Date: 20050310
Docket: IMM-7464-03
Citation: 2005 FC 350
Ottawa, Ontario, this 10th day of March, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
LASZLO BANCSOK
and
AGNES ILONA FARAGO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Bancsok is a twenty-seven-year-old Hungarian national of Roma ethnicity. He claims a well-founded fear of persecution and to be a person in need of protection because of his treatment at the hands of the police and his father-in-law, and because no effective state protection is available to him. His wife is not Roma. Her claim was dependant on his.
THE BOARD'S DECISION
[2] The Immigration and Refugee Board - Refugee Protection Division ("the Board") found that there was neither a subjectively nor an objectively well-founded fear of persecution in this case. The Board found that Mr. Bancsok was not readily identifiable as Roma, and that, in any case, he was quite well integrated into Hungarian society because of his neighbourhood, schooling and work history. The Board found that while he may suffer some discrimination, it does not amount to persecution.
[3] The Board found that Mr. Bancsok's testimony on his encounters with the police was vague, inconsistent and did not accord with his Personal Information Form ("PIF"). It found that he was exaggerating the extent of police involvement.
[4] The Board found that the testimony related to the availability of police protection from his father-in-law brought to the surface significant omissions regarding the police response to his grandfather's complaints of persecution, information that was not included in the PIF.
[5] The Board found that Mr. Bancsok's failure to claim refugee protection in Germany and reavailment to Hungary undermined his claim to subjective fear.
[6] The Board also found that the documentary evidence indicates that Hungary has made progressive efforts and improvements on Roma issues and that as a democratic country, it is presumed to be able to protect its nationals.
ISSUES
[7] The applicant raises the following issues:
1. Was the Board member biased or did it make a perverse finding about the applicant's appearance?
2. Did the Board make capricious findings of credibility?
3. Did the Board err in its findings in regard to state protection?
4. Did the Board err in its application of section 97?
ARGUMENT AND ANALYSIS
1. Bias and Roma appearance
[8] Mr. Bancsok submits that the Board's comportment at the hearing and the finding that he was not physically recognizable as Roma raises a reasonable apprehension of bias and that he was consequently denied a fair hearing: Committee for Justice and Liberty v. National Energy Board [1978] 1 S.C.R. 369; R v. R.D.S., [1997] 3 S.C.R. 484; Siloch v. Canada (1993), 151 N.R. 76 (F.C.A.).
[9] The finding that Mr. Bancsok does not look Roma goes to the crux of the other findings of credibility and plausibility findings, especially regarding being stopped by the police. It is inherently dangerous to rely on physical features without expert evidence: Mitac v. Canada (1999), 175 F.T.R. 155 (T.D.); Pluhar v. Canada (1999), 174 F.T.R. 153 (T.D.)
[10] The respondent submits that the Board considered the applicant's physical appearance, but nonetheless found that he was Roma. The cases relied on by the applicant involved people who were found not to be Roma because of their appearance. Observations are not evidence of bias if they have no effect on the determination of identity. Even if there was a breach of procedural fairness in the Board's finding, it was immaterial to the outcome: Mobil Oil Canada Ltd. v. Canada- Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202.
[11] In Negoita v. Canada (Minister of Citizenship and Immigration), 2003 FCT 770, at paragraphs 27 and 28, Justice Heneghan found in a similar case:
The Board here improperly used its own observation as to the Applicant's skin tone to infer that she would not be perceived as Roma. As noted by Justice Evans, this is an "insufficiently reliable" basis for the Board to determine how the Applicant would be perceived by other people in her country of birth.
However, these findings by the Board do not necessarily lead to the conclusion that this application should be allowed. In Pluhar, supra, the Board's improper assessment of the applicant's physical characteristics was the basis for its rejection of her refugee claim. In the present case, the rejection of the Applicant's claim was not based on this factor, but on the fact that the Board did not find the Applicant's testimony to be credible, in many respects, and was not satisfied that the Applicant subjectively feared for her personal safety in Romania.
The same reasoning applies in this case.
[12] The comments regarding Mr. Bancsok's appearance went to the conclusion that he would not likely be singled out for persecution. They were made in the context of determining that Mr. Bancsok seemed to be well-integrated into Roma society, and consequently had less chance of facing discrimination. The documentary evidence supported such a conclusion.
[13] The comments regarding Mr. Bancsok's appearance are questionable, in that the Board did not call upon anyone with expertise in the appearance of Hungarian Roma. However, I do not find - given the Board's other findings with regard to the persecution of Roma generally - that the error, if there was one, had any particular effect on the outcome of the decision.
3. Credibility
[14] Mr. Bancsok submits that the Board found he was vague, but did not give reasons or particulars for its assessment. The Board must give its reasons for doubting credibility in clear and unmistakable terms: Hilo v. Canada (1991), 130 N.R. 236 (F.C.A.); Armson v. Canada (Minister of Employment and Immigration) (1989), 101 N.R. 372 (F.C.A.). The Board did not have regard to the totality of the evidence in making its credibility findings: Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.).
[15] The applicant submits that did not have to show that he had been persecuted or would be probably persecuted, but only that the fear he had resulted from reprehensible acts committed or likely to be committed against members of a group of which he was a member. The Board ignored the evidence of Roma persecution: Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (F.C.A.); Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680.
[16] The respondent notes that the Board carefully assessed both subjective and objective fear of persecution and the applicant has not shown how the Panel erred: Singh v. Canada (Minister of Citizenship and Immigration) (1999), 73 F.T.R. 280. The Respondent notes that the applicant did not go to the police or seek help from secondary sources: Orban v. Canada (Minister of Citizenship and Immigration) 2004 FC 559; Ozvald v. Canada (Minister of Citizenship and Immigration) 2004 FC 1250.
[17] I find that the Board gave its reasons for doubting Mr. Bancsok's credibility and subjective fear in clear and unmistakable terms. The Board pointed to discrepancies between the PIF and oral evidence, vagueness and inconsistencies in the oral evidence - especially related to his treatment by the police - and the omission from the PIF of problems his grandfather had with the police. These findings were not patently unreasonable.
[18] While the persecution of similarly situated people is a relevant consideration, in this case the Board found that Mr. Bancsok was well-integrated, and quoted from the documentary evidence stating that "well-integrated Roma, whether fair-skinned or not, face much less discrimination that do less integrated or more easily identifiable Roma." The Board reasonably found that the evidence of persecution of non-similarly situated persons does not assist Mr. Bancsok's claim.
4. State protection
[19] Mr. Bancsok submits that the Board erred in the test for effective state protection: Ward v. Canada, [1993] 2 S.C.R. 689. It did not expressly conclude that state protection exists. It ignored the documentary evidence: 1999 U.S.D.S. Report for 1998; HR Watch Report 1998 and 1999, IRB RIR No. HUN 29826 1998; Sarkosi v. Canada (Minister of Citizenship and Immigration) 2001 FCT 649; Horvath v. Canada (Minister of Citizenship and Immigration 2001 FCT 398; Piel v. Canada (Minister of Citizenship and Immigration) 2001 FCT 562; Polgari v. Canada (Minister of Citizenship and Immigration) 2001 FCT 626; Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339.
[20] The respondent submits that there is no apparent defect: Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280 (T.D.); Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710. The documents relied on by the applicant are all out of date. The Board used more contemporary documentary evidence, and should not be faulted for ignoring the materials from 1998 and 1999.
[21] The Board found that Hungary is a democratic state and is presumed to be able to protect its nationals. She also found that Mr. Bancsok had failed to make real efforts to get protection from Hungary, when that protection, according to the documentary evidence, would reasonably have been forthcoming. I find no error in this assessment.
[22] I do not find that the Board erred in ignoring documentary evidence that was in the RPO package when there were more contemporary documents available. Consequently, I would not find that the Board ignored relevant documentary evidence in coming to its conclusion.
5. Section 97
[23] Mr. Bancsok submits that the Board applied the wrong legal test related to section 97 because she did not give reasons as to why discrimination suffered by Roma does not constitute unusual treatment or punishment, even if it is not persecution: U.S.A. v. Johnson (2003) 62 O.R. (3d) 327 (Ont. C.A.).
[24] The respondent submits that the Board did not err by not giving reasons why the applicants did not qualify for protection under section 97. Credibility was determinative under section 96 and would have been determinative under section 97 as well: Kilic v. Canada (Minister of Citizenship and Immigration)(2004), 245 F.T.R. 52 (F.C.); Bouaouni v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 1540 (F.C.).
[25] The Board found that there was adequate state protection in Hungary, so issues of risk to life or cruel or unusual treatment or punishment do not arise. There was no evidence that could have gone to a personal risk of torture on substantial grounds.
[26] I do not find that the Board erred in failing to do an extensive section 97 analysis. There was already a finding that state protection was available to the applicant in the context of a refugee claim. The valid credibility concerns with the applicant's testimony also indicate that the Board did not need to go beyond the section 96 analysis.
[27] The applicant suggested two questions for certification in this case:
1. Can physical attacks or threats based on an enumerated ground ever constitute discrimination rather than persecution?
2. Are separate reasons required under section 97 when the applicant's fear is based on an enumerated ground or persons similarly situated face persecution in order for the Board to meet its statutory obligations to provide reasons under subsection 169(b) of IRPA?
[28] The respondent submits that the first of these questions has already been decided: physical attacks always cross the line between discrimination and persecution. However, there was no authority offered for this proposition. Indeed, while there is case law indicating that physical harm is not necessary to prove persecution, there is no clear statement that all physical attacks or threats of harm that are inflicted because of a Convention ground necessarily constitute persecution. In any event, I decline to certify this question because it would not be determinative of this appeal. Whether a single attack is or is not persecution is irrelevant if adequate state protection exists.
[29] The respondent submits that the second question has also been answered in Bouanouie and Kilic. However, there is another reason not to certify this question. In the face of the Board's finding that the "similarly situated persons" in question were not, in fact, similarly situated, this question would not be determinative of an appeal.
[30] The application will be dismissed. No question will be certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No question is certified.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7464-03
STYLE OF CAUSE: LASZLO BANCSOK and
AGNES ILONA FARAGO and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 25, 2004
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: March 10, 2005
APPEARANCES:
Amina Sherazee FOR THE APPLICANTS
Martin Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
AMINA SHERAZEE FOR THE APPLICANTS
Barrister & Solicitor
Toronto, Ontario
JOHN H. SIMS, Q.C, FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario