Date: 20110620
Docket: IMM-7259-10
Citation: 2011 FC 723
Toronto, Ontario, June 20, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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IMRENE NAGY
HELENA MERCEDESZ HORVATH
(A.K.A. HELENA MERCEDES HORVATH)
(a minor)
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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]
The
principal applicant, Imrene Nagy, is Hungarian. The minor applicant, Helena
Horvath, is her six-year-old daughter, whose father, Sandor Horvath, is a Roma.
[2]
The
principal applicant’s claim for refugee protection was denied based on the
finding of the Refugee Protection Division (RPD) of the Immigration and Refugee
Board that she was lacking in credibility and therefore that the significant
events she alleged happened to her did not actually happen. The RPD gave the
following reason for denying the claim of the minor applicant:
As the claim of the minor applicant
relies entirely on the evidence of the principal claimant’s [sic] and no
persuasive evidence was adduced to differentiate her claim from that of the
principal claimant, the claim of the minor applicant must also fail.
[emphasis added]
[3]
The
applicants raise two issues. They submit that the finding of the RPD with
respect to the credibility of the principal applicant was unreasonable and they
submit that the Board Member failed to adequately consider the claim of the
minor applicant.
[4]
The
principal applicant’s claim for status was based on her allegation that she
suffered emotional and physical abuse at the hands of her ex-husband, Imre
Nagy, a police officer.
[5]
I
agree with the principal applicant that the Member’s finding that she was lying
about being abused by her husband during their marriage does not seem to be
based on an analysis that began with a presumption of the truth of her
allegations. The Member’s main explanation for the finding that the principal
applicant was not credible in this respect was her failure to raise allegations
of abuse during her uncontested divorce proceeding in 2000. This reasoning not
only rests on unsupported assumptions about the principal applicant’s personal
situation but appears to be grounded in stereotypical assumptions about how
women escaping domestic violence should behave. There is no basis for the Member’s
assumptions that the principal applicant would want to discuss the abuse she
suffered in a public forum or that she was not still afraid of her husband, with
whom she would have to have a continuing relationship given that they have
children together and given that he was to have custody of them.
[6]
Notwithstanding
this problematic finding, it is clear that the Member found that most of the
principal applicant’s narrative was not credible. These findings were reasonable
and it is clear that the Member would have reached the same decision regardless
of the above-noted error. The Member simply did not believe anything the principal
applicant said regarding abuse suffered at the hands of her former spouse, and
with good reason: her story was filled with omissions and contradictions and
her explanations were unsatisfactory. The Member was in the best position to
assess the principal applicant’s credibility, and his assessment was negative.
Even leaving aside the Member’s first-hand experience of the hearing, the
hearing transcript, particularly at pages 284, 286, and 288 of the Certified
Tribunal Record, shows that the principal applicant’s answers to omissions and
contradictions in her story were unconvincing:
MEMBER: … So
can you explain why we have two different answers here?
CLAIMANT: I
forgot. There were so many things happening and I was so nervous.
…
MEMBER: … Why
did you not mention that in your narrative?
CLAIMANT:
Because I did not think it was very important.
…
MEMBER: Why is
this incident not mentioned in your PIF [Personal Information Form]?
CLAIMANT: I
did not think it was that important, every information. Because when those
papers were getting ready I was very depressed and I got treatment in Hungary.
…
MEMBER: Ma’am
why is this incident not mentioned in your PIF?
CLAIMANT:
Because I forgot. I forget a lot of things unfortunately.
These
four exchanges were with respect to four different problems with the
applicant’s evidence.
[7]
These
inconsistencies led the Member to a finding, at paras. 29 and 31 of the Decision,
that the principal applicant was simply not a credible witness:
Given the
serious inconsistencies, discrepancies, [and] omissions with respect to
numerous major issues [relating] to these claims, I find that the PC [Principal
Claimant] was generally lacking in credibility. I simply do not find that, on
a balance of probabilities, any of the significant events that the PC alleges
happened to her, actually happened.
…
I am obligated
to make a determination on the evidence deemed credible and trustworthy. I
find none.
[8]
Notwithstanding
the Member’s suspect finding on plausibility relating to the failure to raise
the allegations of abuse during the divorce proceeding, I find that the Member’s determination on the
principal applicant’s credibility was reasonable. He identified numerous
important problems with the evidence which served as the basis for a negative
credibility finding, and he was best-positioned to make that finding. Further,
a review of the transcript supports these findings.
[9]
Far
more troubling is the failure of the Member to properly consider the claim of
the minor applicant. It is evident from the transcript and from the written
submissions of counsel filed after the hearing that her claim had two bases: first
that as the child of the principal applicant she was at risk from her mother’s
ex-husband, and second that as a person of Roma origin in Hungary she was at risk of
persecution.
[10]
The
first fell with her mother’s claim. However, the Member never disputed the fact that Helena Horvath
is half Roma. Her identity was accepted and she bears her Roma father’s name.
The issue of Helena’s ethnic identity was squarely before the
RPD as is apparent both from the testimony of her mother and counsel’s subsequent
written submissions.
[11]
The Member made no
findings with respect to risk Helena might face due to her partial Roma
ethnicity, instead holding that her claim was indistinguishable from her
mother’s – even though her mother was not Roma. The Board’s complete failure
to deal with this aspect of Helena’s claim requires that the application,
insofar as it relates to this aspect of the claim of the minor applicant, be
allowed.
[12]
The respondent submits
that the applicants did not submit any
evidence linking the country condition documents to the particular
circumstances of the minor applicant, and that the principal applicant did not
testify to any incidents of persecution relating to her daughter’s ethnicity.
While these may have been valid reasons to reject Helena’s claim,
they were not reasons offered by the Member. It is not open to the respondent
to propose reasons the RPD could have and should have provided for rejecting Helena’s
claim. Nor is it the role of this Court to make such a finding.
[13]
The
applicants submit that the principal applicant also has a claim for refugee
status based on the persecution she fears as the mother of a Roma child
(persecution she might face generally in Hungary, not specifically at the hands of her
ex-husband). This claim was not set out in her PIF nor in the written
submissions made by her counsel after the evidence was given. She relies upon
the following exchange to support such a claim:
COUNSEL: Okay, I want to talk about you
first. Your life would be in danger.
CLAIMANT: Yes that is true.
COUNSEL: By whom?
CLAIMANT: Because of Imre, by Imre.
COUNSEL: Anybody else? Is there anybody
else that you fear in Hungary?
CLAIMANT: (Inaudible) because of my
daughter, there might be problems because she is half Roma.
COUNSEL: Problems for you?
CLAIMANT: I am raising my daughter, she
is my child.
COUNSEL: Who would
cause these problems?
CLAIMANT: The people who do not like
Romas. She is my child, I would protect her.
COUNSEL: When you say the people that do
not like Romas, is there a name for these people or just…
CLAIMANT: I forgot, there is a name.
COUNSEL: But you are not talking about people
that you know personally?
CLAIMANT: No, no.
COUNSEL: Anybody else that you fear?
CLAIMANT: No, only these.
[emphasis added]
[14]
It
is evident from this exchange that the principal applicant’s evidence was not
that she had experienced any problems as a consequence of being the mother of a
half-Roma child, but that she might in the future. While her refugee claim on
this basis may have been tenuous, it was not considered by the Member.
[15]
Accordingly,
the claims of the applicants arising out of the Roma ethnicity of the minor
applicant must be remitted back to the RPD for determination. Neither counsel
proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is allowed in part; the application
of the applicants is allowed
and their claim for refugee protection on the basis of the Roma ethnicity of
Helena Mercedesz Horvath (a.k.a. Helena Mercedes Horvath) is referred
back to the Board for determination by a different Member, who will consider
alleged persecution generally in Hungary, but not from the alleged agent of
persecution Imre Nagy.
"Russel
W. Zinn"
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