Date:19990115
Docket: IMM-2190-98
BETWEEN:
Jaime Ronaldo GALVEZ GALLARDO
Applicant
and
THE MINISTER
| Respondent |
REASONS FOR ORDER
TEITELBAUM, J.
INTRODUCTION
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division (the Board), which concluded that the applicant was not a Convention refugee.
FACTS
[2] The applicant, a 39-year-old male and citizen of Chile, bases his claim to Convention refugee status on imputed political opinion.
[3] During the years the applicant was a university student (1978 - 1985), there were strong leftist movements on campus. He did not participate in these movements and was harassed by students because, in his opinion, the socialists regarded him as a spy for the military government. In 1984, the applicant was taken in for questioning by government security forces and detained for 18 hours.
[4] After his university years, the applicant lived quietly with his family for 5 years, tutoring students privately in mathematics. Although he had no problems, he still felt uneasy and fearful.
[5] Following the elections of 1990, the applicant felt more threatened by the socialists. The applicant moved with his family to Venezuela, where they opened a small construction business. He lived there between 1991 and January 1996. On one occasion the applicant returned to Chile to propose marriage to a woman but this did not work out.
[6] In May 1993, in Venezuela, a Chilean employee at the construction company started an argument with the applicant over a company house he wanted to buy. He threatened the applicant with a rifle.
[7] In September 1994, in Venezuela, a Chilean compatriot accused the applicant of insulting his 13-year-old son. The man attacked him with an iron bar. After this incident, the applicant"s family hired a guard to protect their house and the applicant stopped working and stayed at home.
[8] The applicant made his refugee claim in Canada on January 23, 1996 claiming he could not return to Chile because he had enemies and was always afraid there.
Commission"s Decision
[9] The decision of the Board reads as follows:
| The panel does not doubt the claimant"s personal fear. He was extremely honest in the presentation of his story and his attitude was genuinely fearful. A medical certificate (exhibit P-7) describes the claimant as very anxious and depressed. |
| However, in terms of a refugee claim there simply is not one. The claimant was bullied at university and became very fearful. He lived quietly at home following the university years and was still fearful. Nothing, however, happened during these years. In Venezuela, during a 4 year period the claimant suffered 2 personal attacks. |
| There is no credible basis for his claim. The claimant is not a Convention refugee. |
ISSUES
[10] Did the Board err in law by determining that the applicant"s subjective fear was sincere but not well-founded according to the definition of Convention refugee?
[11] Did the Board err in fact and in law and fail in its analysis of the evidence with respect to the question of perceived political opinion?
PARTIES" SUBMISSIONS
[12] The applicant submits that the Board erred in law when it found that the applicant"s subjective fear and story were genuine yet concluded that there was no credible basis for his claim.
[13] The applicant submits that the Board erred in law when it erroneously interpreted the term "imputed political opinion": the issue was whether the student movement considered that the applicant was a spy for the military government and not whether the Board considered that the applicant engaged in political activities.
[14] The respondent submits that the applicant did not have a reasonable fear of persecution since there was no evidence to establish a link between his story and the definition of Convention refugee.
[15] The respondent submits that there was no evidence of perceived political opinion on behalf of leftist groups; this was a hypothesis put forward by the applicant, but not accepted by the Board.
ANALYSIS
[16] The case law has established that the definition of Convention refugee requires both a subjective and an objective fear of persecution.1 The applicant must show not only that he or she is afraid of persecution, but this fear must be objectively well-founded.
[17] Furthermore, as stated by MacGuigan J. of the Federal Court of Appeal, the onus is on the applicant to establish a link between persecution for a Convention reason and the applicant.
To succeed, refugee claimants must establish a link between themselves and persecution for a Convention reason. In other words, they must be targeted for persecution in some way, either personally or collectively.2
[18] In the present case, the Board has considered the applicant"s claim and acknowledged his subjective fear. However, in the Board"s consideration, his difficulties are due to the fact that he was "bullied at university and became very fearful" and not due to persecution.
[19] Although the Board found the applicant credible as to his subjective fear, it did not accept his fear of persecution as objectively well-founded. The Board points to the fact that the applicant lived quietly at home following his university years and, despite the fact that nothing happened, he was still fearful. The Board also notes that the two attacks (there were three attacks) in Venezuela were personal in nature. As for the third attack, where he was almost run down by a car driven by one of the individuals who had previously attacked him and which the Board did not mention, I am satisfied that this was also of a personal nature. The fact that the third attack is not mentioned by the Board is not sufficient for me to quash the Board"s decision as it does not go to the substantive issue of persecution.
[20] With respect to the argument that the applicant"s imputed political opinion was the source of his difficulties, I accept the respondent"s submission that this is an hypothesis offered by the applicant, rather than a fact. There is no evidence to substantiate his claim that the attacks were politically motivated, other than the comments made by his fellow students during his university years.
[21] I have read the transcript of the hearing and can only agree with the submission of the respondent that the applicant has failed to provide evidence of persecution to be considered a Convention refugee.
[22] As such, I am satisfied the Board"s decision to dismiss the applicant"s claim for refugee status was reasonable and based on the evidence before it.
CONCLUSION
[23] The applicant has a subjective fear. However, that fear is not objectively well-founded. The onus is on the applicant to prove both portions of the test, in order to establish a credible basis for the claim.
[24] The applicant has failed to establish that he is a Convention refugee.
[25] I dismiss the application for judicial review.
[26] Neither party had a question to be certified.
"Max M. Teteilbaum"
J.F.C.C.
Ottawa, Ontario
January 15, 1999
__________________1 Rajudeen v. M.E.I., [1984] 55 N.R. 129; Adjei v. M.E.I., [1989] 2 C.F. 680; Valentin v. M.E.I., [1991] 3 C.F. 390; Thirunavakkarasu v. M.E.I., [1994] 1 C.F. 589; and Chan v. M.E.I., [1995] 187 N.R. 321, at page 336.