Date: 20010424
Docket: IMM-5979-99
Neutral citation: 2001 FCT 382
Ottawa, Ontario, Tuesday the 24th day of April 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Jozsef Olah and his wife, Eva Turu, are citizens of Hungary who unsuccessfully sought status as Convention refugees on the basis of their Roma ethnicity. Each claimed a well-founded fear of persecution by the police and skinheads in Hungary. They bring this application for judicial review from the November 9, 1999 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") that they are not Convention refugees.
THE FACTS
[2] The applicants recounted that they had difficulties because of their Roma ethnicity while at school where they were harassed by teachers and classmates. Mr. Olah described an incident where he and his younger brother, in mid-1998, were assaulted by the police when their car was mistaken for one involved in a hit and run accident. Mr. Olah and his wife also claimed to have been attacked by skinheads in 1998 during which assault Mr. Olah was beaten.
[3] The applicants left Hungary on September 18, 1998. They arrived in Canada that day and claimed refugee status on their arrival.
[4] The CRDD accepted the applicants' identity to be Roma. The CRDD then went on to address the three areas in which Mr. Olah and his wife claimed to suffer persecution in Hungary: at school, by the police, and by skinheads.
[5] With respect to the discrimination experienced by the applicants at school, the CRDD found that the applicants failed to show that they were "denied the opportunity to further their education". While Mr. Olah testified as to why he did not complete high school, the CRDD found his explanation that he did not go to high school because of his mother's experience 20 years earlier when she was not permitted to continue school lacking.
[6] With respect to the police, the CRDD found that Mr. Olah's story of being mistreated by the police in mid-1998 lacked credibility. The panel concluded that the incident did not occur.
[7] Notwithstanding that conclusion the CRDD then proceeded to analyse the documentary evidence before it. First, it addressed the evidence submitted by counsel for the applicants (particularly the submission to the United Nations Committee against Torture made by the European Roma Rights Centre). The panel drew an inference from that submission "in keeping with its inference drawn from other reports" that "the Roma get short-shrift from the police and the police have traditionally been an unresponsive part of the state apparatus". The panel then made a number of references to evidence adduced in the lead cases to the effect that there had been "important changes occurring and are still occurring". Specifically, the panel mentioned the evidence of Professor Barany that since 1991 there has been a general trend of increased vigilance on the part of law enforcement officers in policing skinhead attacks, and that the police had received a strong message from the Minister of Interior that police who do not fulfill their duties will be punished. The panel also stated that the lead case evidence also showed that there are a number of affirmative action programs in place in respect of Roma/police relations.
[8] On that analysis, the CRDD found that there was not a serious possibility of persecution at the hands of the police if the applicants were to return to Hungary.
[9] With respect to skinheads, based upon discrepancies between Mr. Olah's testimony at the hearing and his Personal Information Form ("PIF"), the CRDD disbelieved that the incident involving skinheads took place.
[10] The CRDD then proceeded to assess whether persons similarly situated to the applicants would suffer persecution by skinheads. The panel first referred to the evidence submitted by the applicants' counsel. Again, however, the panel preferred to rely on evidence from the lead cases to the effect that there were possibly less than 1,000 skinheads and neo-Nazis active in Hungary and that skinhead attacks had declined rapidly in recent years. The panel found that there was no more than a mere possibility that the applicants or other similarly situated individuals would face attack by skinheads.
THE ISSUES
[11] Counsel for the applicants raised five areas in which the CRDD was said to have erred in a reviewable fashion. The errors were said to be:
1. the CRDD failed to conduct any independent analysis of the claim of Eva Turu;
2. the CRDD erred in importing facts from the lead cases;
3. the CRDD's findings of credibility were perverse;
4. the CRDD ignored relevant evidence on the issue of country conditions; and
5. the CRDD erred in applying an incorrect test with respect to the issue of country conditions.
[12] At the oral hearing counsel for the applicants candidly advised that he would not be pursuing the argument advanced in the written submissions to the effect that the CRDD had erred in unlawfully delegating its decision-making powers by relying upon a standardized "boilerplate" decision for Hungarian Roma claimants.
ANALYSIS
[13] Key to the decision of the CRDD were its conclusions on credibility and I begin my analysis with this issue.
(i) Were the CRDD's findings of credibility perverse?
[14] The first adverse finding of credibility was stated to be based upon contradictions between Mr. Olah's PIF and his oral testimony as this evidence related to the incident with the police.
[15] In Mr. Olah's PIF, the incident was described as follows:
One day in approximately mid 1998, I took my youngest brother Zoltan, who is thirteen years old, to McDonalds. Just as we arrived home in my car and were parking in front of the house, a police car stopped beside us and five police jumped out. They dragged my brother out of the car, tripped him so he fell to the ground and, then, threw him on top of the car. When I spoke up demanding that they let my younger brother go since he was only thirteen years old, they threw me on the hood of the car and proceeded to hit my head against the hood.
[16] In the oral testimony, the incident was described as follows:
MALE CLAIMANT What happened to me, that when we parked the car in front of our house, a police car came to stop next to us from which five policemen jumped us. And they dragged us out of the car, very rudely.
And they practically threw me onto the hood. My baby brother was dragged out of the car, too, and while dragging him out, he got scared, not knowing what's happening. When they dragged him out, his feet were kicked out of -- kicked off his --
JOAKIM Kicked from underneath him?
INTERPRETER That's right. Thank you.
[17] The inconsistency was squarely put to Mr. Olah by Mr. Wilson, one of the panel members, as follows:
WILSON Let's back up a little bit here. In your Personal Information Form you said that when the police jumped out they dragged your brother from the car.
MALE CLAIMANT Yes.
WILSON They tripped him, he fell to the ground, and then they threw him on top of the car.
MALE CLAIMANT Right.
WILSON They tripped him and he fell to the ground and then they threw him on top of the car.
MALE CLAIMANT Yes, yes.
WILSON Who was taken out of the car first, you or your brother?
MALE CLAIMANT I didn't pay too much attention to it. If I'm no mistaken, I was the one, but I can't recall exactly.
WILSON Yeah, but your story here suggests that your brother was taken out and then you spoke up, demanding that they let your younger brother go and then they threw you on the hood of the car. What is your recollection of that?
MALE CLAIMANT I don't know how the story is translated. Why would they take my baby brother first when I'm the driver?
[18] At the outset of the hearing the panel had confirmed with Mr. Olah the accuracy of his PIF, that he knew what was written in it, and that it had been read to him in Hungarian before he signed it.
[19] In those circumstances, the panel found that "[g]iven that this was only one of two specific assaults described by the claimant in his story and the only one involving the police and given that it happened last year (mid-1998), the panel draws a negative inference from the inconsistent telling of the story". I do not find that conclusion, in any way, perverse.
[20] As to the second credibility finding, the panel stated:
When asked what injuries he sustained, he said he had minor bruises treated by his mother and his wife. He did not seek other medical attention. Later during testimony elicited by the Refugee Claim Officer (RCO), the male claimant was reminded that in his PIF narrative he wrote that because of the assault he could not work for two weeks and yet he orally testified to sustaining minor injuries. He then added that in addition to these, he had more severe injuries. He described injuries to his elbow, his left knee, his waist and his leg. The RCO pointed out that in his PIF narrative he states that he could not work for two weeks because his wrist was swollen and sore. The claimant said that when he referred to his elbow he meant his entire arm from elbow to wrist.
This is a fair and accurate characterization of the evidence. The CRDD then went on to state:
As with his inconsistent testimony about the alleged police attack, the panel is not persuaded that the claimant was telling the truth about the skinhead attack. Again, this was one of only two personal assaults upon him that took place about one year ago. It is not reasonable that he would refer to his wrist in written testimony and omit the reference when recalling injuries sustained to four other parts of his anatomy especially since it was the swollen wrist causing him to be off work for two weeks. Taken together with his inconsistent testimony about minor bruises on the one hand and severe injuries on the other, we find, on a balance of probabilities that neither of the claimants suffered the skinhead attack they allege.
In my view the CRDD committed no reviewable error in reaching that conclusion.
[21] Given the findings of the CRDD on credibility, all that linked the applicants to the documentary evidence was the fact that the panel accepted them to be Roma.
[22] I move then to the assertion that the CRDD erred in importing facts from the lead cases.
(ii) Did the CRDD err in importing facts from the lead cases?
[23] In making this argument particular reliance was placed upon the decision of MacKay J. in Osadolor v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 87, IMM-2239-99 (January 20, 2000) (F.C.T.D.) and upon Attorney General of Canada v. Pompa (1994), 94 DTC 6630 (F.C.A.).
[24] I agree, on a careful reading of the panel's reasons, that the CRDD chose to rely upon evidence and findings from the lead cases as those findings related to country conditions. However, I accept the respondent's submission that there is no evidence before me on which to conclude that all of the documents relied upon by the CRDD relating to the lead cases were not listed in the RCO disclosure material. There was no evidence to suggest that the RCO disclosure material was not available to the applicants or their counsel prior to the hearing before the CRDD.
[25] While a panel cannot blithefully incorporate findings of fact from other cases, a panel may rely upon the reasoning of a prior panel on the same documentary evidence to reach a conclusion on general country conditions prevailing at roughly the same time (see: Koroz v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 12 (F.C.A.)).
[26] I find the circumstances in this case distinguishable from those considered in the Osadolor and Pompa cases and no failure on the part of the CRDD to exercise independent judgment.
(iii) Did the CRDD ignore relevant evidence on the issue of country conditions?
[27] The applicants pointed to what they characterized to be "an avalanche of ignored evidence" and stated that it is not enough for the CRDD to "salute the existence of contradictory evidence". The applicants particularly criticized the panel's conclusion that "we are not persuaded that the few examples noted by the advocacy group ERRC show sustained and systematic attacks by the police upon Roma". This is said to ignore all of the evidence to the effect that many attacks by the police are never reported.
[28] The CRDD did give reasons for preferring the evidence it relied upon to that tendered by the applicants. The panel specifically referenced the fact that the follow-up by the United Nations Committee against Torture to the European Roma Rights Centre's submissions (relied upon by counsel for the applicants) was not provided, and the panel stated that it was "difficult to assess the objectivity of a report where an advocacy group meets with a state official and the report is authored by one of the parties to the discussion". Also, the CRDD found that the applicants' evidence was in keeping with the inferences drawn from other documents before it.
[29] While I may well have weighed the evidence differently, the weighing of evidence is properly within the jurisdiction of the CRDD. I have not been persuaded that it was not open to the CRDD to weigh the evidence as it did.
(iv) Did the CRDD err in applying an incorrect test with respect to the issue of country conditions?
[30] The CRDD, relying upon documentary evidence as to the declining number of skinhead attacks in recent years concluded that: "[t]he fact that someone could be at the wrong place at the wrong time and face a skinhead attack renders such an assault as random and not systematic and sustained". The applicants asserted that in so holding the CRDD erred. It is submitted that the applicants were not victims of random terrorism, but rather are members of a specifically targeted group which the state is unable to protect.
[31] The wording used by the CRDD was unfortunate as it suggested that the panel misunderstood the risk skinheads pose to minority groups. However, the remark must be viewed in its context. It follows the panel's review of the evidence before it to the effect that the number of skinheads in Hungary had declined, that the number of reported skinhead attacks had declined (to two in 1998) and its conclusion that "given a Roma population of over half a million, spread throughout Hungary, and a skinhead population of less than 1,000, mostly concentrated in Budapest, and the declining number of skinhead attacks in recent years, the panel finds that there is no more than a mere possibility that the claimants or others similarly situated to them would face attacks by skinheads".
[32] Thus, the CRDD did not misunderstood the nature of the threat posed by skinheads and rather, I find, commented upon the likelihood of persecution.
(v) Did the CRDD fail to conduct an independent analysis of the claim of Eva Turu?
[33] In addition to her stated fear of the police and skinheads, in her PIF Ms. Turu described her experience in school. When she was eleven, in grade 4, Ms. Turu and two other Roma students were shunned, ridiculed and called "stinking gypsies". On one occasion she was seriously bruised after being kicked in the chest by a boy at school. The principal refused to act on a complaint, apparently refusing to believe Ms. Turu.
[34] As well, Ms. Turu stated in her PIF that she did not carry on with her studies after elementary school because one school did not accept her and, while another school did accept her, she would have been the only Roma student there and feared difficulty.
[35] It was said that the panel did not expressly deal with this evidence in its reasons and Ms. Turu accordingly asserted that the CRDD erred in failing to assess her risk of persecution independently from the risk faced by her husband, the principal applicant.
[36] I am satisfied that the CRDD did consider Ms. Turu's claim separately. It expressly dealt with her risk of persecution at the hands of the police and skinheads.
[37] As for the failure of the CRDD to mention her experiences at school, prior to her testimony before the CRDD, the presiding member stated:
JOAKIM Well, I think we've covered quite a lot of incidents with the male claimant that are probably similar, at least, to the difficulties that Eva speaks about in her form. But if there's anything in particular that you wanted to adduce from the female claimant, by all means do so. I think we accept - - we've seen many Roma cases. We accept the discrimination in the school.
Counsel was then asked to adduce any additional evidence. Counsel did, none of it relating to the incident and problems at school. The CRDD had regard to Ms. Turu's evidence in her PIF and put Ms. Turu on notice that it viewed her school experiences to constitute persecution. In its reasons the panel stated: "[t]he panel conceded in respect of both claimants that there is discrimination against Roma in the school system in Hungary."
[38] In light of those comments by the panel at the hearing and in its reasons I do not conclude that, as submitted by Ms. Turu, the CRDD erred by simply deciding Ms. Turu's case on the same reasons as her husband's case, or by failing to give any separate reasons for rejecting her claim, or by failing to consider her risk of persecution.
CONCLUSION
[39] Despite the able submission of counsel for the applicants, I have concluded that there is no basis at law upon which the Court could properly interfere with the decision of the CRDD. The application for judicial review will be dismissed.
[40] Counsel for the applicants posed three questions for certification:
1. Does the CRDD lack or exceed jurisdiction by importing evidence, such as viva voce and documentary evidence, as well as particular findings of fact, from (an)other CRDD case(s) when the actual evidence from that other case is neither put before the claimant nor included in the tribunal record before the Federal Court, but rather and only a descriptive "index" of that evidence is provided and produced?
2. Does the concept of a "lead case", to establish findings of fact with respect to country conditions and state protection, to be used and relied upon by other CRDD panels, without full particulars of the genesis and parametres of the "lead case", in the tribunal record, give rise to a reasonable apprehension of bias, constitute denial of a fair hearing, or is otherwise contrary to the scheme and CRDD jurisdiction under the Immigration Act?
3. Can physical attacks, threats, and/or injury to the physical and psychological integrity and well-being of a person, or serious threats thereof, based and triggered by the identifiable racial features of the victim, ever amount to "discrimination" or is it invariably "persecution" under the refugee definition?
[41] The respondent opposed certification of any question.
[42] With respect to the applicants' proposed questions, I find as follows:
Question 1:
The applicants made no objection to the procedure followed by the CRDD at the hearing with respect to the descriptive index. In that circumstances, and in light of the recent decision of the Federal Court of Appeal in Koroz, supra, I do not find this to be a serious question of general importance.
Question 2:
I do not find this question to arise out of the facts of this case.
Question 3:
The CRDD, as it was entitled to do, did not believe the applicants were attacked by either the police or the skinheads. Accordingly, I do not find this question to be founded on the evidence.
[43] Therefore no question is certified.
JUDGMENT
[44] IT IS HEREBY ORDERED AND ADJUDGED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"