Date: 20010608
Docket: IMM-502-00
Neutral Citation: 2001 FCT 626
BETWEEN:
IMRE POLGARI, EVA PASZTORNE ROSZÙNYAI, SZABINA POLGARI,
GINA POLGARI and BARBARA MELINDA NAGY
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] In this application for judicial review, the applicants challenge the December 30, 1999 decision of the Convention Refugee Determination Division (CRDD), which determined they are not Convention refugees.
[2] Imre Polgari (the "principal applicant") together with his common-law wife and their two children claimed Convention refugee status on the basis of race and nationality, namely, Hungarian Roma. At the same time, the principal applicant's step-daughter, Barbara Nagy, made her claim as part of the family.
[3] In his Personal Information Form (PIF), the principal applicant detailed the problems he and his family encountered due to their Roma ethnicity. These include difficulty obtaining an education, the breakdown of his and his common-law wife's first marriages because the families of their non-Roma partners would not accept them; difficulty finding work and periods of unemployment; mistreatment, harassment and ostracization of his children at school.
[4] He also described opening a small restaurant. However, when it became known that he was Roma, his business licence was revoked, which resulted in his losing the business and the home he had mortgaged to invest in the business.
[5] He also described an incident where he witnessed people attacking a Roma neighbour with baseball bats and dogs. When he tried to intervene to assist his neighbour, the attackers threatened to get rid of the neighbour, the principal applicant, and their families. The following morning the principal applicant discovered his car had been demolished. From this point on, he stated he would not permit his family members to go out alone.
[6] The critical impetus for the family's decision to leave Hungary occurred on May 4, 1998. Late one evening on his way home from the store, four armed men surrounded him. One of the men asked him why he insulted their mothers. In his PIF, the principal applicant states the only thing he remembered after that was a dull pain in the back of his neck and losing consciousness. His wife found him outside their house at about 4:00 a.m.. With the help of a neighbour they were able to get him into the house. When they noticed bruises all over his body and the mark of handcuffs on his wrists which were still bleeding, he was taken to hospital by ambulance. Later, a neighbour told his wife he had seen police officers hitting him, put him in handcuffs and throw him into a police cruiser. The principal applicant stated a report was not prepared at the hospital, because the hospital staff were afraid of the police. He stated it took four days to find a doctor willing to sign a report regarding his condition. Following this incident the family fled their home and lived in a cottage while they made arrangements to come to Canada.
[7] At the hearing, both the principal applicant and his step-daughter testified. In support of their claims, the applicants also submitted the medical report from Hungary dated May 8, 1998, and psychologist reports concerning the principal applicant and his step daughter.
[8] It should be noted at the outset that considerable confusion at the hearing surrounded the events of May 4, 1998. It is evident from the transcript the panel interpreted the descriptions in the PIF of what transpired on May 4, 1998 to consist of one assault on the principal applicant by four armed men. The principal applicant maintained that two incidents occurred; the assault by the four armed men, then later, the incident with the police.
[9] The CRDD accepted the applicants' identity as Hungarian Roma, but concluded the principal applicant had not established a well-founded fear of persecution for himself or his family members. The panel found several aspects of the principal applicant's testimony lacked credibility: his testimony was confusing and difficult to follow; there were some inconsistencies between his written narrative and his oral testimony; the problems with his testimony could not be explained entirely by memory loss; and he "attempted to embellish his claim by using injuries and the medical report to support those injuries in a manner calculated to mislead the tribunal". The CRDD also found the step-daughter embellished her testimony to bolster her claim.
[10] The panel found that even if the incidents had occurred in the manner and with the motivation alleged, the incidents would amount to discrimination, but not past persecution. Further, the panel found should the applicants' require it, adequate state protection is available in Hungary.
[11] Although a number of issues were raised on the application for judicial review, these reasons will address the following issues raised by the applicants: the panel based its negative credibility finding on distortions of the evidence and unsupported findings of implausibility; the panel erred by importing findings of fact from the Hungarian "lead cases"; and the panel failed to consider the totality of the evidence in relation to state protection.
[12] The panel based its negative credibility finding on the principal applicant's failure to include in his PIF details of the May 4, 1998 incident that he gave in his oral testimony, and also on his "confusing or contradictory" and inconsistent evidence at the hearing.
[13] The jurisprudence is clear that an omission in the PIF that is central to the claim can form the basis for an adverse finding of credibility, but in this instance, it is the panel's findings with respect to inconsistencies and contradictions to support its negative credibility finding that are in issue.
[14] The first inconsistency identified by the panel concerns the identity of the men who attacked the principal applicant. The panel stated:
The claimant in his PIF narrative said four armed men who were policemen surrounded and attacked him. In oral testimony, the claimant said the attackers were militia - members of a voluntary organization who are paid by the city to help in law enforcement are allowed to use rubber truncheons and pepper spray but no guns... (Tribunal Record page 8)
The principal applicant's PIF states "four armed men surrounded me" and then later relates what he was told by his neighbour concerning the police involvement. At the hearing, the principal applicant testified as follows:
COUNSEL It [the PIF] mentions afterwards that your neighbour saw the police beating you, but it doesn't state that you remember that the police were beating you.
MALE CLAIMANT No, because I don't remember that.
[15] Although the principal applicant added to his PIF in oral testimony by saying that the attackers were members of the militia, neither in his PIF nor in his oral evidence did the principal applicant identify the four attackers as policemen.
[16] In its reasons, the panel also emphasized the confusion and contradictions surrounding the principal applicant's evidence with respect to whether the assailants in the incident of May 4, 1998 and in the attack on the neighbour were in uniform. As to the May 4, 1998 incident, the panel stated:
The claimant's testimony on whether or not the four men were wearing uniforms was confusing; he said at one point in his oral evidence that they were wearing uniforms and at another point that they were not wearing uniforms. He confirmed that they were not wearing uniforms when asked for further clarification.
(Tribunal Record page 8)
Then, with reference to the attack on the neighbour:
Again, there was confusion about whether the militia were wearing uniforms or not; at one point, the claimant said that they were not in uniform but in uniform.
(Tribunal Record page 10)
[17] With reference to the May 4, 1998 incident and whether the attackers were in uniform, the transcript reads as follows:
COUNSEL Then were these men on duty when you saw them at the pub?
MALE CLAIMANT I couldn't tell you for sure.
COUNSEL Were they wearing uniforms?
MALE CLAIMANT Yes, they were wearing uniforms.
(Tribunal Record at page 319)
During cross-examination by the RCO, the principal applicant testified as follows:
RCO Were they [the four men] uniformed?
MALE CLAIMANT They had this dark uniform. They had black uniform.
(Tribunal at page 334)
[18] Regarding the attack on the neighbour and whether the assailants were in uniform, the transcript reads:
COUNSEL With regard to Mr. Feher's attack.
MALE CLAIMANT Yes.
COUNSEL Okay. So the people that attached Mr. Feher were not connected to the police.
MALE CLAIMANT They were not in the police crew, meaning they didn't have uniforms. They did not have uniforms.
COUNSEL Were they police that were off-duty?
MALE CLAIMANT The company, or the group of people that attacked Mr. Feher, yes. They were uniformed people, but not in uniform. These were the militiamen.
COUNSEL Okay. So you said when you were walking – okay. Sandor Feher, you say when you were walking by their home, you witnessed people attacking them by baseball bats and dogs.
MALE CLAIMANT Yes.
COUNSEL Okay. The people who were responsible for the attacks threatened to get rid of both Mr. Feher and me and our families.
MALE CLAIMANT Yes.
COUNSEL Is your testimony today that those people were from the security force, or what are they called, the militia?
MALE CLAIMANT Yes, yes, only they were not uniformed.
SINGER But you just told us they were uniformed.
INTERPRETER Sorry?
SINGER You just told us they were uniformed.
MALE CLAIMANT No, I didn't. No. These were militia members, but they were not in uniform.
GOPIE How do you know they were militiamen?
MALE CLAIMANT What I meant, that I knew some of them by site and I recognized some of them.
SINGER Okay, but not a minute ago, when your counsel asked you if they were off-duty police, unless I misunderstood your testimony, you said that they were uniformed. Did I misunderstand your testimony?
MALE CLAIMANT Yes, they were not in uniform. They were not from the police, they were from this militia.
COUNSEL I heard the interpreter say they were uniformed, but not uniformed. So I didn't know what that meant, either.
SINGER Okay, anyway.
INTERPRETER I don't remember, but I – this is the hardest challenge I have ever had to translate –
(Tribunal Record at page 349 - 350)
[19] While, as noted earlier, a significant omission from the PIF can form the basis of a negative credibility finding, in this instance, the panel has relied on its misstatements of the principal applicant's evidence to find inconsistencies to support its finding on credibility. In my view this warrants the Court's intervention.
[20] The applicants argue that the panel erred by importing findings of fact from the "lead cases" based on evidence adduced in those cases which was not available to the applicants and as a result they were not given an opportunity to comment on that evidence. They rely on the Federal Court of Appeal decision in Attorney General of Canada v. Pompa 94 D.T.C. 6630 and, in particular, on the reasons of McKay J. in Osadolor vs. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No 87 where he stated at paragraph 9:
In my opinion, the panel erred in its decision in this case by reliance upon an unreported decision in an earlier case, to which it had not provided opportunity for the applicant to comment. It did so in reaching its conclusion about a finding, of changed circumstances, which by jurisprudence is clearly a finding of fact. While the decision refers to adopting the reasoning of another panel, it does so in relation to the finding of fact that was crucial in this case. That is sufficient, in my view, to warrant intervention by the Court.
[21] The circumstances in the present case, however, are distinguishable from those in Osadolor, supra. The reasons in the present case make no reference to the decisions in the earlier "lead cases" nor is there any reliance on findings of fact from the earlier decisions. Even if the panel had relied on the reasoning and findings of fact of the earlier panels in the "lead cases" with respect to general country conditions, I note in Koroz v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 1593 at paragraph 3 the Federal Court of Appeal stated:
... Where the question is one of fact-finding concerning general country conditions at approximately the same time, however, a panel may rely on the reasoning of an earlier panel on the same documentary evidence. Where the analysis of one panel on the same evidence on such a question commends itself to a later panel, there is no legal bar to the second panel relying on it.
[22] Further, although the panel chose to rely on the documentary evidence and the transcripts of the evidence of "Specialists' Testimonies on Hungarian Roma Cases", this documentation was included in the RCO disclosure materials and was available to the applicants.
[23] The applicants also submit that the panel's finding with respect to effective state protection is perverse having regard to the "avalanche of documentary evidence which negates any effective state protection".
[24] The documentary evidence submitted at the hearing consisted of the "RCO Disclosure Package June 1999", marked as Exhibit R-1, which contained the following documents:
1) CRDD Information package, Hungary, September 1998 (Index only)
2) Additional RCO Disclosure- Hungary/Roma, May 1999 (Index only)
3) Hungarian Lead Case Information Package (Index only).
[25] As well, the applicants submitted a package of materials on the situation of Roma in Hungary which included reports, articles, and commentary from a variety of sources, marked as Exhibit C-6.
[26] In its reasons the panel makes the following observations and finding:
... The panel notes that the documentary evidence chronicles widespread discrimination against Roma in Hungary.14 However, the documentary evidence also describes serious attempts on the part of the Hungarian government to curb the problem of racial violence and discrimination against minorities15 and the slowly emerging court enforcement of Roma rights.16 The panel therefore finds that there is not more than a mere possibility that the claimant would suffer persecution should he return to Hungary.
14 See Exhibit R-1, September 1998 Index, item 4.15, Request for Information, Number: HUN30156.EX.
15See Exhibit R-1, Hungarian Lead Case Information Package.
16 See Exhibit R-1, September 1998 Index, item 4.1 Issue Paper: Roma in Hungary, Research Directorate, IRB, March 1998, p.35.
[27] Later in its reasons within the context of its consideration of state protection with respect to the applicants the panel states:
... The panel is aware of the evidence documenting police brutality and discrimination against Roma.17
...
... However, the panel believes that should the claimant require it, there is adequate state protection available to him in Hungary; the protection need not be, nor will it be perfect.20 The documentary evidence indicates that the state has put protective programmes in place.21 As noted above, there is evidence that as Roma become aware of and seek to enforce their rights, the courts will assist them.22
17 Supra, see footnotes 10, 15 and 17: also see numerous articles in Exhibit C-3 detailing police brutality, especially against those held in custody and police discrimination against Roma. However, see also footnote 15 at p 13 where it is noted that mistreatment or violence at the hands of the police occurs to non-Roma as well as to Roma, although the incidence of violence is higher against Roma.
20 Canada (M.E.I.) v. Villafranca (1992), 18 Imm.L.R. (2d) 130 (F.C.A.).
21 Supra, footnote 17 at pp. 17-20
22 Supra, footnote 17.
[28] The respondent submits the panel explicitly noted the documentary evidence tendered by the applicants when it referred to evidence "documenting police brutality and discrimination against Roma". Further, the real issue raised by the applicants relates to the panels preference for certain documentary evidence. Where there is conflicting documentary evidence, the preference for certain evidence over other is a matter of weight to be determined by the CRDD. There is no requirement that every piece of evidence considered in reaching a conclusion be detailed in the reasons. As long as the findings are reasonable, the Court should not interfere with the ultimate result.
[29] The general principles put forward by the respondent are well established in the jurisprudence. In Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 at paragraph 1, Linden J.A. held that: "... The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely." As stated in Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.), the fact that some of the evidence is not mentioned in the panel's reasons is not fatal to its decision.
[30] In Iqbal v. Canada (Minister of Citizenship and Immigration),[1999] F.C.J. No. 568, Rouleau J. elaborated further stating:
... A Board need not refer to all documentary evidence in summarizing their reasons; this is well established in law. However, when expert affidavit evidence is before the Board as well as other documentary evidence raising some doubt or contradicting the documentary evidence put forth by the refugee claims officer, the Board should provide some explanation in its reasons as to why they preferred the expertise upon which they relied and should at least comment as to why they are discounting that provided by the applicants' counsel, which they failed to do.
[31] In the circumstances of the present case a number of issues arise. First is the panel's reference to the Hungarian Lead Case Information Package. The index to this package refers to in excess of seventy-five documents, from a variety of sources, covering a time frame from 1987 to 1998 together with the transcripts of the evidence of six specialists. Where there is no reference to the specific documentary evidence within the package being relied upon, there is no basis on which the applicants can challenge the currency of the documentation, the objectivity of the source, or the expertise. Nor is the Court in a position to assess the reasonableness of any findings based on the documentation.
[32] Second, the documents tendered by the applicants and those contained in the RCO disclosure materials cast doubt and indeed contradict the availability and effectiveness of state protection for Hungarian Roma. While it may have been reasonably open to the panel to make the findings it did, the absence of any analysis of the extensive documentation contained in the Hungarian Lead Case Information Package and the materials in the RCO disclosure package or the documents submitted by the applicants coupled with the failure to adequately address the contradictory documents and explain its preference for the evidence on which it relied warrants the Court's intervention.
[33] The application for judicial review is allowed and the matter is remitted for reconsideration by a differently constituted panel.
[34] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these reasons. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an order will be issued allowing the application for judicial review and remitting the matter for reconsideration by a differently constituted panel.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
June 8 , 2001