Date: 20010615
Docket: IMM-3253-00
Neutral Citation: 2001 FCT 664
BETWEEN:
ZSOLTNE BARANYI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 of a decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board dated June 6, 2000. In its decision, the CRDD determined the applicant not to be a convention refugee.
[2] The applicant seeks an order setting aside the above decision as it applies to her and referring the matter back for determination by a differently constituted panel.
Background Facts
[3] The applicant, Zsoltne Baranyi, is a citizen of Hungary, who arrived in Canada on September 29, 1998 with her two minor daughters and her husband. They made refugee claims based on their Roma ethnicity on this same day. The applicant and her husband have since separated and he has returned to Hungary. His refugee claim was declared abandoned prior to the hearing of the applicant's refugee claim, for which she acted as designated representative for her minor daughters.
[4] The applicant's claim was heard together with her daughters' on January 17, 2000 and March 9, 2000. In its decision, the CRDD found the applicant's two daughters to be Convention refugees, but the applicant not to be a Convention refugee.
[5] The applicant stated in the narrative of her Personal Information Form ("PIF") that she and her husband were attacked by skinheads on a street in 1995. She was pregnant at the time and lost her baby (and the ability to have children in the future) due to a kick in the abdomen. The applicant states the police station turned her and her husband away when they went to report the incident. The applicant was surrounded and attacked again by skinheads at Koztarsasag Ter in 1998. They managed to tear her shirt off before a group of Roma men came to her aid.
[6] The CRDD found that the applicant's testimony did not correspond with the information in her PIF on these two incidents. The Board wrote as follows with respect to the applicant at pages 2 and 3 of its decision:
In her oral testimony, the claimant could not recall the date of the last major incident prior to her leaving Hungary. She described the incident at Koztarsasag Ter square as transpiring in the summer of 1998 but initially seemed to link the kick to her stomach resulting in the loss of her child to this incident rather than the 1995 incident described in her PIF. In responding to questions from the Refugee Claim Officer (RCO), as to which incident happened in the summer of 1998 and which in 1995, the claimant indicated that her memory of the two incidents were blurred. In re-examination in response to leading questions from her counsel, the principal claimant confirmed the chronology set out in the written narrative, namely, that she lost her baby in 1995 and that her blouse was ripped in the summer of 1998 attack at Koztarsasag Ter. The principal claimant explained the confusion in her oral testimony to the embarrassment and humiliation she felt about these two incidents. No medical or hospital records or reports were produced to corroborate the principal claimant's testimony as to the injuries suffered and the date she received medical attention for these injuries.
And at pages 3 and 4, under the heading of Credibility:
The principal claimant's testimony about her own experiences at the hands of skinheads in Hungary was more problematic. There were discrepancies between her oral and written testimony as to the timing and specification of the incident which she alleged caused her to lose her baby and her future chances of having children. The principal claimant testified that she did receive medical treatment and surgery as a result of this incident at a hospital in Hungary. No medical or hospital records were produced to corroborate her testimony. The principal claimant testified that she had medical documentation back home in Hungary with respect to these injuries and her surgery. No explanation was given as to her failure to produce these documents at her hearing. The principal claimant attributed the mix-up in her oral testimony as to her own treatment at the hands of skinheads to the embarrassment and humiliation she felt in testifying to these incidents. The panel notes that the Koztarsasag Ter incident allegedly transpired in the summer of 1998, prior to the claimants' [sic] leaving Hungary. It was the precipitating event that caused the family to leave. Given this, the panel has difficulty in accepting the claimant's confusion over the date this incident happened and what transpired on that date.
After reviewing the evidence presented, the panel is not persuaded, on a balance of probabilities, that these two skinhead attacks on the principal claimant occurred as alleged.
Applicant's Submissions
[7] Did the CRDD err in law by failing to give due consideration to the applicant's evidence of the persecution of similarly situated people when determining that there was less than a mere possibility that the applicant would face persecution upon her return?
[8] The applicant submits the CRDD found her not to be a Convention refugee because it concluded that her past treatment did not constitute persecution. The applicant argues that rather than relying solely on her past experiences as an indicator of what is likely to occur in her future, the CRDD should have considered the treatment of her daughters.
[9] The applicant offers the following from paragraph 43 of the UNHRC Handbook: "These considerations need not necessarily be based on the applicant's own personal experience. What, for example, happened to his friends and relatives and other members of the same racial or social group may very well show that his fear that sooner or later he will also become a victim of persecution is well-founded." Thus, the applicant submits the CRDD erred by failing to give consideration to the evidence regarding treatment of her daughters in concluding that there was less than a mere possibility that she would face persecution upon return to Hungary.
Respondent's Submissions
[10] The respondent submits it is clear from the CRDD's reasons that it was fully aware of the situation of the applicant's daughters in assessing her claim. The CRDD found sufficient differences in the evidence advanced by the applicant and her daughters so that it could reach separate decisions on each of the claims. The respondent submits that the most notable difference was that the daughters' testimony was believed while the applicant's was not. The CRDD's findings regarding the applicant's credibility was reasonably open to it on the record.
Applicable Statutory Provisions
[11] The definition of "Convention refugee" under the provisions of the Immigration Act is:
| 2(1) "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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Issues
[12] 1. Did the CRDD make a reviewable error in law by failing to give
due consideration to the applicant's evidence of similarly situated people when determining that there was less than a mere possibility that the applicant would face persecution upon her return?
2. Did the CRDD make a reviewable error in law by finding that the two incidents described by the applicant did not happen?
Analysis and Decision
[13] Issue 1
Did the CRDD make a reviewable error in law by failing to give
due consideration to the applicant's evidence of similarly situated people when
determining that there was less than a mere possibility that the applicant would face persecution upon her return?
The tribunal record contains documentary evidence to the effect that other Roma citizens of Hungary are persecuted. The applicant is entitled to have this evidence considered with respect to her case and she can establish her persecution on this evidence. In Salibian v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 165 (F.C.A.) the Court stated at page 173:
It can be said in light of earlier decisions by this Court on claims to Convention refugee status that
(1) the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future;
(2) the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged;
. . .
And at pages 174 and 175:
. . . and I adopt this description of the applicable law to be found at the end of the aforementioned article:
In sum, while modern refugee law is concerned to recognize the protection needs of particular claimants, the best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in the country of origin. In the context of claims derived from situations of generalized oppression, therefore, the issue is not whether the claimant is more at risk than anyone else in her country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm for which the state is accountable, and if that risk is grounded in their civil or political status, then she is properly considered to be a Convention refugee.
In the case at Bar, the Division misunderstood the nature of the burden the applicant had to meet and dismissed his application on the basis of a lack of evidence of personal persecution in the past. This conclusion is a twofold error; in order to claim Convention refugee status, there is no need to show either that the persecution was personal or that there had been persecution in the past.
[14] Even in situations where the CRDD finds an applicant not to be credible it still must consider the documentary evidence. This Court in Seevaratnam v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 130 (F.C.T.D.) stated at page 132:
Clearly, where the only evidence linking the claimant to the persecution emanates from his or her testimony, rejecting the testimony means there is no longer a link to the persecution. It becomes impossible to establish a link between the person's claim and the documentary evidence.
This is obviously different from the present case, where there was evidence, including her NIC, emanating from sources other than the applicant's testimony, which can link her claim to the ongoing persecution of young Tamil women in Sri Lanka.
The documentary evidence may have established a well-found fear of persecution on the applicant's behalf or it may not have. The CRDD should have assessed this evidence to determine whether or not it established a well-founded fear of persecution. I have reviewed the decision of the CRDD and I can find no ference to the documentary evidence to the effect that other Roma citizens of Hungary are or were being persecuted. In my opinion, the CRDD committed a reviewable error of law by failing to consider this evidence, whether you apply a standard of review of reasonableness simpliciter or patent unreasonableness.
[15] In light of my decision with respect to issue 1, I need not deal with issue 2.
[16] The application for judicial review is therefore allowed and the matter is to be submitted to another panel of the CRDD for redetermination.
[17] The parties shall have five days from the date of my decision to submit a serious question of general importance, if any, for my consideration.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
June 15, 2001
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