Date: 20020326
Docket: IMM-1736-01
Neutral citation: 2002 FCT 343
BETWEEN:
ELEKNE MOLNAR
ELEK MOLNAR
ILDIKO MOLNAR
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
NADON J.
[1] This is an application for judicial review from a decision by the Immigration and Refugee Board ("the Refugee Division") on February 19, 2001. The Refugee Division concluded that the plaintiffs were not Convention refugees.
[2] Specifically, the Refugee Division dismissed the plaintiffs' refugee status claim because the latter had not shown that the Hungarian government was not able to protect them. Further, the Refugee Division concluded that the plaintiffs lacked a subjective fear. At p. 3 of its reasons the Refugee Division wrote the following:
[TRANSLATION]
The tribunal also considered the claimants' subjective fear of persecution. On the evidence, they spent two months in France before leaving for Canada, which leads the tribunal to wonder whether their conduct was that of persons with a genuine fear of persecution. In Huerta, the Federal Court noted that "the delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant". The principal claimant testified that she had left Hungary because she feared for her life and that of her children. The tribunal questioned the claimants about the efforts they made to claim refugee status in France. They replied that a distant relative with whom they lived had told them it was impossible. This was an unconvincing argument by people who left their country because they feared for their lives and who stayed for two months in France, a democratic country which is a signatory of the Convention. The tribunal notes that the claimants' actions and conduct were not those of persons who had a genuine fear of persecution.
[3] As the defendant noted in his memorandum, the application for judicial review raised no error by the Refugee Division in its finding that there was no subjective fear. In the defendant's submission, this conclusion suffices to justify dismissing the claim. I agree.
[4] In Caballero v. M.E.I. (1993), 154 N.R. 345, the Federal Court of Appeal, per Létourneau J.A. at 346, said the following:
[3] In fact, in May 1988 the appellant, who was working in the United States as a truck driver, returned to Honduras where he sold a car at a profit in order to obtain sufficient funds so that his entire family could leave Honduras. He stated before the Refugee Division that when he went back to Honduras that time in 1988 he intended to remain there at least one year longer so that he could sell the land he owned . . . In our opinion, this conduct is inconsistent with a well-founded fear of persecution and we agree with the members of the Refugee Division, who wrote:
[Translation] "It must be observed that from the end of 1986 to May 1988, despite his many trips between the United States and Honduras, the claimant did not exert much effort to arrange a definitive flight from his country. Yet the circumstances were clearly favourable for arranging such a departure, since his wife even accompanied him and lived with him in the United States for a period of about two months . . .
[5] In Pan v. M.E.I., A-859-91, dated July 21, 1994, Linden J.A. of the Federal Court of Appeal wrote the following:
In this case, the Refugee Division found that the claimant's behaviour was "inconsistent with a genuine subjective fear of persecution". Even though this may be an unusual conclusion, it is one that is open to the Board in appropriate cases. Here the Board was entitled to find that the conduct of the claimant, travelling around China for several months with what appeared to the Board to be minimal precautions, was not the conduct of one who feared persecution.
[6] I should like to refer to one last case. In Huerta v. M.E.I. (1993), 157 N.R. 225, the Federal Court of Appeal concluded as follows:
[3] Finally, the members of the Refugee Division did not conceal their surprise at the fact that the appellant arrived in Canada as a tourist on December 25, 1988 and did not claim refugee status until April 26, 1989 . . . They expressed even greater surprise at the fact that she bases her claim on the events of which her brother and sister-in-law, with whom she was living, had been victims, that she came to join them after they had already made their refugee claims, that they knew the procedure to follow in this matter, and that they even went to the airport to meet her. In this context, they found the explanation given by the appellant to justify her delay in making a claim to refugee status to be unconvincing, the appellant having simply stated that she was not familiar with the process.
[4] Although the members did not expressly refer to it in their decision, it is clear from the transcript of the discussion at the hearing that they found it hard to see the appellant's conduct as consistent and to reconcile it with the conduct of a person who says she fears for her life and fled her country to seek protection from the Canadian government. The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.
[5] In view of the evidence in the record, we cannot conclude that the negative inference drawn by the members of the Refugee Division against the appellant, based on her conduct, is unreasonable, absurd or arbitrary and requires our intervention. Accordingly, the appeal should be dismissed.
[7] In my opinion, the question that arises is whether the Refugee Division could conclude there was no subjective fear on the grounds indicated at p. 3 of its reasons and at the same time draw no conclusion as to the plaintiffs' credibility. Usually, the fact that a refugee status claimant does not claim that status when passing through countries which are signatories of the Convention is a factor, often an important one, in assessing the claimant's credibility and the story told in support of his or her claim.
[8] Unfortunately, in the case at bar the plaintiffs made no challenge whatever to the Refugee Division's conclusion that they lacked a subjective fear. Although I have doubts regarding the merits of that conclusion, I cannot intervene. Since the plaintiffs made no objection to that conclusion, the defendant has not had an opportunity to answer arguments which could have been made against the conclusion.
[9] Consequently, it will not be necessary for me to discuss the question of protection by the Hungarian government.
[10] The application for judicial review will therefore be dismissed.
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Marc Nadon
Judge |
O T T A W A, Ontario
March 26, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1736-01
STYLE OF CAUSE: ELEKNE MOLNAR ET AL. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 4, 2001
REASONS FOR ORDER BY: NADON J.
DATED: MARCH 26, 2002
APPEARANCES:
MARTIN FORGET FOR THE PLAINTIFF
GUY M. LAMB FOR THE DEFENDANT
SOLICITORS OF RECORD:
MARTIN FORGET FOR THE PLAINTIFF
MONTRÉAL, QUEBEC
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada