Date: 20000127
Docket: IMM-2679-99
BETWEEN:
Ifrah Abdillahi OMAR
Abdollfatah (Abdoulfatah) KADIR
Abdillahi Kadir ABDI
Awad Kadir ABDI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN, J.:
Introduction
[1] This is an application for judicial review of a decision of the Immigration and Refugee Review Board (Convention Refugee Determination Division), dated 12 May 1999, which found that the applicants are not Convention refugees.
[2] The applicants are citizens of Djibouti. Their claim for refugee status was alleged on the ground of nationality/ethnicity, political opinion and membership in a particular social group. The applicant is a member of the Gadaboursi tribe and her children are members of the Issack tribe. The adult applicant is a member of the PDR, an opposition party in Djibouti. The social group membership alleged by the applicant is as a member of the family of an active member of the Elementary School Teachers Union ("ESTU"). They allege that they fear being arrested, detained, mistreated and killed if they return to Djibouti.
| [3] The Refugee Board determined that there were five issues in their claim. They are: 1. Whether the claimants are credible; |
| 2. Whether the Gadaboursis and the Issacks are subject to acts that constitute persecution in Djibouti; |
| 3. Whether members of the PDR or family members of PDR members are subject to acts that constitute persecution in Djibouti;. |
| 4. Whether family members of active members of the ESTU are subject to acts that constitute persecution in Djibou; and. |
| 5. Whether the claimants show a subjective fear of persecution. |
[4] On the issue of credibility, the Board found the claimants to be generally credible. Most of the factual assertions advanced by the applicants were believed, except the claim that the applicant"s husband left Djibouti for Ethiopia as a refugee and that she has not heard from him since. It was found to be implausible given few incidents of harassment experienced by him and that the family split for him to seek international protection.
[5] Considering the claim that Gadboursis and Issacks are subject to persecution in Djibouti, the Board found that the two groups are disadvantaged in that country. However, the Board found that the principal applicant and her husband were not subject to serious harm that would amount to persecution.
[6] The Board next considered the treatment of members of the PDR. Though they are subjected to harassment, arrest, interrogation and short detention, house searches and warnings regarding political activities, the Board concluded the treatment of members of the PDR and their families does not amount to persecution and does not justify a well-founded fear of persecution. Ultimately, it was a matter of serious harm and the harassment and intimidation of PDR members does not rise to persecution in the refugee context.
[7] Finally, the Board concluded that the applicants did not demonstrate a subjective fear of persecution. It was noted that the applicant signed a false declaration at the American Embassy in Djibouti and that she failed to make a refugee claim in either Italy or the United States, two countries that are signatories to the refugee convention through which they passed on their way to Canada.
[8] In total, the Board concluded that the evidence did not support the contention that there is a reasonable chance that the claimants would be subjected to persecution in Djibouti on account of nationality/ethnicity, membership in the PDR or the union.
Issues
[9] The applicant raises as the principal issue whether the panel erred in finding that the experiences of the applicant and her children, taken alone or together, do not constitute persecution. The applicant alleges that, given the facts as found by the Board, it was a reviewable error to find that the situation did not amount to persecution. It is alleged that by using a definition of persecution that was too narrow, the decision of the Board amounts to an error of law. The decision does not indicate in any certain terms what they believed "persecution" to mean. Therefore, it is difficult to fully determine if their reasoning was flawed in law.
[10] To support this position, the applicant cites He v. MEI,1 a case where the treatment of the refugee claimant at the hands of the Chinese authorities was found by the Board not to constitute persecution. On judicial review, Madame Justice Simpson found that the Board made a fundamental error of law in its application of the accepted definition of persecution to the facts of the case. In He, the applicant was a teacher who had participated in a number of demonstrations following the crackdown on students of June 1989 in Beijing. She was arrested at her school, detained and interrogated a number of times over the period of a month. She was pressured to sign a confession, which she did at the end of a month"s detention. The following day, she was released. She was told she no longer had her teaching job because of her anti-government activities. She was also told that she was being returned to her village to be a farmer, and was not allowed any other occupation. She fled to Canada and sought refugee status. The Board found that the one month detention, forced confession, deprivation of her right to practice her profession and to live where she chose was not persecution. The Board even suggested that she should have signed the confession earlier as that would have shortened her detention.
[11] The applicant argues that He is applicable and that this Court should find that the Board in this case likewise erred. The respondent relies on, among other cases, Sagharichi v. MEI.2 In Sagharichi, the Court of Appeal held that whether treatment amounts to persecution is a matter for the Board to determine:
| ... even if the appellant could make a claim on those bases, it remains that in order to be successful she had to establish that she had reason to fear a serious possibility of persecution should she return to her country, and the Board, in its decision, takes the view that she had not been able to do so. The incidents recited by the appellant in her testimony were no doubt unfortunate as they constituted in all appearances incidents of discrimination or even possibly harassment; but both members, in their respective reasons, make it clear that for them they were not serious or systematic enough to be characterized as persecution, or to lead to a conclusion that there was a serious possibility of persecution in the future. |
| " 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. |
[12] This case was followed in Sulaiman v. MCI,3 where Mr. Justice MacKay followed authority from the Court of Appeal in the following terms:
| " 31 I am also not persuaded that the tribunal erred in determining that the discrimination alleged by the applicants did not amount to persecution. In Rajudeen v. Minister of Employment and Immigration , (1984), 55 N.R. 129 (F.C.A.) the Court of Appeal cited the following definitions of persecution: |
| to harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship. |
| and: |
| a particular course or period of systemic infliction of punishment directed against those holding a particular (religious belief); persistent injury or annoyance from any source. |
| It is for the CRDD to determine whether the discrimination alleged is sufficiently severe to amount to persecution and this court will not interfere with such a finding unless the tribunal's conclusion is capricious or unreasonable: Sagharichi v. The Minister of Employment and Immigration, Unreported, Court file: A-169-91, (August 5, 1993) (F.C.A.), [1993] F.C.J. No. 796. |
[13] In my opinion, the respondent in this case has stronger authority for its position.
[14] A second issue, while not specifically addressed, is that the Board found that the applicants did not have a subjective fear of persecution. This is a finding of fact that is not lightly interfered with and is a very important consideration when determining if an individual is a bona fide refugee. This is because a refugee claimant must have a "well-founded fear of persecution" in order to succeed in his or her claim. There is both a subjective and an objective element required. Not only must there be a subjective fear of persecution, it must be well-founded.4 The Board in this case found that the subjective element was not satisfied, in that the applicants did not demonstrate a fear of persecution. Having failed on this criterion, the overall claim must fail.
Conclusion
[15] In my opinion, the Board did not make a reviewable error that would justify interference by this Court. While it is not plain and clear what criteria and what exact definition of "persecution" was used by the Board, there is no evidence to conclude that the law was misapplied or that it reached an unreasonable conclusion on the facts before it.
[16] In addition, it was open to the Board to conclude that the applicants did not demonstrate a subjective fear of persecution in their country of residence. This conclusion is one of fact and one with which reviewing courts will seldom interfere. It cannot be said that this conclusion was irrational or without foundation in the evidence before the Board. For this reason, I suggest that no reviewable error has been committed by the Board.
[17] For the above reasons, this application for judicial review shall be dismissed.
Ottawa, Ontario
January 27, 2000
B. Cullen
J.F.C.C.
__________________1 (1994), 78 F.T.R. 313, [1994] F.C.J. No. 1243, 25 Imm.L.R. (2d) 128 (T.D.)
2 (1993), 182 N.R. 398, [1993] F.C.J. No. 796 (C.A.), leave to appeal to S.C.C. refused, (1994) 170 N.R. 159n. This is the leading case on the issue of the standard of review for a determination of the Board that discrimination or harassment does not amount to persecution. It has been recently followed in Kaish v. MCI, [1999] F.C.J. No. 1041 (T.D. per Dubé J.), Koroz v. MCI, [1999] F.C.J. No. 951 (T.D. per Dubé J.); Basha v. MCI, [1999] F.C.J. No. 597 (T.D. per Pinard J.).
3 (1996), 110 F.T.R. 127, [1996] F.C.J. No. 371 (T.D.)
4 Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593.