Docket: IMM-5301-11
Citation: 2012 FC 432
Ottawa, Ontario, April 13,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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FERENC BOZSOLIK
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated July
20, 2011, finding that the applicant was neither a Convention refugee nor a
person in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow the application is dismissed.
Facts
[2]
The
applicant, Ferenc Bozsolik, is a citizen of Hungary. He alleges
fear of persecution based on his part-Romani ethnicity (his father is Romani
and his mother is a Hungarian). He states that he suffered discrimination and
persecution throughout his life and was assaulted on many occasions by members
of the Hungarian guard, skinheads and the police. He fled Hungary in 2000, and
lived in the United States (US) for several years, but did not seek asylum. He
was eventually deported because he was in the US without
status.
[3]
The
applicant states that when he returned to Hungary, he found
that the treatment of Romani people had worsened. He traveled to Canada in February
2010 and claimed refugee protection at the port of entry (POE).
[4]
At
the hearing before the Board, counsel for the applicant made a motion for a new
hearing with a different panel on the grounds that the Board member’s conduct
gave rise to a reasonable apprehension of bias. The applicant alleged that the
Board had closed its mind and predetermined the credibility of the applicant
and refused to allow counsel for the applicant to make oral submissions.
Decision Under Review
Motion for new hearing because
of bias
[5]
The
Board denied the motion for a new hearing and found that it was permitted to
question the applicant in order to ascertain the truthfulness of his story.
The Board rejected the assertion that the presumption of truthfulness of
testimony meant that the Board could not question a claimant on that testimony.
[6]
The
Board noted that counsel for the applicant had argued that contradictions
between the POE notes and the applicant’s testimony were not a valid basis for
a negative credibility finding. The Board emphasized that it had not made any
such findings at the hearing but was simply seeking clarifications of apparent
discrepancies. The Board also noted the applicant’s characterization of his
demeanour as angry and cynical, but rejected these assertions. The Board found
that extensive and energetic questioning was permitted and necessary to
determine credibility.
Credibility and Subjective
Fear
[7]
The
Board reviewed the legal principles related to credibility, including the
presumption that testimony is truthful unless there is a valid reason to doubt
its veracity. The Board accepted that the applicant had some Romani ethnic
links, that he served in the military and lived in the US before being
deported. However, the Board rejected the applicant’s claims to have been
subject to discrimination, persecution, harassment and violence in Hungary. The Board
stated that it reached this conclusion because of omissions and
inconsistencies.
[8]
The
Board noted that at the Port of Entry, the applicant indicated that nothing had
happened to him personally for being Roma, but when he completed his Personal
Information Form (PIF) narrative he alleged to be the victim of repeated
assaults and police harassment. The Board found that the applicant did not
provide a satisfactory explanation for this discrepancy and his answers in
respect of his failure to do so were evasive. The Board rejected the
applicant’s assertion that the POE notes had not been translated back to him in
Hungarian.
[9]
The
Board found that there was no credible evidence that the applicant had ever
personally been subject to discrimination or persecution for his Romani ethnicity.
The Board noted a supporting document from the Roma Minority Local Government,
but found that the applicant was the likely source of information in that
document and therefore accorded it very little weight. The Board also noted
that the applicant stated in his PIF that he had reported the violence against
him to the police, but that in oral testimony he said he had never made such a
report. The Board also drew a negative inference regarding subjective fear
from the applicant’s failure to seek asylum in the US.
State Protection
[10]
The
Board went on to consider whether there was adequate state protection in Hungary for Romani
people. The Board noted the problem of discrimination and violence against
Roma in Hungary, but found
that state protection was available.
[11]
The
Board noted that the applicant had never made an official report to police
about the alleged violence he experienced and found that protection would have
been reasonably forthcoming if the applicant had sought it. The Board considered
the documentary evidence on state protection in Hungary in
considerable detail, concluding that the applicant had not presented clear and
convincing evidence that protection would not be available to him. The
applicant’s claim was therefore refused.
Standard of Review and Issue
[12]
This
application raises the following issues:
a. Did the
Board’s conduct give rise to a reasonable apprehension of bias?
b. Did the Board
breach the principles of procedural fairness by refusing to allow oral
submissions?
c. Were the Board’s
credibility findings reasonable?
d. Were the
Board’s state protection findings reasonable?
Analysis
Issue: Did the Board’s
conduct give rise to a reasonable apprehension of bias?
[13]
The
test for a reasonable apprehension of bias was articulated by Justice de
Grandpre in Committee for Justice and Liberty v National
Energy Board, [1978] 1 S.C.R. 369 at 394:
… the apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is “what would an informed person,
viewing the matter realistically and practically—and having thought the matter
through—conclude. Would he think that it is more likely than not that [the
decision-maker], whether consciously or unconsciously, would not decide fairly.
[14]
The
applicant relies principally on the argument that the Board Member was angry
and hostile during the hearing, gave the impression that his mind was closed
and he had predetermined the applicant’s credibility. However, the examples
presented by the applicant from the hearing transcript do not support this
argument.
[15]
Counsel
for the applicant engaged the Board Member in many disputes over his
questioning, particularly regarding the POE notes. Counsel objected to this
line of questioning and tried to prevent the Board Member from pursuing it.
The Board Member indicated repeatedly that counsel could address any issues he
felt had arisen during re-examination of the applicant and during his
submissions. This was the correct response to counsel’s objections. The Board
Member acted in a reasonable manner in light of counsel’s conduct, which came
dangerously close to attempting to dictate how the Board could question the
applicant.
[16]
The
passage urged on the Court as the most egregious example of bias is attached as
Appendix A to this decision. It does not support the suggestion of bias. The
assessment of an allegation of bias is necessarily informed by its context. In
this case, the context includes the fact that Board members play an
inquisitorial role. They are charged with making multiple determinations of
fact and credibility, without the formalism of judicial proceeding and often
without the benefit of counsel, who, in usual adversarial context, would ensure
that the hard questions were asked. In consequence of the structure of the
Board as established by its constituent legislation, Board members necessarily
play an inquisitorial role in a manner that would not be appropriate for a
court in the context of an adversarial proceeding.
Issue: Did the Board breach
the principles of procedural fairness by refusing to allow oral submissions?
[17]
The
applicant also argues that the Board’s refusal to allow oral submissions raises
a reasonable apprehension of bias. The Board indicated that it had “been a
long day” and would therefore require written submissions from counsel within
two weeks of the hearing. In my view, there was nothing unreasonable in this
decision and it does not amount to a breach of procedural fairness. The
applicant has the right to make submissions through counsel, but there is no
right to make submissions orally as opposed to in writing.
[18]
The
applicant has the right to make submissions in support of his refugee claim,
but it is for the Board to decide on its own procedures, including whether
submissions will be oral or written; Thamotarem v Canada (Minister of
Citizenship and Immigration), 2007 FCA 198 at para 49. The applicant has
not demonstrated any prejudice from having to provide written instead of oral
submissions and the cases relied upon by the applicant only stand for the
proposition that it is a breach of fairness to deny the opportunity to make any
submissions, not that there is a right to make oral submissions; see for
example Kaldeen v Canada (Minister of Citizenship and Immigration),
[1996] FCJ No 1033 (TD); Niedzialkowski c Canada (Ministre de l'Emploi et de
l'Immigration), [1992] FCJ No 459 (CA).
Issue: Were the Board’s
credibility findings reasonable?
[19]
The
applicant argues that the Board erred by equating the POE notes with sworn
evidence. The applicant also submits that the Board misconstrued the POE notes
by indicating that the applicant had filled them out instead of the officer. Most
of the applicant’s arguments relate to the Board’s questions at the hearing
about the question in the POE notes regarding whether the claimant had been
charged with an offence. However, the Board made no finding on this point in
its decision. The applicant is therefore challenging a credibility finding
that was never made.
[20]
There
is no merit to the argument that the Board should not rely on inconsistencies
between the POE notes and oral testimony. The Board is not bound by the strict
rules of evidence and can base its decision on evidence it finds credible and
trustworthy. There is ample support in the jurisprudence for considering
inconsistencies between the POE notes, the PIF and oral testimony in
determining a claimant’s credibility; Yontem v Canada (Minister of
Citizenship and Immigration), 2005 FC 41 at para 15; Navaratnam v Canada
(Minister of Citizenship and Immigration), 2011 FC 856 at paras 14-15.
These cases, and the facts of this case, stand in distinction to the situation
where an adverse inference was drawn because the claimant adds further details,
consistent with or reasonably ancillary to, the initial statement; Argueta v
Canada (Citizenship
and Immigration), 2011 FC 1146. In this case, there was a great divergence
between the POE and his subsequent testimony.
[21]
The
aspect of the POE notes on which the Board did rely was the applicant’s
statement that “nothing had happened to him personally” in Hungary; however,
for the reasons noted, it was open to the Board to rely on this statement to
make a negative credibility finding. The applicant initially stated in his POE
interview that nothing had happened to him personally and then changed his
story and recounted in his PIF and oral testimony numerous violent incidents he
experienced. The events omitted were significant, and it was reasonable to
have expected them to have been referenced. The Board found his explanation
for this inconsistency unconvincing and made a negative credibility finding as
a result. This was reasonably open to the Board and there is no basis to
intervene.
[22]
As
the decision can be upheld on the basis of the credibility finding the Court
need not address the Board’s analysis of state protection.
[23]
The
application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review be and is hereby dismissed. No question for certification has been
proposed and none arises.
"Donald
J. Rennie"
Appendix A
COUNSEL
FOR CLAIMANT: Yeah, I
know you have and as a former police officer you should know the difference
between arrested and charged; with all due respect. Your question was “Why did
you say that you’d been charged with a crime or offence in Canada” in the port of entry notes.
MEMBER: Not just in Canada.
COUNSEL
FOR CLAIMANT: In Canada or another country ---
MEMBER: Yes.
COUNSEL
FOR CLAIMANT: --
charged.
MEMBER: Charged or what?
COUNSEL
FOR CLAIMANT: In the
port of entry notes; charged. I too have read the file.
MEMBER: Have you ever been charged with a crime
or an offence.
COUNSEL
FOR CLAIMANT: Right.
Right and the officer said “yes”.
MEMBER: It is checked off “yes”.
COUNSEL
FOR CLAIMANT: Yeah, by
the officer. Now you compare it to the PIF that wasn’t completed by the
officer.
MEMBER: Sir, this is what is asked the Claimant.
The Claimant answered the question. The officer checked off the answer that
was given to him.
COUNSEL
FOR CLAIMANT: How do you
know?
MEMBER: Counsel ---
COUNSEL
FOR CLAIMANT: How do you
know that that’s what he said?
MEMBER: In your cross-examination revisit this
point.
COUNSEL
FOR CLAIMANT: I think
you’re making a mistake about the facts, why not deal with it now, you brought
up ---
MEMBER: You do that in your cross-examination.
COUNSEL
FOR CLAIMANT: You
brought up ---
MEMBER: I am moving on.
COUNSEL
FOR CLAIMANT: You
brought up the PIF, you can’t leave it, you brought up the PIF and the question
---
MEMBER: And I’m not staying on this matter any
longer. You raise it when you come in your cross-examination, sir.
COUNSEL
FOR CLAIMANT: I think we
need to because you raised it as a credibility issue.
MEMBER: No, and I am moving
COUNSEL
FOR CLAIMANT: No, I
think -- I think you’ve closed your mind to this issue because of the
credibility issue and we need to address it now.
MEMBER: And I am moving on, you will return to
it if you so wish when you have your opportunity.
COUNSEL
FOR CLAIMANT: Have you
closed your mind to this credibility ---
MEMBER: I have not closed my mind on anything.
COUNSEL
FOR CLAIMANT: Well, your
facial expression seemed to suggest you have because you’re angry at me for
following up on your question.
MEMBER: No, I am -- I am moving on now and I do
not wish you to prevent me from moving on, counsel.
COUNSEL
FOR CLAIMANT: That’s a
mischaracterization of what I’m doing.
MEMBER: Well that’s what you’re trying to do.
COUNSEL
FOR CLAIMANT: No, sir,
you brought up the PIF ---
MEMBER: I want to move on.
COUNSEL
FOR CLAIMANT: So you’re
not interested in what you just brought up.
Very well, for
the record, you brought up the PIF and now you won’t deal with the PIF and I
think you’ve closed your mind to this issue.
MEMBER: You’re at liberty to say what you wish.
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