Date: 20011106
Docket: IMM-982-01
Neutral Citation: 2001 FCT 1210
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
JOZSEF BALOGH
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] The Minister of Citizenship and Immigration (the "Applicant") seeks judicial review of the decision made by the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), dated February 10, 2001. In its decision, the Board determined that Mr. Jozsef Balogh (the "Respondent") is a Convention refugee.
FACTS
[2] The Respondent is a citizen of Hungary and claims to be of Roma ancestry. He came to Canada on October 28, 1999, arriving at the Pearson International Airport where he stated his intention to make a refugee claim. At this time, the Respondent only mentioned his Roma ancestry as a basis for a refugee claim. He later added his membership in a particular social group, that is homosexuals, to his claim.
[3] In his Personal Information Form (PIF), the Respondent said he had been beaten by the police in the summers of 1996 and 1997 while living in Ozd. He recounted that these incidents occurred after altercations with Hungarians at a disco, on one occasion, and a pool hall, on the other. He characterized these incidents as being racially motivated because he was Roma and said that each time, he was ordered to sign a release stating that the police did not mistreat him.
[4] After he moved from Ozd to Budapest, the Respondent said that three more police beatings and a detention occurred as a result of his presence with his male companion in parks or city squares. These incidents were presented as evidence in support of his claim of a fear of persecution on the basis of sexual orientation.
DECISION OF THE BOARD
[5] In its decision, the Board rejected the Respondent's claim that he was subject to persecution on the basis of ethnicity. It found that he failed to meet the burden of establishing that he was a member of a particular social group, that is Roma. However, the Board did find that he was a member of a particular social group defined by sexual orientation.
[6] The documentary evidence before the Board focused primarily on incidents of persecution against Roma. Since the Board found that the Respondent had failed to satisfy the burden of proving he was Roma, it considered the treatment of homosexuals in Hungary. The evidence in that regard was largely positive and the Board noted that violence against homosexuals in Hungary had been "rare in the past few years". The Board made the following finding:
There is no serious possibility that the claimant might face persecution on return to Hungary. Rather, in my view, the ill-treatment the claimant would face, at worst, would amount to discrimination.
Reasons of the Board, Tribunal Record, pages 9-10
[7] However, the Board then went on to conclude that the Respondent had a well-founded fear of returning to Hungary because he would be assaulted by Hungarians, including the police. The Board found that the Respondent's experiences with, and fear of, the police in Hungary rebutted the presumption of state protection for citizens in Hungary. On this basis, the Board found him to be a Convention refugee.
APPLICANT'S SUBMISSIONS
[8] The Applicant argues that the Board's finding of no serious possibility of persecution of the Respondent in Hungary contradicts its subsequent conclusion that the Respondent had a well-founded fear of persecution. As such, the decision is based upon contradictory findings of fact and should be set aside.
[9] The Applicant argues that the appropriate standard of review in this case is that of patent unreasonableness and relies on the decisions of the Federal Court of Appeal in Tiefenbrunner v. Canada (Attorney General), [1992] F.C.J. No. 1021 (C.A.) and Canada Pasta Manufacturers' Association v. Aurora Importing and Distributing Ltd. (1997), 208 N.R. 329 (F.C.A.). The Applicant says that a decision which is based upon contradictory findings of fact is patently unreasonable.
[10] The Applicant argues that once the Board concluded that the Respondent did not face a serious possibility of persecution if returned to Hungary, it could not then conclude that he was justified in having a well-founded fear of the police in Hungary.
RESPONDENT'S SUBMISSIONS
[11] The Respondent submits that there is only an appearance of contradictory factual findings in the Board's reasons and that the apparent contradiction can be eliminated once the organizational framework of the reasons is analysed.
[12] According to the Respondent, the Board looked at the documentary evidence and found it to be of little assistance in supporting his claim of fear of persecution on the basis of his sexual orientation. However, the Board did not reject the credibility of the Respondent's evidence about his subjective fear of persecution.
[13] The Respondent says the Board was entitled to rely on his credible evidence concerning his fear of persecution, notwithstanding the documentary evidence. He says that the apparent contradiction can be overcome by looking at the outline of the decision in which the Board first looks at the documentary evidence and then considers his subjective fear of persecution and the issue of state protection. He argues that the Board's decision is reasonable, when considered from this perspective.
ISSUE
[14] There is one issue arising in this application:
What is the effect of the contradictory findings made by the Board concerning the Respondent's alleged fear of persecution in Hungary?
ANALYSIS
[15] This application for judicial review is brought pursuant to the Federal Court Act,
R.S., c. 10 (2nd Supp.), s. 18.1(4)(d):
| 18.1(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
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18.1(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_:
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
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[16] Certain passages in the Board's reasons were emphasized by the Applicant. The first is a statement made at the commencement of the reasons, providing an overview of the Board's assessment of the Respondent's situation, as follows:
Based on a full consideration of the totality of the evidence, that is, the narrative portion of the Personal Information Form (PIF), in response to question 37, the oral testimony, the documentation filed as exhibits by the Refugee Claim Officer (RCO) and the claimant's counsel, Canada Immigration documents and notes, observations by the RCO and counsel's submissions, the panel determines that the claimant has not established that there is more than a mere possibility that he would face serious harm amounting to persecution if he returns to Hungary.
Reasons of the Board, Tribunal Record, page 4
[17] The second statement relates to the Respondent's fear of persecution on the basis of his sexual orientation, as follows:
. . .The truth is his fear in remaining in or returning to Hungary, where he alleged that they would, as a homosexual, be humiliated and assaulted by Hungarians, including the police, from whom he would expect to get protection.
Reasons of the Board, Tribunal Record, page 9
[18] Next the Applicant refers to this statement:
Given the legal framework available and evidence of the gay spokespersons that violence is rare, along with evidence of functioning gay clubs and magazines, I find that there is no serious possibility that the claimant might face persecution on return to Hungary. Rather, in my view, the ill-treatment the claimant would face, at worst, would amount to discrimination.
Reasons of the Board, Tribunal Record, page 10
[19] In its discussion of the issue of state protection, the Board made the following statements and conclusions:
After all these experiences with the police, who demonstrated disdain for and hatred of homosexuals, and the infliction of such harm on the claimant, I find that the claimant is justified in having a well-founded fear of the police. It is reasonable to conclude that the state would not offer him protection.
Despite the no doubt, well-meaning initiatives by the government to maintain the rights of homosexuals, I have to consider the merits of this claim, in light of its own circumstances. In my view, the claimant has rebutted the presumption of state protection for citizens of Hungary.
As a member of a particular social group, to wit: homosexuals, he has established that should he return to Hungary, there is a reasonable chance that he would suffer serious harm, particularly at the hands of the police.
Reasons of the Board, Tribunal Record, pages 11-12
[20] The Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act"), defines the term "Convention refugee" as follows:
| "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
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« réfugié au sens de la Convention » Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
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[21] The legal test for fear of persecution in relation to a claim for Convention refugee status was considered by the Federal Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, where the Court said at paragraph 8 as follows:
What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility.
[22] In the present case, the Board was required to consider whether the basis of alleged persecution, that is sexual orientation, would give rise to a "reasonable" or "serious possibility" of persecution, if the Respondent were to return to Hungary. The Board found that there was no such reasonable or serious possibility of persecution, and that the Respondent had not shown that there was more than a mere possibility of persecution.
[23] This finding, together with the Board's finding that the Respondent would face only discrimination, cannot coexist with the conclusion stated by the Board at page 8 of its reasons, when it found that the Respondent had a well-founded fear of the police.
[24] The issue of state protection does not exist independently of the inquiry into Convention refugee status. In Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689, the Court said as follows:
It is clear that the lynch-pin of the analysis is the state's inability to protect: it is a crucial element in determining whether the claimant's fear is well-founded, and thereby the objective reasonableness of his or her unwillingness to seek the protection of his or her state of nationality. . .
. . .
Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution.
[25] Having found that the Respondent would not suffer more than a mere possibility of facing serious harm if returned to Hungary, the Board had decided the question before it and reached the conclusion that the Respondent was not in danger of persecution. The issue of state protection does not arise.
[26] In my opinion, the submissions of the Applicant must prevail. It is clear on the face of these reasons that the Board made contradictory statements. When it determined that the Respondent had not established that "there is more than a mere possibility that he would face serious harm amounting to persecution" in Hungary, the Board had decided the ultimate question before it, that is whether the Respondent met the definition of a Convention refugee and could not legitimately reverse itself later.
[27] The conclusions of the Board in this instance are patently unreasonable and that unreasonableness is apparent on the face of the decision. In the result, the application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Board for determination.
[28] Counsel advise that there is no question for certification.
ORDER
The application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Board for determination.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
November 6, 2001
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