Soto v. Canada (Minister of Citizenship and Immigration)

Between
Marie Marcelina Troncoso Soto, applicant, and
The Minister of Citizenship and Immigration, respondent

[2002] F.C.J. No. 1033
2002 FCT 768
Docket IMM-3734-01

Federal Court of Canada - Trial Division
Vancouver, British Columbia
Tremblay-Lamer J.

Heard: July 3, 2002.
Judgment: July 10, 2002.
(24 paras.)

       Aliens and immigration — Admission, refugees — Grounds, well-founded fear of persecution — Appeals or judicial review, grounds.

       This was an application by Soto for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board that she was not a Convention refugee. Soto was a citizen of Chile and alleged a well-founded fear of persecution because of her membership in a particular group, which was the visually impaired.  In her personal identification form, Soto listed incidents of discrimination against her.  Soto was fired from her last job when she began using a guide dog.  The Board found that the cumulative instances of discrimination did not amount to a well-founded fear of persecution.  It concluded based on Soto's work history and education in Chile that if she were returned there, she would have a means of earning a livelihood.

       HELD:  The application was allowed.  The matter was referred back for redetermination by a newly constituted panel. The conclusion that Soto could earn a livelihood in Chile was not supported by the evidence.  The Division failed to fully address Soto's employment history and, in particular, her history since acquiring a guide dog.  As a result, it could not properly determine if the restriction imposed on Soto's right to earn a livelihood in Chile amounted to persecution. Certification was not appropriate as there were no serious questions of general importance.

Counsel:

Peter Golden, for the applicant.
Pauline Anthoine, for the respondent.

REASONS FOR ORDER AND ORDER

1      TREMBLAY-LAMER J.:—  This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") wherein the applicant was found not to be a Convention refugee.

2      The applicant is a citizen of Chile.  She alleges a well-founded fear of persecution because of her membership in a particular social group -- the visually impaired.

3      In her Personal Identification Form ("PIF"), the applicant lists incidents of discrimination against her since March 1976.  The emphasis of her claim is in respect of events that occurred to her between November 1999 and March 20, 2000. During that period, she suffered many incidents of discrimination because of her guide dog, Reeses.  On March 7, 2000, she was dismissed from her job at Radio Armonia because she would not leave her dog at home.

4      The applicant entered Canada on a visitor's permit on August 16, 2000.  She made her refugee claim on September 13, 2000.

5      The Board's only concern with the applicant's testimony was her claim that although she had a pension when she was unemployed, before beginning work at the radio station, that pension was not re-instated following her dismissal.  Apart from that, the Board found the applicant's testimony to be forthright and credible.

6      The Board considered the applicant's testimony and recognized that she had experienced difficulties in obtaining employment.  However, it also found that the applicant was educated and had an extensive work history, having held four different positions teaching English as a second language in Santiago, and therefore the Board concluded that if the applicant returned to Chile, she would have a means of earning a livelihood.

7      Although it sympathised with the applicant in her frustration of enduring many years of discrimination, the Board concluded that the cumulative instances of discrimination that she had suffered did not amount to a well-founded fear of persecution.  Therefore, the Board determined that the applicant was not a Convention refugee.

8      The applicant submits that the Board made an error of fact when it found that she would have a means of livelihood if she were to return to Chile, as there is no evidence on which to base such a finding.  She states that this error is significant because in determining whether the discrimination she faces amounts to persecution, her inability to earn a living must be considered.

9      The applicant further submits that the Board misconstrued the meaning of the term "persecution" by focussing on the quantitative aspect of discrimination and not the qualitative aspect.  In doing so, the Board failed to analyse the physical, psychological and emotional effects of years of discrimination suffered by the applicant.

10      The distinction between persecution and other acts of harassment not warranting international protection will not always be easy to make.  It is a mixed question of law and fact to be determined on case-by-case basis by the Board.

11      In Sagharichi v. Canada (M.E.I.), [1993] F.C.J. No. 796 at paras. 3 and 4 (C.A.), Marceau J. explains that in order to be characterized as persecution, incidents of discrimination or harassment must be serious or systematic or lead to a conclusion that there is a serious possibility of persecution in the future.  He goes on to state that the intervention of the reviewing court is not warranted unless the conclusion reached appears to be capricious or unreasonable:

         It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution.  It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved.  It  remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.                              

12      Discriminatory acts may constitute persecution if they are sufficiently serious and occur over such a long period of time that it can be said that the claimant's physical or moral integrity is threatened (N.K. v. Canada (Solicitor General), [1995] F.C.J. No. 889 at para. 21).

13      It is improper to ignore evidence that in itself does not constitute persecution, but forms part of a pattern of persecution (Bobrik v. Canada, [1994] F.C.J. No. 1364 at para. 22; V.F. v. Canada (Secretary of State) (1994), 78 F.T.R. 283 at para. 19).

14      The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, reedited Geneva, January 1992 at paras. 54-55 ("the Handbook") provides as follows:

         Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution.                           

         This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his or her right to earn their livelihood and the right to practice religion or access to normally available educational facilities.                                                                      

         ...                                                                                                                     

         Where measures of discrimination are in themselves not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce in the mind of the person concerned a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger when a person has been a victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.

15      This Handbook has been considered by the Supreme Court of Canada to be a persuasive authority.  In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 713-714, La Forest J. noted that:

         ... While not formally binding on signatory states, the Handbook has been endorsed by the states which are members of the Executive Committee of the UNHCR, including Canada, and has been relied upon by the courts of signatory states.        

16      This Court has recognised, on several occasions, that discriminatory actions that have serious consequences for the right to earn a livelihood can amount to persecution (V.F. v. Canada (Secretary of State), supra at para. 20; Xie v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 286 at para. 10; Lin v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 809 at para. 6).

17      As stated above, the Board found that if the applicant were to return to Chile, she would have a means of earning a livelihood.  More specifically, the Board found that the applicant "... was able to obtain various positions of employment, even though she was terminated from her most recent job because she brought her seeing-eye dog to her employment."

18      I agree with the applicant that this conclusion is not supported by the evidence.  First, it rests on the applicant's employment history prior to obtaining a guide dog. Since obtaining a guide dog, the only job that the applicant has had is the job at the radio station from which she was terminated.

19      Counsel for the respondent suggests that the applicant does not have to bring her guide dog to work in order to find employment.  I find this suggestion to be unacceptable.  For a visually impaired person trained to use a guide dog, sporadic use of the dog is not an option.

20      Secondly, looking at the applicant's employment history prior to obtaining a guide dog, I note that all previous positions were part-time (a few hours every day), and from the applicant's testimony, were insufficient to support her.

21      By failing to fully address the applicant's employment history, and more particularly, her employment history since acquiring a guide dog, and then coming to the conclusion that she would be able to find further employment, the Board could not properly determine if the serious restriction imposed on the applicant's right to earn a livelihood amounted to persecution. That issue is a crucial element in the applicant's claim.  As stated above, measures of discrimination may amount to persecution in cases where they result in a serious prejudice for the person concerned, e.g. a serious restriction on one's right to earn a livelihood.  The Board made a finding of fact without properly appreciating the evidence before it, and therefore erred in a manner justifying the intervention of this Court.

22      For these reasons, the application for judicial review is allowed.  The matter is referred back for redetermination by a newly constituted panel.

23      Counsel for the applicant has requested that the following questions be certified:

1.                What are the factors that must be taken into consideration when considering whether the denial of social and economic rights such as rights to employment, housing and education are sufficiently serious to constitute a well-founded fear of persecution?; and                                                           

2.                Can there be a well-founded fear of persecution in circumstances where an individual's social and economic rights such as the rights to employment, housing and education are denied where the state does not actively play a part in the denial of those rights?                                                           

24      I agree with counsel for the respondent opposing the certification of the proposed questions for certification. The issues in the present case arise on particular facts, and therefore the certification of these questions would not be appropriate as there are no serious questions of general importance.  Therefore, the Court will not certify the questions.

ORDER

         [1]  The application for judicial review is allowed.                                              

         [2]  The matter is referred back for redetermination by a newly constituted panel. 

TREMBLAY-LAMER J.