Date: 20020823
Docket: IMM-569-01
Neutral Citation: 2002 FCT 903
Ottawa, Ontario, this 23rd day of August, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
JOZSEF SINKO and HAJNALKA SINKO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
- [2] The applicants are citizens of Romania. Joseph Sinko, (the "male applicant") is twenty-six years of age and his wife, Hajnalka Sinko, (the "female applicant") is twenty-one. Both applicants base their claim on a well-founded fear of persecution because of their Roma race and nationality. The female applicant also bases her claim on her membership in a particular social group, namely the male applicant's family.
- [3] In their personal information forms ("PIF"), which were signed on December 6th, 1999, the applicants stated that they suffered humiliation, discrimination and persecution in Romania because they are Hungarian Roma. The male applicant alleges that he was arrested and beaten many times because of his involvement in the Roma Political Party, which he joined in 1996. The applicants further state in their PIF that the female applicant was raped on two occasions and the second rape resulted in a miscarriage.
- [4] The applicants arrived in Canada on September 19, 1999. At the port of entry, immigration authorities detained the applicants since they were carrying false passports. Their Romanian passports were left in Budapest where they acquired the false Hungarian passports. The applicants were taken from the airport and separated. After several hours they were returned to the airport for questioning by immigration officials.
- [5] At his port of entry interview the male applicant provided the following information to officials:
· He came to Canada was to have a better life.
· He did not apply to immigrate to Canada because it takes a long time and sometimes it is not approved.
· He decided to come here illegally because "this was easier."
· He is not wanted by the authorities in Romania.
· It's really hard to have a family in Romania.
· He would be unable to pay back the money he borrowed to come to Canada. He borrowed the money from the person who employs his mother.
· He was not personally persecuted in Romania but he knew people who were beaten.
· He had never been arrested.
· He would make a refugee claim in Canada if that would allow him to stay here.
· The reason he is seeking refuge is that he just wants a better life.
· The reason she came to Canada was because it is very hard to live in Romania and she would like to have a better life.
· She did not apply for a visa to live in Canada because "it takes a whole life to get one."
· She is seeking refuge in Canada because she would like to live here as the standard of life is better here than in Romania.
· She was not persecuted in Romania.
· She would not fear for her life if she returned but she and her husband would have problems because of the money they borrowed to get here.
· She is not wanted by the authorities in Romania.
THE BOARD'S DECISION
(1) The applicants did not provide a reasonable explanation for the discrepancy between their port of entry statements and their PIF statements;
(2) It was implausible that they would travel to Canada to seek protection by reason of their Roma ethnicity and yet conceal that fact from immigration officials for fear of being returned to Romania;
(3) The male applicant was only able to recite portions of his PIF narrative with considerable confusion;
(4) The male applicant had considerable difficulty remembering the date of the incident when he and his wife were taken by the SRI members. In his PIF he said the incident occurred in March 1999 and in his oral testimony, he first said it occurred on July 6 and then said it occurred around Easter. When asked when Easter was, he said it was on July 6 and then he said he did not know exactly when Easter was, but maybe it was on May 1;
(5) At his port of entry interview and in his PIF, the male applicant stated that he worked as an electrician at an electric generating station. However, he testified that he did low level labour such as unplugging canals;
(6) The male applicant went to Hungary on three occasion in 1996 and 1997, yet he returned to Romania. The Board found this conduct inconsistent with a well-founded fear of persecution;
(7) The applicant is not wanted by the Romanian authorities; and
(8) The Board further held, pursuant to subsection 69.1(9.1) of the Immigration Act, that there was no credible basis for the applicants' refugee claims.
ISSUES
(i) Whether the Board erred in failing to expressly consider certain documentary evidence in its reasons?
(ii) Whether the Board erred in making a negative assessment of the applicant's credibility.
(iii) Whether the Board erred in finding that the applicants had no credible basis for their refugee claims pursuant to subsection 69.1(9.1) of the Immigration Act.
ANALYSIS
[9] The applicants submit that the Board made several reviewable errors in making its negative credibility finding. In particular, the applicants' contend that the Board:
(a) did not consider all of the evidence, both oral and documentary, in its entirety;
(b) did not make specific and clear findings with respect to what portions of the evidence it believed and which portions of the evidence it disbelieved; and
(c) did not provide a reasonable explanation for why it disbelieved portions of the evidence.
[10] The applicants contend that it was open for the Board to accept or reject the evidence given at the port of entry interview but that it was an error for the Board to disregard all other evidence, including personal documents, on the basis of the misrepresentations made at the port of entry.
[11] The applicants contend that personal documents submitted and which were material to their claims, were not mentioned in the Board's reasons and, consequently, the Board simply did not consider these documents.
[12] It is well established that a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. [Florea v. Canada (M.E.I.) A-1307-91 (F.C.A.), online: QL.] However, the federal Court of Appeal in Mahanandan et al. v. Canada (M.E.I.) A-608-91 (F.C.A.), online: QL, held that evidence which "...could conceivably affect the Board's appreciation of an appellant's claim to be a Convention refugee..." should be expressly considered in terms of the impact, if any, such evidence would have on the claim.
[13] The personal documents submitted by the applicants are:
(i) The police summons
(ii) The hospital release notes
(iii) The male applicant's Roma Party Identity Card
[14] The applicants contend, first, that the police summons serves to collaborate the male applicant's claim and the facts that he alleges in his testimony with respect to being requested to attend at the police station. Second, the hospital release notes, substantiate the applicants' claims as these notes confirm the medical attention and treatment obtained after the alleged incidents of abuse. One of these release notes confirms that the female applicant was hospitalized from May 3, 1998 to May 6, 1998, and was admitted "in a general state of shock"and with "various bodily wounds" as a result of a sexual aggression. Third, the male applicant's Roma Party identity card supports his claim to being a Roma and a member of a political party, which membership he alleges is the cause of much of his persecution.
[15] The applicants further contend that there was also significant country condition documentation before the Board that would lend support to the applicants' contention alleging Police violence, harassment and discrimination against the Roma.
[16] I reproduce the following excerpts from Romania: Situation of Roma (1998 - 1999) (Exhibit "R") at page 1:
...[Violence perpetrated against Roma was more likely to be at the hands of the police than the general public and ranges from everyday harassment to raids on Roma settlements... He cited as an example a case in Sarulesti, near Bucharest... On 29 June 1998, 120 armed police officers entered the settlement at 3:30 a.m., beating and arresting people, shooting indiscriminately and forcing their way into people's homes...
at page 2:
...Roma are generally not likely to get a sympathetic hearing from the police when they approach them, adding that in his experience, many government or official representatives display anti-Roma sentiments...
at page 3.7.10:
Today, Roma still face endemic racism and racially motivated violence...
at page 3.7.19
Police abuse and violence toward Roma remains frighteningly prevalent, ... despite training programmes intended to give police officers a clear picture of the main international and domestic human rights norms... In addition to sometimes severe maltreatment of detainees, police abuse against Roma is characterised by the use of "raids" on Roma areas and excessive use of force.
And at page 3.7.20:
Such frightening levels of violence - by State agents and by "ordinary" Romanians - receive little or no condemnation from the Government and leading politicians. Indeed several prominent politicians court popularity through extreme anti Roma statements...
[17] In light of this country condition evidence, I am of the view that the above-noted documentary evidence specific to the applicants is evidence that could conceivably have affected the Board's appreciation of the applicants' claim. Therefore, this evidence should have been expressly considered by the Board in its reasons.
[18] In Gourenko v. Canada (Solicitor General) (1995), 93 F.T.R. 264, Madam Justice Simpson of this Court stated that failure to refer to a document will be considered a reviewable error when the document is timely, in the sense that it bears on the relevant time period, is prepared by a reputable independent author who is a reliable source of information and that the topic addressed in the document is directly relevant to an applicant's claim.
[19] The applicants contend that the above mentioned personal documents, which were not dealt with in the Board's reasons, meet the above criteria. The applicants argue that the documents bear on the relevant time periods, are from independent credible sources (this is not disputed), and the topics addressed in each document are directly relevant to the applicants' claims in that they serve to collaborate the testimony of the applicants.
[20] I accept the applicants' argument. I am of the view that the above documentary evidence advanced by the applicants is specific to the applicants' claims, was corroborative of their claims and was important evidence, particularly on the issues of identity and persecution. This evidence was not acknowledged, analysed or explained away in the Board's reasons and by failing to do so the Board committed a reviewable error.
[21] The Board also found no credible basis to the applicants' claims and based this finding on the discrepancies between what the applicants told the immigration officials at the port of entry with their evidence as stated in their PIFs and their testimony. The jurisprudence of this Court has recognized that a general finding of lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. [Sheikh v. Canada (M.C.I.), [1990] 3 F.C. 238 (F.C.A.) at 244.] However, when there is other evidence linking the applicants to the persecution feared than their testimony alone, then such evidence must be considered before a "no credible basis" finding can be made. The need to mention and specifically analyse documentary evidence increases with the relevance of the evidence to the decision. This is particularly so when the resons are silent on evidence pointing to the opposite conclusion. In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, at paragraph 17, Evans J. (as he then was) wrote:
[17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[22] In Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 302, online: QL, Evans J.A. writing for the Court of Appeal addressed the circumstances in which a tribunal is required to consider documentary evidence in making a "no credible basis" determination. At paragraph 52 of his reasons, he answered the certified question as follows::
Whether a finding that a refugee claimant is not a credible witness triggers the application of subsection 69.1(9.1) depends on an assessment of all the evidence in the case, both oral and documentary. In the absence of any credible or trustworthy evidence on which each Board member could have determined that the claimant was a Convention refugee, a finding that the claimant was not a credible witness will justify the conclusion that the claim lacks any credible basis. (Emphasis added.)
[23] The Board denied the applicants' claims because it did not find them credible. However, I am of the view that, in the circumstances of this case, there was before the Board independent and credible documentary evidence that was not considered. The Board should have expressly assessed this evidence in its reasons and by failing to do so, I am left to conclude that it made its decision without regard to the material before it. I deem this evidence sufficiently important and material to the claim that, had it been considered, it could have been capable of supporting a positive determination of the refugee claim.
[24] I conclude that the Board committed a reviewable error in failing to expressly consider and assess the above noted documentary evidence. Consequently, the Board's finding that there was no credible basis for the claim cannot stand.
[25] For the above reasons this application for judicial review will be allowed.
[26] The parties, having had the opportunity to raise a serious question of general importance, as contemplated by section 83 of the Immigration Act, have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed;
2. This matter is to be sent back for rehearing before a differently constituted panel.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-569-01
STYLE OF CAUSE: Jozsef Sinko and Hajnalka Sinko v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: May 23, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: August 23, 2002
APPEARANCES:
Tina McKay FOR APPLICANT
Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Goodwin Berlin McKay FOR APPLICANT
Suite 660, 237-8th Avenue SE
Calgary, Alberta T2G 5C3
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Edmonton Regional Office
211 Bank of Montreal Building
10199-101 Street N.W.
Edmonton, Alberta T5J 3Y4