Date: 20011019
Docket: IMM-2772-00
Neutral citation 2001 FCT 1134
BETWEEN:
JOZSEF OLAH, JOZSEFNE OLAH,
KALMAN OLAH, ZOLTAN OLAH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
A. INTRODUCTION
[1] In its April 26, 2000 decision, the Refugee Division of the Immigration and Refugee Board (the "tribunal") rejected the claim of the Olah family (the "applicants") all Roma from Hungary who expressed a well-founded fear of persecution based on their ethnicity. This judicial review application raises, amongst others, issues related to practices of tribunals determining refugee claims in their use of lead cases in claims by Roma.
[2] The Olah family consists of the father, Jozsef, the mother Jozsefne and their two sons, Kalman and Zoltan. All claims were joined.
[3] Also part of the Olah family is their eldest son, Jozsef, who was not before the tribunal having filed a separate claim.
B. THE TRIBUNAL'S DECISION
[4] The tribunal found Jozsef Olah's testimony to have been given in a straightforward manner and made no adverse findings of credibility but found "given the totality of their lives in Hungary, the recent attacks they faced are, according to the objective evidence, atypical".
[5] Skinheads and the police were identified as the agents of persecution; the tribunal stated discrimination versus persecution and the adequacy of state protection to be the key issues in the claim.
(1) Fear of the skinheads
[6] The tribunal listed three skinhead attacks as the bases of the applicants' fear of them:
(1) the 1997 attack on the mother when she had grocery bags kicked out of her hands;
(2) in July 1998, the Olah family's eldest son and his wife were victims of a skinhead assault;
(3) in October 1998, the father suffered an attack and his car was damaged; after the October 1998 incident, the father noticed skinheads, who had attacked him, pointing to his house and he feared his family was in danger of attacks from skinhead gangs; he did not report this to the police as he believed they would take no action.
[7] The tribunal, based on documentary evidence (1) from the expert testimony of one of the ead cases (CRDD No. T-98-04435), and (2) an Issue Paper by the IRB, Roma in Hungary: Views of Several Specialists, concluded there were now less than 1,000 skinheads and neo-Nazis active in Hungary who were concentrated in Budapest and that skinhead attacks had declined rapidly in recent years. On the applicants' fear from the skinheads it said:
Given a Roma population of over one-half million spread throughout Hungary, a skinhead population of a few hundred, concentrated mostly in Budapest and the declining number of skinhead attacks in recent years, the panel finds that there is no more than a mere possibility that the claimants or others similarly situated to them would face attacks by skinheads. There is simply no evidence that attacks by skinheads upon Roma are sustained over a period of time. We find that there is not a serious possibility that the claimants would be persecuted by skinheads if they were to return to Hungary. [emphasis mine]
[8] The tribunal also noted Jozsef Olah had two sisters still living in Hungary, one of whom lives in Budapest. The tribunal said Jozsef Olah's daughter who had been in Canada, returned to Hungary and then again came back to Canada to make a refugee claim. It observed the applicants lived in Austria from 1987 to 1990 and returned to Hungary. It said that while in Austria, they applied for refugee status to the USA, Canada and Australia, but were refused. The tribunal found they did not want to stay in Austria because they had to start paying for work permits. Also, Jozsef Olah wanted to be with his mother who was blind and paralysed.
[9] As to these returns back to Hungary, the tribunal said this:
The return of the family to Hungary, the return of Elvira [Jozsef Olah's daughter] and the staying on of the two sisters persuades the panel that although life for Roma in Hungary may not be pleasant, it also does not achieve the plateau of risk of serious harm. [emphasis mine]
(2) Fear of the police
[10] The tribunal set out, in its decision, the elements of the applicants' fear of the police in Hungary and their belief they will not assist them. The applicants, the tribunal found, testified they experienced a total of two isolated incidents, twenty-five years apart:
(1) when he was fourteen years old, in 1971, the father was detained, beaten and accused of breaking into a store; and
(2) In 1998, the two claimant sons, Kalman and Zoltan, were "roughed up" by police officers who mistakenly thought they had caused a car accident. Jozsef Olah testified his youngest son, Zoltan, had been psychologically affected by this incident. The father did not report it to the police because, he alleges, the police would have beaten him up.
[11] The tribunal then made this finding:
The panel accepts that the police in Hungary have been generally unresponsive to Roma complaints. We have noted counsel's submissions directing our attention to documentary evidence about police discrimination and police brutality. As with skinhead attacks, the panel views the above two assaults as isolated incidents. We are not persuaded from the documentary evidence that unprovoked police attacks upon Roma occur with the regularity that would be required to achieve the serious possibility plateau. [emphasis mine]
[12] The documentary evidence referred to by the tribunal for this finding were Exhibits C-5 and C-6, documentation provided by the applicants on country conditions in Hungary.
[13] About the impact of police brutality and its effects on the applicant, Zoltan, in Exhibit C-7, a medical report provided by Dr. daCosta and filed by the applicants, the tribunal wrote:
We have noted the medical report in respect of Zoltan Olah, the minor claimant. Without wishing to minimize the frightening experience the minor claimant went through with the police (we noted it was an isolated incident), the medical prognosis appears to the panel not to be serious.
. . .
We concur with the doctor that it cannot be said that the minor claimant did not suffer discrimination. We note too the doctor's opinion that "children have a greater ability to resolve psychological sequella of trauma than do adults".
[14] On police-Roma relations, the tribunal adopted the findings in the lead cases it had previously referred to as providing reliable evidence:
. . . the panel adopts the findings in the lead cases wherein Professor Barany states that while there have been exceptions, since 1991 there has been a general trend of increased vigilance on the part of law enforcement officers in policing skinhead attacks. Also, programs have been aimed at recruiting more Roma into the police forces, that training in Roma-police relations is being introduced and that young Roma are being assisted in studying at the police academy. [emphasis mine]
Given the documentary evidence and the isolated experiences of the claimants, we find that there is not a serious possibility that the claimants will be persecuted by the police if they were to return to Hungary.
(3) Findings on state protection
[15] The tribunal said that it "believes that state protection is available to the claimants in the event that they are unfortunate to face serious harm" [emphasis mine].
[16] In support of this finding, the tribunal relied upon:
(a) An IRB response to an Information Request found in the RCO's additional disclosure, May 1999, citing a Hungarian Helsinki Committee paper on the rate of reports filed with the police relative to investigations refused and also the number of police investigations commenced relative to those subsequently terminated. About this report, the tribunal said:
Although this report seeks to compare criminal investigations and complaints on all crime versus police crime, it nevertheless indicates that investigations into police crime are less likely to bear fruit. The report has limitations relative to our analysis because there is no breakdown between investigations on behalf of Hungarian citizens generally and Roma specifically.
(b) It noted evidence in The Roma Press Centre, (June 9, 1998) in Exhibit R-1, Hungarian Lead Case Information Package, exhibits submitted by the RCO. The tribunal expressed itself:
We note evidence from The Roma Press Centre that the Budapest Court found seven members of a skinhead group guilty of vandalism and violence. The group had beaten up a Romani singer. One year after the crimes, the Criminal Code was modified: "according to the new law, violence against members of a national, racial or religious group is punished more severely than before." This evidence would seem to suggest that in the courts, abuses against Roma can be pursued to a reasonable conclusion.
(c) The tribunal cited documentary evidence in the form of a Response to an IRB Information Request of September 1998, located in Exhibit R-1, CRDD Information Package, to the effect it was apparent Roma have avenues available to assist them in gaining redress from the law. It wrote:
Additionally, from the documentary evidence, it is apparent that Roma have avenues available to assist them in gaining redress from the law. These include the Office of the Parliamentary Commissioner (Ombudsman) for the Rights of National and Ethnic Minorities, the Legal Defence Bureau for National and Ethnic Minorities (NEKI) and the Legal Aid Office for Minorities. About ten percent of all complaints received by the Ombudsmen are about the police and almost all of these are from Roma. NEKI's services are free and NEKI can pursue a case through the courts. These are long processes and maintaining the interest of Romani complaints in pursuing a case can be difficult. The processes then, are far from ideal but they do provide an outlet and, if the discrimination or persecution is severe, it would seem that there are avenues other than the police that can be pursued effectively. [emphasis mine]
[17] The documentary evidence cited by the IRB relating to complaints to the Ombudsmen is Exhibit R-1 "Relations with the Police, Additional RCO Disclosure, item 3, Issue Paper, Roma In Hungary, Views of Several Specialists.
[18] The tribunal summarized its overall findings this way:
In summary, our review of the claimant's testimony, our analysis of the jurisprudence and our review of the documentary evidence, leads the panel to find that the claimants do not face a serious possibility of persecution if they were to return to Hungary. If they do experience incidents of serious harm, we believe the state's agencies of law, justice and minority rights are open to them. They may need to more vigorously fight for their rights than other Hungarians. [emphasis mine]
C. THE ISSUES
[19] The applicants raised a number of issues some of which related to the specifics of the decision rendered by the tribunal on the Olah family claim and others related to an attack on the use by the tribunal of the lead cases.
[20] In particular, the applicant argued:
(1) the tribunal adopted the wrong view to determine the objective component of the two-pronged test of a well-founded fear of persecution. The tribunal should have followed Adjei v. Canada (Minister of Employment and Immigration) (1989), 7 Imm.L.R. (2d) 169 (F.C.A.);
(2) the tribunal confused persecution and discrimination when it considered the physical acts the applicants had suffered;
(3) the tribunal's treatment of the lead cases was bad because the tribunal adopted the findings of the lead cases and imported into the specific case it was considering facts and findings from the lead cases; and
(4) the tribunal ignored what counsel for the applicants said was an avalanche of evidence on the unavailability of state protection.
D. ANALYSIS
(1) Issue number 1-- the wrong test
[21] Counsel for the applicants argued the tribunal erred in law when it ruled serious physical injury was the bar which his clients would have to clear in order to establish objectively a well-founded fear of persecution.
[22] I agree with counsel for the respondent such an interpretation of the tribunal's reasoning is not a fair one. Properly interpreted, in my view, the tribunal focussed on the acts of persecution testified to but found they lacked the quality of being systemic and repeated acts so as to constitute a serious possibility of being persecuted if the applicants were to return to Hungary.
[23] As pointed out by counsel for the respondent, the tribunal did not require a demonstration by the applicants that they would be persecuted and did not limit the serious harm to physical harm.
[24] The test adopted by the tribunal is in line with (1) the Supreme Court of Canada's decision in Chan v. Canada (Minister of Employment and Immigration) [1995] 3 S.C.R. 593 on the requirement that there be a serious possibility of persecution; (2) in conformity with the Federal Court of Appeal's decision in Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 for the requirement that applicants need to show acts complained of are repeated acts or systematic infliction to constitute persecution within the meaning of the Convention; and (3) tailored to the requirement in the Federal Court of Appeal's decision in Salibian v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 165 at 175 and Sagharichi v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 796 for the concept that the harm must be a serious one.
(2) Issue number 2 -- confusion between persecution and discrimination
[25] Counsel for the applicants argued the tribunal confused the notions of persecution and discrimination by holding that the acts of physical violence identified by the applicants were equated to discrimination.
[26] In my view, this submission cannot be accepted because nowhere in its reasons does the tribunal equate physical violence with only discrimination to the exclusion of persecution.
(3) Issue number 3
[27] Counsel for the applicants points to the tribunal's decision where it said reliable evidence was found in one of the CRDD lead cases decision and where it adopted the findings of Professor Barany as to the general trend of increased vigilance on the part of law enforcement officers in policing skinhead attacks.
[28] Relying upon the Federal Court of Appeal's decision in Attorney General of Canada v. Pompas (1994), 94 D.T.C. 6630 and Justice MacKay's decision in Osadolor v. The Minister of Citizenship and Immigration (docket: IMM-2239-99, January 20, 2000, (F.C.T.D.)), counsel argues the tribunal unlawfully imported evidence (facts or conclusions, mixed facts and law). He also argued the tribunal did not look at the underlying evidence when it imported Professor Barany's findings.
[29] In my view, counsel for the applicants' reliance upon Pompas, supra, is misplaced. In that case, Décary J.A., while stating the principle a judge cannot take into account facts taken from another case, was careful to limit that principle to importing facts which were not adduced in evidence in the second case.
[30] The distinguishing feature of the case before me from Pompas, supra, is that the tribunal here received in evidence and marked as exhibits the documentary evidence adduced by the RCO and by the applicants (see certified record page 446 for the RCO's disclosure material in June 1999 consisting of the CRDD Information Package, Hungary, September 1998, additional RCO disclosure -- Hungary/Roma, May 1999 and Hungarian Lead Case Information Package). I should add the Hungarian Lead Case Information Package, found at the certified record page 451, specifies the documents submitted as evidence in the lead cases and includes the transcripts of specialists' testimonies on Hungarian Roma cases at pages 453 through 460 of the certified record.
[31] I make two additional observations. The statement about the number of skinheads declining is found in the 1997 U.S. DOS Report which was before the tribunal through the Hungarian Lead Case Information Package, exhibits submitted by the RCO, item 3.29, certified record page 459. Professor Barany's testimony was also before the tribunal, once again through the Hungarian Lead Case Information Package, Exhibit R-3, HUN30081EX, DIRB, 18th September 1998, page 6, found in the certified record, item 3.33, page 459.
[32] This factual assessment leads to the conclusion the tribunal did not import any facts or any conclusions which were not in evidence before it.
[33] I also consider the applicants' reliance on Osadolor, supra, not to be relevant. Unlike in Osadolor, the applicants here were given full disclosure of the material to be relied upon by the tribunal. Justice Hansen in Polgari v. Canada (Minister of Citizenship and Immigration), [2001] F.C.T. 626, a case involving Hungarian Roma claimants, came to a similar conclusion as did Justice Dawson in Jozsef Olah and Eva Turu v. Minister of Citizenship and Immigration, [2001] F.C.T. 382. (Jozsef Olah in that case is the son of the principal claimants in this case who, as noted, had filed a separate claim.)
[34] Justice Hansen, in Polgari, supra, also cleared as lawful 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, pointing to the Federal Court of Appeal's decision in Koroz v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 12.
[35] In Koroz, supra, the Federal Court of Appeal dealt with a certified question which read:
[2] May a panel of the Board "adopt the same reasoning as another panel" faced with the same documentary evidence as a basis for finding the existence of an internal flight alternative in the same country.
[36] Linden J.A. on behalf of the Federal Court of Appeal, answered the question in the affirmative. He wrote as follows:
[3] In our view, the question must be answered in the affirmative, where the documentary evidence is virtually the same in both cases as it was here. This does not mean that a panel can blindly adopt factual findings of other panels. 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. [emphasis mine]
[37] In my view, the Federal Court of Appeal's reasoning in Koroz, supra, is applicable to the circumstances of this case.
(4) Issue number 4 -- the availability of state protection
[38] Counsel for the applicants argues the tribunal ignored the avalanche of documentary evidence on the unavailability of state protection. He points to the documentary evidence submitted in evidence by the applicants' counsel before the tribunal in respect of police discrimination and brutality as follows:
(1) a newspaper article dated February 2, 1999, where the police allegedly were not following a decision of the Supreme Court of Hungary concerning the distribution of the Hungarian publication of Mein Kampf (certified record page 169);
(2) a country report on Hungary indicating that victims of police abuse, typically Roma, were unable to obtain adequate remedy for such abuse noting that only three percent of cases brought against the police led to a conviction and, where convicted, the penalty was usually a fine, probation or a suspended sentence with the police officer typically remaining on the force (certified record, page 172);
(3) an extract from Roma Rights, a newsletter of the European Roma Rights Centre, summer 1997, indicating incidences of police brutality continued (certified record, page 265);
(4) a report by the UN Committee on Torture, autumn 1998, stating often out of fear, Romany victims were reluctant to file complaints (certified record page 308);
(5) an article pointing to a need to reform the judiciary (certified record page 205);
(6) an extract from the Hungarian Helsenki Committee pointing to an Amnesty International Report in 1995 concerning the effectiveness or non-effectiveness of legal remedies;
(7) extracts from the affidavit of Roger Rodriguez to which was appended an IRB Issue Paper entitled "Roma in Hungary: Views of Several Specialists". Mr. Rodriguez' affidavit also appends extracts from the transcript of proceedings before the Immigration and Refugee Board in the lead cases including, the evidence and cross-examination of the expert witnesses in those cases.
[39] Counsel for the applicants says the thrust of that evidence shows there is no effective state protection in Hungary for its Roma citizens.
[40] Counsel for the respondent counters by referring to the Federal Court of Appeal's decision in Hassan v. Canada (Minister of Employment and Immigration) (1993), 147 N.R. 317 for the proposition the fact that some of the documentary evidence on country conditions was not mentioned in the tribunal's reasons is not fatal to its decision arguing passages from the documentary evidence which were relied on by the applicants were part of the total evidence which the tribunal was entitled to weigh as to reliability and cogency as stated by the Supreme Court of Canada's judgment in Woolaston v. Minister of Manpower and Immigration, [1973] S.C.R. 102.
[41] Counsel for the respondent in argument examined the tribunal's decision and said the tribunal had accepted that police in Hungary have been generally unresponsive to Roma complaints. Also, the tribunal acknowledged the documentary evidence submitted by counsel for the applicants at the hearing concerning police discrimination and police brutality. She said the tribunal also examined the issue of police investigations and was conscious that the remedial processes in Hungary were far from ideal but demonstrated if the discrimination or persecution was severe, there were avenues other than the police that could be pursued effectively.
[42] Counsel for the respondent took me through Exhibits C-5 and C-6, as noted, documentary evidence produced by the applicants, and indicated they were specifically referred to by the tribunal insofar as police brutality and discrimination were concerned.
[43] Counsel for the respondent also examined the tribunal record and said that all of the material in the Rodriguez affidavit was before the tribunal through the RCO exhibits produced at the hearing and previously disclosed to the applicants.
[44] I accept counsel for the respondent's submissions in this respect. I am satisfied that all of the material referred to by counsel for the applicants which he says was ignored, was before the tribunal by way of evidence.
[45] Counsel for the applicants then argued it is not enough to say here is the evidence. There must be an analysis of that evidence, a demonstration through reasons how protection is to be effective.
[46] On the issue of a state's inability to protect its nationals, I note what Justice LaForest said in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724, that clear and convincing confirmation of a state's inability to protect must be provided.
[47] I am not persuaded by counsel for the applicants' argument the reasons of the tribunal were perfunctory. The tribunal's reasons must be read as a whole and the issue of effective state protection gauged against the jurisprudence illustrated by Ward, supra.
[48] In my view, the tribunal balanced and weighed the evidence on this issue and, while acknowledging life was not pleasant for Roma in Hungary, concluded that state agencies of law, justice and minority rights were open to them. That finding is within the tribunal's purview. Reviewing courts must not reweigh evidence according to the Supreme Court of Canada. (See, Canadian Union of Public Employees Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at 844.) I might not have come to the same conclusion as the tribunal but that is not the question. The applicants here, on the particular facts of this case, have failed to persuade me the tribunal erred in reaching the finding it did on the issue of state protection.
DISPOSITION
[49] For all of these reasons, this judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
OCTOBER 19, 2001