Date: 20020813
Docket: IMM-3973-01
Neutral Citation: 2002 FCT 856
Montreal, Quebec, August 13, 2002
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
KONSTANTIN DIMITROV ANGUELOV
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to subsection 82.1(1) of the Immigration Act [hereinafter referred to as the "Act"] for judicial review under the Federal Court Act of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board [hereinafter referred to as the "Board"] dated July 25, 2001 wherein the Board determined that the applicant is not a Convention refugee.
FACTS
[2] The applicant is a citizen of Bulgaria; he is part Roma through his father and is part ethnic Bulgarian through his mother.
[3] The applicant made a claim for Convention refugee status on the basis of his ethnicity.
[4] Due to his ethnicity, the applicant claims to be the victim of intolerance and hostility amounting to persecution at the hands of the authorities and private citizens. He reports several incidents of physical harm.
[5] In 1997 and 1998, he was allegedly beaten by skinheads.
[6] Skinheads also beat his grandfather in the Roma ghetto where he lived. He eventually died from those injuries.
[7] Since the applicant's arrival in Canada on December 19, 1999, the local authorities detained his father and his brother in connection with a robbery and both were subsequent released after a few days.
ISSUES
[8] 1. Did the Board err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
2. Did the Board err in its application of the law with respect to its assessment of persecution and subjective fear?
ANALYSIS
1. Did the Board err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
[9] No, the Board did not err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it.
Lack of Credible Evidence
[10] The jurisprudence of this Court has found that the Board enjoys broad discretion in the evaluation of the credibility of evidence. In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) Evans J. stated:
It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual. Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence".
[Emphasis added.]
[11] The Board found that the applicant failed to provide sufficient credible evidence to justify key aspects of his claim. This becomes apparent from the Board's comments. For example, at page 1 of the Board's decision, it can be read:
I have considered all of the evidence before me including the three documentary exhibits filed by counsel post hearing. I find that Mr. Anguelov has failed to provide sufficient credible evidence on material aspects of his claim.
[12] I do not find that the Board erred by making adverse findings of credibility.
2. Did the Board err in its application of the law with respect to its assessment of persecution and subjective fear?
[13] The applicant alleges that he has and will continue to be the victim of persecution in Bulgaria on the basis of his ethnicity. However, the applicant is of the opinion that the Board misapprehended the definition of persecution.
[14] The definition of persecution has been enunciated by this Court as being an affliction of repeated acts of cruelty or a particular course or period of systematic infliction of punishment. Mere harassment or discrimination is insufficient to meet this definition. The Board considered individual events to determine if the applicant is a victim of persecution. At page 2 of its decision, the Board wrote:
The death of Mr. Anguelov's grandfather does not constitute past persecution for Mr. Anguelov. It may be a significant and horrible event in his past. Four years have passed since the event, and none of his other family members has suffered a similar fate.
The alleged beatings by skinheads in the past also do not constitute persecution. [...] His family have continued to live in the ghetto without problems amounting to persecution. [...]
In assessing whether there is a credible objective basis to the claim, the following factors must be considered. Apart from having resided in the ghetto, where he resided by choice, there are few other features that distinguish Mr. Angelov as Roma. He is only part Roma. His mother is an ethnic Bulgarian. He is educated and had been steadily employed. He is not of the most vulnerable of that ethnic group. He has not suffered discrimination amounting to persecution in the past. The harm which he allegedly suffered in the past does not amount to persecution. His remaining family members continue to reside in Bulgaria, purportedly in the ghetto, without being subjected to persecution.
[15] And further along at page 4, it can be read:
[...] When the evidence is examined in its entirety, however, I cannot conclude that such incidents are so widespread and systematic as to constitute persecution generally. Nor can I find that the prevalence of such incidents suggests that all Roma people are uniformly at risk of being treated in such a manner. Indeed, the evidence would suggest that someone like Mr. Anguelov, given his profile and his own history, has very little risk of being treated in a manner amounting to persecution on account of his ethnicity.
[16] The Board found that the applicant would face no more than a mere possibility of persecution; rather the applicant would more likely face discrimination on the basis of his ethnicity.
[17] The distinction between discrimination and persecution or harassment is slim. However, what is relevant is the fact that the applicant does not face the threat of persecution personally and therefore, is not a Convention refugee.
[18] In the case of Sagharichi v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 796 (F.C.A.), the Federal Court of Appeal held:
[para 3] It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.
[19] As such, I am of the view that the Board did not err in concluding that the experiences of the applicant do not amount to persecution.
Subjective fear of persecution
[20] The Board was given the task of determining whether or not the applicant could satisfy the test laid out in Adjei v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 67 (F.C.A.) which is stated as follows:
[para 8] What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility.
[21] In order to satisfy the test, the applicant must prove that he has a well-founded fear of persecution should he return to Bulgaria. The Board noted that the applicant re-availed himself of the protection of Bulgaria on numerous occasions following the alleged beatings. It is also noted that the applicant returned to the ghetto to live with his parents even after he was allegedly attacked by skinheads. At page 2 of its decision, the Board wrote:
[...] I find that Mr. Anguelov has not demonstrated a credible subjective fear of persecution. His actions and behaviour are inconsistent with a true subjective fear of persecution on the basis of his ethnicity.
[22] I conclude that it was reasonable for the Board to infer that the applicant has not successfully demonstrated a credible subjective fear based upon his actions and behaviours.
State Protection
[23] The applicant asserts that he was not protected by the government of Bulgaria. Rather, the government displayed an inability to protect him. However, the applicant did not advance clear and convincing evidence of this inability as per the test established inCanada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, by the Supreme Court of Canada. In the absence of such evidence, it should be assumed that the Bulgarian government is able to protect the applicant.
Documentary Evidence
[24] The applicant asserts that the Board's findings are based on no evidence. He specifically challenges the Board's findings relating to the issue as to whether all Roma are at risk of harm amounting to persecution in Bulgaria.
[25] The applicant quotes from the 2000 US Department of State Reports and two (2) Amnesty International reports (June 1994 and 1996). At page 3 of its decision, the Board characterizes the documentary evidence as follows:
Finally, the documentary evidence before the panel does not support a contention that all Roma are at risk of harm amounting to persecution in Bulgaria. The documents suggest that certain individuals within the Roma population might be at risk of harsh treatment which might, in particular circumstances, amount to persecution. The evidence suggests an atmosphere of continuing discrimination with some cases of extreme behaviour directed at the marginalized Roma population. The evidence read in its entirety, however, does not corroborate a case for the persecution of all Roma regardless of their particular circumstances.
[26] The preference of certain documentary evidence over others is a matter of weight for the Board. It is open to the Board to choose to prefer some evidence over other evidence. As long as its findings are reasonable, this Court need not intervene.
[27] In Zvonov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1089 (F.C.T.D.), Rouleau J. held:
[para 15] Finally, I am not persuaded that the Board erred by preferring the documentary evidence to that of the Applicant. The Board members are "masters in their own house" and it is open to them to decide what weight to give the evidence; in the present case they accepted the Applicant's testimony but chose to place more weight on the documentary evidence.
[28] Earlier in Tawfik v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 835 (F.C.T.D.) MacKay J. held:
[para 10] Generally the weight to be given to evidence is a matter for the tribunal's proper discretion. Unless that discretion can be said to be unreasonably exercised, this Court will not intervene.
Assessment of Persecution on a Cumulative Basis
[29] The applicant suggested that the Board failed to assess the cumulative effect of discrimination suffered by him over the years and should have arrived at the conclusion that the experiences of discrimination suffered by him amounted to persecution.
[30] In my view, the Board properly applied the criteria established by the jurisprudence in assessing the evidence provided, including the cumulative effect of discrimination suffered by the applicant.
[31] In summary, the Board found that the applicant could not satisfy the burden placed upon him by the test in Adjei, supra. There was no compelling evidence produced by the applicant as to whether he would be persecuted due to his ethnicity. Consequently, there was but a mere possibility that the applicant would face persecution should he return to Bulgaria.
[32] Therefore, this application for judicial review is dismissed as the decision of the Board does not reveal any reviewable errors of fact or law which would justify the intervention of this Court.
[33] Counsel for the applicant suggested a question for certification:
Is the assessment of persecution on a cumulative basis a question of law?
[34] In my view, this is not a serious question of general importance. Therefore, no question will be certified.
"Pierre Blais"
Judge
TRIAL DIVISION
Date: 20020813
Docket: IMM-3973-01
BETWEEN:
KONSTANTIN DIMITROV ANGUELOV
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3973-01
STYLE OF CAUSE:
KONSTANTIN DIMITROV ANGUELOV
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 29, 2002
REASONS FOR ORDER AND ORDER :
THE HONOURABLE MR. JUSTICE BLAIS
DATED: August 13, 2002
APPEARANCES:
Ms. Pamila Bhardwaj FOR THE APPLICANT
Ms. Tamarat Gebeyhu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bhardwaj Plhani Law Office FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario