Date: 20020819
Docket: IMM-1417-01
Neutral citation: 2002 FCT 886
Vancouver, British Columbia, Monday the 19th day of August 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
FERENC LEVENTE SIMONFI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Simonfi is a Romanian citizen and part of the ethnic-Hungarian minority in Romania. He brings this application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated March 5, 2001, which decided that he was not a Convention refugee.
[2] The CRDD accurately characterized the basis of Mr. Simonfi's claim as follows:
The claimant is a Hungarian Catholic. The claimant has a high school certificate and has a certificate as a dental technician. The claimant witnessed beatings in March 1990, when Romanians attacked Hungarians at a peaceful demonstration. In June 1999, the claimant was assaulted by Romanians at a soccer game. The claimant has avoided compulsory military service by going to college, and by presenting fake certificates to avoid conscription. The claimant fears discrimination, harassment and persecution as an ethnic Hungarian in the Romanian army. Should he refuse, he fears three to seven years imprisonment. The claimant alleged that he would never get a descent job in Romania, that he fears the threat of street violence and a lack of protection against Romanian nationalists. The claimant fears the situation will worsen in Romania as the Greater Romania Party is now the second largest party in the Romanian parliament.
THE DECISION OF THE CRDD
[3] The CRDD characterized the main issue to be whether Mr. Simonfi faces discrimination or persecution.
[4] It found that Mr. Simonfi's inability to study medicine because of his Hungarian ethnicity and imperfect command of the Romanian language did not amount to persecution because he was able to successfully complete an alternative program as a dental technician.
[5] With respect to earning a livelihood, the CRDD found that while Mr. Simonfi had undertaken considerable efforts to find employment, his efforts in securing work were less than exhaustive, and further, that his experiences as a recent graduate looking for work are not unlike graduates in many countries who have difficulty in securing employment in their chosen field.
[6] The CRDD next considered Mr. Simonfi's situation as an ethnic-Hungarian in Romania, and found that the documentary evidence did not indicate that ethnic-Hungarians face systematic discrimination amounting to persecution.
[7] With respect to military service, the CRDD found that Mr. Simonfi is not opposed to military service in principle, and the while he may face discrimination in military service were he to return, there is insufficient evidence that this discrimination would amount to persecution.
[8] The CRDD also noted that Mr. Simonfi re-availed himself of the protection of Romania from the United States in 1998 despite his concerns over military service, and found this was not consistent with a subjective fear of persecution, nor with a well-founded fear of persecution.
[9] Finally, the CRDD noted that were Mr. Simonfi to avoid compulsory military service, his prosecution for the failure to do so would be pursuant to a law of general application. There was insufficient evidence upon which to make a finding that Mr. Simonfi faces disproportionate punishment for any of the enumerated grounds in the Convention refugee definition should he refuse military service.
THE ISSUES
[10] Mr. Simonfi raises two issues with respect to the decision of the CRDD:
1. Did the CRDD err in its assessment of the evidence concerning Mr. Simonfi's inability to find work in Romania?
2. Did the CRDD err in its assessment of the evidence concerning Mr. Simonfi's fear of persecution in the Romanian army?
ANALYSIS
(i) Did the CRDD err in its assessment of the evidence concerning Mr. Simonfi's inability to find work in Romania?
[11] The Handbook on Procedures and Criteria for Determining Refugee Status of the Office of the United Nations High Commissioner for Refugees (1992) states at paragraph 54 that:
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 right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.
[12] Mr. Simonfi was unable to point to documentary evidence before the CRDD from a disinterested party which would indicate that the discrimination against ethnic-Hungarians in obtaining employment has reached a level amounting to persecution. The CRDD was, in my view, entitled to give little weight to the letter from the Hungarian-Rumanian Democratic Federation on the stated ground that were the employment situation for ethnic Hungarians as dire as set out in that and other evidence, the documentary evidence as to country conditions would reasonably be expected to reflect this situation.
[13] The CRDD considered Mr. Simonfi's evidence that he had found it difficult to find work for about a year between the time he had finished high school and the time he began his post-secondary studies. Mr. Simonfi could not get a job teaching swimming at an indoor pool because a member of the Party of Romanian National Unity was in charge. Mr. Simonfi did not indicate that he worked or attempted to find work during high school, or during his three-year post-secondary studies, although he did refer to efforts at an unspecified point in time while he was in school to obtain a part-time job in a cab company, where the employer told him that he only hired Romanians. After graduating as a dental technician in 1998, Mr. Simonfi found summer employment in the United States, and on returning to Romania found a job at a fitness centre working for wages which were paid under the table. Because of this illegal arrangement, Mr. Simonfi was paid less than the minimum wage, and did not earn any credits toward his pension. Mr. Simonfi also stated that his sister who graduated as a dentist was not able to find a job, and that most of his younger Hungarian friends are unemployed.
[14] In my view, the CRDD was entitled on the basis of the evidence before it to find that there was insufficient evidence to support Mr. Simonfi's claim that his employment experience in Romania amounts to persecution. It was open on the evidence before the CRDD for it to conclude that his employment experience is not atypical for recently graduated secondary and post-secondary graduates, especially those living in a country in transition from a centrally planned economy to a market economy. The evidence did not establish the serious restraint on an individual's freedom to find work as has been found to constitute persecution in cases such as Xie v. Canada (Minister of Employment and Immigration), [1994] F.C.J. 286 (T.D.).
[15] The line between conduct which is discriminatory and that which is persecutory is often difficult to establish. Where the CRDD reaches a conclusion as to whether discriminatory conduct amounts to persecution, this Court can only interfere where the conclusion appears to be capricious or unreasonable. See: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.).
[16] Counsel for the Minister acknowledges that the CRDD erred when it stated that Mr. Simonfi had chosen to abandon his studies during work on his second post-secondary degree. Mr. Simonfi has only pursued one post-secondary degree and has not abandoned pursuit of a second one. However, the CRDD did not base its decision on this erroneous finding, and it is, I find, immaterial to the CRDD's conclusion on this issue.
[17] While counsel for Mr. Simonfi argued that Mr. Simonfi's oral evidence was credible, plausible and uncontradicted, so that the CRDD was obliged to give reasons for rejecting it, I find the CRDD accepted Mr. Simonfi's evidence, but found that it did not establish persecutory treatment.
(ii) Did the CRDD err in its assessment of the evidence concerning Mr. Simonfi's fear of persecution in the Romanian army?
[18] Mr. Simonfi's fear of military service in Romania stemmed from stories which he had heard from his friends and his parents' friends about the experiences of conscripted ethnic-Hungarians. Mr. Simonfi is not opposed to military service in principle.
[19] Having carefully reviewed the transcript of the evidence before the CRDD, I am satisfied that it was open to the CRDD to find that there is insufficient evidence that there is more than a mere possibility that Mr. Simonfi would face physical abuse and/or physical mistreatment or discrimination amounting to persecution were he required to undertake military service in Romania. The CRDD reviewed Mr. Simonfi's testimony in detail in its reasons and was entitled to weigh Mr. Simonfi's oral evidence and conclude that the more serious incidents of treatment he re-counted occurred in the early 1990s. Much of Mr. Simonfi's evidence was undated, and the more recent events he testified to were not of as serious a nature as those which had occurred earlier.
[20] It is true that a differently constituted panel of the CRDD in another case found an ethnic-Hungarian claimant to be a Convention refugee based on his credible testimony of stories he had heard from other conscripted ethnic-Hungarians. In that case, the CRDD accepted the claimant's hearsay evidence over a 1995 letter from the Romanian Helsinki Committee which was to the effect that ethnic-Hungarians are not treated differently from ethnic-Romanians in the military. An application for leave and for judicial review in respect of that decision brought by the Minister of Citizenship and Immigration was refused by this Court.
[21] In my view, Mr. Simonfi's reliance on this other decision of the CRDD does not assist him for the following reasons. First, such decision is not binding on this Court. Second, I am not satisfied from a review of that decision and the transcript of this proceeding that the oral evidence before the CRDD was substantially identical in the two cases. The more serious incidents Mr. Simonfi re-counted appear to be older, or are undated. Finally, on an application for judicial review of a decision of the CRDD the standard of review is generally patent unreasonableness, which means that a decision cannot be set aside even if the Court would have weighed the factors differently.
[22] In the present case, the reasons of the CRDD reflect that it considered all of Mr. Simonfi's evidence with respect to accounts of mistreatment of ethnic-Hungarians in the Romanian military, and concluded that these accounts, while amounting to discrimination, did not amount to persecution. In my view, this was a finding open to the CRDD on the evidence and that finding cannot be said to be capricious or perverse. As stated above, this Court is not entitled on judicial review to re-weigh the evidence before the CRDD even if the Court is satisfied that it would not have reached the same conclusion on the same evidence.
[23] For these reasons, notwithstanding the able submissions of counsel for Mr. Simonfi, the application for judicial review must be dismissed.
[24] Counsel did not pose a question for certification and no question is certified.
ORDER
[25] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question is certified.
(Sgd.) "Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1417-01
STYLE OF CAUSE: Ferenc Levente Simonfi v. M.C.I.
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: August 8, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: August 19, 2002
APPEARANCES:
Ms. D. Jean Munn FOR THE APPLICANT
Ms. Tracy King FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Ms. D. Jean Munn FOR THE APPLICANT
Calgary, Alberta
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada