Date: 20010706
Docket: IMM-3282-00
Neutral citation:2001 FCT 769
BETWEEN:
ATTILA PIBER, TIMEA MARIA BUDAI
and ATTILA PIBER
Applicants
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning given to that expression in subsection 2(1) of the Immigration Act[1]. The decision of the CRDD is dated the 29th of May, 2000.
[2] The applicants are husband and wife and their minor son. They are citizens of Hungary. The female applicant (the "principal applicant") and the minor claimant base their claims on their Roma ethnicity. The adult male applicant alleges a well founded fear of persecution if he is required to return to Hungary based upon his membership in a particular social group, namely, spouses of ethnically Roma Hungarians.
[3] The principal applicant attests that, during her school years, she experienced discrimination and harassment based upon her Roma ethnicity. She further attests that, on a number of occasions, she and her husband were attacked and seriously injured by skinheads. In particular, in 1993, skinheads attempted to rape the principal applicant and, when her husband intervened, she and her husband were both assaulted. On another occasion, the principal applicant was attacked at a time when she was pregnant. This attack resulted in a miscarriage.
[4] The principal applicant has 14 years of education. She graduated from high school and completed a three-year nursing program. Before leaving Hungary, the principal applicant was employed for a period of six months by a Roma support group in Budapest.
[5] The CRDD found the principal applicant to be among a group, which it characterized as "well-integrated Roma", by reason of her level of education and work experience. The CRDD referred in its reasons for decision to documentary evidence before it that, it was satisfied, established that "...well-integrated Roma face much less discrimination than do less integrated or more easily identifiable Roma". The CRDD accepted that the principal applicant may have faced discrimination and harassment throughout her lifetime by reason of her ethnicity. However, it was not satisfied that the principal applicant was physically attacked by skinheads as previously referred to in these reasons.
[6] The CRDD noted documentary evidence before it indicating a very significant decline in skinhead attacks and violent extremist activities directed at Roma since a peak of such activity in 1991 and 1992. The CRDD wrote in its reasons:
...The panel notes that no medical reports or police records were presented to substantiate these alleged incidents involving skinheads. When this was put to the claimants, they stated that they did not think they needed such documents in support of their allegations. The panel disagrees: the panel notes that the claimants left the country [Hungary] with the intention of making refugee claim in Canada. It is, therefore, not plausible that they would be unaware of the importance of such documents, such as medical or police records, to substantiate significant events; i.e., attempted rape, miscarriage of a child, or a knife injury. When confronted with these questions, the claimants then offered to take initiatives to obtain and produce these documents at a later time. The panel did not find it reasonable to adjourn the hearing at this stage of the proceeding for the purpose of obtaining further documentations.
In reaching its determination not to grant further adjournment, the panel considered the Federal Court decision , in Kante which held:
The law is clear that the burden of proof lies with the Applicant i.e. he must satisfy the Refugee Division that his claim meets both the subjective and objective tests which are required in order to have a well founded fear of persecution. Consequently an Applicant must come to a hearing with all of the evidence that he is able to offer and that he believes necessary to prove his claim.
The panel notes that the claimants have been in Canada since May 1999 and have had the assistance of a competent counsel, in the preparation of their PIF, for several months. In the panel's view, the claimants had ample opportunity to prepare their case and obtain necessary documents before the commencement of the hearing.[2]
[7] Counsel for the applicants urged that the CRDD erred in a reviewable manner in relying on "Roma lead case decisions" by the CRDD and the related "Hungarian Lead Case Information Package" and further related directives and guidelines of the CRDD relating to Roma cases and in ignoring more up to date documentary evidence placed before it by counsel for the applicants. Further, counsel urged that the CRDD fettered its discretion and demonstrated bias and predisposition to a particular result by virtue of such reliance. In response, counsel for the respondent noted that counsel for the applicants before me was also counsel for the applicants before the CRDD and that no objection was taken during the course of the hearing before the CRDD to its process or to any fettering of its discretion, bias or reasonable apprehension of bias or predisposition to a particular result.
[8] Counsel for the applicants provided to the CRDD a 1243 page package of documentary evidence concerning conditions in Hungary. He drew the Court's attention to four specific references in that documentary package. The first was to a report of the government of the Republic of Hungary to the National Assembly on the situation of the national and ethnic minorities living in the Republic of Hungary. That report is dated the 26th of April, 1999. Under the heading "Discrimination" the report contained the following paragraph:
Both the frequency and intensity of ethnic conflicts are on the rise. The victims of most of these conflicts are members of the Gypsy community. Such conflicts cannot be managed effectively through present legislation. Undoubtedly, the effectiveness of legal measures of conflict management is limited. However, other types of measures for preventing and managing conflict are still lacking. Authoritative forecasts predict an aggravation of conflicts.
The second reference was to an extract from a University of Minnesota human rights library document dated the 27th of April, 1999. That document contained the following passage:
Grave concern is expressed at the persistence of expressions of racial hatred and acts of violence, particularly those by neo-nazi skinheads and others, towards persons belonging to minorities, especially Gypsies, Jews and people of African or Asian origin. Alarm is expressed that the Government has not been sufficiently active in effectively countering incidents of racial violence against members of minority groups. In this regard, concern is expressed at information from various credible sources indicating that the number of charges and convictions, including against neo-nazi skinheads and others, is low relative to the number of abuses reported.
A third reference was to what purports to be a facsimile from the Canadian Embassy in Budapest. The reference includes the following:
The Budapest police said that at present their records do not differentiate between skinhead attacks and common assault, nor do they indicate if the attacks were racially motivated.
Finally, counsel noted the following extract from a European Commission document dated the 26th of April, 1999:
The "gypsies" (Roma) have a special place. The Hungarian Government's report on the situation regarding the national and ethnic minorities approved by Parliament in March 1997 recognises that the "gypsies" (Roma) are still frequently subjected to attacks and discriminatory measures and considers that the situation is in danger of worsening over the next few years. The same document states that present legislation does not make it possible effectively to prevent the outbreak of "ethnic conflicts" of which the "gypsies" (Roma) are victims.
Their social situation is often very difficult. ...
Counsel for the applicants noted that none of the foregoing references, all of which post- dated documentary evidence relied upon by the CRDD and effectively contradicted, he submitted, the documentation relied on, was acknowledged by the CRDD in its reasons.
[9] Before me, counsel for the applicants acknowledged that none of the foregoing documentary references were specifically drawn to the attention of the CRDD. He was apparently prepared to leave it to the CRDD members to extract references such as those to which he referred me from within a 1243 page documentary package. The difficulty in effectively utilizing counsel's documentary package had previously been drawn to counsel's attention by the CRDD. In a letter dated the 5th of October, 1999, Vladimir Bubrin, coordinating member of the CRDD in Toronto, wrote to counsel:
You will recall that we spoke on two occasions approximately one, or two months ago about your 800-page disclosure package on Hungary. I advised you that your package was difficult to use as it lacked an appropriately-detailed subject index, that it contained many duplications including materials already found in RCO packages, and that it contained materials which do not belong in a documentary package on country conditions, such as the three CRDD decisions found at the end of the your package. In our discussions you acknowledged the points made about your package and you agreed to reorganize it by providing a better and more detailed index, by eliminating duplication and by leaving out the unnecessary materials.
Some two months after our discussion and your commitment to improve your package, I have checked with panels which deal with your cases, only to find out that, to date, no improvement has been made. Since, in my opinion, and in the opinion of the panels hearing your cases, you have had sufficient time to make the necessary improvements to which you agreed, I am writing to inform you that from the date of this letter, panels assigned to your cases may consider returning to you your package as unacceptable in its present form. Given that you have had sufficient time to make the necessary improvements which you failed to do, panels may also consider proceeding with the hearings as scheduled without your documents. [emphasis added]
In a fax message of the same date from a "case officer" to counsel, and with reference to a refugee claim other than that here under consideration, the case officer wrote:
The Presiding Member to date, is not in receipt of a duly indexed, bound and tabulated disclosure package. On file is roughly 800 pages of documents. While there appears to be an index, there are some 500 pages indexed as "various articles and documents", without breakdown as to subject or issue.
There was no allegation made before me that counsel's documentary package, which had apparently grown from some 800 pages to over 1400 pages, had been better indexed or that, in this matter, the CRDD returned the package to counsel as unacceptable or proceeded in the absence of any consideration of counsel's documentary package.
[10] Considering the foregoing, I find no reviewable error whatsoever on the part of the CRDD in relying on the documents that it chose to reference without referencing the foregoing extracts from counsel's documentary package. In the absence of any indication of an effective index to that package, and faced with an acknowledgment before me by counsel that the very specific extracts to which I was referred at the hearing before me were not drawn to the attention of the CRDD either orally at the hearing or in written submissions, I find that it was not incumbent on the CRDD, given the presence of counsel before it representing the applicants, to comb counsel's very extensive documentary package for relevant references. The onus fell on the applicants and their counsel to direct the CRDD's attention to the most relevant passages in that package.
[11] As to reliance on the "leading cases" information package, Madame Justice Dawson in Olah v. Canada (Minister of Citizenship and Immigration)[3] wrote at paragraphs 24 and 25:
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.
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... [citation omitted]
I am satisfied that the same could be said on the facts of this matter.
[12] Also in Olah, Madame Justice Dawson referred to what counsel for the applicants before her characterized as "an avalanche of ignored evidence" and noted that counsel submitted that it was not enough for the CRDD to "salute the existence of contradictory evidence". Here, counsel noted that there was not so much as a "salute" to his documentary evidence package. Such was in fact the case. However, based upon my reasoning set out earlier in these reasons, I conclude that the CRDD cannot, on the facts that are before me, be faulted in this regard.
[13] Finally, I find nothing whatsoever on the face of the CRDD's decision, or on the totality of the record before me, that would allow me to conclude that this particular panel of the CRDD somehow fettered its discretion, denied the applicants fairness in the process before it or demonstrated bias or predisposition to a particular result.
[14] In summary then, the applicants simply failed to put their best foot forward in their hearing before the CRDD. They failed, without any rational explanation, to provide corroborative evidence in support of their allegations of physical attacks against them in Hungary. They failed to draw the CRDD's attention to specific passages in the "brick"of documentary evidence presented on their behalf that were relevant to their situation. They failed to object to what they now allege is procedural unfairness, fettering of discretion or predisposition on the part of the CRDD panel. As earlier indicated, I found no evidence whatsoever to support any such allegation.
[15] Other issues raised in applicants' counsel's 67-page memorandum of argument were not specifically raised at the hearing before me. On the basis of the memorandum alone, I find no merit in any of them. Indeed, certain of them are simply not relevant on this application for judicial review.
[16] In the result, I am satisfied that the decision arrived at by the CRDD with respect to the applicants' claim to Convention refugee status was in all respects reasonably open to it. This application for judicial review will be dismissed.
[17] Counsel for the applicants recommended certification of two questions in the following terms extracted from the statement of issues on this application for judicial review:
Did the Refugee Board create an unfair and biased environment, and taint the entire process of hearing the refugee claims of the Hungarian Roma, by holding the so-called Lead Cases, and thereby making it impossible for the Applicants to know the case they have to meet, denying them a fair hearing and then making findings that violate the principles underlying s.7 and s.15 of the Charter in determining that the Applicants were not at risk?
...
Whether, the Panel, in declaring in its reasons in the Lead Cases, that cases of Hungarian Roma who are persecuted will be rare and exceptional, prejudged the Applicants' case, improperly attempted to fetter the independence of the subsequent Panels, and whether bias or a reasonable apprehension of bias arose, voiding the decision of the Tribunal?
[18] As earlier indicated, I have found on the material and arguments presented before me, nothing to support the allegation that the particular panel of the CRDD whose decision is here under review denied the applicants a fair hearing, was fettered in the exercise of its discretion or demonstrated any bias or reasonable basis for an apprehension of bias. What counsel for the applicants appears to be questioning is not the propriety of the decision here under review but rather a broader course of conduct on behalf of the Convention Refugee Determination Division as a whole. Issues related to that broader course of conduct were simply not before me. In the result, while the issues raised in the proposed questions for certification may indeed be serious questions of general importance, they simply do not arise on this particular application for judicial review.
[19] Counsel for the respondent recommended against certification of any question.
[20] I am satisfied that no serious question of general importance arises on this particular application. No question will be certified.
J.F.C.C.
Ottawa, Ontario
July 6, 2001