Date: 20010312
Docket: IMM-5890-99
Neutral citation: 2001 FCT 190
BETWEEN:
SZILVIA SCHENKERNE FARKAS, ZSOLT JANOS SCHENKER,
ANDRAS RICHARD SZTOJKA and SZILVIA SCHENKER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
INTRODUCTION
[1] Szilvia Schenkerne Farkas, Zsolt Janos Schenker, Andras Richard Sztojka and Szilvia Schenker (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), dated November 4, 1999. The Board determined that the Applicants were not Convention refugees.
FACTS
[2] Szilvia Schenkerne Farkas is the principal applicant. She is the common-law wife of Zsolt Janos Schenker, the mother of Szilvia Schenker and the step-mother of Andras Richard Sztojka. All the applicants live together as a de facto family.
[3] The Applicants came to Canada in March, 1998, arriving in Toronto. Their claim for Convention refugee status was advanced in May 1998 on the grounds of nationality, specifically on the basis of being Roma and belonging to the "Rumungro" tribe, meaning Hungarian Gypsy. The principal Applicant and the male adult claimant testified before the Board about the bases for their fear of persecution in Hungary. Documentary evidence was also submitted to the Board.
[4] The Board concluded that the Applicants were not Convention refugees, on the ground that they had not met the burden to credibly establish that there was a serious possibility that they would face persecution in Hungary. The Board found that the Applicants' evidence lacked credibility.
[5] The Applicants raise several issues in this application for judicial review, including erroneous findings of facts, ignoring and failing to consider relevant evidence, selective consideration of the documentary evidence, failure to apply the proper test with respect to the well-foundedness of the Applicants' fear of further persecution in Hungary, alleged breach of natural justice by the Board in improperly relying on standardized "boiler plate" decisions for Hungarian Roma claimants, and the aggressive participation by a Board Member, Berzoor Popatia in the examination of the principal Applicant.
[6] The Respondent takes the position that the Board applied the proper test for determining whether the Applicants were Convention refugees, and properly made credibility findings which is the specific task assigned to the Board. Furthermore, the Respondent denies that the Board committed any breach of natural justice as alleged by the Applicants. With respect to the issue raised about the participation of one Board Member in the examination of the principal Applicant, the Respondent argues that such participation is appropriate as part of the fact-finding process and in any event, the Applicant did not raise any issue of bias against that Member during the hearing.
ANALYSIS
[7] Upon my review of the record and reasons, it appears that the Board did not act in accordance with the requirements of procedural fairness in the manner in which it conducted the hearing into the Applicants' claim.
[8] The persistent and aggressive questions of the principal Applicant by Board Member Berzoor Popatia, went too far. In my opinion, this Board Member crossed the line from her role as an impartial adjudicator to becoming a participant in the arena. In this regard, I refer to the exchanges between the Board Member and the principal Applicant at pages 480 to 485 of the transcript. The Board Member went further in her questions than simply seeking clarification of the female Applicant's answers.
[9] For that reason, the application for judicial review is allowed and the matter is remitted to the Board, for redetermination before a differently constituted panel.
[10] Although counsel for the Applicants submitted a question for certification, I am of the opinion no question should be certified in light of my disposition of the application.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
March 14, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5890-99
STYLE OF CAUSE: SZILVIA SCHENKERNE FARKAS, ZSOLT JANOS SCHENKER, ANDRAS RICHARD SZTOJKA and SZILVIA SCHENKER
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, OCTOBER 25, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HENEGHAN J.
DATED: WEDNESDAY, MARCH 14, 2001
APPEARANCES BY: Mr. Rocco Galati
For the Applicants
Mr. Stephen H. Gold
For the Respondent
SOLICITORS OF RECORD: Galati, Rodrigues & Associates
Barristers & Solicitors
203-637 College St.
Toronto, Ontario
M6G 1B5
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010314
Docket: IMM-5890-99-00
Between:
SZILVIA SCHENKERNE FARKAS, ZSOLT JANOS SCHENKER, ANDRAS RICHARD SZTOJKA and SZILVIA SCHENKER
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER