Date: 20011106
Docket: IMM-4289-00
Neutral Citation: 2001 FCT 1209
BETWEEN:
TIBOR LAKATOS, DEBREI ILDIKO GONCZOLNE,
RENATA GONCZOL and BETTINA BAKATOS
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] Mr. Tibor Lakatos, Debrei Ildiko Gonczolne, Renata Gonczol and Bettina Bakatos (the "Applicants") seek judicial review of the decision made by the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") on July 27, 2000. In its decision, the Board determined the Applicants not to be Convention refugees.
FACTS
[2] Mr. Lakatos is the husband of Ms. Gonczolne. He is the principal Applicant. His wife is the designated representative of the minor children and she adopted the evidence of her husband, on her own behalf and on behalf of her children.
[3] All Applicants are citizens of Hungary and claim Convention refugee status on the ground of fear of persecution based on ethnicity and membership in a particular social group, that is being Roma and being family members of Roma.
[4] In his evidence, the principal Applicant recounted incidents of harassment, humiliation and segregation. He testified about trouble with his neighbours which he attributed to the Roma ethnicity of his family. He also gave evidence about unkind incidents against his children, including the death of the family dog. He claimed that he and his family had been subject to physical assaults from skinheads and the police and that the cumulative effect of threats, property damage and physical assaults by their neighbours forced them to flee their neighbourhood.
[5] The Board made negative credibility findings against the Applicant. The first finding related to the two day delay in seeking Convention refugee status following the arrival of the Applicant and his family in Canada. The Board found that this two day delay undermined his subjective fear of persecution.
[6] The Board also found that the failure of the Applicant and his family to claim Convention refugee status during trips to Austria and Greece, between 1994 and 1996, further undermined the Applicants' subjective fear of persecution.
[7] The Board found that the Applicant and his family had been subjected to harassment but that this was not tantamount to persecution. The Board noted that the principal Applicant was subjected to acts of vandalism against his house and car, that the family dog was poisoned, that the police did not respond to his complaints and that the neighbours were successful in obtaining a court order against him concerning certain repairs to his house. However, the Board did not find that these incidents amounted to persecution.
[8] The Board found that the principal Applicant failed to produce credible evidence to support his allegations that he had been harassed and abused by the police. The Board made a negative finding against him on the issue of credibility and drew a negative inference from the evidence concerning the his responses to questions about the skinheads and the police; the Board found the answers to be vague and inconclusive.
[9] Finally, the Board found that state protection is available even if the Applicant should have further encounters with a skinhead or harassment. The Board relied on documentary evidence which showed that incidents of skinhead attacks have decreased since 1992 to find that there is now "less than a mere possibility that the claimant would have any such encounters with skinheads today".
Reasons of the Board, Tribunal Record, page 9
APPLICANTS' SUBMISSIONS
[10] The Applicants argue that the Board erred in drawing a negative inference from the two day delay in the claim for Convention refugee status following their arrival in Canada. They say a further error was committed when the Board linked this delay with the failure to claim Convention refugee status in Austria or Greece. The Applicants argue that the Board ignored evidence to the effect that the decision to flee Hungary was made only after the visits to Austria and Greece had occurred and say that the return to Hungary after these visits cannot be taken into account in the assessment of the subjective fear of persecution.
[11] The Applicants also argue that the Board erred in making credibility findings adverse to the principal Applicant. In particular, they submit that the Board erred by focusing on his failure to record the incidents with the police and skinheads in his Personal Information Form ("PIF"), since that form only requires identification of the incidents which caused a claimant to flee his homeland. The Applicants say that the incidents in question were not the most recent and were not the cause of flight. For that reason, they were not included in the PIF.
[12] As well, the Applicants argue that the Board erred in law by misinterpreting the definition of "state protection" when it said that "no government...can guarantee the protection of all its citizens at all times". The Applicants says this is a misinterpretation of Canada vs. Villafranca (1992), 150 N.R. 232. The Applicants argue that they did not expect "guaranteed protection" but simply effective protection.
[13] Finally, the Applicants argue that the Board predetermined the outcome of their hearing by improperly relying on the "lead cases" to the exclusion of all other reliable and contrary evidence, and this reliance breached the principles of natural justice.
RESPONDENT'S SUBMISSIONS
[14] The Respondent argues that the Board is in the best position to assess the credibility of the Applicants and to draw the necessary inferences from the evidence. As long as there is an evidentiary foundation for those inferences, the Court should not intervene.
[15] The Respondent also argues that the Board did not improperly apply the definition of "state protection" set out in Canada v. Villafranca, supra. Instead, the Board correctly relied upon that case in considering that the risk identified by the Applicants was from non-state actors and that it is not possible for a state to guarantee protection from such a random form of risk.
[16] The Respondent also submits that the arguments of the Applicants in respect of credibility and state protection amount to a disagreement with the manner in which the Board weighed the evidence, as well as its conclusions and credibility. Since these issues are clearly within the jurisdiction of the Board as the trier of fact, the Board acted within its jurisdiction in making its determination on the issue of state protection.
[17] Finally, the Respondent submits there is no factual foundation in the record or in the decision that the Board improperly relied on the lead cases. The Board did not refer to these cases or to the evidence supporting them in its reasons. The Respondent argues that the Applicants have not demonstrated that the Board did not approach this case with an open mind.
ANALYSIS
[18] The disposition of this application for judicial review will turn on the applicable standard of review. That standard was stated by Justice Pelletier in Concova v. Canada (Minister of Citizenship and Immigration), [2000] S.C.J. No. 300 at paragraph 5 as follows:
The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193. The issue here is the CRDD's assessment of the evidence, a matter clearly within its mandate and its expertise.
[19] In my opinion, the thrust of the Applicants' arguments relates to the manner in which the Board assessed the evidence and made findings, including its findings on credibility. The assessment of credibility is clearly within the mandate of the Board; see Aguebor v. Minister of Employment and Immigration (1994), 160 N.R. 315 (F.C.A.).
[20] The Board's findings in this case were supported by the evidence. The findings of the Board with respect to the delay in seeking Convention refugee status in Austria or Greece, as a factor undermining the subjective element of the Applicants' fear of persecution, was a reasonable conclusion.
[21] In my opinion, the Board did not consider the two day delay in seeking Convention refugee status in Canada, after the Applicant's arrival in Canada, in isolation from the other evidence before it. The Board's conclusion on that point, that it further undermined the subjective fear of persecution, is reasonable.
[22] The Board made findings of fact and assessments of credibility which are supported by the evidence. There is no basis for judicial intervention.
[23] The application for judicial review is dismissed.
[24] Counsel advised that there is no question for certification.
ORDER
The application for judicial review is dismissed.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
November 6, 2001
Email this Content