Date: 20031119
Docket: IMM-2958-02
Citation: 2003 FC 1362
Ottawa, Ontario, this 19th day of November, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
HIKMET MYUMYUN HALIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, in respect of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated May 16, 2002, wherein it was determined that the applicant was not a Convention refugee.
[2] The applicant requests that the application for judicial review be allowed, that the Board's decision be set aside, and that the applicant's claim to Convention refugee status be remitted to the Board for redetermination by the same panel, with such directions as this Court sees fit.
Background
[3] The applicant is an ethnic Turk from Bulgaria. He was born in 1969 and lived in the village of Dolna Koula, Krumovgrad, where the majority of the inhabitants are Muslim ethnic Turks, and some Roma and some Muslim Turks. Krumovgrad is a tobacco-growing region of Bulgaria. The only work available in the applicant's village was tobacco cultivation, which was slave work for the ethnic Turks and Roma, and from which the State made large profits.
[4] The applicant received eleven years of formal education, during which he was discriminated and harassed by his Bulgarian teachers and fellow students. In 1984 to 1985, the Bulgarian government forced all Bulgarian citizens to have a Bulgarian name, therefore, the applicant had to change his Turkish name to a Bulgarian name.
[5] Since the ethnic Turks are streamed to vocational school, the applicant was sent to a school in Kirdjali where he learned construction. In 1988 to 1989, the applicant completed his compulsory military service in Sofia. He was put in the labour unit for construction.
[6] While the applicant was doing his military service, some demonstrations for the ethnic Turks' rights in Bulgaria were held. Turkey closed its border in August 1989.
[7] When the applicant was discharged from the military in December 1989, he returned to his village and worked in the tobacco cultivation. The applicant had worked as a state tobacco farm helper from 1975 to 1988, and from 1990 to 1997, he worked on and off as a tobacco farmer in the village.
[8] In 1992, the applicant successfully applied to have his and his family's names changed back to their Turkish names.
[9] In 1994, the applicant went to Krumovgrad and found construction work. However, because he was an ethnic Turk, he was not paid for his work, thus the applicant quit after two months and returned to tobacco farming in his village.
[10] In 1996, the money for their tobacco was paid extremely late, and amounted to only as if they had worked one month of the year. It was so little money that the applicant went to Sofia in June 1997 to work on construction. There, the ethnic Turks were paid for two months' work, but on the third month they were not paid. When they asked for their money, they were dismissed from their job. The applicant and others went to the police for help but were told that nothing could be done.
[11] Once again, the applicant went back to cultivate tobacco in his village.
[12] Before the 1999 local elections, the applicant protested with others against a new policy regarding the ballots which abolished the old coloured ballots used to help elderly and illiterate voters. During the elections, the applicant helped the elderly read the ballots. For that, he was detained for one week, accused of "interfering with the free voting". He was also beaten and threatened with imprisonment.
[13] There were many protests by the ethnic Turk tobacco growers for the lack of payment or late payment for their crop. The applicant and his family suffered extreme hunger. He participated in the Krumovgrad protest in February 2000, but the protest was found to be useless as the State kept the tobacco without paying the growers.
[14] In March 2000, the applicant applied for and received a passport.
[15] In October/November 2000, the applicant delivered his high quality tobacco crop to Bulgartabac, the most important tobacco company in Bulgaria and was never paid for it.
[16] On December 5, 2000, the applicant, along with 50 other people, protested and peacefully demanded payment for their crops because they were hungry. The police raided the protest and about 30 to 40 people were arrested, including the applicant. He was interrogated on the organization and purpose of the protest, and he was also beaten. On December 15, 2000, the applicant was released.
[17] The applicant left Bulgaria on January 23, 2001 and arrived in Canada, via Mexico and the United States on February 14, 2001, and immediately claimed Convention refugee status.
Reasons of the Immigration and Refugee Board (Convention Refugee Determination Division)
[18] A hearing was held by one Board member on February 22, 2002. By reasons dated May 16, 2002, the Board determined the applicant not to be a Convention refugee because it found that his experiences do not illustrate discrimination amounting to persecution, and that there is less than a mere possibility that he will face persecution should he return to Bulgaria.
[19] The Board found the applicant to be a credible witness and believed the allegations supporting his claim.
[20] The Board acknowledged the economic differentiation between Bulgarian citizens and ethnic Turks. It considered the applicant's testimony and evidence, as well as the documentary evidence.
[21] Regarding the tobacco cultivation, the Board referred considerably to the applicant's testimony explaining the harsh situation the ethnic Turk were in as tobacco cultivators. The Board found that the documentary evidence disclosed that ethnic Turks generally did well in the area until the fall of the Communist regime, but that after that time, the quality of life plummeted, and unemployment and emigration to Turkey from the Kirdjali region increased dramatically.
[22] The Board believed that the protests described by the applicant took place, that the growers were not paid, that the applicant was arrested and detained in December 2000.
[23] The Board went on to determine whether the applicant was facing discrimination or persecution. In doing so, it considered paragraphs 51 through 55 and cited paragraphs 54 and 55 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, which address the distinction between discrimination and persecution.
[24] In reference to the case of Radulescu v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 589 (T.D.), the Board concluded that "while the measures which the panel has found the Bulgarian government took with respect to ethnic Turks and tobacco farmers (not all of whom were ethnic Turks), may have been discriminatory, they have not resulted in the loss of ethnic Turks' or ethnic Turk tobacco farmers' ability to earn a living at an extreme level or which was systematic."
[25] Finally, the Board adopted the reasons in the decision of file CRDD TA0-01421 et al., now reported as F.O.S. (Re), [2001] C.R.D.D. No. 262 (QL) at paragraphs 15 and 23 to 24:
They have been compelled to work in tobacco because of their lack of education and because of a lack of opportunity, in part, no question because they are Turks but also because the economy is depressed, the region is severely depressed, there has been virtually no investment in the area for all kind of reasons.
. . .
The panel does not dispute the very real problems being experienced by ethnic Turks in the new Bulgaria. The panel, however, does not find these problems in the tobacco sector to translate into persecution of the ethnic Turks, but rather a situation of a failing industry, which the government either cannot or will not move in to rescue.
What it disputes is counsel's argument that this is a conspiracy directed at the ethnic Turkish population because they are ethnic Turks. The panel finds rather that the Bulgarian State is not extending aid to this sector of the economy, is perhaps allowing it to fail, or is, as suggested above, allowing it to be privatized. None of this suggests persecution to the panel for a Convention ground. As noted above too, Turks are leaving for economic reasons. The panel notes, as well, the approach of Hathaway [as in James Hathaway, author, The Law of Refugee Status, Toronto: Butterworths, 1991] to the problem wherein economic rights occupy the third tier of rights and only in very specific circumstances as a basis for persecution.
[26] The Board did not find on the facts of the case that what the applicant faced constituted cumulative discrimination amounting to persecution.
[27] Issues
The applicant suggests the following issues:
1. Did the Board err in failing to consider the totality of the evidence properly before it?
2. Did the Board err in concluding that the applicant had not been subject to persecution?
3. Did the Board err in failing to recognize that one of the grounds of the claim was political opinion?
4. Did the Board err in failing to provide proper, adequate and intelligible reasons?
Analysis and Decision
[28] Issue 1
Did the Board err in failing to consider the totality of the evidence properly before it?
The uncontradicted evidence in this case establishes that the applicant was detained on two occasions:
1. During the October 1999 local elections, the applicant tried to assist elderly voters to read ballots. As a result of doing this, he states he was falsely accused of "interfering with the free voting". He was detained, beaten and threatened with imprisonment. He was released at the end of one week.
2. On December 5, 2000 the applicant and others peacefully protested in an attempt to obtain payment for their tobacco crop. The applicant was arrested and on December 15, 2000 he was released. He states that he was beaten while in custody.
[29] The Board at the hearing, requested the applicant to provide a more detailed account of the December 5, 2000 incident. He explained to the member that he was hit in the stomach, the back and punched in the head by the police while he was being questioned. He was never charged with an offence.
[30] The Board mentions the December 5, 2000 incident in the allegations portion of the decision, but does not mention the October 1999 incident. Neither of the incidents are addressed or mentioned in the analysis portion of the decision.
[31] While it is true that the Board need not refer to all of the evidence in its decision, however, if the evidence could be of importance to the final outcome of the case, the Board must deal with the evidence. While there is a presumption that a tribunal is "assumed to have weighed and considered all the evidence presented to it unless the contrary is shown" (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.)), I believe that "the contrary" has been shown in the present case. The Board did not mention the October 1999 incident at all and only mentioned the December 2000 incident in the allegations portion of the decision. This evidence needed to be dealt with one way or the other by the Board. I am of the view that the Board made a reviewable error in failing to deal with these two incidents.
[32] As a result, the application for judicial review is allowed and the matter is to be remitted for redetermination.
[33] Because of my finding on Issue 1, I need not deal with the remaining issues.
[34] Neither party wished to propose a serious question of general importance for consideration for certification.
ORDER
[35] IT IS ORDERED that the application for judicial review is allowed and the matter is remitted for redetermination.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
November 19, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2958-02
STYLE OF CAUSE: HIKMET MYUMYUN HALIM
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MAY 28, 2003
REASONS FOR ORDER
AND ORDER BY: O'KEEFE, J.
DATED: WEDNESDAY, NOVEMBER 19, 2003
APPEARANCES BY:
Ms. Helen Turner
For the Applicant
Mr. Robert Bafaro
For the Respondent
SOLICITORS OF RECORD:
Helen Turner
Barrister & Solicitor
Suite 1505-80 Richmond Street
Toronto, Ontario
M5H 2A4
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent