Date: 20040210
Docket: IMM-4991-02
Citation: 2004 FC 215
Ottawa, Ontario, this 10th day of February, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN
BETWEEN:
MIHAJLOVICS, GABOR, GOJKOVICS, TUNDE
and MIHAJLOVICS, GABOR
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PHELAN, J.
[1] This is an application for judicial review of the Refugee Protection Division of the Immigration and Refugee Board ("IRB") decision in which it was found that the Applicants were neither Convention refugees nor persons in need of protection.
[2] This case turns substantially on the conduct of the IRB panel members and whether they had exhibited bias or created a reasonable apprehension of bias.
Facts
[3] The Applicants are citizens of Hungary and Romas. The "principal Applicant" Gabor Mihajlovics claims a well-founded fear of persecution on the basis of his Roma ethnicity.
[4] Tunde Gojkovics, his common law wife and their child (who has the same name as the principal Applicant) base their claims on the principal Applicant's claim.
[5] The principal Applicant alleged that, as a Roma, he faced discrimination in school, the workplace and socially in Hungary. He also claimed that he was physically attacked by skinheads and ill-treated by the police.
[6] The Applicants left Hungary, arrived in Canada on April 21, 2000 and made refugee claims.
[7] The IRB, in its decision of August 6, 2002, held that the Applicants had failed to discharge the requisite burden of proof of a well-founded fear of persecution by failing to provide credible and trustworthy evidence.
[8] The IRB summarized its conclusions as follows:
It is our finding that the claimant's lack of credibility has negated his subjective fear. We further find that state protection would be reasonably forthcoming to the claimants should they seek it in the future and that they can return to Hungary where there is no more than a mere possibility that they will be persecuted for a Convention reason. The co-claimant and minor claimant's claim were totally dependent on the claimant's evidence/testimony. Based on this dependency, their claims must also fail noting that we have no reliable evidence before us which would indicate that they are more at risk.
[9] The IRB accepted the principal Applicant's claim respecting difficulties in school, the workplace and social situations because the documentary evidence confirmed that such discrimination is faced by the Roma. However, it was concluded that these incidents were not persecution.
Issues
[10] The Applicants raise three issues.
1. Did the panel members display bias, thereby resulting in adverse findings of credibility or create a reasonable apprehension of bias so as to impinge their credibility findings?
2. Did the IRB err in its analysis of discrimination as opposed to persecution?
3. Did the IRB err in its analysis of state protection?
Reasons
[11] While it is well established that on findings of fact, the IRB is accorded a standard of review of patent unreasonableness. On the issue of bias or reasonable apprehension, this is a matter for which there is little deference to the IRB and the standard of review is correctness. On the issue of persecution and discrimination, this is a question of mixed law and fact requiring a standard of reasonableness simpliciter.
Bias
[12] The Applicants contend that they experienced hostility, sarcasm and antagonism at the hands of the IRB, particularly panel member W. L. Bertie Wilson.
[13] The test for bias was articulated by the Supreme Court of Canada in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board [1978] 1 S.C.R. 369 as follows:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the question above, the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[14] There are two elements to the Applicants' bias claim. The first is that the IRB interjected, interfered with and made untoward comments to and about their then counsel. The second is that the principal Applicant suffered adverse and unsubstantiated comments and hostile questioning.
[15] In order to reach a proper conclusion on this issue, it is not sufficient to look at the words of which the Applicants' complain but to also set them in context, in the overall view of the proceedings, both before and after the offending comments and conduct.
[16] I have reviewed the two main incidents under the first claim, hostility to counsel, which are somewhat troubling.
[17] The first is found at page 8 of the Tribunal Record:
At this point, the hearing took a rather peculiar turn. The following is a sequence of questions from counsel and responses from the claimant (questions followed).
. . .
The panel uses the term "peculiar turn" to indicate the fact that a sudden set of unrelated questions were posed by counsel in a way as to suggest that it was a pre-rehearsed and pre-scripted approach leading to a particular result, to set the stage for a claim that the claimant suffered memory problems.
[18] The suggestion that counsel was involved in some attempt to deceive the IRB is completely without foundation.
[19] At page 14 of the Record, the IRB again comments adversely on counsel's conduct:
Moreover, counsel is being duplicitous when on the one hand, he suggests that the Hungarian state has failed to protect the Roma and then state in another area of his submissions that the election of the Young Democratic Party (FIDESZ) in 1998 that brought changes to the oppression of the Roma and then speculating that with a change of Government in April 2002 to the Socialista Communists who held power until 1998 will result in increased oppression. . . .
[20] An allegation that counsel is being duplicitous is tantamount to alleging bad faith and dishonesty. It may have been an unfortunate choice of words for what the IRB saw as an inconsistent argument.
[21] However, having examined the whole of the transcript, including those portions where the IRB was clearly sympathetic to counsel who had a most difficult client, I cannot find that "having thought the matter through" as required by the Supreme Court, the IRB exhibited bias or created a reasonable apprehension of bias in respect of the Applicants' counsel.
[22] The principal Applicant also claims that he was subjected to hostility and sarcasm. One must view the portions of the transcript in this context - this was no easy case and no easy witness.
[23] Whether through lack of understanding, problems with translation or deliberateness, the principal Applicant could not or would not answer questions in a responsive manner.
[24] His evidence on key matters, such as the attacks on he and his family, was inconsistent as to date, numbers and particulars. It was also established that he had failed to perform that which he had been ordered to by the IRB do; such as obtain a doctor's note justifying an adjournment of a hearing and confirming his fit medical state to attend at his hearing after claiming to suffer chest pains.
[25] The exchange about "his lucky date" and other comments were made against the background that the IRB would have been justified to consider his claim abandoned due to his failure to take proper steps to advance his claim and that of his family.
[26] Other comments such as "it wasn't a million years ago" were made after the principal Applicant was unable to recall such matters as the dates of attacks on him by skinheads, a principal part of his refugee claim, or recall whether he had been in the military or remember when he began living with his girlfriend.
[27] Viewed against this background, there was no actual bias nor did the comments create a reasonable apprehension of bias. They all related to credibility and lack of objectivity (see Kumar v. Canada (Minister of Employment and Immigration) [1988] F.C.J. No. 240).
[28] None of the comments or actions of the IRB viewed individually or collectively met the kind of threshold found in such cases as Reginald v. Canada (Minister of Citizenship and Immigration) [2002] 4 F.C. 523.
Discrimination versus Persecution
[29] Whether the treatment of a person constitutes discrimination or persecution has been held to be a matter requiring a standard of review of reasonableness simpliciter (see Mohacsi v. Canada (Minister of Citizenship and Immigration) 2003 FCT 429 at paragraph 35).
[30] There is no basis for suggesting that the events of discrimination at school, in the workplace or in social situations was ignored by the IRB. The IRB accepted that they happened but that they did not cross the threshold so as to constitute persecution. There is nothing unreasonable in this conclusion.
[31] The IRB had rejected the evidence of encounters with skinheads and the police on the basis that the principal Applicant's evidence was not credible. There is no basis for overturning this finding. The principal Applicant's evidence on these topics was anything but clear or convincing.
State Protection
[32] Little need be said on this issue. For the Applicants to succeed, the Applicants must satisfy a subjective and objective fear of persecution. The IRB, based on its credibility findings, found that the Applicants did not satisfy the subjective element.
[33] Even if state protection were a live issue, I find nothing unreasonable in the IRB's conclusion that state protection was available.
[34] There is no question to be certified, as the parties also agreed.
ORDER
[35] IT IS ORDERED that the application for judicial review is dismissed.
"Michael L. Phelan"
J.F.C.
Ottawa, Ontario
February 10, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4991-02
STYLE OF CAUSE: MIHAJLOVICS, GABOR, GOJKOVICS, TUNDE
and MIHAJLOVICS, GABOR
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, January 28, 2004
REASONS FOR ORDER AND ORDER OF PHELAN J.
DATED: Tuesday, February 10, 2004
APPEARANCES:
Elizabeth Jaszi
FOR APPLICANTS
Marcel Larouche
FOR RESPONDENT
SOLICITORS OF RECORD:
Elizabeth Jaszi
Toronto, Ontario
FOR APPLICANTS
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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