Bordas v. Canada (Minister of Citizenship and Immigration), 2004 FC 9

                                                                                                                                             Date: 20040108

                                                                                                                                 Docket: IMM-4819-03

                                                                                                                                        Citation: 2004 FC 9

Between:

                                                                    GYULA BORDAS

                                                                                                                                                       Applicant

                                                                              - and -

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

PINARD J.:

[1]         This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated March 3, 2003, wherein the Board found that the applicant is not a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2]         The applicant is a citizen of Hungary and he alleges a well founded fear of persecution and a need for protection on the basis of his Roma ethnicity.

[3]         The Board found that the applicant failed to establish that he met the requirements for Convention refugee status or a "person in need of protection" because it found that the applicant's story was not credible. Furthermore, the Board concluded that the applicant had failed to rebut the presumption of the availability of state protection.

[4]         With respect to credibility, the Board seriously questioned the applicant's allegations pertaining to the persecution he had suffered. These allegations were central to the applicant's claim because they formed the basis of his fear of persecution. In light of the Federal Court of Appeal decision in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, the tribunal's perception that the claimant was not credible with respect to such a material element of his claim could effectively justify a finding that there was no credible evidence for that claim. As I find there was evidence supporting the Board's conclusion, the intervention of this Court, with respect to credibility, is not warranted.

[5]         Concerning the issue of state protection, I am satisfied, upon reviewing the evidence, that the Board did not err in finding that the applicant had failed to rebut the general presumption that the state is able to provide protection to its citizens, given the lack of clear and convincing evidence of the state's inability to do so (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). As it appears clearly from the decision that the Board seriously considered all of the relevant evidence, it was not required to mention every piece of it in its reasons. It was open to the Board to prefer some documentary evidence to other documentary evidence with respect to country conditions or state protection (Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.) and Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)).

[6]         Finally, with respect to the applicant's vague allegation that there is a reasonable apprehension of bias in the Board's conduct towards the applicant, a thorough review of the hearing transcripts reveals that there is absolutely no foundation to this allegation. The applicant has not provided any details about the alleged bias and, therefore, has failed to displace the presumption that the Board is impartial ([1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369). Furthermore, the applicant did not raise the issue during the hearing before the Board and, as a result, I consider that he waived his right to complain of bias before this Court (In re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103 (C.A.) and Cota v. Canada (M.C.I.), [1999] F.C.J. No. 872 (T.D.) (QL)).

[7]         For all the above reasons, the application for judicial review is dismissed.

Yvon Pinard

       JUDGE

OTTAWA, ONTARIO

January 8, 2004

                                                                    FEDERAL COURT

                                NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                            IMM-4819-03

STYLE OF CAUSE:                                            GYULA BORDAS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                      Toronto, Ontario

DATE OF HEARING:                           December 10, 2003

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD

DATED:                                                                January 8, 2004

APPEARANCES:

Ms. Amina Sherazee                                             FOR THE APPLICANT

Ms. Kareena Wilding                                            FOR THE RESPONDENT

SOLICITORS OF RECORD:

Galati, Rodrigues & Associates              FOR THE APPLICANT

Barristers & Solicitors

Toronto, Ontario

Morris Rosenberg                                                 FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario