Date: 20110622
Docket: IMM-6704-10
Citation: 2011 FC 751
Toronto, Ontario,
June 22, 2011
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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LADISLAV
LUKACS
ANNA JULIA
LUKACS
LADISLAV LUKACS
ROBERT LUKACS
SEBASTIAN LUKACS
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Applicants
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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]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 for judicial review of a decision
of the Refugee Protection Division of the Immigration and Refugee Board dated
September 21, 2010, wherein the Board determined that the applicants were not
Convention refugees or persons in need of protection.
[2]
Ladislav Lukacs is a citizen of the Czech Republic and is of Roma
ethnicity. His wife, Anna Julia Lukacs, is a citizen of Poland and a permanent
resident of the Czech Republic. His three sons are of mixed Roma ethnicity and
are all citizens of the Czech Republic.
[3]
Ladislav Lukacs alleges he and his family have experienced
discrimination and threats due to his ethnicity. He says that they have
experienced this treatment at the hands of other citizens, the police, and
racist groups such as neo-Nazis and skinheads in the Czech Republic. The applicants alleged several incidents
of persecution:
(i)
In February 2005, Ladislav Lukacs, the son, was stopped by a
police officer who took money from him and then issued him a ticket. This
incident was reported to the police.
(ii)
In March 2007, Anna Julia Lukacs was accused of stealing at her place of employment and subsequently
resigned. She did not report this incident to the police.
(iii)
In October 2005, Ladislav Lukacs, the
father, was attacked and punched and kicked by four young men
dressed as skinheads when leaving work. He reported this incident to the
police.
(iv)
On May 11, 2008, the applicants’ home was
vandalized with the words “death to Hungarians,” which is a reference to
gypsies in the Czech Republic,
and a swastika drawn on the door.
[4]
The applicants’ hearing was held in two sessions
on two separate days. They were unrepresented during the first hearing but had
legal counsel during the second hearing. The principal applicant and his
brother, who attended at the hearing and assisted him, have filed affidavits
alleging that they were denied the right to counsel and intimidated by the
Board Member during the first hearing.
[5]
The determinative issue for the Board in
rejecting the applicants’ claims was state protection.
Issues
[6]
Four issues were raised by the applicants in
their memorandum of argument; however on the day prior to the hearing, counsel
wrote to the Court advising that the applicants no longer intended to pursue
issues 3 and 4 as set out in the memorandum. Counsel also informed the Court
that he would seek leave to raise a new issue that had not been previously
raised: the failure of the Board to make any determination with respect to Anna
Julia Lukacs’s country of citizenship, Poland.
[7]
The Minister opposed the request for leave to
raise this new issue. It was submitted that the applicants had received the
Certified Tribunal Record on April 21, 2011, and offered no explanation for
raising a new issue one day before the hearing. The respondent’s counsel
submitted that the respondent would be prejudiced if this new issue were
permitted to be raised at this late stage in the proceeding.
[8]
The request for leave to raise this new issue
was denied. This Court has previously held that new arguments cannot be raised
at the hearing if they were not raised in the written memoranda of argument: Radha
v Canada
(Minister of Citizenship and Immigration), 2003 FC
1040 at paras. 16-18, and Dunova v. Canada (Minister of Citizenship and Immigration), 2010 FC 438, at paras. 18-20. Counsel for the applicants here was
also counsel in Dunova.
[9]
Furthermore, it was stated in the first
paragraph of the Decision under attack dated September 21, 2010, that the
female applicant was a citizen of Poland and a Permanent Resident of the Czech
Republic. It was evident that the Board dealt only
with persecution and risk in the Czech Republic. As noted
by the respondent, the passages of the transcript upon which the applicants
sought to rely in support of the issue they wished to raise were available to them
since the filing of the certified tribunal record on April 12, 2011. A timely
request for the amendment of the pleading to raise this new issue may have been
positively considered; however, a last minute request of this sort will almost
invariably result in a denial of leave, as in this case.
[10]
As a consequence, the two issues before the
Court are as follows:
1.
Were the applicants denied the right to counsel
at their hearing?
2.
Did the Board make capricious findings of fact
that the police pursued investigations stemming from the applicants’
complaints?
1. Right to Counsel
[11]
The applicants submit that the Board breached
procedural fairness by refusing to allow the applicants to be represented by
the principal applicant’s brother, Tibor Lukacs, as counsel before the Board.
They submit that this request was denied and that they were pressured into
proceeding with the hearing despite the intention to be represented by counsel.
[12]
It must be noted that the counsel retained by the applicants to
represent them at the hearing, Philip U. Okpala, was not the counsel who
represented them on this judicial review application. The record indicates
that two days prior to the scheduled hearing, Mr. Okpala’s office informed the
applicants of the upcoming hearing and that Mr. Okpala would be unable to
attend as he was out of the country. He had earlier requested an adjournment,
but it was denied.
[13]
The applicants attended the hearing with Tibor Lukacs, the brother of
the principal applicant. It is asserted that the Member refused to permit
Tibor Lukacs to act as the representative of the applicants. The allegations
are specifically set out in affidavits from Ladislav Lukacs and Tibor Lukacs,
the relevant paragraphs of which are as follows:
My brother
Tibor indicated to the Member that he wished to represent us with our consent
at our hearing. Tibor is my brother and of course would be representing us for
no fee. Between 8:30 a.m. until 10:00 a.m. a pre-hearing conference was held
on the issue of whether our hearing would proceed while my former counsel was
not present and whether my brother would be allowed to represent me. I noticed
that parts of this pre-hearing conference were recorded and in other parts the
Member had turned off the recording equipment while continuing the conference.
The Member informed my brother that he could sit and watch but was not allowed
to speak or even move out of his seat let alone represent me. I felt that the
Member was putting a great deal of pressure on me to agree to proceed without
counsel and in the end I felt I did not have any choice but to agree because I
did not want to appear as if I was trying to hide anything. I believe I was
denied the right to counsel because my brother was ready, willing and quite
capable of representing me at the hearing.
[From
paragraph 5 of the Affidavit of Ladislav Lukacs]
As my
brother’s former lawyer did not appear at the hearing, I offered to represent
my brother. … I was surprised that the Member did not allow me to represent my
brother and his family. Moreover, the Member treated me in a very rude and
condescending manner telling me that I could sit and watch but was not allowed
to speak or even move out of my seat.
[From
paragraph 5 of the Affidavit of Tibor Lukacs]
[14]
The affiants were not cross-examined on their affidavits and the
Minister tendered no direct evidence to contradict these statements. The
Minister submits that the transcript of the hearing simply does not support
these assertions. I agree.
[15]
I turn first to the assertion that the Member failed to record all of
the proceeding. There is nothing in the transcript of the first day of hearing
that supports that statement. The dialogue and statements made flow and follow
each other as one would expect from a continuous recording. Further, the
length of the transcript is not indicative of there being portions of the
proceeding not recorded. The transcript of the first day of hearing, July 22,
2010, is 49 pages long. The record indicates that the hearing on that day
began at 8:35 a.m. and ended at noon. There was a 30-minute adjournment in
order that the applicants could review documents. The transcript of the second
day of hearing, August 25, 2010, is 51 ½ pages long. The record indicates that
the hearing on that day began at 8:35 a.m. and ended at 11:30 a.m. Given the
adjournment on the first day, the transcripts reflect proceedings of
approximately equal duration.
[16]
I turn next to the allegation that the Member denied the applicants the
right to have a representative. The transcript does not support the assertion
that Tibor Lukacs offered to represent his brother’s family and that the Member
refused to permit him to do so. Further, having read the transcript of both
hearing days, I find that it fails to disclose any conduct on the part of the
Member that could reasonably be described as “rude” or “condescending” in
nature, as was sworn by Tibor Lukacs.
[17]
The transcript indicates that after Tibor Lukacs identified himself to
the Member the Member asked: “And you’re here simply to observe the hearing, is
that correct?” To which he responded “Yes.” He was then told the rules
regarding the role of an observer, namely that he was to remain silent and
observe the proceeding.
[18]
Shortly afterwards, the Member noticed Tibor Lukacs nodding his head and
said “Sir, I am going to have to ask you to stop nodding your head because –
because you’re not a part of the hearing and you know, unless you’re – I mean,
I’m going to ask you, are you going to represent them today?” to which he
responded “Maybe.” The Member then said “Well, that’s up to you.” It was left
to Tibor Lukacs to advise the Member if he wished to assume the role of the
applicants’ representative. He did not.
[19]
I turn then to the allegation that the Member pressured the applicants
to proceed. After some discussion about the absence of counsel and issues
about documents, the issue as to whether the applicants were prepared to
proceed was addressed, as follows:
MEMBER: Let
me ask you this, are you prepared to proceed without counsel?
CLAIMANT: I
am ready. I’ve been here for two years, so I’ve been expecting.
MEMBER: So,
you wish to proceed without counsel?
CLAIMANT:
Without such a counsel or such a lawyer, yes, I can proceed.
Shortly thereafter, the Member
again asked the applicants if they wished to proceed without counsel and
indicated that if she were to grant an adjournment it would be only for a short
time.
MEMBER: … now
I will ask you again if you wish to proceed without counsel.
CLAIMANT: If
it is to adjourn, then in that case I would like to adjourn because I don’t
have the documents, the originals to prove my point here, to prove what I’m
going to say.
MEMBER: Well,
I’m not adjourning for that reason.
Sir, sir, you were expected to have documents ready today. I cannot
adjourn on that basis.
So, my question to you is if I get you all the documents
that we have and we take a recess, because those documents that you’re talking
about would not be ready for the next hearing either unlikely [sic]. If
we take this recess and you have an opportunity to look at the documents, are
you prepared to proceed?
CLAIMANT: For
sure.
[20]
There is quite simply nothing in the transcript from which it can be
reasonably concluded that the applicants would have felt pressured to proceed. There
was no denial of the right to a representative or counsel.
2.
Capricious Findings of Fact
[21]
The Board determined that of the four incidents
of mistreatment outlined by the applicants, the police investigated three. The
Board based this on the son’s testimony that he had received a letter
concerning the incident from the police which indicated that the police had
investigated the matter with no results. He testified that he did not
follow-up with this letter. Of the other incidents the Board determined that
the applicants either did not report the incidents or did not inquire into the
result of the investigations. The applicants submit that the Board erred by
finding that the police had “investigated” the violence that they suffered.
[22]
Their main submission is that the alleged
investigation by the police into the ticket incident was not a proper one or
was merely superficial given that the actor sought was a police officer and he
ought therefore to have been easily identified. The applicants seem to be
suggesting that “common sense” dictates that it was a sham. What the Board
concludes is the police “were unable to locate the perpetrator and the
principal claimant did not pursue the matter further.” In my view, these are
facts and it cannot be said that the Board’s finding was made capriciously.
The Board’s assessment of the evidence was reasonable and this Court will not
reweigh the evidence. Accordingly, this application must be dismissed.
[23]
Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that the application is dismissed and no question is
certified.
“Russel W. Zinn”
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