Date: 20040210
Docket: IMM-5305-02
Citation: 2004 FC 214
BETWEEN:
ERNO BADER
ERNONE BADER
NORBERT BADER
SZANDRA BADER
DORINA BADER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] The Applicants' application is principally an attack on the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") on the basis of both institutional and systemic bias against Roma refugee claimants. The Applicants also challenge the partiality of a Refugee Claims Officer (the "Officer"). As a result, the Applicants contend that the Board's analysis of their claim is so distorted as to be unsustainable both factually and legally.
Background
[2] The Applicants are Romas and citizens of Hungary. They arrived in Canada on August 8, 2000 and made this refugee claim that same day. The claim is based on their Roma ethnicity, their own fears and the persecution of Romas in Hungary.
[3] The Board dismissed their claim on the grounds that the Applicants experienced discrimination but not to a level which constituted persecution. The male Applicant, Erno Bader's actions of successive returns to Hungary was inconsistent with a subjective fear. The Applicants had failed to demonstrate that they could not access adequate protection in Hungary, where the government is trying to address issues related to Romas.
[4] The Board was clearly influenced by the fact that the male Applicant had, over the ten year span 1990 to 2000, frequently travelled to Germany to secure work. He would then return to Hungary with the money earned from his work in Germany. At no time did the male Applicant seek protection in Germany.
[5] The Board found that this pattern of re-availment was inconsistent with a well-founded fear of persecution in Hungary. There is nothing patently unreasonable in any way with this conclusion and the resultant finding that there was no subjective fear.
[6] The Board also examined incidents involving skinheads, the redress available to Romas and the Applicants' failure to avail themselves of such avenues of redress.
[7] The Board examined the incidents relied on by the Applicants, including having to pay for medical treatment, levels of Roma unemployment and the inadequacy of housing. The Board looked at all of these matters individually and cumulatively.
[8] The Board also considered the evidence, both favourable and unfavourable, on "country conditions" and the existence and adequacy of state protection.
[9] I can find nothing wrong with what material the Board considered, how the Board carried out its duties or the conclusions it reached. This finding would, in most cases conclude the application for judicial review but for the allegations of bias and reasonable apprehension of bias.
[10] The allegation of systemic bias, of actual bias or reasonable apprehension thereof and of political interference are serious matters. They would be very serious if there was a factual basis or legal analysis supporting the allegations.
[11] The Applicants' assertion is that the Board is under pressure to reject Roma claimants, including pressure from the former Minister. The result is that the Board was biased or that a reasonable person having knowledge of all the facts and having considered the matter objectively would have a reasonable concern. In order to reach a conclusion on this allegation, one must examine the factual underpinnings for the allegations.
[12] On the issue of institutional bias, the Applicants relied on an article by Ronald Lee, "Post-Communism Romani Migration to Canada" which alleged that "Canada Immigration" deliberately set out to deny refugee status to Hungarian Romani (see Application Record, p. 156).
[13] An article, much less one written by the Director of Advocacy, Roma Community and Advisory Centre in Toronto, is hardly sufficient evidence of "substantial grounds" required to make out a case of bias (see R v. R.D.S. [1997] 3 S.C.R. 484).
[14] As to political pressure, the Applicants rely on a statement by the then Minister that Hungary is not a "refugee-producing country". From this, and the fact that the government used some weak cases as lead cases to establish precedents, the Applicants contend that the Board is under pressure to reach an anti-Roma result. Furthermore, because the Board is not institutionally independent from the Minister, the Board has succumbed to the pressure.
[15] To give credence to this allegation is to raise gossip, innuendo and speculation to new heights of evidentiary value.
[16] The Board has security of tenure, has financial security and is free from the administrative control of the Minister such that it meets the test for institutional independence set forth by the Supreme Court of Canada in such cases, amongst others, as R v. Lippe [1991] 2 S.C.R. 114.
[17] The Applicants did not base their challenge on subsection 11(d) of the Charter nor did it lead any evidence (other than that cited) or substantial argument sufficient to be a basis for consideration of this matter. The fact that members must be reappointed by government does not, per se, establish institutional bias.
[18] The Applicants' contention, that the Officer overstepped his role and thereby biased the proceedings, cannot be made out. The Officer pointed out a number of inconsistencies between statements and documents. However, all the comments of the Officer were directed to alerting the Board as to issues of credibility. The Officer is not the decision maker.
[19] Whatever the conduct of the Officer, I cannot find that the Officer so influenced the Board that it did not reach its own conclusions or failed to make its own findings of credibility.
[20] Therefore, I have concluded that there is no basis for concluding that the Board was biased, in fact, nor was there institutional bias nor a reasonable apprehension of bias.
[21] As I have found that on the merits of the conclusion that the Applicants are not Convention refugees, there is no reviewable error. This application must be dismissed.
[22] The parties indicated their preference to consider a question to be certified after receipt of these Reasons. Either party may submit any question to be certified within seven days of the date of these Reasons; there will be four days thereafter for any response to the submission(s).
"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-5305-02
STYLE OF CAUSE: ERNO BADER, ERNONE BADER, NORBERT
BADER, SZANDRA BADER, DORINA BADER
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, January 28, 2004
REASONS FOR ORDER OF: PHELAN J.
DATED: Tuesday, February 10, 2004
APPEARANCES:
John Grice
FOR APPLICANTS
Martin Anderson
FOR RESPONDENT
SOLICITORS OF RECORD:
Davis & Grice
Toronto, Ontario
FOR APPLICANTS
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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