Docket: IMM-4517-99
Neutral Citation: 2001 FCT 346
BETWEEN:
EVA ORGONA (a.k.a. KAROLYNE ORGONA)
and KRISZTINA ORGONA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7 as amended, for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, (the "tribunal"), dated August 18, 1999, wherein the tribunal determined that Eva Orgona and her daughter, Krisztina Orgona, are not Convention refugees.
1. The Facts
[2] The applicants are citizens of Hungary who made claims to Convention refugee status based on their ethnicity and on their membership in a particular social group: the Roma. Eva Orgona was her daughter's designated representative, and Krisztina Orgona relied on the information contained in her mother's personal information form.
[3] The tribunal summarized the facts at page 1 of the decision:
Eva Orgona (a.k.a. Karolyne Orgona) (age 45) (the principal claimant) and Krisztina Orgona (age 18), mother/designated representative and her daughter respectively, are citizens of Hungary who claim Convention refugee status based on their ethnicity and membership in a particular social group: the Roma. The claimants allege that, by virtue of that membership, there is a serious possibility that they will face harm amounting to persecution if they return to Hungary. They allege that, throughout their lives, they have been harassed, humiliated, and discriminated against. They allege that, since 1996, they began to be subjected to more serious levels of discrimination, and were intimidated and, on numerous occasions, attacked and beaten on the streets by right-wing extremist elements such as skinheads. Once, at a subway station, they were accosted by a group of skinheads, intimidated and threatened with rape. They were chased by the group until the claimants came onto a lit platform where there were some other passengers nearby.
Krisztina Orgona relies on the narrative provided by her mother, in which narrative the claimants refer to Krisztina Orgona's experiences of discrimination and often physical harm at the hands of both her fellow students and her teachers at school. Once, while at a Romani camp, this claimant and other Roma youth were attacked by skinheads. A building at the camp was set ablaze, this claimant's hair was pulled and one other person was seriously injured. This claimant, it is alleged, was left in a state of shock for two weeks. This claimant alleges that as a result of the constant mistreatment, she suffered from stress, inflammation of her stomach walls, insomnia, loss of appetite and crying fits.
The claimants allege that the mistreatment they suffer in Hungary occurs solely by virtue of their ethnicity. They fear the generally intolerant and racist, mainstream population - in Krisztina Orgona's case, particularly fellow students and teachers - and extremists including the skinheads. The claimants do not appear to fear the police, nor do they allege that any state organization targets them or persons similarly situated to them for harm. The claimants do, however, allege that they tried to obtain protection from, and discussed their experiences with, the police, Romani organizations and the principal claimant's cousin who runs a Romani organization. The claimants insist that they did not receive serious attention from the police, and that both the Roma organizations and the aforesaid cousin told the claimants that they could not be of any help and that the claimants should complain to the police.
[4] To this narrative, I add that Eva Orgona claims that she suffered repeated employment discrimination, and was often denied employment because of her Roma origins. To obtain work, she would deny her Roma ethnicity; when her co-workers and employers discovered that she was Roma, she would be ridiculed, physically abused, and fired. In 1996, her baked goods business was robbed, vandalized, and defaced with anti-Roma slogans. She subsequently went out of business because customers were fearful of patronizing a business which was owned by a Roma.
[5] In late 1996, while listening to gypsy music at home, Eva Orgona's neighbours banged on her door, shouted racist epithets, and threatened her and her daughter. She complained to the police, but the police refused to act.
[6] In 1997, the conductor of a streetcar demanded an additional fare from Eva Orgona although she had already produced a ticket. After pushing her and insulting her, the driver chased her down the street.
[7] The problems which the applicants faced extended to their interactions with shopkeepers. They were subjected to humiliating searches in stores, and were refused service because they are Roma. In January 1997, a shopkeeper attempted to sell rotten meat to Eva Orgona, declaring that gypsies did not deserve to eat. When she complained, he physically assaulted her, leaving a scar on her face which was shown to the tribunal during the course of the hearing. She did not report this attack to the police because she felt that the police would not act on her complaint.
[8] Krisztina Orgona was mistreated at school by classmates and by teachers. In 1997, a teacher separated the Roma children, including Krisztina Orgona, from the other children in the class, supposedly to maintain a "clean classroom." After transferring to another school, Krisztina Orgona was physically attacked. She was later admitted to a hospital for stress-related illnesses. During her ten-day stay in the hospital, a teacher spread rumours that she was away having an abortion. Finally, the Roma children were segregated from other Hungarian students at her high school graduation ceremonies. Apparently, each school keeps a register which identifies the Roma students.
[9] In 1997, the applicants feared to leave their apartment. Finally they left Hungary and travelled to Canada where they claimed Convention refugee status on March 27, 1998. Eva Orgona's son, Eric Orgona, was previously granted Convention refugee status in Canada and he lives in Toronto.
2. Issues
a. Did the tribunal breach the rules of natural justice when, it is alleged, tribunal member Najibullah Tahiri fell asleep during the course of the hearing?
b. Did the conduct of the tribunal members during the course of the hearing raise a reasonable apprehension of bias?
c. Did the tribunal breach the rules of natural justice by failing to hear viva voce evidence regarding a document which was introduced as evidence by the tribunal after the proceedings had closed?
d. Did the tribunal base its decision on erroneous findings of fact made in a perverse or capricious manner without regard to the material before it; or did the tribunal err by ignoring relevant evidence or by failing to consider relevant evidence?
3. Analysis
a. Did the tribunal breach the rules of natural justice when, it is alleged, tribunal member Najibullah Tahiri fell asleep during the course of the hearing?
[10] The applicants submit that the tribunal breached the rules of natural justice when one of the tribunal members, Mr. Tahiri, appeared to fall asleep during the course of the hearing. To support this contention, the applicants point to 28 pages in the transcript during which Mr. Tahiri is silent.
[11] The respondent submits that ample evidence exists in the transcript of the proceedings to show that Mr. Tahiri participated in the hearing. Furthermore, if he had appeared to have fallen asleep, it was incumbent upon the applicants to object then.
[12] In Lopez v. M.C.I., [1997] F.C.J. No. 979 (T.D.), Mr. Justice Heald states:
[11] A perusal of the transcript of the proceedings before the Tribunal persuades me that this submission is without merit. The transcript reveals that the Board member in question made frequent relevant and useful interventions throughout the hearing which negates the suggestion that she was asleep during the hearing. Additionally, I think it significant that the applicants' counsel did not make a timely objection in respect of this matter.
[13] In Grbic v. M.C.I., [2000] F.C.J. No. 1538 (T.D.), Mr. Justice McKeown stated:
[5] With respect to the first issue, Mr. Tahiri participated infrequently during the hearing but this is not unusual. Aside from a thirty page gap, the transcript indicates that he did participate in the hearing. It is not uncommon for one of the members of a panel to ask the majority of the questions, and this fact certainly does not imply that the other member is asleep.
...
[8] I also note that Pratte J. stated in Caplan v. Canada (H.R.D.), [1997] F.C.J. No. 1371 (C.A.) at paragraph 4 that:
The applicant's second attack would deserve serious consideration if the evidence established that one of the members of the Board had, in fact, fallen asleep during the hearing. However, the only evidence on this point is the affidavit of the applicant to the effect that a member of the Board "appeared" to her to be asleep. This is not enough. A member of a board or a judge who is wide awake may appear to some to be asleep.
[9] In my view, the transcript discloses that the Board member did participate in a good portion of the hearing. The applicant's own comments at the hearing clearly do not support the position that one of the members of the panel was asleep. I find that there is no error by the Board in this respect.
[14] Although Mr. Tahiri did not participate as often as Mr. Popatia during the course of the hearing, the transcript indicates that he often interjected with questions and comments though not during the portion of the hearing referred to by the applicants. There is no evidence in the transcript of the proceedings which demonstrates that he fell asleep during the course of the testimony, and the only evidence on the matter comes from the affidavits of the applicants which state that a member of the tribunal "appeared" to be asleep. This is insufficient to determine whether Mr. Tahiri was actually asleep at any time during the hearing in the course of which he did participate with questions and comments.
b. Did the conduct of the tribunal members during the course of the hearing raise a reasonable apprehension of bias?
[15] The applicants submit that presiding member Mr. Popatia demonstrated bias during the hearing. They urge that he was aggressive towards Krisztina Orgona during her testimony. They also submit that he did not allow her to drink water while she testified. Finally, they submit that both members smiled sarcastically at one another when Eva Orgona cried while testifying.
[16] The applicants submit that the conduct of the tribunal members raises a reasonable apprehension of bias. They urge that the test from Committee for Justice & Liberty v. National Energy Board, [1978] 1 S.C.R. 369, has been met: an informed person, viewing the matter realistically and practically, and having thought the matter through would conclude that there was a reasonable apprehension of bias on the part of the tribunal members.
[17] The respondent submits that the applicants' accusations of aggressive and sarcastic behaviour is not supported in the record.
[18] Two passages in the transcript were brought to the Court's attention by the applicants. Having examined them, I am not persuaded from the record of the hearing that the presiding member, or the members together, can be said to have demonstrated bias, or that a reasonable person observing the hearing would consider that he, or they, created a reasonable apprehension of bias.
[19] The first passage demonstrates that the presiding member reassured Eva Orgona on one occasion when she indicated that she was nervous. The passage also indicates that, while attempting to clarify the testimony, he also provided guidance to the applicant regarding which aspect of the evidence was important. In my opinion, this passage does not demonstrate a reasonable apprehension of bias on the part of Mr. Popatia.
[20] The second passage of concern to the applicants concerns a portion of the examination of Krisztina Orgona by the presiding member. In my opinion, this excerpt would not give rise to a reasonable apprehension of bias in the mind of a reasonable observer. Mr. Popatia attempted to clarify the details of Krisztina Orgona's claim. In my view, there is no basis in the record to determine that the presiding board members together were aggressive, or that they acted improperly towards the applicants, or that their interventions would lead to a reasonable apprehension of bias. I note that no concern was voiced at the time of either portion of the hearing that concerns the applicants.
c. Did the tribunal breach the rules of natural justice by failing to hear viva voce evidence regarding a document which was introduced as evidence by the tribunal after the proceedings had closed?
[21] By letter dated March 17,1999, approximately five months after the conclusion of the hearing, the tribunal informed counsel for the applicants that it had received recent information about the Roma in Hungary. The tribunal disclosed the information and requested that counsel make submissions in writing by April 6, 1999. The applicants submit that the tribunal breached the rules of natural justice by failing to allow them to respond orally to this evidence. The respondent submits that the rules of natural justice were not breached because the applicants were provided with an opportunity to make written submissions, but chose not to do so.
[22] In Baker v. M.C.I., [1999] 2 S.C.R. 817, the Supreme Court of Canada reiterated the variable nature of the concept of procedural fairness. The decision of Madam Justice L'Heureux-Dubé, speaking for the Court, determined that considering in all of the circumstances whether the person whose interests were affected had a meaningful opportunity to present their case fully and fairly did not depend upon whether an oral hearing was provided. (See Baker, supra at p. 837). I am not persuaded that an oral hearing was essential to provide a fair opportunity for the applicant to deal with information received by the tribunal after the hearing and then disclosed to the applicant, who was given three weeks to respond in writing. I note that similar results were reached, admittedly in different circumstances, by the Supreme Court of Canada in Baker, supra, and by the Federal Court of Appeal in Yassine v. M.E.I. (1994), 172 N.R. 308 (F.C.C.A.), and in Suresh v. M.C.I., [2000] 2 F.C. 592 (C.A.).
d. Did the tribunal base its decision on erroneous findings of fact made in a perverse or capricious manner without regard to the material before it or did the tribunal err by ignoring relevant evidence or by failing to consider relevant evidence?
[23] The respondent submits that the lengthy reasons of the tribunal demonstrate a grasp of the relevant evidence regarding the applicants' fear of persecution in Hungary. The respondent cites Hassan v. M.E.I. (1992), 147 N.R. 317 (F.C.C.A.) for the proposition that it is not fatal to the tribunal's decision that some of the documentary evidence is not mentioned in the reasons. Moreover, the respondent submits that the tribunal is entitled to weigh the evidence as it did. In Brar v. M.E.I., [1986] F.C.J. No. 346 (C.A.), Mr. Justice Thurlow held that the weight given to evidence is within the jurisdiction of the Refugee Division as the trier of fact in respect of Convention refugee claims:
In our opinion, the points argued by counsel for the applicant raise only questions of credibility and of the weight of evidence and afford no legal basis upon which this Court could properly interfere with the decision of the Immigration Appeal Board.
[24] The applicants submit that the tribunal erred in law by failing to consider relevant information or by making a decision without regard to the totality of the evidence. Moreover, the applicants submit that the tribunal erred in law because its conclusions were capricious, and patently unreasonable. That is the appropriate standard of review in relation to the tribunal's findings of facts, in accord with paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended.
[25] The tribunal listed its factual determinations at page 9 of the decision as follows:
Taking into account the evidence before me as well as my observation of the claimants' physical appearance, I make the following findings of fact:
1. The claimants are Roma;
2. The claimants are not ethnically as readily identifiable as they claim to be in Hungary;
3. Even if the claimants would be as readily identifiable as they claim to be, which I do not find, they have become integrated to such an extent that they cannot be said to have no reasonable means of inquiring about and accessing the available state and other protection;
4. To the extent that they are identifiable as non-Hungarians, their fear of humiliation, harassment, discrimination, and marginalization in some aspects of their lives - employment, education, public recreation - is well-founded but it is not a fear of harm I consider to be, or to amount to, persecution based on the evidence in circumstances of their case;
5. Even if the harm can be said to be persecutory, which I do not find, there is credible evidence that Hungary's central government and institutions, and the many NGOs operating in Hungary, recognize the need to address the most serious of the problems faced by Roma, attempt to address those problems and put into place or experiment with initiatives conceived to resolve or reduce the impact of the problems: that is, the claimants have not rebutted the presumption that their democratic state, which is in control of its territory and has in place organs of protection, is able to protect its citizens;
6. The claimants have therefore not supplied clear and convincing confirmation of Hungary's inability or unwillingness to protect them.
[26] Accepting that the applicants are Roma, whether they are as readily identifiable as Roma within Hungary as they claim is of little significance. What is significant is that the tribunal found that their fear of humiliation, harassment, discrimination and marginalization in some aspects of their lives to be well-founded, but not a fear of harm amounting to persecution. Further, the tribunal found that even if this could be considered persecution, the claimants had failed to demonstrate the state's inability to protect its citizens. In my opinion, those two findings warrant careful review.
[27] The tribunal concluded that the applicants were not victims of persecution at page 12 of the decision in the following terms:
...I find, on balance, that the claimants have not established there to be a serious possibility that they would be persecuted in Hungary for a Convention ground. There is no evidence which indicates that the government of Hungary admits that it is either unable or unwilling to protect the Roma. It then becomes incumbent on the claimants to provide clear and convincing confirmation of the states' inability or unwillingness to protect them from the harm alleged. The claimants have failed to do so....
[28] The tribunal rejected the applicant's claim of subjective fear largely because of adverse findings of credibility. Further it did not accept that Krisztina Orgona suffered medical problems caused by stress. Ultimately the tribunal concluded that her illness was not stress-related, but was caused by allergies. In the absence of medical evidence, it was patently unreasonable for the tribunal to arrive at this medical conclusion.
[29] The tribunal accepts that employment discrimination occurs against the Roma in Hungary, but, in the tribunal's opinion, this discrimination is mitigated by the ability of the Roma to participate in illegal markets and to collect welfare. It seems bizarre to find that the Roma cannot obtain employment in Hungary because of their ethnicity, and yet that discrimination is not persecution and is acceptable because illegal means exist to supplement an income. More puzzling is the tribunal's circular argument that its analysis in relation to the Roma does not apply to the Orgonas because they are more educated than other Roma, and are more likely to obtain employment, ignoring for this purpose the tribunal's acceptance that the applicants, based on their Roma ethnicity, will be subject to employment discrimination. This finding is patently unreasonable.
[30] There was important documentary evidence before the tribunal, not referred to by it, that reported the harm which occurs to the Roma generally in Hungary. The U.S. Department of State document entitled Hungary Report on Human Rights Practices for 1997, which was before the tribunal, assesses difficulties of the Roma in Hungary in relation to education, housing, employment opportunities, and examples of discriminatory treatment of the Roma by the public authorities, including local governments and police. The unhappy relations of police authorities with the Roma are also dealt with in some detail in an issue paper, Roma in Hungary: View of Several Experts, that was before the tribunal.
[31] In assessing whether mistreatment of the Roma, and of the applicants, could be considered persecution, the tribunal found much of the evidence of the applicants lacked credibility in light of certain documentary evidence. But it made no reference to the significant documentary evidence which was supportive of the applicants' claims. In so doing, it appears to have ignored relevant evidence. Even though it is not necessary to refer to all of the documentary evidence before it, when evidence which supports the applicants' position is not referred to, and when other documentary evidence is selectively relied upon, the tribunal, in my opinion, errs in law by ignoring relevant evidence.
[32] The tribunal takes an optimistic view of the Hungarian government's attempts to address the persecution of the Roma. That discussion commences as follows at page 15 of the decision:
The State's Efforts: Objective Basis
Most sources observe that Roma suffer marginalization and discrimination in Hungary. They are both historically and currently in some respects a vulnerable group.
....
The pace of change is clearly slow: in my view, it cannot reasonably be expected to progress much faster given the enormity of the task the state is faced with. Deep rooted sentiments are difficult to change. But in my opinion, the state is demonstrating in a variety of ways its resolve to attempt to address the concerns of the Romani population. I am mindful of previous decisions of this Division in which it has been held that despite the efforts of the Hungarian government, Hungary has not been able to ensure adequate human rights of its Roma minority.
...
...there is new information which, while it clearly confirms continuing discrimination in several areas of Romani life, indicates, in my view both (1) sustained state and nongovernment sector efforts to address issues affecting Roma and also (2) the types of Roma profiles which are the most disadvantaged - which are most likely to continue to face serious harm and least likely to be able to avail themselves of available protection.
The claimants before the panel in this case have not, in my view, established that they fit the aforesaid profile.
...
[33] The tribunal also states at page 14 of the decision:
Based on all of the foregoing, the claimants have failed to demonstrate that the police were either unable or unwilling to provide them with protection and assistance. While earning a livelihood for this 45-year-old claimant is difficult, I find that she is not deprived of the ability to work and earn an income in Hungary. And, again, if she were being so deprived - which I do not find - then she has recourse through the offices of organizations such as The Ombudsman and NEKI. In my view, any reasonable enquiry in Hungary respecting discriminatory practices against them would have very likely yielded information about those (above) prominent agencies.
[34] Several documents, including the Hungary Report on Human Rights Practices for 1997, report that the government of Hungary does not always respect the human rights and civil liberties of the Roma. Other documents in evidence before the tribunal, including the issue paper entitled The Roma in Hungary and a research directorate document numbered HUN30156.EX, report that many problems exist regarding the implementation of minority government in Hungary. Minority government is an measure to provide self-government to the Roma. The implementation of minority government in Hungary was used by the tribunal to justify its view that the Roma should no longer fear persecution in Hungary. Finally, according to exhibit R-3, an information request from the research directorate of the IRB numbered HUN3008.1EX, anti-Roma prejudice is still widespread in Hungary.
[35] The documentary evidence before the tribunal demonstrates that at that time the Roma in Hungary continued to encounter both governmental and societal discrimination. Changes may well be occurring, as the tribunal notes, however, its optimism is not reflected in the much of the documentary evidence which was before it. In my opinion, its findings in relation to the applicants and possible discriminatory treatment in Hungary, were speculative, and therefore constituted an error of law.
4. Conclusion
[36] For the above reasons, the impugned decision of the CRDD is set aside and the applicants' claim for Convention refugee status is sent back for redetermination by a differently constituted panel of the CRDD.
[37] Counsel for the applicants proposed for a question for certification, pursuant to subsection 83(1), whether numerous incidents of violent assault can be evidence only of discrimination without consideration of their significance as evidence of persecution. Counsel for the respondent did not support certification on the ground that the question concerned the facts of this case and was not of general importance.
[38] I conclude that no question is to be certified for consideration of the Court of Appeal. An order goes allowing the application for judicial review.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
April 18, 2001