Date: 20020514
Docket: IMM-783-01
Neutral citation: 2002 FCT 554
BETWEEN:
BELA VARGA,
EDIT VARGA and
KLAUDIA LAMBERT,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division (CRDD) dated January 30, 2001 wherein it determined that the applicants Bela Varga, Edit Varga and Klaudia Lambert were not Convention Refugees. The applicants ask that the decision be set aside and referred back to the CRDD for re-determination.
[2] The principal claimant, Bela Varga, is an ethnic Hungarian. His wife Edit Varga and his daughter Klaudia Lambert are citizens of Hungary and members of the ethnic minority known as Roma (gypsy). The applicants arrived in Canada on September 15, 1999 and claimed refugee status on November 25, 1999. The applicants claim a well-founded fear of persecution on the basis of the female applicants' ethnicity. The male applicant's claim is dependant on his wife's claim.
[3] The applicants alleged a lifetime of discrimination constituting persecution by members of Hungarian society and the police. They reported incidents of abuse against both the husband and wife as well as several incidents of mistreatment of the daughter at school. They said that their complaints to police and school officials were ignored and that no protection was provided to them.
[4] In its oral reasons for decision, the Board concluded that the applicants were not credible witnesses. After a comprehensive review and an equally comprehensive analysis of the evidence, the Board stated:
The panel has considered all of the information before us. We have noted the problems alleged of ineffective and inappropriate police behaviour and action in the cases at hand. However, we have found the claimants have not provided any persuasive evidence to show that they cannot be afforded reasonable or adequate state protection in the case at hand.
Combined with the credibility problems that were outlined, with no satisfactory explanations for the implausibilities or inconsistencies or contradictions adduced in oral evidence, the panel must determine and the Refugee Division determines, therefore, that Edit Varga, Bela Varga and Klaudia Lambert are not convention refugees.
[5] During the hearing for judicial review, applicants' counsel identified three issues in relation to the decision of the CRDD namely: its finding with respect to the applicants' delay in claiming refugee status, its finding regarding state protection and its finding with respect to credibility.
[6] Regarding the delay in claiming refugee status, the Board, during the CRDD hearing, asked why the claim was made in November rather than September and Edit Varga responded:
We arrived to the country as tourists. We had money and an address. A person whom [sic] promised work to my husband. Therefore, we moved to Lindsay, and we stayed there ‘til November, until our money ran out, and until we made our claims.
[7] On further questioning, she said that she learned from her sister, who knew to immediately apply for refugee status upon arrival at the airport, that she (the applicant) should apply for refugee status. When asked how her sister knew to do so but she did not, the applicant said she did not know.
[8] In summarizing its finding on this issue, the Board said:
Persons having a well-founded fear of persecution normally indicate their willingness or desire to seek protection at the first available opportunity. These claimants did not do so. The panel finds that lack of action to be evidence of less than a well-founded fear of persecution. While their delay in making a refugee claim is not determinative, this lack of action does contribute overall to the panel's finding of lack of credibility on the part of the claimants in the case at hand and we find that the delay contributed to our negative decision.
[9] Regarding state protection, the Board considered the various allegations made by the applicants with respect to the failure of the police to protect them. In response to questioning, Edit Varga stated that she did not go to the Roma Self-Help Government because, "they did not do anything". Similarly, she did not approach the Ombudsman for National and Ethnic Minorities although she said that if she had known the Ombudsman was there to provide her with help against police inaction, abuse, maltreatment, incidents of violence or other problems caused by state authorities and private citizens, she would have gone. The Board found:
. . . this response to be persuasive evidence that there is reasonable and adequate protection available to Roma claimants and indeed, all the claimants in the case at hand, had they sought out that help. The suggestion that they only went to the police on each occasion, but did not seek help either to higher bodies' [sic] superiors within the police or beyond, where such recourse is possible, undermines their allegations that they cannot receive adequate or reasonable protection in Hungary if they were to return there.
[10] The Board also considered the documentary evidence provided by the applicants including a recent Amnesty International Report, the expert testimony provided by the applicants' counsel in a previous decision of the Board as well as a Human Rights Watch Report. In its consideration of the documentary evidence, the Board said:
The panel notes that while societal discrimination against the Roma exists in Hungary today, there is ample documentary evidence to show that the Hungarian judicial system is available to the Roma as a means to address adequately and reasonably discriminatory treatment towards them. Again, the panel finds that Hungary is making effective efforts to uphold the human rights of the Roma and is offering meaningful state protection to the claimants and similarly situated [sic] persons of the Roma community.
[11] Applicants' counsel submitted that the Board made factual errors in its assessment of credibility, specifically in relation to the facts regarding the female applicant's miscarriages and the medical reports. While I agree that the Board may have misconstrued the evidence with respect to the miscarriages and failed to appreciate the distinction between a miscarriage and a tubal pregnancy, the Board's credibility finding did not turn on that particular "inconsistency". There was ample evidence, when considered in its totality, upon which the Board could determine that the applicants were not credible.
[12] In the result, the Board considered and weighed the evidence in determining whether the applicants were Convention Refugees. It provided detailed and informed reasons for its decision.
[13] The Refugee Division is a specialized tribunal with complete jurisdiction to determine the plausibility of testimony. The Court should not intervene in the findings of credibility of the CRDD unless they are patently unreasonable. Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[14] I have carefully reviewed the transcript of the hearing, the documentation and the submissions of counsel. I do not find that the decision of the CRDD was unreasonable. Accordingly, the application for judicial review is dismissed.
[15] Counsel did not suggest a serious question of general importance therefore no question is certified under subsection 83(1) of the Immigration Act.
____________________________________
Judge
Ottawa, Ontario
May 14, 2002