Date: 20061013
Docket: IMM-7804-05
Citation: 2006 FC 1221
Ottawa, Ontario, the
13th day of October 2006
PRESENT: THE HONOURABLE
MR. JUSTICE LEMIEUX
BETWEEN:
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Applicant
and
LASZLO
TOTH
Respondent
REASONS FOR
ORDER AND ORDER
Introduction
[1]
On October
4, 2005, in oral reasons, the Refugee Protection Division (the “panel”),
concluded that Laszlo Toth (the “respondent”) a Romanian citizen of Hungarian
Gypsy descent, born on April 30, 1978, was a Convention refugee. This decision
is challenged by the Minister of Citizenship and Immigration (the “Minister”)
by means of the present application for judicial review, leave for which was
granted by a judge of this Court.
[2]
Essentially,
the Minister argues that the panel’s decision is patently unreasonable, since
it is based on an erroneous finding of fact made without regard for the
material before the panel, which is a ground for setting aside a decision under
paragraph 18.1(4)(d) of the Federal Courts Act.
[3]
According
to the respondent’s personal information form (“PIF”), the event that triggered
his flight from Romania occurred on July 26, 2004, when the respondent
was falsely charged with theft and arrested by the police, who allegedly
detained and beat him. He states that, during this detention, he was cut on the
right arm when he smashed through a glass door while attempting to flee from
the advances of a homosexual policeman. It is alleged that, after realizing how
serious this injury was, the policeman drove him to the hospital emergency
ward, where he received treatment.
[4]
In his
PIF, he describes another incident of persecution, which happened on December
22, 2001. He claims to have been assaulted by ethnic Romanians in a
bar. He was allegedly pushed against an overheated stove and burned on the
thigh. The police were of no help and turned against him, allegedly hitting him
and threatening further action if he continued to lie. At that time, he was
told by the police that [translation] “we
Gypsies were always troublemakers”.
[5]
The main
issue to be resolved by the panel was to determine whether or not the
respondent was physically present in Romania on December 22, 2001, and July 26,
2004, the dates on which he claims to have been persecuted.
[6]
His
absence from Romania in December 2001 and July 2004 was mentioned by the
Solicitor General of Canada (the “Solicitor General”), who intervened in the
case, although he limited his participation to submitting three documents. In
other words, counsel for the Solicitor General was not present at the hearing
of Mr. Toth’s claim for refugee protection and did not cross-examine him. I
also note the absence of the refugee protection officer (RPO), which means that
only the Member, Mr. Toth, Mr. Toth’s adviser and an interpreter were
present at the hearing.
[7]
Two of the
documents filed by the Solicitor General were from American government sources.
The first document, “M-1”, contains computerized notes from the U.S. Border
Patrol, Swanton Sector Intelligence Unit, which are similar to the notes which
are found in the FOSS/SSOBL computer system of Citizenship and Immigration
Canada (“CIC”). This document concerns a man named Laszlo Toth, a Romanian
citizen born on April 30, 1978. This person had been admitted as a visitor to
the United States on June 10, 2001, and lived there illegally until he left in
2004.
[8]
The second
document, “M-2”, is an FBI analysis comparing fingerprints of the respondent,
taken by CIC and sent to the FBI by the Royal Canadian Mounted Police (“RCMP”),
with those of a person who had been arrested near Buffalo N.Y. by the Border
Patrol on October 7, 2003. The FBI analysis bears number 943000CC7, and
this same number appears on one of the file cards of document “M-1”, sent to
CIC by the Swanton Border Patrol. The FBI had concluded that Mr. Toth and the
person who had been arrested near Niagara Falls, New York, on October 7, 2003,
were the same person.
[9]
Another
issue arose to complicate the panel’s consideration of the applicant’s claim.
At the beginning of the hearing on May 3, 2005, after intervention by the
Solicitor General, the applicant amended his PIF to admit having stayed in the
United States from September 27, 2003, to December 20, 2003, the alleged
date on which he claimed to have returned to Romania. According to his
testimony, he used a false Finnish passport issued in the name of Poikoran Temu
to enter and leave the United States in 2003 and also to travel directly to
Canada from Romania on September 4, 2004. He also testified that he destroyed
this passport immediately after his arrival in Canada.
The panel’s decision
[10]
The panel
was well aware of the scope of the documentation submitted by the Solicitor
General and of the lack of documentary evidence from Mr. Toth corroborating his
account. This is why, at the end of the hearing on May 3, 2005, the panel
required the applicant to submit certain documents to show that he had been in
his native country at the time of the persecution, inter alia, his
hospital records, the police report and confirmation from the airline of his
flight to Canada.
[11]
On October
4, 2005, the panel resumed its study of the respondent’s claim. It noted that
the only documents the respondent was able to submit were his hospital records.
On this point, the panel wrote the following: “This file
is genuine; it may be said that it is not a copy of the file, but the original
file. The panel does not know how the claimant was able to obtain this
document, but the file confirms that the claimant was in his country in
2002, in August 2003 and in 2004”. [Emphasis added]
[12]
The panel
acknowledged that the hospital file “contradicts” the computerized notes of the
Border Patrol, filed as Exhibit M-1, which establish that on June 10, 2001, the
respondent entered the United States through the port of New York City.
According to the panel, “[t]his could lead the panel to
believe that the claimant could have been in the United States in June 2001
instead of in his country. This would contradict the fact that the claimant
was allegedly beaten or had problems on December 22, 2001 . . .”.
[13]
The panel
continued its analysis:
However, the claimant produced another
document today (Exhibit P-9) [his driver’s licence] that states that his
driver’s licence was issued on July 17, 2002, thus seven
months after the event that occurred in December 2001, and one year
after his arrival in the United States . . . . It was
also mentioned that the passport was apparently issued in 2002 as well or in
2003. [Emphasis
added]
[14] In addition, the panel mentioned certain problems
in the documentation forwarded to CIC by the Border Patrol, more specifically,
the file card at page 20 of the Minister’s file, which concerns a Laszlo Toth,
born in Romania on April 30, 1978, who entered the United States on June 10,
2001 (FBI number 943000CC7), but which shows that his father’s name was Laszlo
and his mother’s name was Eviolica. The panel noted that, in his PIF, the
respondent had written that his father’s name was Ladislau Toth and that his
mother’s name was Viorica. The panel concluded as follows: “This is not at all the same given name. There is therefore a possibility
that the person who entered in 2001 is someone other than the claimant”. [Emphasis added]
[15] The panel accepted the testimony of the respondent
to the effect that he did not enter the U.S. through the port of New York, but
through Hartford, Connecticut, where his friends lived. The panel also rendered
its decision on the basis of the June 2002 entry in the Romanian hospital
records to the effect that the claimant had been at the hospital clinic to
obtain his driver’s licence. According to the panel, from this medical
consultation record, “it clearly appears that the
claimant went there on June 3, 2002, that is, before his driver’s
licence was issued. Therefore, he could not have been in the United States”. [Emphasis added]
[16] The panel went on to write the following:
In addition, the claimant has maintained from the beginning that he
never used his own passport to go to the United States . . . . How is it
possible that his name can appear there [on the Border Patrol file card]? The
only explanation is that there is another Toth Laszlo with the same date of
birth. This could have appeared to be a fairly major contradiction in his
file. The claimant’s testimony convinced the panel that he did not enter
the United States on June 10, 2001, but rather in September 2004 [sic].[Emphasis
added]
As well, another factor that would allow the panel to say that the
claimant returned to his country in December is that the airline ticket says
[Translation] “return in December 2003”, as the claimant has always maintained
in his testimony. [Emphasis added]
[17] With regard to the amendment of his PIF at the
beginning of the second hearing, the panel wrote the following:
Another fact is the claimant’s failure to declare that he had been
in the United States. This is an important fact that the claimant did not
mention in his narrative. The claimant’s explanation is entirely satisfactory
since the event that triggered his decision to leave his country had not yet
occurred. Moreover, the claimant had not made a claim in the United States, as
he mentioned, he had returned to his country, and he had not gone to the United
States, in order to make a claim. As he said, he had gone to visit his
friends. The panel feels that this is a fairly reasonable and satisfactory
explanation, as is his return to his country. [Emphasis added]
[18] The panel was of the opinion that the “claimant testified very well and the panel was able to note that it
is very clear that he experienced the alleged problems. This is clear to the
panel and the claimant never hesitated to give an answer. He was direct and
spontaneous and, as a result, there was nothing that would allow the panel to
say, with the evidence filed here, that the claimant was not a credible person.
The panel gives the claimant the benefit of the doubt with regard to the facts,
as alleged”. [Emphasis added]
[19] The panel ruled as follows:
The contradictions that may have arisen as a result of the
claimant’s entry into the United States no longer exist. The panel would
also like to note that it is bizarre that the claimant went to the hospital
before, but during a certain period that could coincide with 2001,
that is, the second‑last entry in his hospital record. Even in his
narrative, he talks about 2001 and 2004. Although in the panel’s opinion
this seems quite bizarre and suspicious, the panel would nevertheless like to
mention it because the panel will consider this when rendering a decision. [Emphasis added]
Analysis
[20] According to the Minister, the
panel made several errors, including:
•Capriciously ignoring Exhibit M-1 simply
because the Border Patrol notes contained typographical errors;
•Arbitrarily concluding that
Exhibit M-1 concerned another Laszlo Toth;
•Ignoring the
fact that the fingerprints taken by the FBI under number 943000CC7
(Exhibit M-2) had been inserted into the Border Patrol’s notes on M-1.
[21] The respondent contests the
Minister’s allegations. He filed an affidavit in the Minister’s application for
judicial review. He states that he never set foot in the United States before
September 2003 and, consequently, did not have to submit samples of his
fingerprints before October 2003. However, he admitted having been arrested on
October 7, 2003, by the New York State Border Patrol, who took his
fingerprints. He relies on the hospital file in which the doctors noted the
medical examination for obtaining his new driver’s licence on June 3, 2002, and
on the note written on August 3, 2004, by the doctor who removed the stitches
in his right forearm one week after he was assaulted on July 27, 2004. He also
states that he had two official documents on record: his passport issued on
September 19, 2003, and the new laminated driver’s licence issued on July 17,
2002.
[22] Mr. Toth was cross-examined on his
affidavit dated February 24, 2006. During his cross-examination, Mr. Toth was
shown an investigation report drafted by Daniel F. Allman, a Supervisory Border
Patrol Agent. This report concerned a Laszlo Toth, born in Romania on
April 30, 1978, in Balan, Wargita, whose permanent address was Dozsa
Street, Saint George, Romania. The report shows that this Laszlo Toth had a
passport bearing number 00327927 and had an American visa. I quote the relevant
excerpts from this report:
Subject last entered the United-States at
New-York, N.Y. has a B-2 visitor on June 10, 2001 and was admitted until
December 9, 2001. There is no record of an extension. Admission number 19150056909.
Toth was in a position of his Romanian
passport number 00327927. … there is no record of departure and there is no
record of an extension granted in claims.
… Toth claimed to be a crewman on the
Victory, a cruise ship on the Carnival Cruise Lines. He stated that he was
returning to New-York to join his ship. No record could be found to
substantiate his claim. The Carnival office was contacted. Carnival could not
verify that Toth was employed by Carnival and stated the ship was currently in
Norforlk Virginia and not in New-York as Toth had claimed.
Toth was a passenger in a vehicle
operated by Szabolcs Luka.
[23] Given the cross-examination on Mr.
Allman’s report, the Minister submits that the respondent committed perjury.
[24] The parties agree that the
standard of review applicable in this case is patent unreasonableness. I agree
with this point of view.
[25] It seems to me that the errors
that the Minister claims were made by the panel are factual errors. Under
paragraph 18.1(4)(d) of the Federal Courts Act, this Court may
set aside a decision if a federal board, commission or other tribunal “based
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it”.
This standard is equivalent to that of patent unreasonableness.
[26] A patently unreasonable decision
has been described as being “clearly irrational” or “evidently not in
accordance with reason”. A decision that is patently
unreasonable is so flawed that no amount of curial deference can justify
letting it stand. (See Law Society of New Brunswick v. Ryan, [2003] 1
S.C.R. 247.)
[27] In Voice Construction Ltd v.
Construction General Workers’ Union, local 92, [2004] 1 S.C.R. 609, Major
J., writing for the Supreme Court of Canada, stated the following: “A definition of patently unreasonable is difficult, but it may be
said that the result must almost border on the absurd”.
[28] For two reasons, I dismiss the objection made by
counsel for Mr. Toth concerning the inadmissibility of Mr. Allman’s report on
the ground that it was not before the panel.
[29] First of all, this report was submitted by the
Minister in the context of his cross-examination of Mr. Toth on his affidavit
in support of his contestation of the application for judicial review. In
submitting the report, the Minister aimed to show that Mr. Toth had perjured
himself.
[30] Secondly, the rule to the effect that an
application for judicial review must be based on the record as submitted to the
court does not apply when issues of procedural fairness or jurisdiction are
raised. (See Ontario Association of Architects v. Association of
Architectural Technologists of Ontario [2003] 1 F.C. 331 at paragraph 30
(F.C.A.) and Encinas v. Minister of Citizenship and Immigration
2006 FC 61.) In this case, I am of the opinion that procedural fairness is at
issue. Justice requires that a document showing the falsity of a refugee
claimant’s testimony to the panel be admissible on judicial review, as this is a
ground for vacation of refugee protection under section 109 of the Immigration
and Refugee Protection Act.
Conclusions
[31] For the following reasons, I will allow this
application for judicial review.
[32] The panel ignored the evidence—important evidence—because
it concluded that the Mr. Toth identified in Exhibit M-1 was a person
other than the respondent without having considered the FBI analysis, which
showed that the person identified in Exhibit M-1 and admitted into the United
States on June 10, 2001, was the same person as the respondent.
[33] The report drafted by Mr. Allman and submitted as
Exhibit A-1-1, shows that the respondent entered the United States on June 10,
2001, with his Romanian passport bearing number 00327927 and with an American
visa, and that he was in possession of this passport when he was arrested on
October 7, 2003, which contradicts his testimony before the panel.
[34] The panel did not give appropriate reasons for its
decision and was inconsistent in its analysis of the evidence. A study of the
written records of both panel hearings shows that the panel had several
concerns about the evidence submitted by the respondent to establish his
presence in Romania in 2001 and in 2004. I note the following points, among
others: • the respondent’s obtaining a driver’s licence in 2002 and a Romanian
passport in 2002 or 2003; • the fact that it was mentioned that it was possible
to obtain a driver’s licence without being physically present and that there
was no evidence of the Romanian passport; • the date of the last hearing before
the American tribunal, that is, August 8, 2004, according to Exhibit M-1; • the
way in which the respondent was found to be credible even after several aspects
of the evidence were identified as “bizarre” in the panel’s reasons; •the fact
that the panel attached probative value to the hospital records after having
stated that such records were easy to obtain; and the panel’s conclusion to the
effect that the hospital record proved that the claimant was present in Romania
in 2002, after having expressed the opinion that the date of the consultation
was vague and was probably 2001, not 2002.
[35] I am surprised that the panel did not make any
comment about the claimant’s conduct, that is, about the fact that he travelled
to the United States and Canada with a forged passport when he had one if not
two Romanian passports.
[36] The panel dismissed document M-1 mainly because of
typographical errors involving the names of the respondent’s parents,
concluding that there “is therefore a possibility
that the person who entered in 2001 is someone other than the claimant”. The
panel was not supposed to apply the evidentiary standard of a “mere
possibility” when making this finding. It should have used the “balance of
probabilities” standard.
ORDER
THE COURT ORDERS that: The application for judicial
review is allowed, the decision of the panel is set aside, and Mr. Toth’s claim
for refugee protection must be reconsidered by a differently constituted panel.
No question of general importance was proposed.
“François Lemieux”
Certified
true translation
Michael
Palles
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