Date: 20030409
Docket: IMM-2154-02
Neutral citation: 2003 FCT 417
Ottawa, Ontario, this 9th day of April, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
LAJOS GYARMATI
LAJOSNE GYARMATI
ANNA GYARMATI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of S. Budaci and F. Mortazavi of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated April 18, 2002 wherein Lajos Gyarmat, his wife Lajosne Gyarmati, and their daughter Anna Gyarmati (the "Applicants") were found not to be Convention refugees.
Background
[2] The Applicants are all citizens of Hungary. They claim to be Convention refugees based on the grounds of their alleged Roma ethnicity and fear that returning to Hungary would subject them to additional acts of persecution.
[3] In their new Personal Information Form ("PIF") narrative and in their testimony during the hearing, the Applicants described three specific incidents of persecution based on their Roma ethnicity.
1. Verbal abuse of Lajos Gyarmati (the "Male Applicant") at a skinhead rally on March 15, 2000.
2. Assault of Lajosne Gyarmati (the "Female Applicant") in June 2000 by two skinheads.
3. Assault of the Male and Female Applicants on August 17, 2000 by three men who appeared to be skinheads.
[4] The Applicants arrived in Canada on September 15, 2000 and claimed Convention refugee status.
[5] In the Board's decision, the determinative issue in this claim was credibility. The Board did not find the Applicants to be credible witnesses based on the omissions, inconsistencies and implausibilities within their oral testimony and the documentary evidence produced in support of their claim.
Issues
[6] The Applicants raise the following issue:
Were the Board's credibility and implausibility findings supported by the evidence?
Analysis
[7] For the reasons that follow, I would allow this application.
Standard of Review
[8] Questions of credibility and weight of evidence are matters particularly within the Board's jurisdiction to decide (Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (C.A.) (QL); Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.) (QL)). As a result, the appropriate standard of review is one of patent unreasonableness, which means that findings of credibility must be supported by the evidence and must not be made capriciously or based on erroneous findings of fact (Aguebor, supra; Chen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 551 (C.A.) (QL)).
[9] The Applicants' submissions are simply that the Board failed to meet this standard. The Respondent argues that there is no evidence to suggest that the Board refused to consider any evidence, or that it ignored evidence or that it made an erroneous finding with respect to any evidence. In my view, a careful analysis of the key findings of the Board demonstrates that the Applicants are correct.
Failure to Claim Refugee Status in Germany
[10] In 1999, the Male Applicant spent one month in Germany in order to help his sister-in-law renovate her home. The Board drew a negative inference from the omission of this trip to Germany from the Male Applicant's PIF and found that his failure to seek asylum in Germany was inconsistent with his alleged fear of persecution. The Board also found that, if the Male Applicant truly feared persecution, he would have renewed his passport earlier and not waited until days before they fled Hungary for Canada.
[11] In making these findings, the Board failed to take into account the explanation of the Applicants that the alleged persecutory events occurred after the trip to Germany. Accordingly, the Board committed a reviewable error in ignoring both the reasonable explanation and the written narrative of events which supported the Male Applicant's testimony. All of the adverse observations made by the Board on the Germany issue were made without regard to the evidence.
[12] Further and for similar reasons, it was patently unreasonable for the Board to find that, if he truly feared persecution, the Male Applicant would have renewed his passport in 1999 before any persecution took place.
Failure to List Post-1994 Part-time Employment in Male Applicant's PIF
[13] The Board impugned the Male Applicant's credibility for his failure to list part-time employment in his PIF. The Board found this to be a significant omission in light of the new PIF narrative which described the Male Applicant's encounter with the Truth and Life Party skinhead rally on his way home from work.
[14] In my view, the Board's finding on this issue is erroneous for two main reasons. First, on September 11, 2001, then counsel for the Applicants sent a letter to the Board amending the work history of the Male Applicant's PIF to include that, after 1994, he was "employed in a variety of miscellaneous jobs, all of them 'unofficial.'" As a result, it is not entirely clear to me that the Male Applicant's post-1994 work history was actually omitted from his PIF. Although he did not list every single miscellaneous and unofficial job that he had from 1994 until the present, I am not of the view that this was a significant omission.
[15] Second, I agree with the submission of the Applicants that the Male Applicant's work history is not a central element to his claim. Although the Male Applicant testified that he encountered the skinhead rally on his way home from work, the significant element of this incident to the Applicants' claim is the skinhead rally and not where the Male Applicant was coming from when he encountered this rally. In other words, for the purposes of this refugee claim, it is irrelevant where the Male Applicant was before he encountered the skinhead rally. As a result, the Male Applicant's failure to mention his post-1994 work in his PIF was not a significant omission and the Board was not entitled to draw an negative inference from this failure (Lobo v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 597 (T.D.) (QL)).
Implausible That Male Applicant Would Not Immediately Leave Skinhead Rally
[16] The Board also found that it was implausible that the Male Applicant would not immediately leave the rally when he discovered that it was a skinhead rally. According to the Board, the Male Applicant explained that he attempted to pull his cap down over his eyes while observing what was taking place.
[17] The Board's plausibility finding on this issue is refuted by the evidence. Contrary to the finding of the Board, the Male Applicant stated both in oral and written testimony that he left the rally quickly.
[18] In my view, the Board, "at the very least, distorted the applicant's testimony before it. It ignored relevant elements of the testimony before it to such a degree as to lead the Court to conclude that it very well might not have had regard to the totality of the evidence" (Yukselir v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 180 at para. 10 (T.D.) (QL)). As a result, the Board's finding on this issue was not supported by the evidence before it and is patently unreasonable (Aguebor, supra; Chen, supra).
Conclusion
[19] Cumulatively, the errors identified suffice, in my view, to conclude that the decision of the Board should not stand. However, there are further problems with the decision, which add strength to my view. These further errors include:
· dismissing the report of psychiatrist Dr. Baruch as being of no probative value simply because Dr. Baruch reasonably concluded, based on the facts before her, that the female Applicant was sexually assaulted (Aguebor, supra);
· ignoring the uncontradicted testimony and medical reports regarding the August 17, 2000 attack at the train station (Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (C.A.) (QL)). In respect of this point, which was raised by the Applicants only the day before the proceeding, I allowed the Respondent to file written submissions and the Applicant to reply. Having read those submissions, I am of the view that the failure to mention this attack in its decision was a reviewable error;
· failing to address the objective basis of the Applicants' fear and consider the testimony of Dr. Braun and documentary evidence regarding state protection (Aguebor, supra).
[20] Given the large number of significant errors in the Board's adverse credibility finding, that finding was patently unreasonably and was based on findings of fact made in a perverse or capricious manner or without regard for the material before it.
[21] As a result, this application for judicial review should be allowed.
ORDER
THIS COURT ORDERS that this application is allowed. The decision of the Board is quashed and this matter is sent back to the Refugee Protection Division for re-determination by a differently constituted panel. There is no question for certification.
"Judith A. Snider"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2154-02
STYLE OF CAUSE: LAJOS GYARMATI, LAJOSNE GYARMATI,
ANNA GYARMATI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 2, 2003
REASONS FOR ORDER
AND ORDER BY: SNIDER, J.
DATED: WEDNESDAY, APRIL 2, 2003
APPEARANCES BY: Mr. Harvey Savage
For the Applicants
Ms. Jeremiah Eastman
For the Respondent
SOLICITORS OF RECORD: Harvey Savage
Barrister & Solicitor
Suite 2000-393 University Avenue
Toronto, Ontario
M5G 1E6
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030402
Docket: IMM-2154-02
BETWEEN:
LAJOS GYARMATI, LAJOSNE GYARMATI, ANNA GYARMATI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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