Date: 20010613
Docket: IMM-530-00
Neutral citation: 2001 FCT 649
BETWEEN:
RUDOLF SARKOZI, RUSOLFNE SARKOZI, MONICA SARKOZI
ANIKO SARKOZI and ERZSEBET ARANKA SARKOZI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] In this application for judicial review, the applicants challenge the January 6, 2000 decision of the Convention Refugee Determination Division (CRDD), which determined they are not Convention refugees.
[2] Rudolf Sarkozi, (the "principal applicant") claimed Convention refugee status for himself and his children on the basis of race and nationality, namely, Hungarian Roma. His spouse, Rudolfne Sarkozi, claimed Convention refugee status on the basis of membership in a particular social group, Roma family.
[3] The applicants tell what has become, unfortunately, a familiar story: discrimination in the workplace, loss of employment, harassment and physical abuse of their children at school and by neighbours, harassment by their landlord, abusive treatment at the hands of neighbours and harassment by skinheads. In one incident, Mrs. Sarkosi was attacked and stabbed by two skinheads. When she reported the matter to the police, she was verbally and physically abused by the police and kicked out of the police station.
[4] The CRDD accepted the applicants identity as Hungarian Roma, but concluded that they had not established their claims on a balance of probabilities. The panel stated that it had some credibility concerns surrounding the evidence of both the principal applicant and his spouse. They noted some internal inconsistencies and inconsistencies between the two applicants. In the end, they stated the following regarding credibility:
None of the examples described above standing alone would be sufficient to find the claimant or the claimant's wife not credible. However, when viewed cumulatively, the panel finds that the claimant and his wife have been somewhat misleading in their evidence, exaggerating and embellishing somewhat the extent of their mistreatment and dire nature of their circumstances, especially as relates to their ability to earn a living for themselves and the family. (Tribunal Record page 12)
[5] The panel then found that "leaving credibility issues aside", even if the incidents had occurred in the manner and for the reasons stated, the incidents would amount to discrimination, not past persecution. The panel also found there is no more than a mere possibility that the applicants would be persecuted should they return to Hungary. Further, should the applicants' require it, there is adequate state protection available in Hungary.
[6] The applicants raised a number of arguments in their written submissions, however, confined their oral argument to three issues.
[7] First, the applicants take issue with the panel's findings regarding credibility.
[8] The panel found four areas of confusion or inconsistency in the evidence of the principal applicant and his spouse. The first concerns the applicants' move to their last apartment in Hungary before leaving for Canada. In the principal applicant's Personal Information Form (PIF), he stated the family moved when one of his children caught pneumonia after being drenched with a bucket of water by a neighbour. He testified this incident occurred in the spring of 1998. He also testified the family had moved in February 1998. When asked about the discrepancy, he testified the family moved in the summer of 1998. He stated the discrepancy was due to being nervous.
[9] The second inconsistency concerns the nature of the principle applicant's licence to sell flowers. The panel found his evidence to be inconsistent because in his PIF, he stated he had a seasonal license to sell flowers meaning he could sell flowers on four or five special days of the year. In his PIF, he also said he was self-employed selling flowers from 1991 until 1998, but was often harassed by the police.
[10] The third area relates to Mrs. Sarkosi being fired from her employment. They found it implausible that the clinic where she worked did not fire her in 1982 or 1983 when they became aware she was married to a Roma, yet kept her on the payroll and gave her maternity leave, then fired her approximately eight years later because of her "Roma connection".
[11] The fourth area where the panel found the principal applicant and his spouse's evidence to be conflicting and confusing relates to when the family decided to leave Hungary. The principal applicant stated it was based on the accumulation of events whereas his wife stated the decision was made when their child caught pneumonia after being drenched with water by a neighbour.
[12] The respondent argues the CRDD did not make an explicit negative credibility finding. Instead, it found the applicants had failed to establish a subjective fear of persecution because their evidence was embellished, misleading and exaggerated. However, the panel went on to say that: "... Even if the panel was to be satisfied on a balance of probabilities that the incidents described by the claimants had occurred in the manner and for the reasons stated (which it is not, as set out above), the behaviour complained of does not, in the panel's view, amount to past persecution; it would qualify as discrimination..." Clearly, the panel disbelieved the applicants' account of the extent and reasons for their mistreatment and from this concluded that they had failed to establish the subjective basis for their fear.
[13] It is trite law that an essential aspect of the CRDD's decision-making role is the assessment of credibility and that it may draw adverse inferences with respect to credibility based on inconsistencies, contradictions, or the implausibility of the applicants' evidence. However, the Court may intervene where the findings are not supported by the evidence or where the panel ignored relevant evidence.
[14] Regarding the nature of the principal applicant's license to sell flowers, although it is unclear from the reasons, it appears the inconsistency with which the panel was concerned is that the principal applicant stated he could not afford a license, yet he also stated he was self-employed selling flowers from 1991 to 1998. The principle applicant's evidence on this point was clear. Anyone can obtain a licence to sell flowers, however, without being licenced for a particular location a seller must move from place to place and risk police harassment. He testified that a location licence was extremely costly and well beyond his means.
[15] While it may have been reasonably open to the panel to find it implausible that the clinic would keep the principal applicant's spouse on staff for eight years knowing her husband was Roma, the panel did not consider her evidence regarding the significant changes that took place for her at work. She was moved from a privileged position where she received tips sometimes in excess of two or three times her monthly salary, her co-workers turned against her and refused to work with her, she was force to work double shifts and holidays without additional compensation and she did not receive any of the bonuses others received.
[16] As to the inconsistencies concerning the date the applicants moved to their last apartment and the basis on which the family decided to move to Canada, counsel for the respondent acknowledged that these findings, as a basis on which to undermine the applicants' evidence with respect to their subjective fear were somewhat tenuous.
[17] I appreciate that a court on judicial review should not engage in a microscopic analysis of the CRDD's credibility findings. In the present case, however, these were the only aspects of the evidence identified by the panel and in my view, they were flawed.
[18] The applicants also submit that the panel's finding with respect to state protection is perverse having regard to the extensive documentary evidence which negates any effective state protection.
[19] As in Imre Polgari et al. v. Minister of Citizenship and Immigration (Docket: IMM-502-00) dated June 8, 2001, I had to consider a decision of the CRDD where its reasons with respect to the issue of state protection were in all material respects identical to the reasons in the present case. In both cases, the documentary evidence tendered at the hearing consisted of the CRDD information package, Hungary, September 1998 (Index only) and the Hungarian Lead Case Information Package (Index only). Additionally, in the earlier matter, the Hungary/Roma, May 1999 (Index only) update was also submitted. The documentary evidence submitted by the applicants in both matters consisted of a package of materials on the situation of Roma in Hungary, which included reports, articles and commentary from a variety of sources.
[20] In my reasons in Polgari, supra, I said the following with respect to this issue:
... 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.
[21] In the present case, the applicants submitted as affidavit evidence the "pertinent documentary evidence" and the transcripts of the evidence of the specialists from the "lead cases". Having had an opportunity to review these materials, the views I expressed in Polgari, supra, have not changed.
[22] The application for judicial review is allowed and the matter is remitted for reconsideration by a differently constituted panel.
[23] 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.
Toronto, Ontario
June 13 , 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-530-00
STYLE OF CAUSE: RUDOLF SARKOZI, RUSOLFNE SARKOZI, MONICA SARKOZI, ANIKO SARKOZI and ERZSEBET ARANKA SARKOZI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: TUESDAY, NOVEMBER 21, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HANSEN J.
APPEARANCES: Mr. Rocco Galati
For the Applicants
Mr. Greg George
For the Respondent
SOLICITORS OF RECORD: Mr. Rocco Galati
Galati, Rodrigues & Associates
Barristers and Solicitors
203 - 637 College street
Toronto, Ontario
M6G 1B5
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010613
Docket: IMM-530-00
BETWEEN:
RUDOLF SARKOZI, RUSOLFNE SARKOZI, MONICA SARKOZI, ANIKO SARKOZI and ERZSEBET ARANKA SARKOZI
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER