Date: 20030630
Docket: IMM-954-01
Citation: 2003 FCT 808
Ottawa, Ontario, this 30th day of June, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ILONA BRAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Brad left Hungary in 1996. Three years after she arrived in Canada, she made a claim for refugee status. She claims a fear of her ex-husband's uncle. In 1994 or 1995, he robbed her apartment and threatened to kill her if she reported him to the police. A panel of the Immigration and Refugee Board dismissed her claim, primarily on the basis that the evidence did not support a claim of persecution on a recognized ground. Ms. Brad argues that the Board made serious errors in its analysis of her claim. She requests a new hearing before a different panel.
I. Issues
[2] Ms. Brad argued two related issues. She submits that the Board decided her claim on a single ground - the absence of a nexus between her fear of her ex-husband's uncle and the recognized grounds for a claim of refugee status - even though it made passing comments on her credibility, the delay in making a claim and the availability of state protection in Hungary. Further, she submits that the Board's conclusion on the issue of nexus was unreasonable.
A. The basis of the Board's decision
[3] The Board stated that the issue of nexus was "determinative". It referred to the other issues it discussed as "ancillary" and, in respect of them, it made "side observations".
[4] The Board clearly concentrated on the issue of nexus. In respect of the other issues, it seemed to be suggesting that they amounted to alternative grounds for dismissing Ms. Brad's claim, but that it was unnecessary to arrive at definitive conclusions on them.
[5] In my view, while use of the terms "ancillary" and "side observations" was somewhat confusing, the Board was entitled to proceed as it did. The question whether there is a nexus between the claimant's allegations of mistreatment and the recognized grounds for a refugee claim can be characterized as a threshold issue. If such a nexus cannot be shown, the claim will fail regardless of the other evidence supporting the claim.
[6] Accordingly, the main issue in this case is whether the Board's conclusion on nexus was well-founded.
B. Nexus
[7] The Board found that there was no evidence to suggest that Ms. Brad's fear was related to persecution on a recognized ground for a refugee claim. She submits that the Board should have concluded that she was persecuted on a gender-related basis as a member of a particular social group.
[8] The Board concluded that the threat against Ms. Brad was the product of a criminal act directed at her personally, not because of her membership in any social group. The perpetrator was convicted of crimes committed in Hungary and was incarcerated. The Board found no evidence that would support a refugee claim based on membership in a social group.
[9] Ms. Brad argues that the Board should have done more to elicit from her evidence to support the merits of a claim based on gender and membership in a social group, particularly as she was unrepresented at the hearing. I can see no unfairness in the way the Board proceeded. Ms. Brad was given a full opportunity to present her story, both orally and in her Personal Information Form. The burden lay on her to support her claim with evidence.
[10] Ms. Brad also submits that the Board should have relied on the Guidelines for Women Refugee Claimants Fearing Gender-Related Persecution. In essence, she argues that her situation was analogous to those women who are victims of ongoing domestic abuse for which there is no state protection. Had the Board taken this approach, she says, the Board would have found the necessary nexus. However, as the respondent points out, even under the guidelines there must be a link between gender, the feared persecution and one of the recognized grounds for a refugee claim. Again, the Board found no evidence to support the existence of such a linkage.
[11] Having reviewed the evidentiary record, I cannot conclude that the Board's conclusion was unreasonable. Accordingly, this application for judicial review must be dismissed.
[12] Counsel for the respondent proposed a question of general importance relating to the duty of a Board to assist an unrepresented claimant. However, he requested that such a question be certified only if the Court concluded that the Board had failed to treat the claimant fairly. That not being the case, no question of general importance is stated.
JUDGMENT
IT IS HEREBY ADJUDGED that:
1. The application for judicial review is dismissed.
2. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-954-01
STYLE OF CAUSE: ILONA BRAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JUNE 24, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: MONDAY, JUNE 30, 2003
APPEARANCES BY:
Mr. Ian R. J. Wong FOR THE APPLICANT
Mr. Martin Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ian R. J. Wong
Barrister & Solicitor
Suite 710-6 Adelaide Street East
North York, Ontario M5C 1H6 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT