Zambo v. Canada (Minister of Citizenship and Immigration), 2002 FCT 414

Date: 20020411

Docket: IMM-2634-01

Neutral citation: 2002 FCT 414

BETWEEN:

                                                        ERIKA SUKI ZAMBO ET AL.

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MARTINEAU, J.:

[1]                 This is an application for judicial review from the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), dated January 16, 2001, wherein the Board determined that the applicants were not Convention refugees.

FACTS

[2]                 The applicants are citizens of Hungary. They have claimed a well-founded fear of persecution based on their ethnicity as Roma or gypsies. Gyula Zambo is the principal claimant. Joined to his claim were those of his wife, Gyulane Ilona Zambo; his son, Zsolt Zambo; his daughter, Erika Suki Zambo; his son-in-law, Csaba Suki; and his grandson, also named Csaba Suki (the "minor applicant").

[3]                 The applicants' story goes as back as far as 1965 when Gyulane's family gained notoriety because her and her brother, a well-known soccer player, were not allowed to travel on the team bus that was carrying other players and their families to a match. They could not ride on the bus because they are gypsies.

[4]                 Gyula and Gyulane worked as writers until 1983 when they opened a coffee shop in Hajdunanas. The police harassed their customers with constant identity checks and a racist slogan was once marked on their door. To escape the prejudice and discrimination that their children were also facing, the family moved to Budapest in 1987 and leased their business to an ethnic Hungarian.

[5]                 In 1991, Gyulane founded the Hungarian Gypsy Mother's Association (the "HGMA") that worked towards improving education, health, work, and welfare conditions for female gypsies in Hungary. Her work with the HGMA introduced her to various other organizations and allowed her to travel. In 1995, she represented the association in China and in the United States. Gyula, on the other hand, found work as an accountant, but only from 1992 until 1996. The pair arrived in Canada on September 30, 1998 and claimed refugee status on November 30, 1998.

[6]                 Erika was also an activist involved with the HGMA. She received training as a hairstylist, journalist, and political analyst at the Budapest School of Politics. In 1995, she worked for Antonia Haga, a Roma member of parliament. In that capacity she travelled to Austria, Czechoslovakia, France, Germany, Italy, Turkey, and Yugoslavia. She also attended conferences in Peking in 1995, the United Stated in 1996, and Spain in 1997.

[7]                 Erika and Csaba were married on May 15, 1993 and their son was born on February 16, 1994. While in Hungary, Csaba worked as a salesman, security guard, bodyguard, cook, and at a car wash.

[8]                 For his part, Zsolt pursued a career as a professional soccer player. He alleged before the Board that racial discrimination was a factor that prevented him from making it onto a professional team. Zsolt worked as a telephone installer from 1995 until leaving for Canada.

[9]                 Erika, Csaba, Zsolt, and the minor applicant travelled to Canada and claimed refugee status on September 15, 1998. However, Csaba abandoned his first refugee claim in July 1999 when he returned to Hungary to attend his godfather's funeral. He flew back to Canada on August 24, 1999, and made his second refugee claim at that time.

[10]            Before the Board, the applicants described various forms of harassment that they have suffered in the community due to their ethnicity. They asserted that they feared persecution at the hands of the police, ethnic Hungarians and skinheads. They relied on a series of events to establish their fear of persecution:

a) In 1993, Zsolt was attacked by skinheads while travelling on a streetcar in Budapest. He suffered minor injuries. The police said that there was nothing they could do unless Zsolt could identify his attackers and their whereabouts.

b) On July 24, 1993, Gyula and Gyulane's coffee shop in Hajdunanas burned down. It is alleged that the police knew the arsonists but an official report from the fire department lists the cause of the fire as unknown.

c) On July 30, 1993, Csaba was held overnight at the police station after a routine identity check. He was released the next morning when it was determined that a mistake had been made and that his documents were genuine.

d) In the summer of 1995, Erika, Csaba and their son moved into a new apartment in Budapest. Other tenants objected to having Roma tenants in their building and harassed them. On October 9, 1995, an ethnic Hungarian deliberately set a fire in their apartment while they were out.

e) In 1996, Zsolt was arrested. His experience was similar to Csaba's, as described above.

f) A death threat referring to Gyulane was received by a Toronto immigration lawyer who represented relatives of hers at another refugee hearing.

g) In 1998, police commandoes raided Gyula and Gyulane's apartment in Budapest and arrested Gyula. Gyula was taken to the police station but then told to go home as a mistake had been made. However, this is the one allegation that was not accepted by the Board.

[11]            Besides the testimony given by the applicants, the Board heard Mr. Hegyesi, a former member of the Hungarian police force in Budapest (1984 to 1994). He testified that there were few Roma police on the force at that time. He said that identity checks by the police were common during the communist era. He also said that gypsies were identified on police forms by the letter C and that police officers could distinguish between Roma and ethnic Hungarians by their physical appearance. Mr. Hegyesi stated that most Hungarian police are prejudiced against Roma and that the latter would be checked more thoroughly following traffic accidents or during random identity checks. He also said that police would respond more slowly when a gypsy had been attacked and that while complaints from gypsies would be listened to and investigations opened, these matters were assigned a low priority and often went unresolved.

DECISION OF THE BOARD

[12]            First, the Board made a distinction between discrimination and persecution. It held in this regard that the allegations complained of by the applicants would not meet the higher standard of persecution needed for refugee protection. In particular, the Board mentioned how the applicants were able to earn both an education and their own livelihoods. Since they held that Csaba's arrest in 1993 did not result in torture and was an isolated incident, they also held that it was not persecutorial in nature. Regarding Zsolt's confrontation with skinheads in 1993, the Board concluded that his injuries were not sufficiently serious to amount to persecution. And finally, with respect to the fires, the Board said that racially motivated harassment may be persecutory if serious emotional trauma or psychological harm is experienced by the victims. However, the Board in this case was not prepared to make such a finding since no psychological report or expert evidence was filed.

[13]            Second, the Board held that the applicants' travelling to and from Hungary was inconsistent with a subjective fear of persecution.

[14]            Third, the Board considered the objective basis for the applicants' fear at the hands of skinheads, police, and ethnic Hungarians. The Board noted that only one of the applicants suffered a skinhead attack and held that the fear of future attacks was decreasing. The Board said as follows at pages 13-14 of its reasons:

There is reliable documentary evidence that skinhead activity has declined dramatically since its apex in the early 1990s. The panel adopts the findings in the lead cases wherein the evidence shows that the number of skinheads has declined to no more and probably less than 1,000 relatives to a Roma population of over one half million. The panel finds no persuasive evidence that the Roma minority in Hungary is persistently and systematically targeted for serious harm by skinheads. The panel finds that the likelihood of the claimants experiencing a skinhead attack today is less than a serious possibility. [References omitted]

[15]            The Board also found that there was less than a mere possibility that the applicants would be persecuted by the police if they returned to Hungary. They noted that Csaba and Zsolt, the two who were detained, did not allege that they were beaten by the police. Furthermore, the most politically active applicants, the women, were never arrested by the Hungarian police. At page 14 of its reasons, the Board stated:

The documentary evidence does not establish that Roma on the streets in Hungary face a serious possibility of persecution by the police.

No reference was footnoted to this statement.

[16]            Then the Board commented on the applicants' fear of ethnic Hungarians. Here the Board took note of the applicants' documentary evidence packages chronicling widespread discrimination against Roma in Hungary but said that the same documents also described serious efforts by the Hungarian government to curb racial discrimination suffered by the Roma. The Board concluded therefore that the state could adequately protect the applicants from their ethnic neighbours.

[17]            Fourth, the Board held that the applicants had not succeeded in displacing the general presumption that states are capable of protecting their own citizens. Despite the evidence of Mr. Hegyesi and allegations of police misconduct following the fire in Hajdunanas, the Board found, based in part on documentary evidence as well as the applicants' own testimony, that Roma receive better protection in Budapest than in more rural parts of the country. In particular, the Board noted the authorities' response to the apartment fire in 1995.

[18]            Finally, the Board assessed the applicants' claim that they became refugees "sur place" by virtue of the threatening letter filed in evidence or due to the evidence that they have collected in support of their refugee claim and that of others. In the end, the Board held that the evidence could not support the applicants' claim on these bases either.

[19]            The Board rejected the applicants' claims therefore and concluded that there was no reasonable chance that the applicants would be persecuted on account of any of the relevant grounds if returned to Hungary.

THE ISSUE

[20]            This judicial review raises the following question: did the Board commit a reviewable error in failing to consider relevant documentary evidence with respect to the applicants' fear of being persecuted? In this regard, at the hearing, the applicants' counsel limited his attack to the findings related to the absence of an objective fear of persecution by skinheads and the police.

ANALYSIS

[21]            The definition of "Convention refugee" is set out in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), which states:

[22]            Two elements are required to establish a claimant's "well-founded fear" of persecution. Fear must be felt subjectively by the claimant and this fear must be well founded in an objective sense: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 688; Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.).

[23]            Key to its determination that the applicants' fear of attacks by skinheads is unfounded is the Board's finding that "[t]here is reliable documentary evidence that skinhead activity has declined dramatically since its apex in the early 1990's". More particularly, the Response to Information Request HUN 29312.E (28 April 1998) to which the Board refers in the footnote to this statement, mentions the following at point 1:

According to our information, [the skinheads] membership nationwide is less than 4,000. The so-called "hard-core" membership is less than 1,000. A decisive majority of them belong to the 15 to 25 age group.

They committed their first acts of violence in 1988. The groups originated primarily in Budapest, but bases were formed also in Szeged, Debrecen and Eger.

In 1990, in Eger and Miskolc, the skinheads had altercations with the Gypsies. The movement reached its apex in 1991 and 1992. (In 1991, for example, in Budapest, criminal proceedings were instituted against 50 persons for crimes of a racial nature.)

Since the beginning of the 1990's, they have congregated around the National Welfare Alliance (Népjóléti Szövetség), which functions as a political party. The party has no chance of winning a seat in [the Hungarian] Parliament.

In the last two years, infringements of legal rights [involving] skinheads have been essentially thrust into the background. This is attributable partly to the resolute actions of the authorities and partly to the fact that crimes motivated by racial discrimination are - because of amendments to the Criminal Code - resulting in more severe penalties.

[24]            Furthermore, the Board chose to adopt the findings in the lead cases (CRDD T98-04435, Berger, Bubrin, January 20, 1999, p. 32) "wherein the evidence shows that the number of skinheads has declined to no more and probably less than 1,000 relatives to a Roma population of one half million". As can be seen from the extract quoted above, there was evidence on the record (Tribunal Record at 1140) to support this particular finding.

[25]            The applicants contend that the Board erred when it adopted the findings of the lead cases and found that skinhead attacks had declined since the early 1990's. In their view, this contradicts various pieces of documentary evidence that they submitted and which say that the number of skinhead attacks on Roma in Hungary has either increased or is unascertainable. Furthermore, the applicants submit that the Board gave no reason for rejecting the applicants' evidence nor did it explain why it preferred the evidence from the lead cases. In this regard, the applicants submit that a failure to deal with conflicting evidence constitutes a reviewable error: Brazda v. Canada (Minister of Citizenship and Immigration) (2001), 11 Imm. L.R. (3d) 280 (F.C.T.D.).

[26]            I fully endorse the following comments of Blanchard J. in Horvath v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 901 at para. 7 (F.C.T.D.):

A lead case is not, in itself, determinative of other cases. Applicant's counsel has a right to comment on the evidence in lead cases, make comments on the appropriate weight to be given to the evidence, and submit his or her own evidence .

[27]            Moreover, it has been decided that the Board will not commit a reviewable error even if it fails to mention every piece of evidence that was presented before it so long as the Court sitting on judicial review is satisfied that the Board did adequately consider the totality of the evidence: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.).

[28]            After examining the documents that the applicants suggest were ignored, I am unable to conclude that the Board erred in not acknowledging this evidence which by itself is not conclusive. In my view, the conflicts in the evidence highlighted by the applicants are more apparent than real. The evidence concerning the number of skinheads in Hungary before the panel in the lead cases is found in the 1997 U.S. DOS Report and was essentially the same as the evidence provided to the Board in the case at bar. The applicants have also failed to convince me that the Board's finding that the applicants' fear of persecution by skinheads is unreasonable.

[29]            The applicants also contend that the Board disregarded the documentary evidence that supported their fear of being persecuted by the police if they returned to Hungary. As a corollary to this argument, it is also submitted that the Board erred by concluding that the applicants would be protected by the State since the applicants were in fact alleging to have been persecuted by the authorities themselves.

[30]            The Board concluded that there was no objective basis for the applicants' fear of persecution by the police. In weighing the oral and the documentary evidence, the Board found that there was less than a mere possibility that any of the applicants would be persecuted by the police if they returned to Hungary. The Board noted in its decision that the two most politically active applicants, Erika and Gyulane Zambo, were never arrested by the police. The two applicants who claimed to have been arrested by the police, Csaba Suki and Zsolt Zambo, stated that it only happened once (1995 and 1996 respectively) and that in both instances the police admitted that it was a mistaken arrest and released them the following day without there being any violent incident while in custody. Furthermore, when the police responded to the arson incident at the apartment in 1995, they apparently acted appropriately in that they took a statement from Erika Zambo and the alleged arsonist was taken away and not seen in the area again. The oral evidence therefore clearly shows that the applicants' fear of being persecuted by the police is unfounded.

[31]            Moreover, the Board took care to add that the documentary evidence does not establish that Roma on the streets in Hungary face a serious possibility of persecution by the police. While the documentary evidence upon which the applicants rely demonstrates that police violence against Roma is persistent and real, the applicants have failed to convince me that the Board has made any reviewable error in finding that "there is less than a mere possibility that any of the claimants will be persecuted by the police if they return to Hungary" (Board's decision at 14). I am unable to conclude that the Board disregarded relevant evidence in this respect. While I could have come to a different conclusion myself, the Board made a finding of fact which is not patently unreasonable. In the present case, the Board relied principally on the applicants' own testimony and that of a former member of the Hungarian police force based in Budapest that clearly support the findings made by the Board. As long as the Board was correct on this point, then there is no need to consider the other arguments raised by the applicants.

[32]            In this case, the Board found that the applicants had neither an objective nor subjective fear of persecution. The Board is the trier of fact. The Court cannot simply substitute its own findings for those of the Board, but will intervene only where the Board's decision "was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the [Board] failed to consider the appropriate factors": Suresh v. 2002 SCC 1">Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para. 29.    Accordingly, the applicants have failed to convince me that the Board committed a reviewable error.

[33]            There is another compelling reason for dismissing this application. The findings made by the Board with respect to the absence of a subjective fear of persecution remain unchallenged. When it is clear that no different result could be reached on a rehearing, the appropriate course of action is to refuse an order requiring that such be done: Popov v. Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 90 (F.C.T.D.).

[34]            For these reasons, the application for judicial review is dismissed.

[35]            The applicants asked that the following question be certified:

Whether a CRDD Panel may adopt a finding of fact made in a particular Lead Case, when faced with documentary evidence which is substantially new and conflicting with that presented in a particular Lead Case, without explicitly weighing and dealing with the conflict which the new documentary evidence creates?

[36]            In my view, the proposed question is not one that would be of broad significance or general application or determinative of the appeal: 2002 SCC 1">Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (F.C.A.).

OTTAWA, Ontario

April 11, 2002

                                                                                                        Judge