Canada (Minister of Citizenship and Immigration) v. Soltesz, 2002 FCT 467

Date: 20020425

Docket: IMM-2762-01

Neutral citation: 2002 FCT 467

BETWEEN:

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                       Applicant

                                                                              - and -

                                                                 AGNES SOLTESZ

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MARTINEAU J.

[1]                 The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), wherein the Board determined that the respondent is a Convention refugee.

[2]                 The respondent, a citizen of Hungary of Roma origin, arrived in Canada in June 1999 with her former common law spouse (the "husband"), an ethnic Hungarian. The latter had returned to Hungary at the time the Board held its hearing. The respondent claimed that she feared returning to Hungary because her husband, who had beaten and abused her in the past, had threatened to kill her if she ever decided to return to Hungary.

[3]                 The Board found the respondent credible and concluded that she had been subjected to "horrible abuse" by her husband. That being the case, it found that there was a serious possibility or a reasonable chance that the respondent's husband would continue to try and look for her, and eventually find her, should she return to Hungary. It concluded that "such abuse is harm sufficient enough to amount to persecution", and that this persecution flowed from a Convention ground, namely the respondent's membership in a "particular social group", that is "women who are abused". Furthermore, as a single woman and a Roma, it determined the respondent could not have access to adequate state protection in Hungary, since the respondent's "access to help as a victim of domestic violence is almost nil". Thus, it determined the respondent to be a Convention refugee.

[4]                 Although several grounds of attack were raised by the applicant in his application, all were abandoned at the hearing, except for the contention that the finding made by the Board with respect to the respondent's credibility had been made without regard to the evidence, or was otherwise patently unreasonable because the Board's reasons were insufficient. In support of his contention, the applicant relied on the following inconsistencies in the evidence:

(a)        The respondent came to Canada with her husband and lived with him until he returned to Hungary.

(b)        The respondent did not mention the problems that she had with her husband in the narrative portion of her Personal Information Form ("PIF") and only raised the issue of spousal abuse a few days before her hearing.

[5]                 The applicant submitted that the Board failed to address in its decision the negative impact of those inconsistencies on the respondent's credibility, thus, rendering the Board's findings unreasonable. However, the applicant has failed to convince me that the Board either ignored relevant evidence or rendered insufficient reasons.

[6]                 First, I note that during the hearing the Board member invited the respondent to clarify the fact that the PIF did not mention spousal abuse. She specified that a credibility assessment would be done. It is reasonable to suppose, therefore, that the answers given by the respondent resolved any concerns the Board member may have had. Transcripts show that the following exchanges took place during the hearing:

RANGAN: Okay? I want to know who you fear, why you fear them, whether what you have faced is discrimination or does it amount to persecution, whether State protection was available to you in your country of origin, and in all cases that come before the Panel, a credibility assessment will be done.

Your counsel tells me that a couple of days ago you had brought him the new issue of the spousal abuse at the hands of your ex-common-law spouse. I'd like to know why you didn't mention it in the PIF, and, I guess, evidence regarding that.

...

COUNSEL: And why didn't you mention in your story, in your PIF, about this situation?

CLAIMANT: Because when I wrote that, he was still here and if I had mentioned it he would have beaten me up very badly.

...

RANGAN: What made him - - why did he come to Canada then?

CLAIMANT: He said that he's going to be a better person, the atmosphere would be different.

RANGAN: What happened over here?

CLAIMANT: For a while he was behaving very nicely.

RANGAN: Okay, then what happened?

CLAIMANT: Then the whole thing started again.

RANGAN: The drinking or beating?

CLAIMANT: Beating.

RANGAN: Did you complain to the police here?

CLAIMANT: No, because it happened that he beat me up and locked me in so I couldn't go out.

RANGAN: You were not locked all the time.

CLAIMANT: I didn't dare to report him because he might have killed me because he was very aggressive. But I told him that I was going to report him, and that's why he went home.

...

[7]                 Second, it is not the role of the Court to decide if the answers given at the hearing by the respondent were satisfactory or not. The question of whether or not the respondent was credible is based on the Board's overall valuation of the respondent's testimony and the evidence on record. The Board has different means to assess the credibility of a claimant and the analysis of the inconsistencies between the PIF and the claimant's oral testimony is only one way to make this measurement. The Court should not impose any particular method on the Board.

[8]                 Third, credibility assessments depend on a variety of factors which are better left to the Board which has the benefit of hearing the witnesses. Furthermore, even if there are some inconsistencies this does not mean that this will automatically command a negative inference. The spontaneous character of the answers given during the examination, the details given concerning alleged incidents, the claimant's removal, etc. are also important. The Board's findings of fact and inferences concerning the credibility should not be disturbed unless they are perverse, capricious or patently unreasonable. Sharlow J., as she then was, in Gonzalez v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. 805 stated as follows:

In my view, it was open to the CRDD to assess the plausibility of the applicant's conduct as it did, by considering her story, and the manner in which it was told and tested in the course of the hearing, against the backdrop of other evidence and its own understanding of human behaviour. The comments of O'Halloran J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.) reflect my view:

In short, the real test of truth of the story of a witness ... must be its harmony with the preponderance of the probabilities which a reasonable and informed person would readily recognize as reasonable in that place and in those conditions.

I see nothing in the Giron case that is inconsistent with this conclusion. In this regard, I refer to the comments of Décary J.A. in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) at 316-7:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. [my emphasis]

[9]                 Fourth, I note that the Board's reasons were delivered orally almost immediately after the hearing. Therefore, Vida Rangan, the Board member, who made the decision, had a fresh recollection of the testimony given by the respondent. In her decision, she mentioned specifically that the respondent came to Canada with her husband in June 1999 but apparently on the rendering of the following reasons, she made no negative inference based on this fact. It is clear that the Board member believed the respondent and accepted the respondent's explanation that her husband, who had abused her in Hungary, had promised to change in Canada:

In January 1998, you resumed a common-law relationship with Bela Pinter who was an ethnic Hungarian. Bela Pinter had antagonized his family because of his relationship with a Roma. As a result, his family totally ostracized him and in particular his mother. He was unable to see the family and this aggravated his frustration. As a result of this, you became the target of his frustration. He started beating you, locked you in a room and verbally abused you. The frequency and the intensity of beating and abuse increased whenever he was inebriated. He threatened to kill you if you went to the police to complain, hence you refrained from doing so.

When you decided to leave the country, your ex-common-law spouse promised to change if he accompanied you to Canada. Believing his promise to be truly well meant and sincere, you and your common-law spouse travelled to Canada in June of 1999. There was a relative peace and calm for a brief period of time. However, your common-law spouse resumed his beating and verbal abuse of you once again after a short period after your arrival in Canada. Each time you threatened to call the police, he behaved himself but this did not last long. You felt confident about the police protection here and often told your common-law spouse that you would have him deported if he physically and verbally abused you again.

[10]            Finally, I conclude that the Board's findings of fact are not perverse or capricious, and that they are based on the evidence given by the respondent. Furthermore, there is a presumption that the Board considered all the evidence presented to it, unless the opposite is shown and regardless of whether all that evidence was mentioned in its reasons. The transcripts reveal that the respondent was questioned at length with respect to her relationship with her husband and the alleged acts of abuse in Hungary and Canada. In the course of her examination, the respondent explained why she came to Canada with her husband and why she feared returning to Hungary. The respondent also explained why the information concerning the beatings by her husband was not mentioned in the PIF. The explanations given by the respondent are certainly plausible. Manifestly, it was not irrational or capricious for the Board member to accept them and I find that it was under no obligation here to deal in its decision with the inconsistencies now raised by the applicant. I find this case quite different from a situation where the Board finds a claimant not to be credible. In view of the adverse consequences a negative finding has on the refugee claim, it is expected that the Board will provide more detailed explanations, especially if there is conflicting evidence. This is not the case here.

[11]            In final analysis, I am satisfied that the Board considered the totality of the evidence. I also find that the reasons given by it were sufficient and adequate in the circumstances. It has set out in its decision its findings of fact and the principal evidence upon which those findings were based. The reasons also address the major points in issue. The reasoning process followed by it is clearly set out in its decision and reflect consideration of the main relevant factors present in the Convention refugee definition in section 2 of theImmigration Act. Accordingly, there is no reason to intervene.

[12]            Therefore, this application for judicial review is dismissed.

[13]            Neither counsel submitted a question of general importance for certification.

OTTAWA, Ontario

April 25, 2002

                                                                                                           Judge