Date: 20041216
Docket: IMM-604-04
Citation: 2004 FC 1745
Ottawa, Ontario, December 16, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
OSZKAR HOMLIK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Oszkar Holmik is a citizen of Hungary. He claims to be a person in need of protection as a result of having been targeted by members of organized crime, who forced him to participate in a money-laundering scheme.
[2] The Refugee Protection Division of the Immigration and Refugee Board rejected Mr. Holmik's claim, finding that he was not a credible and trustworthy witness. The Board further found that in any event, state protection would have been available to Mr. Holmik in Hungary, had he sought it.
[3] Mr. Holmik now seeks to have the Board'sdecision set aside, asserting that its credibility findings were patently unreasonable. He further says that the Board erred in applying the wrong test and in failing to have due regard to the evidence before it with respect to the question of state protection. Finally, Mr. Holmik submits that the Board erred in failing to properly address his claim under section 97 of the Immigration and Refugee Protection Act.
Mr. Holmik's Allegations
[4] Mr. Holmik operated a construction business in Budapest. He describes the business as 'medium-sized', and says that it was doing well and was operating at a profit.
[5] In May of 2000, Mr. Holmik received an anonymous telephone call. The caller advised him that a large amount of money had been deposited into his bank account. Mr. Holmik was then advised that he would be notified in due course who he should give the money to. He was further advised that he had no choice but to assist in laundering the money. Mr. Holmik says that he was afraid to report the matter to the authorities, and he reluctantly complied.
[6] The demand was followed by other similar demands. Eventually, Mr. Holmik was being asked to pay out more money than was being put into his account. He came to realize that he was the victim of an extortion and money-laundering operation run by organized crime.
[7] When he attempted to extricate himself from the situation by threatening to report the matter to the police, Mr. Holmik was threatened with harm. The following day, Mr. Holmik's car was forced into a ditch, and he was told that the next time, it would be worse for him. Later that same day, his car was broken into, and some of Mr. Holmik's personal papers were stolen.
[8] At this point, Mr. Holmik went to the police. He testified that he told the police about the money-laundering, and was told that it was pointless to try to pursue it. The police did take photos of his car, and prepared a report with respect to the damage to the car and his missing documents.
[9] Mr. Holmik says that he left Budapest after this incident, staying in another part of Hungary for several months. He was eventually compelled to return to Budapest because of the demands of his business. Shortly after he got back to Budapest, Mr. Holmik says, the extortion began again. In October of 2000, Mr. Holmik's car was again broken into, and a large sum of money was taken. Mr. Holmik went to the police to report the theft. Although the police prepared a report, the investigation was not pursued.
[10] Mr. Holmik then met with the extortionists, and showed them a copy of the police report, to prove that he had not taken the money. Mr. Holmik says that he was again threatened. At this point, fearing for his life, Mr. Holmik closed up his construction business and fled the country. On his arrival in Canada, he immediately claimed refugee protection.
The Board's Decision
[11] The Board did not believe Mr. Holmik's allegation that he was targeted by organized crime in Hungary, or that he was forced into participating in a money-laundering operation.
[12] The Board did not question the validity of the police reports produced by Mr. Holmik, and further accepted that Mr. Holmik had been the victim of criminal activity, that is, the two break-ins and thefts from his car. However, the Board found that Mr. Holmik had fabricated the entire money-laundering story.
[13] Central to the Board's analysis was its finding that it was implausible that organized crime would target Mr. Holmik's company, or that it would force him to participate in money-laundering against his will. According to the Board, "there would be much easier ways and plausible ways for organized crime to launder its money".
[14] The Board also noted that neither police report mentioned Mr. Holmik's claim to being a victim of organized crime. According to the Board, Mr. Holmik could easily have told the police about his problem, but chose not to do so.
[15] The Board went on to consider the issue of state protection, concluding that Mr. Holmik had failed to rebut the presumption that his country would be able to protect him.
[16] Finally, the Board concluded that Mr. Holmik did not face a risk to life, to cruel or unusual treatment or punishment or a risk of torture, should he be required to return to Hungary. As a consequence, Mr. Holmik's application for refugee protection was dismissed.
Issues
[17] Mr. Holmik identifies three issues on this application:
1. Whether the Board's credibility and plausibility findings were patently unreasonable;
2. Whether the Board erred in relation to the issue of state protection by applying the wrong test and by failing to have due regard to the evidence before it; and
3. Whether the Board erred in its assessment of Mr. Holmik's claim under section 97 of the Immigration and Refugee Protection Act.
Were the Board'sCredibility and Plausibility Findings Patently Unreasonable?
[18] The Immigration and Refugee Board has a well-established expertise in the determination of questions of fact, including the evaluation of the credibility of refugee claimants. Indeed, such determinations lie at the very heart of the Board's jurisdiction. Accordingly, before a finding of fact made by the Board will be set aside by this Court, it must be demonstrated that the finding was patently unreasonable: Aguebor v. Canada (Minster of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[19] Where the Board's credibility findings are based upon implausibilities identified by the panel, the Court may intervene on judicial review where "the reasons that are stated are not supported by the evidence before the panel, and the court is in no worse position than the hearing panel to consider inferences and conclusions based on criteria external to the evidence such as rationality, or common sense." (See Yada et al. v. Canada (Minister of Employment and Immigration) (1998), 140 F.T.R. 264. See also Divsalar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 875).
[20] In this case, the Board's conclusion that Mr. Holmik failed to provide credible and trustworthy evidence to support his claim was based primarily on what the Board characterized as plausibility findings. Notwithstanding the highly deferential standard of review applicable in this case, I am satisfied that a key finding made by the Board cannot withstand judicial scrutiny.
[21] Central to the Board's analysis was its finding that it was not plausible that organized crime would target Mr. Holmik's company, or that it would force him to participate in money-laundering against his will. It will be recalled that the Board found that "there would be much easier ways and plausible ways for organized crime to launder its money".
[22] There are three problems with this finding: firstly, the Board failed to consider Mr. Holmik's explanation as to why his business had been targeted by organized crime. Secondly, the Board did not address the independent documentary evidence that supports Mr. Holmik's story. Finally, we have no way of knowing what the Board was referring to when it concluded that there were much easier and more plausible ways of laundering money.
[23] In his testimony, Mr. Holmik explained that his construction business had been doing well, and was generating a good profit. According to Mr. Holmik, organized crime frequently targeted small- and medium-sized operations, as they did not receive as much governmental scrutiny as did larger enterprises.
[24] Despite the Board's view that there were easier and more plausible ways of laundering money, a review of the independent documentary evidence before the Board discloses that the money-laundering method described by Mr. Holmik was one commonly used by organized crime in Hungary. Indeed, it had been used so often that the government had to introduce legislation at the end of 2000, specifically prohibiting the anonymous deposit of money into bank accounts.
[25] The documentary evidence also confirmed that organized crime was a significant problem in Hungary, and that as many as 60% of all Hungarian businesses were controlled by criminal organizations.
[26] It was open to the Board not to accept Mr. Holmik's testimony regarding what the Board itself identified as the central issue in the case. However, before coming to the conclusion that his story was implausible, the Board had an obligation to at least consider Mr. Holmik's explanation, and to refer to the documentary evidence that supported his claim. If the Board chose to reject this evidence, it was, in my view, incumbent on it to explain why it did so. Having failed to do so, I find that the Board's finding with respect to the implausibility of Mr. Holmik's money-laundering claim was patently unreasonable.
[27] Even if the Board had accepted Mr. Holmik's story, there would still be a question as to whether or not state protection was available to him in Hungary. As a consequence, it is necessary to address the second issue raised by Mr. Holmik.
Did the Board Err in Relation to the Issue of State Protection by Failing to Have Due Regard to the Evidence Before It?
[28] The Board found that the documentary evidence before it with respect to country conditions demonstrated that Hungary had the will and the ability to provide adequate, if not perfect, state protection. As a result, the Board concluded that Mr. Holmik failed to rebut the presumption that a state will be able to protect its citizens.
[29] While there was indeed evidence before the Board indicating that Hungary recognized the serious problem of organized crime in that country, and was making genuine efforts to combat it, there was also significant evidence that suggested that these efforts have been less than successful.
[30] In particular, research emanating from the Immigration and Refugee Board itself refers to the high number of cases of organized crime-related corruption within Hungarian police forces which were never investigated. Indeed, the evidence before the Board suggested that the level of police corruption had actually continued to increase over the years.
[31] Time magazine's European edition reported that the Hungarian police had made little headway in fighting organized crime. A 2000 report notes that a specialized unit set up to combat organized crime had been disbanded the previous year, after eight years in operation, without having ever made a single major arrest.
[32] Once again, it was open to the Board to weigh this evidence, along with other evidence indicating that inroads were being made in the fight against organized crime, and to choose to accept the latter over the former. It was not, however, open to the Board to simply ignore the evidence which contradicted its finding that adequate state protection was available to victims of organized crime in Hungary. This evidence reinforced Mr. Holmik's story, and merited at least some consideration.
[33] Given my findings on the first two issues identified by Mr. Holmik, it is not necessary to address the third issue.
[34] For these reasons, the application for judicial review is allowed.
Certification
[35] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-604-04
STYLE OF CAUSE: OSZKAR HOLMIK v. MCI
DATE OF HEARING: November 24, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: Mactavish, J.
DATED: December 16, 2004
APPEARANCES BY: Ms. Amina Sherazee
(416) 934-4535
For the Applicant
Mr. Marcel Larouche
(416) 952-7262
For the Respondent
SOLICITORS OF RECORD: Amina Sherazee DOWNTOWN LEGAL SERVICES
655 Spadina Avenue
Toronto, Ontario
M5S 2H9
For the Applicant
Marcel Larouche
DEPARTMENT OF JUSTICE
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent