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Bursuc v. Canada (Minister of Citizenship and Immigration)

Publisher Canada: Federal Court
Author Federal Court of Canada, Trial Division
Publication Date 11 September 2002
Reference IMM-5706-01
Cite as Bursuc v. Canada (Minister of Citizenship and Immigration), Canada: Federal Court, 11 September 2002, available at: http://www.refworld.org/docid/4039d8944.html [accessed 13 July 2014]
Comments Heard: August 7, 2002, Judgment: September 11, 2002
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.


Between
Cristinel Bursuc, Felicia Ramona Bursuc and Beatrice
Bursuc, applicants, and
The Minister of Citizenship and Immigration, respondent

[2002] F.C.J. No. 1251
2002 FCT 957
Court File No. IMM-5706-01

Federal Court of Canada - Trial Division
Calgary, Alberta
Dawson J.

Heard: August 7, 2002.
Judgment: September 11, 2002.
(17 paras.)

       Aliens and immigration — Admission, refugees — Grounds, well-founded fear of persecution  — Credible basis for claim.

       Application by Bursuc for judicial review of a ruling by the Refugee Division of the Immigration and Refugee Board that he and his family were not Convention refugees.  Bursuc and his family were Roma from Romania.  He claimed that, due to his ethnic background, he had suffered persecution from childhood, and that he had been jailed and beaten for his political views. He had attempted to claim refugee status in Austria, but returned to Romania to get married and ultimately because his work visa expired.  He claimed that he was again beaten and jailed for intervening for a friend who was the subject of police extortion.  The police forced Bursuc into a false confession that he was a drug dealer, he said, so that they could use this against him in the future.  It was then that he claimed he decided to leave Romania for good.  The board did not doubt the facts of his story, but found that his returns to Romania belied his fear of actual harm and that the police conduct regarding the extortion was simply unlawful behaviour, not persecution for political beliefs.

       HELD:  Application allowed; board's decision set aside, matter returned to a differently-constituted tribunal.  The board erred in law.  It was obliged to consider whether the cumulative harassing or discriminatory conduct amounted to persecution.  The test for refugee status was not whether Bursuc showed a clear intention not to sever ties with Romania, but whether he had a well-founded fear of persecution.  There was always a culminating incident in refugee claims, when the claimant made the settled decision to leave his country of origin.  The board did not have proper regard to the whole of the evidence, including the evidence of harassment prior to the culminating incident.  As well, the board erred in limiting its analysis to the context of political opinion.  It should also have considered the attacks on Bursuc because of his ethnicity.

Counsel:

D. Jean Munn, for the applicants.
Tracy King, for the respondent.                                                                                 


 

REASONS FOR ORDER AND ORDER

1      DAWSON J.:—  Cristinel Bursuc, his wife Felicia and their minor daughter Beatrice are citizens of Romania of Roma ethnicity.  The Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") expressed no concern with respect to the credibility of their testimony, but nonetheless found that they were not Convention refugees.

2      The evidence of Mr. Bursuc, in summary, is as follows.

3      As a child growing up in Romania Mr. Bursuc was subject to discrimination, marginalism and mockery because of his family's Roma origin.  In 1989, he left Romania illegally and went to Austria where he applied unsuccessfully for refugee status and obtained a temporary work permit.  In April 1992, he went back to Romania for a few days to get married as he could not legally marry in Austria, but returned to Austria after finding that the attitudes in Romania against minorities had not changed.  After the election of the opposition party, Mr. Bursuc again visited Romania in 1997, this time as a politically active member of the Party of Roma People ("PRP").

4      At his first PRP meeting in August, 1997 police forced their way into the meeting place, and started hitting people with rubber sticks, punching and kicking them, and yelling racial epithets.  Mr. Bursuc was taken to the police station where he was undressed, handcuffed inside a cell, and had a bucket of cold water poured over him.  He was then left for 30 minutes in cold temperatures.  Mr. Bursuc was accused of doing illegal business, told to confess, warned about making complaints to the government, and  was beaten unconscious.  Over the next 24 hours he was beaten repeatedly, and on release was hospitalized for five days.

5      In September 1997, Mr. Bursuc went back to Austria and continued working there.  In December 1998, he returned again to Romania to spend Christmas with his family, and because his work permit in Austria had expired.  In February 1999, he witnessed police officers beating up a Roma friend of his who failed or refused to pay to the police extortion money.  When Mr. Bursuc tried to intervene, he was beaten, arrested and detained for 24 hours, during which time he was twice beaten to unconsciousness.  Mr. Bursuc was then forced, through the infliction of pain, to sign a false declaration that he was a drug dealer.  He was then told this was a guarantee that he would never complain against the police. After this event, Mr. Bursuc decided to leave Romania permanently with his wife and daughter.

6      In finding the Bursuc family not to be Convention refugees, the CRDD wrote as follows:

         However, by obtaining legal status in Austria, and then returning to Romania from time to time, the claimants' conduct indicated they did not themselves feel the discrimination was serious enough to amount to persecution before their return in 1998.  In fact, by purchasing an apartment in 1996 in which they resided while visiting Romania, the claimants showed a clear intention not to sever ties with Romania but to continue their visits to Romania while living in Austria.  They indicated they bought the apartment for their own use, and did not rent it out to others.  Their trips to Romania and purchase and use of that apartment are not consistent with the actions of persons fearing persecution.     

        

         Therefore, in considering the acts of persecution alleged by the claimants, the panel concentrated on those occurring after the family's permanent return to Romania in 1998.                                              

7      After reviewing the evidence with respect to Mr. Bursuc's arrest and detention in 1999, the CRDD wrote:

         The panel concluded that while the treatment the claimant received at the hands of the police was undoubtedly abusive and frightening, it does not amount to persecution.  The male claimant only became involved in the extortion attempt because he happened to be in the wrong place at the wrong time.  Extortion by police is in itself a criminal act aimed at gaining monetary advantage, not persecution directed against the male claimant.  The male claimant became involved to help his friend, and was detained by the police because he was witness to their wrongdoing and meddled in their dealings with his friend.  His defence of his friend cannot be seen as an expression of his political opinion, nor would it likely be perceived as such by the police.  This leads to the conclusion there is no nexus between the abusive actions of the police on this occasion and the grounds enumerated in the definition of Convention refugee as set out in the Immigration Act.    

8      In my view, the CRDD erred in law in so concluding for the following reasons.

9      First, as a matter of law the CRDD is obliged to consider whether the cumulative acts of conduct found to be harassment or discrimination amount to persecution within the definition of Convention refugee.  See, for example, Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49, (1991), 179 N.R. 94 (F.C.A.).  This proposition is expressed as follows at paragraph 53 in the Handbook on Procedures and Criteria for Determining Refugee Status, published in 1992 by the office of the United Nations High Commissioner for Refugees:

53.          In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on "cumulative grounds". Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context.                                                                                                  

10      Turning to the reasons of the CRDD, the test for refugee status is not whether an applicant showed a clear intention not to sever ties with his or her country of origin, but whether the applicant has a well-founded fear of persecution.  The culminating incident for Mr. and Mrs. Bursuc took place in 1999, after they had returned to Romania for the last time.  To say that their actions leading up to the culminating incident do not suggest an intention to sever ties with Romania is consistent with their testimony, because it was only after the culminating incident that Mr. and Mrs. Bursuc said they formed the intention to leave Romania permanently.

11      It seems to me that few refugee claimants form the intention to sever their ties with their country of origin until the incident which finally provokes them to flee.  That, however, does not provide the basis for choosing, as the CRDD did in this case, to concentrate only on the culminating incident itself.  The CRDD is obliged to consider the cumulative effect of the whole of the evidence, including the evidence leading up to the culminating incident, in determining whether the applicants have a well-founded fear of persecution.  By in effect ignoring prior conduct because it did not force the Bursuc's to flee the CRDD did not properly have regard to the whole of the evidence.

12      Second, with respect to the CRDD's finding that there was no nexus between the conduct of the police in 1999 and a convention ground (in this case race, which includes persons of an identifiable ethnicity), Mr. Bursuc's evidence was that:

1.            It was common in Romania for the police to extort money from business owners of Roma ethnicity.   

 

2.            When he came to the assistance of his Roma friend who was a businessman being extorted by the police, the police called Mr. Bursuc a gypsy and threatened that he should not get involved.  When he ignored that threat he was beaten and arrested.                                                                           

13      The country condition documentation corroborated Mr. Bursuc's evidence that the police subject persons of Roma ethnicity to brutal treatment and harassment.

14      While in the context of political opinion the CRDD correctly considered the alleged persecutory conduct from the perspective of the police, the CRDD erred in limiting its analysis to the context of political opinion.  The CRDD was required to analyse from the perspective of the police whether Mr. Bursuc was beaten and arrested because of his ethnicity. Put another way, the question to be asked was, but for his Roma ethnicity, would Mr. Bursuc have been beaten, arrested, and mistreated in detention.  See:  Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.).

15      The ultimate finding of the CRDD may have been open to it on the evidence.  However, the above errors in the analysis of the CRDD require that its decision be set aside.

16      Counsel posed no question for certification and no question is certified.

ORDER

17      IT IS HEREBY ORDERED THAT:

1.            The application for judicial review is allowed and the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated November 16, 2001 is set aside.  The matter is remitted for redetermination before a differently constituted tribunal.                              

 

2.            No question is certified.                                                                             

DAWSON J.

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