Date: 20020710
Docket: IMM-3275-01
Neutral citation: 2002 FCT 766
BETWEEN:
LENKE GYUGYI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Lenke Gyugyi is a young Roma woman from Hungary who, in this judicial review proceeding, challenges a June 7, 2001, decision of the Refugee Division of the Immigration and Refugee Board (the tribunal) rejecting her claim.
[2] Her story, if believed, is a tragic one. She alleges having been sold for sex by her step-father when she was at a very young age and, as a result, was raped at the age of 11. There was a failed attempt at obtaining a conviction in the Hungarian Criminal Court. She ran away several times and was placed in residential schools under state care during her early teens. When she was 14, she alleges being sexually abused by her step-father; there was an alleged attempted rape by three young men who were not prosecuted. There were further flights from home and occasional efforts at reconciliation.
[3] Her parents came to Canada in 1999 making refugee claims; the applicant followed some time later and lived a short time, mainly with her mother as her step-father was serving a sentence in Canada but when released, abused her again. Upon the complaint made by the applicant, he was arrested by police in St. Catharines but not convicted. He was subject to further charges of sexual abuse on a complaint made by one of his nieces.
[4] The applicant's claim was disjoined from that of her mother and her step-father.
[5] The tribunal accepted that the applicant was raped as a child and that there was an unsuccessful criminal proceeding in Hungary. It also accepted she was placed in a residential school out of the custody of her parents and this on more than one occasion. Beyond those conclusions, the tribunal found her evidence "to be so contradictory, incredible and implausible that a conclusion of credibility on the details cannot be drawn". The tribunal found that some parts of her story were fabricated drawing an implausibility that a state facility would release her to the care of her parents or other abusers. In making its credibility findings, the tribunal contrasted her POE, her two PIF's and her oral evidence.
[6] The tribunal addressed the issue of her fear of returning to Hungary focussing on the fact she was now an adult and her feared agent of prosecution was her step-father. The tribunal accepted on a balance of probabilities she, as an adult, could live in the security, separate and independent, away from her step-father in Hungary today particularly in a city like Budapest as she did prior to her flight to Canada.
Analysis
[7] This judicial review application must be allowed for a number of reasons.
[8] First and foremost, the tribunal completely ignored documentary evidence generated by the Board's Research Directorate as a result of an information request. That response corroborated, in some measure, the applicant's testimony: (1) the lack of action by Hungarian Police on a reported rape of a young Roma woman by her non-Roma step-father; (2) female child abuse in Hungary at the hands of relatives or friends or neighbours of the family; (3) downplaying father-daughter rapes; (4) high rate of forced prostitution at a very young age by their male relatives; (5) denial of child abuse problems starting at the level of child-protection authorities; and (6) lack of state protection in the area of child abuse.
[9] This documentary evidence was relevant and central to her claim but ignored by the tribunal. As a result, under paragraph 18.1(4)(b) of the Federal Court Act, the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[10] Second, the tribunal impugned the applicant's credibility by drawing a number of implausibilities particularly on how state authorities would behave in protecting their wards. It is a well accepted principle the tribunal has complete ability to draw implausibilities provided they are reasonable and are based on the evidence. I accept counsel for the applicant's submission the implausibilities drawn by the tribunal in the area of child protection in Hungary were drawn not on the basis of relevant documentary evidence before it but rather on its conception of how child protection authorities in Canada would behave.
[11] Third, the tribunal in reaching its credibility findings focussed on the applicant's original PIF, her amended PIF, the POE and her testimony. Drawing inconsistencies on this basis is a well accepted technique provided those inconsistencies are made considering the totality of the evidence. In my view, the tribunal erred overall in its approach because it ignored how the POE had been taken and how her first PIF was written up acknowledging, however, that her second narrative was "free from coercion by her family".
[12] Fourth, in my view, the tribunal breached the principle set out in the Federal Court of Appeal's decision in Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199. The tribunal is under a duty to give its reasons for casting doubt upon the applicant's credibility in clear and unmistakable terms. The tribunal breached that duty when it impugned, in part, the applicant's testimony of sexual abuse and torture but then, on the issue of state protection, taking it as truth and citing her legal action in Canada against her step-father as evidence of her ability to protect herself. In other words, the tribunal as to one part of her story cast doubt on her credibility yet found that evidence credible enough to rely on it as the basis for finding state protection.
[13] In the circumstances, I need not deal with whether the tribunal erred in not considering whether subsection 2(3) of the Immigration Act applied based on the Federal Court of Appeal's decisions in M.E.I. v. Obstoj, [1992] 2 F.C. 739 and M.C.I. v. Yamba (Docket: A-686-98, April 6, 2000).
[14] For all of these reasons, this judicial review application is allowed. The decision of the tribunal is set aside and the applicant's claim is to be reconsidered by a differently constituted tribunal. No certified question arises.
"F. Lemieux"
JUDGE
OTTAWA, ONTARIO
July 10, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3275-01
STYLE OF CAUSE: LENKE GYUGYI v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 19, 2002
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: July 10, 2002
APPEARANCES:
Mr. Rocco Galati FOR THE APPLICANT
Mr. David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
Galati, Rodrigues, Azevedo & Associates FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada