bodies elected in 1994 had only limited success. The non-Romani minorities appear to be the most satisfied, while Romani leaders express frustration with the self-governments' lack of clear authority, responsibility, or resources. Critics of the minority self-governments claim that, for the Roma, the system failed, in part because it has permitted local governments to abdicate responsibility for their poorest inhabitants while the under-funded minority self-governments cannot meet adequately the needs of this population.
In 1995 Parliament appointed an Ombudsman–currently an ethnic German–specifically charged with defending minority rights . . .
Conditions of life for the Romani community are significantly worse than among the general population. Roma suffer from discrimination and racist attacks and are considerably less educated, with lower than average incomes and life expectancy. The unemployment rate for Roma is estimated to be 70 percent, over seven times the national average. With unemployment benefits exhausted and social services stretched thin, Roma often confront desperate situations.
Roma continue to suffer widespread discrimination in education, housing, and access to public institutions, including restaurants and pubs. Roma and other civic organizations highlighted the practice of placing Roma children in remedial education programs designed for children with disabilities or low academic performance, resulting in a form of de facto segregation. Although the children could be returned to the regular school system, only a small percentage return. Schools for Roma are more crowded, more poorly equipped, and in markedly poorer condition than those attended by non-Roma. The Hungarian Helsinki Committee found that there are 132 segregated schools throughout the country. The Government contests the claims of the human rights organizations and states that the Romani schools are designed to provide intensive help for disadvantaged children.
In what is considered a landmark case, in July a court ordered a bar owner in the city of Pecs to pay a $750 fine and take out newspaper advertisement apologizing for refusing to serve a Rom.
Local officials have in some cases taken advantage of rules prohibiting overcrowded, unsafe, or unsanitary housing, or have punished nonpayment of utility bills by evicting Roma families from residences without providing alternative housing as the law requires. The Government sponsors programs both to preserve Romani languages and cultural heritage and to assist social and economic assimilation. Oversight and budgetary control of the Coordination Council for Roma Affairs and the Office of National Ethnic Minorities was shifted from the Prime Minister's Office to the Ministry of Justice. In July the Government published an action plan designed to improve living conditions in Romani communities, with specific focus on public health, education, and work training. However, the plan provides no additional funds; rather, it redistributes already inadequate resources.
Widespread popular prejudice against Roma continues. Police commonly abuse them (see Section 1.c.). The Helsinki Committee recorded two cases of skinhead assaults during the year (one against a group of Roma, the other against an Asian student). According to press reports, a Sudanese man was attacked in Budapest by four skinheads in December. The attackers were arrested and the case is under investigation. Foreigners of color reported harassment by police and at border control checkpoints. The Martin Luther King Organization (MLKO) which documents assaults on nonwhites, recorded two such incidents in 1998, a decrease in the number of assaults. However, MLKO sources believe that many cases go unreported. (emphasis added)
Affidavit of Zoltan Bela Piel, Exhibit "C"
In a document contained at page 418 of the tribunal record, the following statement is made:
March 23, 1999. The ERRC is deeply concerned about the human rights situation of Roma in the town of Hajduhadhaz, eastern Hungary, approximately 20 kilometres from the city of Debrecen. Hajduhadhaz is home to approximately 13,000 persons, around 3000 of whom are Romani. The ERRC first visited Hajduhadhaz in September 1997 and documented instances of police brutality against Romani individuals at that time. Since then, the situation–especially in terms of relations between Roma and the police–appears to have either remained as critical or to have worsened. On March 14 and 15, 1999, the ERRC documented recent instances of alleged police brutality against Romani individuals. Additionally, four individuals-three of them Romani and one a non-Romani man-recently gave accounts of their experiences with the police in Hajduhadhaz on a nationally televised documentary program aired in Hungary on the evening of March 12, 1999. According to the testimony of Romani and non-Romani individuals in Hajduhadhaz, the police now appear to be intent on taking revenge against persons who spoke about their experiences on the program.
March 1999, Amara Drom. According to Dr. Imre Furman, director of Legal Defence bureau for National and Ethnic Minorities, in the year of 1998 the atrocities committed against Hungarian Romas were increasing. In the majority of the cases these brutalities were committed by members of various government organisations, which in his opinion proves that racism in Hungary is becoming more institutionalised.
(The above mentioned facts are properly documented, courtesy of the European Roma Rights Centre, 1525 Budapest 114, P.O. Box 10/24 Hungary. Webpage address: http://errc.org)
[23] In fact, the following excerpt from page 68 of the tribunal's own decision is not at odds with portions of the above remarks:
The U.S. Dos Report- 1998 indicates that:
Police also continued to harass and physically abuse Roma and foreign nationals. A total of 114 police officers were accused of physical abuse in 1997. The figure for the first half of 1998 was slightly higher, with 60 officers accused of abuse. Between 10 and 15 percent of these cases result in prosecution and conviction. Punishment included fines, probation, and the imposition of suspended sentences ...
The Police and Interior Ministry were working to change the police's authoritarian image, and human rights organizations report that police are generally more cooperative with outside monitoring of police behaviour. These efforts are hampered, however, by low salaries and a lack of physical resources ...
[24] A review of the above excerpts and of the decision of the tribunal leads me to the conclusion that the tribunal erred by failing to properly consider all of the relevant evidence. This is not to be taken as meaning that the tribunal must make reference to every piece of evidence. This evidence is, however, critical to the Board's finding in relation to lack of state protection in Hungary for the Roma minority. It should have been weighed against the other evidence by the tribunal.
[25] Issue 2
In the circumstances of this case, does discrimination towards the applicants amount to persecution?
The tribunal's discussion with respect to persecution is very limited as the decision deals mainly with the issue of the state's ability to protect the applicants. With respect to "a well-founded fear of persecution" there is simply a finding at page 2 of the decision that "they have not established a well-founded fear of persecution in present-day Hungary" and further at page 11 of the decision that the "claimants have not discharged their onus of establishing that there is a reasonable chance or a serious possibility that they will be persecuted by reason
of . . .". I am of the opinion that this issue should be more fully addressed and determined by the panel which will rehear this application. Needless to say, the jurisprudence is clearly set out in Salibian v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 165 (F.C.A.) at page 173:
It can be said in light of earlier decisions by this Court on claims to Convention refugee status that
(1) the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future;
(2) the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged;
. . .
And at pages 174 and 175:
. . . and I adopt this description of the applicable law to be found at the end of the aforementioned article:
In sum, while modern refugee law is concerned to recognize the protection needs of particular claimants, the best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in the country of origin. In the context of claims derived from situations of generalized oppression, therefore, the issue is not whether the claimant is more at risk than anyone else in her country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm for which the state is accountable, and if that risk is grounded in their civil or political status, then she is properly considered to be a Convention refugee.
In the case at Bar, the Division misunderstood the nature of the burden the applicant had to meet and dismissed his application on the basis of a lack of evidence of personal persecution in the past. This conclusion is a twofold error; in order to claim Convention refugee status, there is no need to show either that the persecution was personal or that there had been persecution in the past.
Because of the reference to "they will be persecuted" and the lack of any detailed explanation, it would appear to me the tribunal may have believed that the applicants had to show that they themselves were persecuted. This is an error.
[26] The application for judicial review is therefore allowed and the matter is referred to a different panel for redetermination.
[27] I have considered the representations of counsel and I am not prepared to certify a serious question of general importance.
ORDER
[28] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel for redetermination.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 31, 2001