Date: 20030224
Docket: IMM-4541-01
Neutral citation: 2003 FCT 231
BETWEEN:
LUBOMIR DANTCHEV NIKOLOV,
LILIA MILENOVA NIKOLOVA, and
OLEG LUBOMIROV NIKOLOV
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants seek judicial review of, and an order setting aside, the decision of the Convention Refugee Determination Division (the "CRDD"), dated August 16, 2001 whereby their claim to be Convention refugees was denied.
[2] The applicants are members of a family: Lubomir Nikolov, being the husband and father and principal claimant, Lilia Nikolova, the wife and mother, and Oleg Nikolov, the minor applicant, a child of the family. All are Roma, citizens of Bulgaria, who arrived in Canada in January 2000 and soon thereafter claimed refugee status on the ground of a well-found fear of persecution based on their ethnicity/nationality. The agents of persecution are said to be the government in Bulgaria, skinheads there and the general society.
[3] The principal claimant was designated representative for the child Oleg, whose claim, like that of his mother, was based on the claim of Lubomir Nikolov. I note that the family had a second child born in Toronto in May 2000, a family member whose status was not in question before the CRDD or in this proceeding.
[4] The principal and the female claimants were discriminated against at school because of their ethnicity, a treatment continuing to be experienced by Lubomir during his military service, and by both adult claimants in the course of their employment. In 1998, the walls of the claimants' apartment building were covered with offensive and threatening graffiti, a matter raised by the principal claimant with police who refused to deal with the complaint. The father of the principal claimant, who lived in the same apartment building, was accosted and physically pushed by a neighbour in the building. The police refused to deal with the father's complaint and threw him out of the police station. Later, the same neighbour physically assaulted the principal claimant and his wife. The former was hospitalized because of this, while his wife and the child Oleg, together with the principal claimant's parents, moved to a grandmother's home in a neighbouring village. There the principal claimant joined them when he was released from hospital.
[5] While living in the village, the principal claimant's parents began to receive threatening telephone calls and their dog was killed. The claimants believed that the threats increased after they had arrived in the village and were directed to them by skinheads, even though they were unaware how the skinheads would know where they were then living.
[6] The CRDD panel accepted on the balance of probabilities, that the principal and female claimants experienced discrimination and harassment in Bulgaria because of their Roma ethnicity. It accepted as well the story of the claimants' problems in the apartment building where they had lived and had been attacked. But the panel did not accept on a balance of probabilities, their claim of threatening experiences after they had moved to the village.
[7] The panel noted that while they found credible the account of police inaction when the principal claimant and his father had made complaints about graffiti and about the attack on his father, it noted he had not reported the subsequent attack on himself which caused him to be hospitalized and which he acknowledged ultimately caused him to leave Bulgaria.
[8] In its decision, the panel found that the principal applicant's testimony with regard to events after the family had moved to the village was inconsistent. Further, the threats were without specific mention of being directed to the applicants themselves. Rather, they were directed to the principal applicant's parents or to the whole family. Indeed, the principal applicant acknowledged that so far as he knew, the presence of his wife, himself and his son was unknown to anyone who might have been threatening them. He believed the threats by telephone were directed against him and that in view of the language used they were made by skinheads, but he acknowledged that the threats were directed against the family as a whole, including his parents. Moreover, his parents continued to live in the village despite continuing threats by telephone.
[9] While the panel accepted the fact that the principal applicant and his wife had been attacked while living in their apartment and had experienced discriminatory treatment earlier in Bulgaria, it did not accept their evidence of continuing threats after they had moved to the village. The panel concluded that it did not find the applicants experienced persecution in Bulgaria based on their ethnicity. In its view, there was not credible or trustworthy evidence to lead it to conclude there is more than a mere possibility that the applicants would be persecuted should they return to Bulgaria. The panel made reference to documentary evidence which indicated that Roma in Bulgaria were sometimes the target of attacks by skinheads and that there was discrimination against Roma in Bulgarian society, but the panel relied on a June 1999 publication concerning Roma in Bulgaria which concluded that by that time violent incidents by the Bulgarian populace were somewhat occasional.
[10] For the applicants, two issues are raised: (1) that the Board erred in not assessing the cumulative effect of the various incidents referred to by the applicants; and (2) that the Board ignored the claim of the child, Oleg.
[11] I am not persuaded that the panel did ignore consideration of the cumulative effect of the incidents referred to by the applicants which were accepted on evidence the Board found to be credible. In its decision, it reviewed these incidents and generally accepted the testimony of the applicants about events up until they moved to the grandmother's village. The panel did not accept the testimony about incidents that occurred thereafter. While it is true the decision refers to the main incident, the attack on the applicants in their apartment, as leading to the conclusion they were living in the "wrong apartment building with the wrong neighbour and that the claimants could have moved to avoid this neighbour", nevertheless the panel had reviewed the incidents referred to by the applicants in their testimony but found that evidence did not lead to a finding that the applicants had a well-founded fear of persecution. This conclusion, in my opinion, was supportable on the evidence before the panel.
[12] I note that in its decision the panel does specifically state that the principal claimant was the designated representative for the minor child and that it determined that each of the applicants including Oleg Nikolov (also known as Oleg Lubomirov Nikolov) is not a Convention refugee. That statement is repeated at the conclusion of its decision. In the notice of its decision, the CRDD listed the claimants individually and specifically states that these claimants are not Convention refugees.
[13] In the circumstances, I do not agree that the panel overlooked or failed to deal with the claim on behalf of the child, Oleg. Moreover, from the transcript it is clear that the panel was conscious that its task was to make separate determinations in relation to the claim of each of the three claimants. In designating the father to be representative of his child, the Board affirmed that that meant he would have to act in the child's best interests at the hearing. My review of the transcript confirms that the principal applicant did express fear for his children should they return to Bulgaria, but he did not otherwise specify particulars about that fear. Throughout the hearing counsel for the applicants and the panel treated the claim of the child, Oleg, as well as that of his mother, as relying principally on that of the father and husband. That is the normal course in dealing with refugee claims made on behalf of families including minor children.
[14] In the circumstances, I am not persuaded that the panel erred by failing to refer in its decision to specific reasons for treating the application of Oleg separately from that of his parents.
[15] The applicants rely on Khosradi et. al. v. The Minister of Citizenship and Immigration, [2002] F.C.T. 352 (F.C.T.D.). There, Mr. Justice Lemieux granted judicial review of a decision where "there was simply no determination by the tribunal of the minor children's refugee claims which had been joined with their mother's claim". Noting that the tribunal could reject the minor applicants' claims, the tribunal had to say so and in that case it did not do this. That is not the situation in the case before me.
[16] For these reasons, the application is dismissed. No question was proposed for certification and none is certified.
"W. Andrew MacKay"
JUDGE
Ottawa, Ontario
February 24, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4541-01
STYLE OF CAUSE: LUBOMIR DANTCHEV NIKOLOV
LILIA MILENOVA NIKOLOVA and
OLEG LUBOMIROV NIKOLOV
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, May 16, 2002
REASONS FOR ORDER OF MacKay J.
DATED: Monday, February 24, 2003
APPEARANCES:
Michael Crane
FOR APPLICANTS
Greg George
FOR RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane
166 Pearl Street, Suite 100
Toronto, Ontario
M5H 1L3
FOR APPLICANTS
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT