Date: 20050324
Docket: IMM-1566-04
Citation: 2005 FC 412
Ottawa, Ontario, March 24, 2005
Present: The Honourable Mr. Justice Blais
BETWEEN:
SZALO KAROLY
SZUCS RITA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act of IRPA) of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated January 26, 2004, in which Mr. Karoly Szalo (the male applicant) and Mrs. Rita Szucs (the female applicant, collectively the applicants) were determined not to be Convention refugees nor persons in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicants are both citizens of Hungary and are common law husband and wife. The male applicant claims to have been born to a gypsy family, and that he is therefore a Roma Hungarian. Because the wife is not a Roma, they suffered discrimination as she was considered disloyal to her race for marrying a Roma.
[3] The applicants allege they have been the victims of numerous beatings, assaults and verbal abuse. The female applicant claims to have been assaulted to the point where she had a miscarriage and was hospitalized for a week; subsequently receiving trauma treatments for several more months. For that reason, the applicants decided not to have another child in Hungary.
[4] The male applicant submits that after being employed at a new job for a few weeks, other workers discovered and confronted him about his Roma background. He claims that his employer then fired him because he was ruining the reputation of the company. After this incident, the applicants encountered two employees with whom the male applicant had argued with during his previous employment, and scuffled with them, leading to a fractured rib, and the female applicant being beaten and having her hair pulled.
[5] Because of these incidents, the wife was afraid of staying home alone; the applicants therefore decided to move to a new apartment. At the same time, the female applicant's brother who is allegedly a police officer, threatened to charge the male applicant with a crime if he did not leave his wife. The applicants had to go into hiding, walking the town secretly, and not being able to divulge their address.
[6] This led to the female applicant going into depression, and having to seek psychiatric help for many weeks. The problems however, still did not stop; the male applicant claims to have been threatened, and to have had a knife held to his throat. The wife tried to tell her policeman brother, but he laughed and told her that no one listened to Romas. The applicants therefore arrived in Canada in July 2001, and claimed refugee status upon their arrival.
ISSUES
[7] 1. Did the Board err in its finding that the applicants were not credible?
2. Did the Board err in its conclusions regarding state protection?
ANALYSIS
1. Did the Board err in its finding that the applicants were not credible?
[8] The standard of review for questions dealing with credibility is that of a patently unreasonable decision (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraph 40; Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). That being said, I do not find that the applicants have demonstrated that the Board erred in its findings.
[9] The applicants claim that the Board should not have adduced documentary evidence unless it found them non-credible; I find that the Board did indeed motivate its reasoning for such a finding:
The panel finds that the male claimant is not credible due to the numerous inconsistencies and omissions between his oral testimony and the evidence in his Personal Information Form (PIF). Several times during the hearing, he was vague and evasive and did not testify in a straightforward manner.
The male claimant alleges that he sought the assistance of the police on two occasions regarding the alleged persecutions he faced, however, the panel noted that the claimant failed to include this information in his PIF. (See pages 2 and 3 of the reasons for decision dated January 26, 2004.)
[10] It is trite law that assessments of credibility, especially those based on demeanour and comportment during oral testimony, are within the scope of the specialized jurisdiction of the Board (Sun v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 636; De Rouiche v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1228).
[11] In addition to the unconvincing oral testimony of the applicants, the Board also mentioned numerous inconsistencies; among others:
The male applicant alleges that he sought the assistance of the police on two occasions regarding the alleged persecutions he faced, however, the panel noted that the claimant failed to include this information in his PIF. The male claimant testified that he had failed to include this information in his PIF since he was unclear as to what to include in his PIF narrative. The panel did not find this response as adequate, in light of the requirements set out in the preamble to Question #37 of the PIF. The panel finds that this is a material omission. (See pages 3 and 4 of the reasons for decision dated January 26, 2004.)
...
The male applicant alleges that he faced persecution in Hungary due to his Roma ethnicity, however, during oral testimony at the hearing when the claimant was asked which tribe or clan of Roma he belonged to, and although he identified himself as a musician, he could not or would not identify the clan or sect of Roma he allegedly belonged to. Furthermore, when the claimant was asked what customs or traditions he or his family followed, he testified that his mother would not wear pants. The panel drew a negative inference from this testimony regarding the male claimant's alleged ethnicity. (See page 4 of the reasons for decision dated January 26, 2004.)
...
The male claimant further alleged during viva voce evidence at the hearing that his family members were the agents of persecution. When it was noted for the male claimant that he had failed to indicate this in his PIF. The panel once again finds this to be a material omission. (See page 4 of the reasons for decision dated January 26, 2004.)
...
The panel further noted that the male claimant has 12 years of education, is trained as a skilled electrician, and has a significantly higher level of education than most Roma. His parents have had steady, long-term employment with the same firm for 35 years. The panel therefore finds that, based on testimony provided by the claimant at the hearing, on a balance on probabilities, the male claimant is not Roma. (See page 4 of the reasons for decision dated January 26, 2004.)
[12] I therefore find no fault in the Board's credibility findings, as they were not in any way perverse, capricious or made in disregard of the evidence. I would specifically mention that even the applicants mentioned that determining Roma ethnicity is never a clear and distinct matter, but that the best indicia are custom, dress, surname, behaviour and the like. That being said, I find nothing wrong with the manner in which the Board applied those above criteria, and determined that the male applicant is most probably not a Roma.
2. Did the Board err in its conclusions regarding state protection?
[13] The applicants claim that the Board erred in determining that adequate state protection was available to them in Hungary, and that they should have availed themselves of it before attempting a refugee claim. However, I find that the Board thoroughly reviewed the evidence presented to it, and found that the applicants failed to rebut the presumption that Hungary is able to protect them. As was stated by the Supreme Court of Canada:
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 50) [my emphasis]
[14] Furthermore, this Court has on numerous occasions determined that the Board had properly found adequate state protection for Roma Hungarians (Orban v. Canada (Minister of Citizenship and Immigration), 2004 FC 559, [2004] F.C.J. No. 681; Olah v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 623; Pal v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 894; Bela v.Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 902).
[15] The applicants rely on Molnar v. Canada (Minister of Citizenship and Immigration), 2003 2 .FC. 239, to assert that the Board erred in requiring them to have sought protection of state funded agencies other than the police. I would however, distinguish the facts in Molnar, supra, as in that case, the police were the ones alleged to be the agents of persecution. In the present case, not only were the police not the agents of persecution, but the brother of the female applicant was a police officer himself. It was therefore not unreasonable for the Board to assume that such a close family member would not simply stand aside while his sister was harassed. Furthermore, the Board itself mentioned and distinguished the Molnar case on the basis that in the present case, the police were not the agents of persecution:
The panel distinguishes this claim from the Federal Court decision in Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339 (T.D.). In Molnar, the agents of the alleged persecution were the police. However, in this case, the panel does not find that the police persecuted the claimants. (See page 12 of the reasons for decision dated January 26, 2004.)
[16] In addition, this Court has determined on numerous occasions that for the purpose of determining the existence of state protection, one can rely on the availability of state run or funded agencies and not only from the police (Nagy v. Canada (Minister of Citizenship and Immigration), 2002 FCT 281, [2002] F.C.J. No. 370; Zsuzsanna v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1206, [2002] F.C.J. No. 1642; Szucs v.Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1614).
[17] Finally, the Board made an in-depth analysis of many documents surrounding the adequacy of state protection in Hungary. In its lengthy reasons, the Board relied on numerous pieces of evidence, both in support and against the proposition that Hungary can offer adequate state protection to its citizens. After taking into account these documents, it found that:
The panel finds that the claimants did not avail themselves fully of the avenues of complaint and redress available to them. There is no evidence to indicate that there are barriers in his circumstances to prevent them from utilizing the various avenues available. (See page 12 of the reasons for decision dated January 26, 2004.)
[18] For all of the above mentioned reasons, I find that the Board did not err in determining that the applicants were not credible, and that regardless, they are able to find adequate state protection in Hungary. I am therefore of the opinion that this judicial review be dismissed.
[19] Neither party suggested a question for certification.
ORDER
THIS COURT ORDERS THAT:
- The application for judicial review be dismissed;
- No question be certified.
"Pierre Blais"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1566-04
STYLE OF CAUSE: SZALO KAROLY ET AL v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: March 9, 2005
REASONS FOR ORDER AND ORDER : Mr. Justice Blais
DATED: March 24, 2005
APPEARANCES:
Self Represented FOR PLAINTIFF / APPLICANT
Ms. Allision Phillips FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Self Represented
Toronto, Ontario FOR PLAINTIFF/APPLICANT
John. H. Sims, Q.C.
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario FOR DEFENDANT/ RESPONDENT
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