Date: 20140604

Docket: IMM-2254-13

Citation: 2014 FC 542

Ottawa, Ontario, June 4, 2014

PRESENT:    The Honourable Mr. Justice Phelan

JUDGMENT AND REASONS

I.                   Introduction

[1]               This judicial review is of a decision by the Refugee Protection Division [RPD] rejecting the Applicants’ (Hungarian Romas) claim for refugee protection. The substantive issues are the right of the Applicants to file post-hearing evidence and the obligation of the RPD to confront the Applicants with credibility concerns arising from that evidence.

II.                Background

[2]               The Applicants’ case was heard on October 15, 2012. They submitted that, as Roma, they had faced discrimination and harassment in Hungary due to their Roma ethnicity. In particular, the husband and wife had been threatened and assaulted by the Hungarian Guards, a self-appointed right-wing vigilante group. The police responded to both specific incidents relied on by the Applicants to support their refugee claim.

[3]               The RPD Member initially concluded that he had concerns about the Applicants’ account that they had sought police assistance in the absence of any corroborating police reports. The concerns regarding the Applicants’ narrative were put to them at the hearing.

[4]               On November 14 the Applicants’ then counsel applied to submit post-hearing evidence limited to “corroborative police and/or medical documents” in response to concerns expressed by the Member at the hearing regarding the Applicants’ credibility in relation to key events.

[5]               The Refugee Protection Division Rules, SOR/2012-256, permit such post-hearing evidence under Rule 43.

[6]               The RPD, having determined that such evidence was crucial to its decision, accepted the Applicants’ request.

[7]               The Applicants did not provide the type of documents for which post-hearing submission was allowed. The evidence provided was a second letter from the National Advocacy Association of the Ethnic Minorities [NAA] and a letter from a lawyer.

[8]               Both pieces of post-hearing evidence raise more questions than they answer. Both are replete with and to some extent repeat inconsistencies already identified by the RPD.

[9]               The RPD concluded that, due to credibility concerns, the Applicants had not established past persecution with credible and trustworthy evidence. Further, the RPD found that the Applicants had not shown that state protection was not available to them.

III.             Analysis

[10]           The sole issue in this judicial review is whether the RPD erred in its assessment of the post-hearing evidence principally by failing to provide the Applicants with an opportunity to respond to any adverse inference drawn by the RPD from it.

[11]           The issue is one of procedural fairness and is subject to the correctness standard of review.

[12]           Firstly, as held in Aguilera v Canada (Minister of Citizenship and Immigration), 2008 FC 507, 167 ACWS (3d) 967, the Immigration and Refugee Board has no duty to accept post-hearing evidence or to allow submissions thereon. The leave to file post-hearing evidence granted in this case was an exceptional circumstance which the Applicants squandered.

[13]           Secondly, it is important to note that the post-hearing documents actually submitted do not fit within the type for which the RPD had given leave to file, that is to say “corroborative police and/or medical documents”. As the post-hearing evidence did not fall within the scope of the RPD’s grant of permission, the RPD would have been justified rejecting it. However, having accepted the evidence, the RPD had to deal with that evidence properly which it did. Having said that, the Applicants’ failure to respond to the RPD’s concerns in their post-hearing evidence is good grounds upon which to draw an adverse inference.

[14]           Thirdly, it is difficult to find any breach of procedural fairness where the Applicants were confronted with the RPD’s credibility concerns at the hearing and given an opportunity post-hearing to address those concerns. The Applicants used this opportunity to submit non-responsive contradictory evidence for which they ask for yet another opportunity to address concerns about the post-hearing evidence.

[15]           The Applicants were accorded more opportunity to address the weaknesses in their case than they had a right to claim. They can hardly complain once again when they failed to respond to the RPD’s concerns.

[16]           In any event, the post-hearing evidence did not assist the Applicants and the RPD’s conclusions in this case were reasonable.

[17]           Therefore, there is no breach of procedural fairness notwithstanding the efforts of the Applicants’ new counsel to persuade the Court otherwise.

IV.             Conclusion

[18]           Therefore, this judicial review will be dismissed. There is no question for certification.

JUDGMENT

THIS COURT’S JUDGMENT is that the application for judicial review is dismissed.

"Michael L. Phelan"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: