Date: 20110112
Docket: IMM-1789-10
Citation: 2011 FC 27
[UNREVISED CERTIFIED
TRANSLATION]
Ottawa, Ontario, January 12, 2011
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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ROBERT MUHARI, ANKA OLAH and
UROS MUHARI
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision
by the Refugee Protection Division of the Immigration and Refugee Board (the
panel) dated March 10, 2010, that the applicants are neither Convention
refugees nor persons in need of protection under the Act.
Facts
[2]
Robert
Muhari, his wife Anka Olah and their son Uros Muhari are Serbian citizens of
Hungarian origin who lived in the region of Voïvodine. They fear persecution by
reason of their Hungarian origin and the situation in their country following
Kosovo’s unilateral declaration of independence.
[3]
They
allege that they grew up in a climate of armed conflict after the breakup of
the former Republic
of Yugoslavia and that
they have always suffered discrimination because of their Hungarian origin.
[4]
On
January 20, 2008, the applicants arrived in Canada on a visitor’s
visa. They went to visit an uncle and aunt in Hawkesbury, Ontario, to
assist the aunt who was suffering from terminal cancer.
[5]
On
February 14, 2008, Kosovo unilaterally declared its independence from Serbia. Afraid of
being involved in another armed conflict, the applicants went to the office of
the Member of Parliament representing the riding that includes the town of Hawkesbury in order to
obtain information.
[6]
On
March 8, 2008, they went to Ottawa to file a claim for
refugee status with the Refugee Protection Division. Because there was no
interpreter available, the claim was not filed until March 18, 2008.
Impugned decision
[7]
The
panel found that the applicants were credible. It rejected their claim on the
ground that the discrimination the principal applicant suffered because of his
Hungarian origin was not severe. The panel also found that the applicants’ fear
caused by the conflict in Kosovo did not meet the requirements of section
97(1)(b) of the Act since the situation did not target them personally.
[8]
The
decision shows that the applicants were not represented and that the hearing
was held in Ottawa.
Issues
[9]
This
application for judicial review raises the following issues:
1.
Did
the panel err by excluding certain documentary evidence that corroborated the
applicants’ position?
2.
Was
it reasonable for the panel to find that the applicants were neither refugees nor
persons in need of protection by reason of their ethnic origin?
Analysis
A. Standard of review
[10]
The
question of whether a panel’s reasons are sufficient is reviewable on a
standard of correctness (Vila v Canada (Minister of
Citizenship and Immigration), 2008 FC 627, [2008] FCJ No. 823 (QL) at
paragraph 9; H.L. v Canada (Minister of
Citizenship and Immigration), 2009 FC 521, 2009 FCJ 645 (QL) at
paragraph 15).
[11]
Questions
involving the assessment of facts are reviewable on a reasonableness standard (Dunsmuir
v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 53).
B. Panel’s exclusion of certain
documentary evidence
[12]
In
their memorandum, the applicants criticize the panel for ignoring the
documentary evidence they filed regarding the protection available in Serbia,
specifically in the Voïvodine region, to persons of Hungarian origin and for
not questioning them as to whether the Serbian state could adequately protect
minorities.
[13]
The
jurisprudence of this Court is clear and consistent with respect to the requirement
that a panel consider all the relevant evidence on an issue (Gill v Canada (Minister of
Citizenship and Immigration), 2003 FCT 656, 35 Imm LR (3rd) 202).
[14]
The
panel must, at the very least. provide sufficient reasons for disregarding the
applicants’ evidence. As Mr. Justice Evans wrote in Cepeda-Guttierez
v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35, 83 ACWS (3rd) 264 at
paragraph17:
[T]he more important the evidence that is
not mentioned specifically and analyzed in the agency's reasons, the more
willing a court may be to infer from the silence that the agency made an
erroneous finding of fact “without regard to the evidence”: Bains v.
Canada (Minister of Employment and Immigration), (1993), 63 F.T.R. 312
(F.C.T.D.). In other words, the agency’s burden of explanation increases with
the relevance of the evidence in question to the disputed facts. Thus, a
blanket statement that the agency has considered all the evidence will not
suffice when the evidence omitted from any discussion in the reasons appears
squarely to contradict the agency’s finding of fact. Moreover, when the agency
refers in some detail to evidence supporting its finding, but is silent on
evidence pointing to the opposite conclusion, it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of
fact.
[15]
On
this point, it is interesting to point out Mr. Justice Martineau’s findings
in Avila v Canada (Minister of
Citizenship and Immigration), 2006 FC 359, 295 FTR 35, in which he
determined that the Board could not simply choose to disregard relevant
evidence that could have supported the applicants’ position.
[16]
In
the decision that the applicants are challenging, the panel refers to one piece
of documentary evidence they filed. The panel cites a passage from it but
accepts only the part that supports its conclusion. The panel should have, at
the very least, explained why it rejected the passages that describe acts of vandalism,
discrimination and violence against the Hungarian minority in the province of Voïvodine.
[17]
Counsel
for the respondent filed a copy of the decision in Sokola v Canada (Minister of
Citizenship and Immigration), 2010 FC 168, [2010] FCJ No. 188 (QL), to
support her position that the panel was not required to respond to each item of
documentary evidence that the applicants filed. In that case, Mr. Justice
Near stated that the Board had validly concluded that the applicant should have
first sought state protection. He wrote the following at paragraphs 28 and 29:
The Applicant argues that the Board
ignored contradictory evidence of the state’s failure to protect Hungarians and
other minorities. However, the Board is not required to make reference to each item
of documentary evidence or summarize all the documentary evidence introduced
(see Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.)) and the
reasons of administrative agencies are not to be read hypercritically . . .
In this case, the Board referenced the
Applicant’s evidence in page 1 of its reasons and stated on page 6 that “on the
evidence” the Applicant had not rebutted the presumption of state protection.
This was reasonable.
We agree that a panel is not required to
make reference to all the documentary evidence submitted. However, where the
evidence deals with an element that is crucial to the dispute, the panel’s
obligation is quite different. It must refer to that evidence and explain why
it did not accept it (Singh v Canada (Minister of
Citizenship and Immigration), 2009 FC 485, [2009] FCJ No. 616 (QL) at
paragraph 15).
[18]
This
error appears to us to be fatal in the circumstances because the evidence in
question goes to the very heart of the application, namely that Serbs of
Hungarian origin living in Voïvodine fear persecution. In fact, the document the
applicants filed describes acts of violence against persons of Hungarian origin
and the passive attitude of the Serbian authorities in this situation. This
evidence could have established the applicants’ objective fear of persecution.
C. Ethnic
origin of the applicants
[19]
The
panel found that the applicants, particularly the principal applicant, had not
suffered severe discrimination. In addition, since they were not persecuted in Serbia, they could
not claim refugee protection in Canada.
[20]
In
H.L., above, Mr. Justice Martineau stated the following at
paragraphs 21 and 22:
Discrimination in itself does not amount
in every case to persecution. It may, however, if it manifests as “sustained or
systemic violation of basic human rights demonstrative of a failure of state
protection” (Hathaway, James C. The Law of Refugee
Status. Toronto: Butterworths, 1991, pp.104-105 as cited in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R.
689) . . .
53. The UNHCR Handbook provides the
following guidance on when discrimination may constitute persecution:
53. In
addition, an applicant may have been subjected to various measures not in
themselves amounting to persecution (e.g. discrimination in different forms),
in some cases combined with other adverse factors (e.g. general atmosphere of
insecurity in the country of origin). In such situations, the various elements
involved may, if taken together, produce an effect on the mind of the applicant
that can reasonably justify a claim to well-founded fear of persecution on
“cumulative grounds”. Needless to say, it is not possible to lay down a general
rule as to what cumulative reasons can give rise to a valid claim to refugee status.
This will necessarily depend on all the circumstances, including the particular
geographical, historical and ethnological context.
[21]
The
applicants, particularly the principal applicant, claim to have been the
subject of separate acts of discrimination because of their Hungarian origin.
More than one situation was alleged not counting the upsurge in violence
against the Hungarian minority following the events in Kosovo.
[22]
Counsel
for the respondent pointed out certain Federal Court decisions that deal with
how severe discrimination must be to constitute persecution. The decisions in Am
Nwaeze v Canada (Minister of Citizenship and Immigration), 2009
FC 1151, [2009] FCJ No. 1436 (QL) and Tazawa v Canada (Minister of
Citizenship and Immigration), 2007 FC 255, [2007] FCJ No. 325 (QL), cited
by the respondent, are distinguishable from this case on their facts. Both
those cases involved discrimination against persons who had entered into
interracial marriages, not against members of a specific ethnicity. The distinction
is important because the documentary evidence introduced by the applicants in
this case described systemic and existing discrimination against an entire ethnic
group, namely persons of Hungarian origin. Therefore, the decisions cited by
the respondent do not apply in this case.
[23]
Certainly,
the panel has sole jurisdiction over the facts. Nonetheless, it is with considerable
deference that we note that, although the panel acknowledged that some
discrimination had occurred, its analysis did not take into consideration the
cumulative effect of the discrimination alleged by the principal applicant.
[24]
As
Mr. Justice Martineau wrote at paragraph 26 of H.L., above:
I am not, therefore, satisfied that the
Board dealt adequately with the central issue of the claim: namely, whether the
applicants had a well-founded fear of persecution. Completely absent is any
discussion of the cumulative effect of their experiences in Indonesia, whose veracity was not
challenged. The Board’s consideration of this issue was cursory, at best, and
in my view warrants the intervention of this Court.
[25]
In
this case, we have come to the same conclusion with respect to the panel’s failure
to specifically analyze the discrimination against both the principal applicant
and the entire Hungarian minority in the province of Voïvodine (Fi v Canada (Minister
of Citizenship and Immigration), 2006 FC 1125, [2007] 3 FCR 400 at paragraphs14
to 16). This omission and the lack of explanations as to why the panel
disregarded some of the applicant’s evidence justify the intervention of this
Court. The application for judicial review should accordingly be allowed. None
of the parties proposed a question for certification, and I do not see any.
[26]
For
all these reasons, this application for judicial review is allowed, and the
matter is remitted to a differently constituted panel for reconsideration and
redetermination. No question is certified.
JUDGMENT
THE COURT
ORDERS as follows:
1. The application for judicial
review is allowed;
2. The
matter is remitted to a differently constituted panel for redetermination; and
3. No
question is certified.
“André F.J. Scott”
Certified
true translation
Mary
Jo Egan, LLB
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