Bencic v. Canada (Minister of Citizenship and Immigration)
|Publisher||Canada: Federal Court|
|Author||Federal Court of Canada, Trial Division|
|Publication Date||26 April 2002|
|Cite as||Bencic v. Canada (Minister of Citizenship and Immigration), Canada: Federal Court, 26 April 2002, available at: http://www.refworld.org/docid/4039d1a72.html [accessed 22 May 2013]|
|Comments||Heard: April 18, 2002, Judgment: April 26, 2002|
|Disclaimer||This 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.|
Eva Bencic, Roman Bencic, Roland Spais and Roman Bencic,
The Minister of Citizenship and Immigration, respondent
 F.C.J. No. 623
2002 FCT 476
Court File No. IMM-3711-00
Federal Court of Canada - Trial Division
Aliens and immigration Admission, refugees Grounds, well-founded fear of persecution Grounds, political activity Credible basis for claim "Political opinion" defined Disqualifications Appeals or judicial review.
Application by Bencic for judicial review of the Immigration and Refugee Board's determination that he was not a Convention refugee. Bencic was a successful businessman and a victim of extortion by organized crime in Slovakia. He reported the crimes to the police and they forced him to withdraw the charges. He was told that his life was in danger and he fled to Canada. The crimes against him were profit motivated, and not politically motivated. He did not publicly denounce the police or state for official corruption. The Board dismissed his claim on the grounds that he was persecuted by criminal elements, which was not a ground recognized by the Convention. He applied for judicial review, arguing that the Board erred in failing to find a nexus between the persecution and the Convention's grounds, and in failing to find he was persecuted for his political opinion.
HELD: Application dismissed. The Board correctly found that there was no nexus between the criminal persecution and the Convention grounds, as Bencic's fear was because he was a victim of crime. Although the state was implicit in the criminal activity and took no action to stop the extortionists or protect Bencic when he attempted to report the crimes, he was not persecuted by repression or reprisals for political opinion.
Statutes, Regulations and Rules Cited:
Immigration Act, R.S.C. 1985, c. I-2, ss. 2, 2(a), 2(a)(i), 2(a)(ii), 2(b).
John Weisdorf, for the applicants.
Jeremiah Eastman, for the respondent.
REASONS FOR ORDER
1 KELEN J.: This is an application for judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD"), dated
2 The main applicant, Eva Bencic, born
3 In 1993, the applicant's husband started a used car business adjacent to two nightclubs. Because Mr. Bencic knew that patrons of the nightclubs were connected to the "underworld", he hired two night guards to watch over his car lot. Nevertheless, three of his cars were damaged, his friend was beaten while on the lot, and his business was robbed of cash, documents, and his most expensive American car.
4 Mr. Bencic reported the theft, assaults, and vandalism to the police. Mr. Bencic alleges that he was subsequently summoned to the police station where three plain-clothes policeman beat him and told him to withdraw the charge.
5 After withdrawing the charge, Mr. Bencic was beaten at the car lot by two thugs who "thanked" him for withdrawing the charge and told him that he had to pay a find of 300,000 crowns (about US$10,000). When he could not raise the money these thugs came to his house and took his personal car.
6 Mr. Bencic learned from reliable sources that he was to be "liquidated". At this point, his family was being harassed and threatened at their home. The family went into hiding, before departing for Canada and making this refugee claim.
7 The CRDD conducted hearings on
DEFINITION OF CONVENTION REFUGEE
8 "Convention refugee" is defined in section 2 of the Immigration Act, R.S.C. 1985. c I-2 as follows:
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
* * *
"réfugié au sens de la Convention" Toute personne:
(a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se rééclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
(b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celleci dont le texte est reproduit à l'annexe de la présente loi.
DECISION OF THE CRDD
9 The main issue is whether there is a nexus or link between the claimants' fear of persecution by the criminals and any one of the grounds in the definition of a Convention refugee: race, religion, nationality, political opinion, or membership in a particular social group. At page 2 of the decision the CRDD held:
The panel finds that the determinative issue in this case is nexus. Is there a link between the claimants' fear of persecution and any one of the grounds listed in the definition of a Convention refugee: race, religion, nationality, political opinion or membership in a particular social group?"
[...] At first, the claimants based their claims on membership in a particular social group: persons targeted by the Mafia in the Slovak Republic. Is there nexus for such feared harm to a Convention ground?"
10 The CRDD held that the harm from the Mafia is that of crime, not persecution as defined in the Convention. At page 3 the CRDD held:
The harm feared of targeting by the Mafia by the claimants in this case as first presented by the claimants is that of crime, not persecution, as defined in the Convention. Extortion is a common crime. Successful businessman and their families may be targeted by extortionists, but the case law is clear that if the individuals' only fear of persecution is as a victim of crime, they do not fit the definition of a Convention refugee.
And at page 5:
The panel concludes that the persecution that the claimants feared related to criminal activity in the Slovak Republic, the successful car business that attracted extortion, and that the extortionist was attracted by their visible success. The goal of the persecution was the assets visibly available in the car lot and readily available by means of sales in cash transactions or access to the cars themselves. The motive of the feared agent of persecution was not related to membership in a particular social group related to fundamental human rights and anti-discrimination and the purpose for Convention protection.
11 The CRDD also considered whether there was evidence that the claimants were persecuted for their actual or perceived political opinion; that the state or police are involved with organized crime and accordingly would not take any action against the extortionists, thieves, or perpetrators of the violence. The CRDD held that there was no clear evidence that the male claimant was targeted by the officials or the police because of his attempts to report the crime and corruption to the police. The CRDD held at page 8:
In other words, there was no clear evidence that the male claimant was targeted by anyone because of his attempts to report crime and corruption to the police, as was the case in Kinko.
STANDARD OF REVIEW
12 With regard to a finding of a nexus between a fear of persecution and a Convention ground, the standard of review is reasonableness simpliciter, as per Jayesekara v. Canada (Minister of Citizenship and Immigration),  F.C.J. No. 1393, 2001 FCT 1014 (F.C.T.D.) at paragraph 24:
Against the "pragmatic and functional approach" to the determination of standard of review as elaborated in Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982 (S.C.C.) and again more recently in Baker V. Canada (Minster of Citizenship and Immigration),  2 S.C.R. 817 (S.C.C.), I am satisfied that the appropriate standard of review of the finding by the CRDD that is here before the Court regarding "nexus" is not patent unreasonableness or whether the finding was made in a perverse or capricious manner or without regard to the material before the CRDD, but rather reasonableness simpliciter.
13 The standard of review of the CRDD for questions of law is that of correctness, as per Bela v. Canada (Minister of Citizenship and Immigration),  F.C.J. No. 902, 2001 FCT 581 (F.C.T.D.) at paragraph 13:
All questions of law, in such applications, are governed by the standard of correctness, as enunciated by Mr. Justice Bastarache in Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R., 982 (S.C.C.)].
14 Based on the standard of reasonableness simpliciter, the CRDD did not err in concluding that there is no nexus between the claimants' persecution and a Convention ground. In this case, the CRDD reasonably concluded that the persecution is directly linked to criminal activity.
15 The second ground for arguing nexus is that the claimants were persecuted for their political opinion. Following the Federal Court of Appeal decision in Klinko v. Canada (Minister of Citizenship and Immigration),  3 F.C. 327, a denunciation of corruption in the police can be characterized as an expression of "political opinion". Based on Klinko, supra, the claimants said that they were persecuted because the state was complicit with the criminal activity, and because the state took no action to stop the extortionists or protect the claimants. In Klinko, supra, the Court held that the denunciation of the state officials' corruption led to the reprisals against Mr. Klinko. At paragraph 34 the Court held:
The opinion expressed by Mr. Klinko took the form of a denunciation of state officials' corruption. This denunciation of infractions committed by state officials led to reprisals against him. I have no doubt that the widespread government corruption raised by the claimant's opinion is a "matter in which the machinery of state, government and policy may be engaged."
16 Therefore, Mr. Klinko suffered persecution in retaliation for his denunciation of corruption in the government. In this case, the CRDD found that there was no evidence that the male claimant was targeted or persecuted by officials because of his attempts to report crime and corruption. For this reason, the Klinko case, supra, is distinguishable from the case at bar, and does not apply.
17 Refusal to bow to extortion, threats, and violence due to Mr. Bencic's status as a financially successful person in Slovak does not qualify him as a refugee under the Convention. The Convention only protects refugees with a reasonable fear of persecution due to their religion, race, nationality, political opinion and membership in a particular social group. Victims of crime are not protected by the Convention.
18 Accordingly, I am of the view that the CRDD reasonably held that the persecution experienced by the claimants was directly related to criminals seeking to extort money and automobiles, and not their political opinion. The fact that the police did not protect the claimants from this criminal activity, and according to the claimants, were complicit with the criminals, does not connect the claimants' fear of persecution to any of the grounds under the Convention in order to qualify for refugee status. In the absence of an error, there is no basis for judicial interference with the CRDD decision.
19 There was no request for a question to be certified, and I am of the view that this case does not raise a question of general importance which ought to be certified under subsection 82(3) of the Immigration Act.
20 For these reasons, this application for judicial review is dismissed.