Almasy v. Canada (Minister of Citizenship and Immigration), 2001 FCT 701

Date: 20010626

Docket: IMM-2494-00

                 Neutral Citation: 2001 FCT 701

BETWEEN:

                                     ALMASY, ZOLTAN

                                       KESZLER, EDIT

Applicants

                                                 - and -

                                    THE MINISTER OF

                     CITIZENSHIP AND IMMIGRATION

Respondent

                                REASONS FOR ORDER

GIBSON J.:

[1]    These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning given to that expression in subsection 2(1) of the Immigration Act^[1]. The decision of the CRDD is dated the 18^th of April, 2000.

[2]    The applicants are husband and wife, having married after their arrival in Canada to claim refugee status. Both are citizens of Hungary. The male applicant is of Roma ethnicity. The female applicant is of Hungarian ethnicity. The male applicant bases his claim to Convention refugee status on his ethnicity. The female applicant bases her claim on her marriage to a Roma.

[3]    In his narrative statement forming part of his Personal Information Form, the male applicant briefly describes a litany of discrimination against him, based on his ethnicity, during the period of his education, in attempting to secure employment, in his workplace and during his military service. He further recites the disapproval forcefully expressed by the female applicant's parents when they learned of the applicants' engagement and that culminated in threats, at least in the case of the male applicant, including threats of physical violence.

[4]    In very brief reasons, the CRDD determined:

They [the applicants] have failed to establish that there is a serious possibility that they would be persecuted in Hungary. They have not provided clear and convincing confirmation of Hungary's inability or unwillingness to protect them from Convention-based harm. Hungary makes serious efforts to protect ethnic and other minorities.

No documentary evidence is cited for the last-quoted sentence.

[5]    The CRDD continued:

However, I do not find credible the claimants' allegations and evidence of serious harm, or of cumulative acts of harassment and discrimination amounting to persecution.

The male claimant stated that he, himself, had experienced only one or two unpleasant incidents.

[6]    I find the first sentence in the immediately foregoing quotation equivocal. It does not appear to me to be clear whether the CRDD finds the claimants' allegations and evidence of serious harm and of cumulative acts of harassment not to be credible or whether it finds the applicants' submission that the allegations and evidence of serious harm and of cumulative acts of harassment and discrimination amount to persecution not to be credible. I prefer the first interpretation since the CRDD goes on to explain why it found the allegations and evidence of threats of serious harm not to be credible. That being said, the CRDD provides no explanation whatsoever as to why it finds the allegations and evidence of cumulative acts of harassment and discrimination not to be credible.

[7]    In Hilo v. Canada (Minister of Employment and Immigration)^[2], the Court of Appeal wrote in paragraph 6 of its reasons:

In my view, the board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The board's credibility assessment, quoted supra, is defective because it is couched in vague and general terms.

Here, the CRDD simply gives no reasons for casting doubt upon the applicants' credibility in relation to the acts of harassment and discrimination that the male applicant experienced. On that ground alone, this application for judicial review will be allowed.

[8]                Further, I find the indication in the second sentence of the immediately foregoing quotation that the male applicant had experienced "only one or two unpleasant incidents", presumably apart from the threats directed against him by the female applicant's parents, to be completely inconsistent with the evidence that was before the CRDD. As earlier indicated, in his Personal Information Form narrative, the male applicant recited, albeit in rather vague and general terms, a litany of experiences of harassment and discrimination that he had suffered. I can only conclude that the CRDD simply ignored, at least in that particular element of its reasons, evidence that was clearly before it and that would seem to have been acknowledged in the immediately proceeding sentences of its reasons.

[9]                As indicated earlier, the reasons provided by the CRDD for its decision in this matter were short. That is not, of itself, a fault. Indeed, brief reasons are to be encouraged where those reasons reflect a clear grasp of the evidence before the CRDD and an adequate analysis of that evidence against the relevant statutory, regulatory and jurisprudential law. Here, the CRDD's reasons fail both to reflect an adequate grasp of the totality of the evidence before it and a satisfactory analysis of the impact of relevant law in relation to that evidence.

[10]            In the result, this application for judicial review will be allowed, the decision of the CRDD that is under review will be set aside and the applicant's application for Convention refugee status will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.

[11]            Neither counsel recommended certification of a question. No question will be certified.

___________________________

                  J.F.C.C.

Ottawa, Ontario

June 26, 2001