Date: 20010530
Docket: IMM-4733-00
Neutral Citation: 2001 FCT 551
BETWEEN:
LASZLO PERGER
LASZLONE (ROZALIA) PERGER
LASZLO PERGER (Jr.)
CSILLA PERGER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the Immigration and Refugee Board's (the "Board") decision rendered on August 25, 2000, wherein the Board determined that the applicants were not Convention refugees.
FACTS
[2] The applicants, Laszlo Perger ("principal applicant"), his wife ("female applicant") and his two children are citizens of Hungary who claim a well-founded fear of persecution on the basis of their ethnicity and membership in a particular social group being Roma.
[3] The principal applicant was sent into care of the Children's Aid Services because his parents were unable to cope with so many children in the household. The principal applicant explained that he faced discrimination but survived there because he was young and strong. He faced discrimination in school and at work. He alleged that there were other incidents of discrimination throughout his life.
[4] After their marriage, the adult applicants decided to go to work in order to support and sustain their family. They faced problems in finding appropriate day care and found one only at the end of two years. That did not last long; the children were sent back home because the authorities complained that the children were unmanageable and were a problem.
[5] The family had faced humiliation and verbal abuse. On July 29, 1993, the female applicant was attacked by three bald men on her way from shopping. She was injured and bloodied all over. The principal applicant treated her for these injuries at home; however, the effect on her was emotional and the medication prescribed by the doctor was not effective. The traumatic effects of the attack were depression, mood swings and a tendency to cry all the time. Unable to work at that stage, the female applicant applied for and was granted a disability pension.
[6] The principal applicant was employed from February 1980 to September 1980 in the construction industry; September 1980 to 1993 as a self-employed contractor in the same construction industry; and from 1993 to August 1999, performed sporadic work. He also mentioned to the Board that sometimes he had lots of work and other times none at all.
ANALYSIS
[7] Did the Board err in law in setting out the test for the applicability of subsection 2(3) of the Immigration Act?
[8] The definition of Convention refugee is stated as follows in section 2 of the Immigration Act:
| "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;
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(2) A person ceases to be a Convention refugee when
(a) the person voluntarily reavails himself of the protection of the country of the person's nationality;
(b) the person voluntarily reacquires his nationality;
(c) the person acquires a new nationality and enjoys the protection of the country of that new nationality;
(d) the person voluntarily re-establishes himself in the country that the person left, or outside of which the person remained, by reason of fear of persecution; or
(e) the reasons for the person's fear of persecution in the country that the person left, or outside of which the person remained, cease to exist.
(3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution. |
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« 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 don't 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 don't le texte est reproduit à l'annexe de la présente loi.
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(2) Une personne perd le statut de réfugié au sens de la Convention dans les cas où :
a) elle se réclame de nouveau et volontairement de la protection du pays don't elle a la nationalité;
b) elle recouvre volontairement sa nationalité;
c) elle acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité; d) elle retourne volontairement s'établir dans le pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée;
e) les raisons qui lui faisaient craindre d'être persécutée dans le pays qu'elle a quitté ou hors duquel elle est demeurée ont cessé d'exister.
(3) Une personne ne perd pas le statut de réfugié pour le motif visé à l'alinéa (2)e) si elle établit qu'il existe des raisons impérieuses tenant à des persécutions antérieures de refuser de se réclamer de la protection du pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée.
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[9] I agree with the applicants that subsection 2(3) of the Immigration Act does not require that an applicant has a well-founded fear of persecution at the time of his departure from his country for subsection 2(3) to apply.
[10] As was stated in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, in order to establish a well-founded fear of persecution an applicant has to demonstrate that he has a subjective fear of persecution and that this subjective fear is well-founded in an objective sense.
[11] The Supreme Court of Canada explained:
It is clear that the lynch-pin of the analysis is the state's inability to protect: it is a crucial element in determining whether the claimant's fear is well-founded and thereby the objective reasonableness of his or her unwillingness to seek the protection of his or her state of nationality. Goodwin-Gill's statement, the apparent source of the Board's proposition, reads as follows, at p. 38:
Fear of persecution and lack of protection are themselves interrelated elements. The persecuted clearly do not enjoy the protection of their country of origin, while evidence of the lack of protection on either the internal or external level may create a presumption as to the likelihood of persecution and to the well-foundedness of any fear.
...
More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
[12] In order for subsection 2(3) of the Immigration Act to apply, a subjective fear is necessary at all time but the objective part of the well-founded fear of persecution is not necessary since if there was a change of circumstances and, as indicated under paragraph 2(2)(e), the reasons for the person's fear of persecution in the country that the person left ceased to exist, the subjective fear is not well-founded in an objective sense anymore.
[13] In Biakona v. Canada (M.C.I.) [1999] F.C.J. No 391 (F.C.T.D.), Teitelbaum J. explained the test for the application of subsection 2(3) of the Immigration Act:
Justice McKeown's decision in Arguello-Garcia was cited for a three part test for the application of subsection 2(3) which requires that 1) the applicant has suffered atrocious and appalling act of persecution; 2) the applicant has a subjective fear of persecution such that she refuses to return to her country of origin and ask protection of the authorities; and 3) the applicant suffers continuing psychological after effect of the persecution.
However, in a most recent Federal Court decision in Jiminez v. Canada (Minister of Citizenship and Immigration) (IMM-1718-98, January 25, 1999) Justice Rouleau discusses the three part test referred to in Justice McKeown's decision in Arguello-Garcia, and further cites Mr. Justice Noël's decision in Shahid v. Canada(Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 130 (F.C.T.D.). Justice Rouleau points out that in Arguello-Garcia, Justice McKeown appears to revoke the third part of the test when he stated, at page 138, that "having regard to Obstoj and Hassan ... the Board erred in construing s. 2(3) of the Immigration Act does not require an ongoing fear of persecution and that "Evidence of Post-Traumatic Stress Disorder simply reinforces his conclusion as he appeared to summarize the evidence". [Emphasis added].
[14] In Hassan v. Canada (Minister of Employment and Immigration) (1994), 77 F.T.R. 309 (F.C.T.D.), Rothstein J. stated:
The question is whether an applicant invoking subsection 2(3)must demonstrate an existing or ongoing fear of persecution both subjectively and objectively. The panel in this case found that such ongoing fear was required.
...
To require that, before subsection 2(3) could apply, there would have to be a Convention refugee determination in respect of an applicant, could make the application of subsection 2(3) dependant on timing alone. Hugessen J.A. rejected this approach in Obstoj at page 748:
The exceptional circumstances envisaged by subsection 2(3) must surely apply to only a tiny minority of present day claimants. I can think of no reason of principle, and counsel could suggest none, why the success or failure of claims by such persons should depend upon the purely fortuitous circumstance of whether they obtained recognition as a refugee before or after conditions had changed in their country of origin. Indeed an interpretation which produced such a result would appear to me to be both repugnant and irrational. It would also, as noted, render paragraph 69.1(5)(b) quite incomprehensible.
and as he stated earlier at page 747:
To put the matter another way, subsections 2(2) and 2(3), while at first blush they appear to deal only with the loss of a refugee status which has already been acquired, have in fact been extended by Parliament and incorporated into the definition by means of paragraph (b), so that their consideration forms part of the determination process itself.
Based on Obstoj, I do not think it is necessary for there to be a Convention refugee determination before subsection 2(3) may be applied. Subsection 2(3) may be applied, in an appropriate case, to the Convention refugee determination itself.
I am satisfied, based on Obstoj, that in the case at bar, the Board erred in law by interpreting subsection 2(3) as requiring ongoing fear of persecution. Lest there be some concern that this interpretation of subsection 2(3) detracts from the normal requirement of applicants demonstrating ongoing fear of persecution, it should be recognized, as Hugessen J.A. pointed out in Obstoj, that subsection 2(3) applies only to a tiny minority of present day claimants - those in a special and limited category who can demonstrate that they have suffered such appalling persecution, that their experience alone is a compelling reason not to return them to the country in which they suffered persecution. While many refugee claimants might consider the persecution they have suffered to fit within the scope of subsection 2(3), it must be remembered that the nature of all persecution, by definition, involves death, physical harm or other penalties. Subsection 2(3), as it has been interpreted, only applies to extraordinary cases in which the persecution is relatively so exceptional, that even in the wake of changed circumstances, it would be wrong to return refugee claimants.
[15] However, a claimant has to have had at one time a well-founded fear of persecution or to state it otherwise, has to have been able to satisfy, at one time, the bipartite test stated in Ward, supra, which is to establish a subjective fear and that the subjective fear is objectively well founded. Therefore, a claimant has to have been able to be considered a Convention refugee at one point in time.
[16] In the case at bar, the Board considered the attack on the female applicant in 1993 and noted that the applicants did not leave as soon as the incident occurred, although they considered the incident atrocious and appalling. The applicants waited until 1999 to leave. The Board did not accept the principal applicant's explanation for the delay.
[17] The Board considered that the attack on the female applicant was an isolated event and that it did not come under the description of being atrocious or appalling.
[18] Therefore, even if the Board erred in examining whether the female applicant had a well-founded fear of persecution at the time of departure in 1999, the Board's conclusion regarding the delay and the fact that the attack was an isolated event still stands.
[19] This conclusion demonstrate that the Board did not accept that the applicants fear of persecution was objectively well-founded regarding the attack since it was an isolated event.
[20] In any event, the Board's conclusion that the attack did not come under the description of being atrocious or appalling still stands. Since it is a requirement under subsection 2(3) of the Immigration Act that the acts of persecution be found atrocious or appalling, the applicants did not meet the test as stated in Biakona, supra. I cannot find fault with the Board's conclusion.
[21] Therefore, the Board's mistake in examining whether the female applicant had a well-founded fear of persecution at the time of departure in 1999, is not material and does not warrant this Court's intervention.
[22] This application for judicial review is dismissed.
[23] No question was submitted for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
May 30, 2001
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4733-00
STYLE OF CAUSE: Laszlo Perger and others v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 22, 2001
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MR. JUSTICE BLAIS
DATED: May 30, 2001
APPEARANCES:
Mr. Peter ShenFOR THE APPLICANTS
Ms. Lori HendriksFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Peter Shen FOR THE APPLICANTS Hamilton, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada