Date: 20020816
Docket: IMM-4722-01
Neutral citation: 2002 FCT 876
BETWEEN:
VILHELM MICACI and
KINGA ADRIANA MICACI,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicants are husband and wife and Romanian citizens. The male applicant (Vilhelm) alleges a well-founded fear of persecution at the hands of the Romanian citizenry and authorities by reason of his race, Roma (gypsy), his political opinion and his membership in a particular social group, the family of a political activist (his father). The female applicant (Kinga) alleges a well-founded fear of persecution by reason of her Hungarian nationality and her membership in a particular social group, the family of her husband. The applicants' refugee hearing before the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) occurred on July 25, 2001 at Saskatoon, Saskatchewan and in its decision dated September 21, 2001, the CRDD determined that neither applicant was a Convention Refugee. The applicants seek judicial review of that decision.
[2] The applicants submit two allegations of error: that the CRDD failed to consider the totality of the evidence and failed to consider relevant evidence. Regarding the male applicant, the CRDD allegedly should have found that the cumulative effect of the incidents related by the applicant constituted persecution rather than discrimination. Regarding the female applicant, the CRDD similarly failed to consider her evidence, particularly the evidence that her grandfather's death at the hands of Romanian authorities would constitute persecution. The applicants argue that the CRDD assessed the applications separately and while such an approach was to some extent necessary, because the applicants are married, it was also necessary to apply the sufferings of one to the situation of the other, at least from a knowledge perspective. The female applicant, for example, came from a long history of Hungarian political involvement. The argument is that the female applicant's history should have been applied to the male applicant and vice versa. In failing to take such an approach, the applicants maintain that the CRDD did not properly consider the totality of the evidence and failed to consider relevant evidence.
[3] The applicants also submit that the CRDD based its denial of the female applicant's claim on a finding of a change in country conditions pursuant to paragraph 2(2)(e) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the Act). They argue that when paragraph 2(2)(e) is invoked, subsection 2(3) of the Act requires the panel to consider whether the previous persecution suffered by the claimant was of such a nature as to negate the positive impact of the change. Specifically, here, the CRDD should have considered whether the death of Kinga's grandfather had the effect of negating the changed country conditions. The applicants concede that unless the CRDD erred in finding that the applicants suffered harassment and discrimination rather than persecution, the application for judicial review must fail because absent a finding of past persecution, the applicants cannot avail themselves of subsection 2(3) of the Act.
[4] The male applicant recited various incidents, which he characterized as persecutory, beginning in elementary school and continuing beyond university graduation. He was unable to attend the schools of his choice, was placed in a university program not of his choice, was referred to as a "dirty gypsy", suffered harassment, insults, humiliation, and assaults inflicted by Romanian students and was accused of causing trouble when he complained. Upon graduating from university, he was not able to obtain employment. Wilhelm attributes such abuse to his Roma ethnicity.
[5] In October, 1993, the male applicant joined the Roma party. The branch for which he did volunteer work had conflicts with local officials and was warned to stop complaining and trying to solve gypsy problems. In February, 1994, on his way home from party headquarters, Vilhelm was attacked by two men who shouted at him and beat him. He required stitches for an injury above his eyebrow. The incident was reported to the police but was handled "superficially with a sarcastic smile and a promise to investigate". During his university years, Vilhelm regularly returned home and assisted with the organization of gypsy celebrations and events. These events were regularly interrupted by police and Vilhelm's father was frequently arrested.
[6] The female applicant also experienced difficulties throughout her school and university years. She had difficulties obtaining an education in Hungarian and allegedly received lower grades than the Romanian students. Upon entering university, she was refused residence accomodation and was unable to take classes in Hungarian.
[7] Kinga's mother and grandfather were active members of the Hungarian nationalist party. In January, 1997 the female applicant joined the party. She stated that her grandfather was often interrogated and sometimes beaten by the police. In her narrative, the female applicant related that her mother and grandfather had been beaten in 1994. Her grandfather developed headaches and was diagnosed with a brain tumour in 1995. He refused to have surgery and died in 1996. In August, 1996 Kinga's mother was summoned to report to the police station on August 6th. Her mother fled to Canada and did not report to the police. The police came looking for her, took Kinga to the police station, questioned her about her mother and then released her.
[8] While attending university, the female applicant returned home for Easter in 1999. Her grandmother told Kinga that there had been anonymous calls from a person speaking Romanian and that she had heard people walking outside the house. In June, 1999, when Kinga went home, she found her grandmother with a broken arm, having been assaulted by two men inquiring as to the whereabouts of Kinga's mother. These men had also turned the house "upside down".
[9] The male and female applicants met in early 1999 and were married in August of that year. On October 6th, they participated in a ceremony in memory of the 13 Martyrs of Arad. A Romanian faction protested the memorial. The female applicant was taking photographs. When she photographed the church, two policemen approached, harassed her and accused her of stirring up other Hungarians to cause trouble for the Romanians. She and Vilhelm were told to follow the officers to the police station where there were further interrogations. The male applicant was assaulted when he attempted to defend his wife and the officer slapped and shouted at Kinga when she attempted to protect her husband. The officers confiscated their I.D.'s, Vilhelm's Roma party membership card and took a written statement. After 3 hours, they were released. The applicants were summoned to the police station on October 15th and were again interrogated regarding the photographs. The I.D.'s were returned and they were released but told to stay in town because the case "was not yet cleared up".
[10] On October 23, 1999, the applicants attended the Grape Harvest Festival, an annual traditional gypsy event that Vilhelm had helped to organize at his grandparents' home. At 10:00 p.m., police arrived, ransacked the festival and called out a list of names including Kinga, Vilhelm and Vilhelm's father. Vilhelm and his father were taken to the police station; Kinga was taken in a separate car. Vilhelm was called a "stinky gypsy" and was questioned with respect to the event. When he refused to answer, he was beaten. Kinga was questioned about the photographs incident and was asked for the names of those from the gypsy and Hungarian parties who were making separatist plans. When Kinga said she didn't know, she was slapped. The applicants were later released. The following Monday, Vilhelm's father returned home badly beaten and told Vilhelm that he must "leave this place" because his life was in danger. At the beginning of November, the applicants were served with a summons to report to the police station on November 5th. They left Romania, without passports, and crossed the border illegally, on foot, on November 19, 1999.
[11] The CRDD considered the male applicant's problems at school and university as well as his alleged difficulties in obtaining employment. The panel concluded that cumulatively, the experiences did not amount to persecution by reason of race. The CRDD found that Vilhelm was no longer of school age, that university quotas could explain his placement in an alternate department and that despite problems with Romanian students, Vilhelm completed his studies and graduated with his degree. The panel found that the applicant's difficulty in finding employment was not unlike that of recent university graduates in many countries, including Canada, and that his job search was less than exhaustive since he had chosen, upon graduation, to focus his time and effort on his forthcoming marriage.
[12] The CRDD also considered whether Vilhelm had been persecuted by reason of his political affiliation with the Roma party or by membership in a social group, i.e., being a family member of a Roma party activist. The panel considered the 1994 attack and considered it an isolated incident. The panel noted that the male applicant did not experience problems during his trips home from 1994 to 1999 and concluded that Vilhelm did not suffer past persecution because of his Roma ethnicity or because of his membership in a social group.
[13] The panel considered the events of 1999 involving both applicants. Regarding the October 6, 1999 memorial celebration, the CRDD referred to the documentary evidence with respect to the event, preferred the neutral source documentary evidence over that of the applicants, found that the male applicant had embellished his story and that the embellishment undermined his credibility. The CRDD also found that the mistreatment was not sufficiently repetitive, persistent and serious to amount to persecution. Regarding the Grape Harvest Festival, the panel noted the male applicant's evidence that the police were not necessarily interested in him but were interested in his father, the organizer of the event. Again, the panel found that the treatment was not repetitive, persistent or serious enough to amount to persecution. The panel considered the November 5, 1999 summons and found that no charge was indicated and no evidence of further action existed. The passage of time suggested that Vilhelm would not be at risk in Romania.
[14] Regarding the female applicant, the CRDD stated that it considered her evidence of the various incidents of discrimination observed and experienced by her and by the members of her family. The panel considered her evidence in the context of the documentary evidence and concluded she would not be at risk if returned to Romania. The panel noted Kinga's evidence that her primary reason for leaving Romania was her relationship with the principal applicant, Vilhelm. Since Vilhelm failed to establish grounds for fearing persecution on the basis of race, political opinion and membership in a particular social group, the CRDD arrived at a similar conclusion for Kinga.
[15] The CRDD repeatedly stated that Vilhelm was subjected to various acts of discrimination rather than persecution and that the acts, even if considered cumulatively, did not amount to persecution. Applicants' counsel argued that there were 3 significant incidents which could be considered persecutory but conceded that a 5 year hiatus occurred between the first and second incidents. Additionally, Vilhelm's evidence regarding the third incident was that the authorities were really interested in his father. Given the evidence before it, I cannot find that the conclusion of the CRDD was unreasonable.
[16] With respect to Kinga's claim, counsel insisted that the CRDD ignored the fact that her grandfather's death occurred as a result of persecution by the authorities and that such a glaring omission constitutes sufficient grounds to set aside the decision. While the applicant might prefer that interpretation, it is noteworthy that it was more than 2 years between the alleged 1994 beating and the grandfather's death. One year before his death, he had refused to undergo recommended surgery. It is reasonable to assume that the CRDD did not see the grandfather's death in the same vein as the applicants' counsel. Kinga did not mention her grandfather's death in her testimony during the refugee hearing. The CRDD did refer to the grandfather's death in its recitation of the facts; it did not do so in its decision. It was the entitlement and the responsibility of the CRDD to weigh the evidence. The failure to refer to the grandfather's death in its decision indicates that it did not attach significant weight to that evidence. I find that the CRDD's decision in this regard was not unreasonable in the circumstances.
[17] The CRDD considered evidence both with respect to the female applicant's claim based on ethnicity as well as her claim as a member of a social group. The panel found that, regarding ethnicity, the harm feared by Kinga amounted to discrimination but not persecution, even on a cumulative basis. Having reviewed the record, in its entirety, I am unable to conclude that the finding was unreasonable. The female applicant's representations were that her main reason for leaving Romania was her husband. The transcript supports this finding. Regarding her claim as a member of a social group, the CRDD, having determined that the male claimant was not a
Convention refugee, correctly determined that the female claimant could not succeed with respect to her claim on this ground.
[18] Given my conclusions regarding the CRDD determination that neither applicant suffered persecution, the issue of subsection 2(3) does not arise. Regarding the argument that the history of each applicant should have been relied upon by the CRDD when dealing with the claim of the other, an applicant must establish the existence of a nexus between the harm feared and one of the Convention grounds. The panel did not consider the female applicant's history with respect to the male applicant's claim because it was irrelevant to the enumerated grounds claimed by the male applicant. The panel did consider the male applicant's history in determining the female applicant's claim, as it should have done, because her claim was based, in part, on being a member of a social group, her husband's family.
[19] The CRDD has expertise in evaluating whether the criteria for refugee status have been met and the burden is on persons who seek refugee status to establish that their claims are well founded. Here the CRDD provided detailed and comprehensive reasons for its decision. The conclusions that it reached were reasonably open to it and the intervention of the Court is not warranted.
[20] The application for judicial review is dismissed.
__________________________________
Judge
Ottawa, Ontario
August 16, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4722-01
STYLE OF CAUSE: Vilhelm Micaci et al. v. The Minister of Citizenship and Immigration
PLACE OF HEARING: SASKATOON, SASKATCHEWAN
DATE OF HEARING: August 1, 2002
Reasons for Order of the Honourable Madam Justice Layden-Stevenson
DATED: August 16, 2002
APPEARANCES:
Mr. John D. HardyFOR THE APPLICANTS
Ms. Glennys BembridgeFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Merchant Law Group FOR THE APPLICANTS
Saskatoon, Saskatchewan
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada