Date: 20050608
Docket: IMM-6615-04
Citation: 2005 FC 820
Toronto, Ontario, June 8th, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
RICHARDNE SZABO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Richardne Szabo is a 33-year-old Hungarian woman who alleges a well-founded fear of persecution based on physical and sexual abuse by her father. Ms. Szabo seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division, dated June 18, 2004 that found that there was no credible basis to her claim and that she is neither a Convention refugee nor a person in need of protection.
[2] Ms. Szabo claimed that the abuse began in 1983 when she was 11 and escalated to rape in 1984. In 1985, she made a complaint of sexual assault against her father, supported by her mother. According to a Hungarian court document filed in evidence, her father was convicted of an offence of "continuous indecent act with a person in his care" and sentenced in April 1986 to twenty-eight months imprisonment and three years probation with a treatment condition for alcoholism.
[3] The father was released after one year and returned to the family home in July 1987. Ms. Szabo alleged that there was another attempted rape upon his return home but this was not reported to the police. In her personal information form ("PIF"), she stated that she threatened to have him returned to jail and got away from him on that occasion. She did not report the incident as she would not have been believed by the police.
[4] Following the attempted rape incident, there were continued conflicts between Ms. Szabo and her father but no further sexual assaults. Her boyfriend (later her husband) also stepped in to protect her from her father.
[5] Ms. Szabo left home in January 1989 and moved in with her boyfriend and his parents. On one occasion in 1990, her father came to her in-laws' house and caused a disturbance. He was arrested and held for 24 hours, but then released without charge.
[6] In March 1996, Ms. Szabo came to Canada on a work permit. When the permit expired in September 2000, she was denied a visa extension. The husband was unable to come to Canada and they later divorced. An application for sponsorship by a married Canadian boyfriend, still living with his wife and children, was denied as the bona fides of the relationship were questioned. A humanitarian and compassionate ("H & C") application was also denied. She did not mention her abusive father on the H & C application, but rather fear of the ex-husband. Ms. Szabo then applied for refugee protection in 2003 on the advice of new counsel.
[7] The Board accepted that the sexual assaults prior to 1986 had occurred and that the father was punished for those crimes. The Board did not find the applicant's account of the subsequent events credible. The member found that even if the events did in fact happen, Ms. Szabo could have obtained protection from the authorities. The Board also drew negative inferences from Ms. Szabo's returns to Hungary, her failure to mention her abusive father on her H & C application, and the delay in applying for refugee protection.
[8] The Board concluded that if she has problems with her father upon her return to Hungary, police protection will be available, as it was previously, and that Hungary is well able to protect its citizens from this form of criminality.
[9] The Board found that there was no credible basis for the applicant's claim.
ISSUES
[10] 1. Did the Board err in its credibility findings?
2. Did the Board err in determining that state protection was available?
ARGUMENT & ANALYSIS
1. Credibility
[11] Ms. Szabo submits that the negative credibility assessment was patently unreasonable because it was based on faulty inferences. This was a plausibility finding, so is less insulated from judicial review: Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.); Ye v. Canada (Minister of Employment and Immigration) [1992] F.C.J. No. 584 (F.C.A.).
[12] Despite the Board's statement that it had considered the Chairperson's Gender Guidelines, Ms. Szabo argues that the member failed to consider the evidence before it related to her age and circumstances when the attempted rape incident occurred in 1987. She was 16, with no witnesses or corroborating evidence.
[13] The Board also misconstrued the evidence in finding that the applicant was never alone in the house as her grandparents were always there, the applicant submits. That statement referred only to the time after her mother suffered a stroke in 1988, not before. This was a material misconstruction and reversible error.
[14] Ms. Szabo also contends that it was not implausible that she would have failed to mention her father raping her in her H & C application considering the embarrassing nature of this information. She did not know that it could have influenced the immigration officer to find in her favour.
[15] The respondent submits that the applicant's behaviour was inconsistent with a subjective fear. The Board's credibility findings were made in clear and unmistakable terms and are not patently unreasonable as they were supported by implausibilities in the applicant's story, by common sense and rationality and the probabilities affecting the case as whole.
[16] The respondent submits further that the respondent's explanation for why the police were not contacted about the attempted rape in 1987 was simply not plausible. Ms. Szabo was two years more mature and her complaints about her father had been believed in the past. The Board's finding that it was implausible that she would keep her rape a secret from the H & C officer is not perverse because she had not in fact kept it a secret. It was disclosed to her family, the police, and to the Court in Hungary.
[17] I think it is clear from the member's reasons that her findings were coloured by the applicant's immigration history and failure to disclose the problems with the father in her prior efforts to remain in Canada, before making the refugee claim. Ms. Szabo's stated reason for not wanting to return to Hungary to pursue an application for permanent residence was fear of her ex-husband and not the father. The member appears to have concluded that when that story failed, the reality of the sexual abuse Ms. Szabo had suffered as a child was embellished to support her refugee claim. While I may not have arrived at the same conclusions, I am unable to find that the Board's plausibility and credibility findings are patently unreasonable.
[18] Ms. Szabo asserts that she did not report the attempted rape incident because she did not think she would be believed. But she was clearly believed when she made her complaint against her father as a result of the earlier sexual abuse. And she testified that her paternal grandfather, a former police officer, always believed her complaints, in contrast to her grandmother. Her mother had supported the earlier complaint. It was open to the Board on that evidence to conclude that the applicant's claimed fear of continued persecution was not credible.
2. State protection
[19] The applicant submits that state protection was not and would not be available to her because the police were aware that her father was the son of a former police officer and treated him leniently. She further submits that the Board made no reference to the documentary evidence that was supportive of her testimony and also failed to point to evidence that would contradict her testimony on the lack of state protection. She argues that state protection need not be sought where it is ineffective: Espinoza v. Canada (Minister of Citizenship and Immigration) 2005 FC 343.
[20] The respondent submits that the Board is presumed to have considered all the information submitted and it was not necessary in this case to specifically analyse the country conditions in Hungary: Florea v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 598 (F.C.A.).
[21] It is clear from the evidence in this case that state protection was extended to the applicant when she complained about the sexual abuse she had suffered from her father and there is no reason to believe that it would not be available to her should she return to Hungary. The Board did not err in finding that the applicant failed to provide clear and convincing evidence of the state's inability to protect: Canada (AG) v. Ward, [1993] 2 S.C.R. 689.
[22] This application will, therefore, be dismissed. No serious question of general importance was proposed and none will be certified.
ORDER
THIS COURT ORDERS that this application is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6615-04
STYLE OF CAUSE: RICHARDNE SZABO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: JUNE 6, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: JUNE 8, 2005
APPEARANCES BY:
Wennie Lee FOR THE APPLICANT
Patricia MacPhee FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lee & Company
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT