Date:
20130510
Docket:
IMM-8539-12
Citation:
2013 FC 494
Ottawa, Ontario,
May 10, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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JANOSNE VARGA
SZILVIA VARGA
DAVID SZILVESZTER
VARGA
(aka DAVID SZILVESZT
VARGA)
GYORGY VARGA
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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
application to set aside a decision of the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the Board) that the applicants are not
Convention refugees or persons in need of protection pursuant to sections 96
and 97 of the Immigration and Refugee Protection Act, SC 2001,
c 27
(IRPA)
is granted.
[2]
The
adult applicant (the applicant) and her three children are Hungarian and
claimed protection in Canada on the basis of their Roma ethnicity.
Ground of Persecution
[3]
The
Board erred in failing to consider the applicant’s evidence of gender-based
persecution, namely domestic violence from her ex-husband.
[4]
The
applicant indicated in her Personal Information Form (PIF) that she and her
husband “quarrelled a lot”. She elaborated on this substantially at the
hearing, describing attacks against her and her children. The applicant testified
that her ex-husband continued to threaten her over the internet after she fled Hungary. This testimony was corroborated by her divorce decree from a Hungarian Court
where the justification for the divorce includes domestic violence, and a
document confirming her attendance at a women’s shelter. The Board did not
consider any of the applicant’s evidence on this issue.
[5]
Refugee
claims involve fundamental human rights. Accordingly, it is critical that the
Board consider any ground raised by the evidence even if not specifically
identified by the claimant: Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689; Viafara v Canada (Minister of Citizenship and Immigration),
2006 FC 1526, para 13. It is, in most circumstances, a serious and potentially
fatal error to ignore part of a refugee claim: Mersini v Canada (Minister of Citizenship and Immigration), 2004 FC 1088, para 6.
[6]
The
failure of the Board to address a ground of persecution, raised on the face of
the record, is a breach of procedural fairness, reviewable on a correctness
standard. Reasonableness and deference can have no role when there is no
assessment of the evidence.
[7]
In
reaching this conclusion I do not detract from the basic proposition that the
onus rests squarely on the claimants to make out their claim. Nor is the Board
required to undertake “a microscopic” examination in an effort to uncover a
risk (per Justice Russel Zinn in Galyana v Canada (Citizenship and
Immigration), 2011 FC 254, para. 9), or to re-characterize the evidence in
an effort to fit it into a recognized ground of persecution. I agree with my
colleague, Justice Zinn, that the proper description of the Board’s duties in
this regard was described by the English Court of Appeal in Kerrouche, R (on
the application of) v Secretary Of State For Home Department [1997] EWCA
Civ 2263, [1997] Imm AR 610 (31st July, 1997):
The anxious scrutiny which has to
be exercised in relation to all issues which could affect the safety of a
refugee means that a more relaxed approach should be adopted in relation to
procedural failures than would be the case if a less important issue were at
stake. If therefore an appellate body, whether it is a Special Adjudicator, of
the Tribunal, is aware or ought to be aware that an appellant has not relied upon
a point which could materially improve the outcome of his appeal, then the
appellate body is under an obligation either to deal with the point or at least
draw it to the attention of the appellant. However appellate bodies naturally
focus primarily on the cases which are presented before them. They cannot be
expected to carry out an investigation themselves to see whether there are
points which have not been relied upon by an appellant that could have been
relied upon. They are not required to engage in a search for new points. If
however there is a readily discernible point which favours an appellant
although he has not taken it, the Special Adjudicator or Tribunal should apply
it in the appellant’s favour.
[8]
In
this case, a ground of persecution was hinted at in the PIF and squarely raised
in the testimony and documentary evidence.
State Protection
[9]
Portions
of the reasons given in support of the refusal have no relationship to the
evidence. For example, the Board faulted the applicant for not producing
supporting documentation to corroborate her attempts to seek state protection.
This is difficult to understand in light of the applicant’s evidence that she
did not seek protection. The Board stated that supporting evidence was
required “[i]n light of the finding that many aspects of the applicant’s claim
were not credible.” However, the Board did not indicate that it disbelieved
any aspect of the applicant’s testimony.
[10]
The
Board also stated that the applicant “had sufficient time to obtain the documents
needed to substantiate her claim,” referring to the lack of police reports.
The applicant did not go to the police and obviously could not obtain
non-existent police reports.
The Hearing
[11]
Finally,
while the Board must test a claimant’s credibility, and do so at times
vigorously, this must be done with sensitivity, professionalism and an open
mind. In this case, the Board member’s manner of questioning fell far short of
this standard.
[12]
The
Board member first questioned the applicant’s children in order to establish
their identities. To the applicant’s son, the Board member stated, “Okay,
junior let’s see how well you do.” Later, the Board member asked, “What’s your
date of birth? I can’t tell you. When’s your birthday? It’s not so easy now.
[…] What’s your principal’s name? I’m just egging you on to tell you it wasn’t
very easy for your sister to sit there. It’s not so funny now, is it? I
didn’t think so.” Further, the Board member asked the boy, “How do you know
she’s your mother? […] Are you sitting there naked? What are you wearing?”
[13]
I
consider this language to be highly inappropriate, especially as the witnesses
are children. A Board member may not “egg a witness on,” or pepper his
questioning with sarcastic remarks.
[14]
The
Board member questioned the applicant regarding whether she is Roma. He
stated, “I have people that come in here who are fair skin, blonde hair, blue
eyes, and then they say they’re Tizigane (ph). So, how do I know anymore? And,
look at me, do I look like I’m Tizigane (ph)?”
[15]
The
applicant stated that the difference was “the way we talk and there are a lot
of…” The Board member interrupted and again repeated, “I asked about me. Why
don’t I look Tizigane (ph)? I have dark skin color. I have dark hair. I have
brown eyes…” The applicant attempted to explain, “I can see who is gypsy […]
Based on the clothes they wear, the gestures…” Again the Board member
insisted, “Okay, I’m talking about me. I’m not talking about anybody else.
I’m talking about me. You can’t avoid the question. You went down that road,
so here I am. So, I’m waiting for an answer. If you don’t want to give an
answer, that’s fine.” The applicant explained that a “gypsy” in Hungary could not be appointed to sit on a tribunal such as the Board, to which the Board
member replied, “Okay. So, that’s called avoiding the question again. Okay, so
I take you don’t want to answer the question. Is that right?”
[16]
After
further questioning on this topic, the Board member said, “So just for fun
would you be able to tell where I’m from?” The applicant attempted to answer,
and the Board member replied, “Not even close, so do you understand now? If
you can’t tell where I’m from, my background, how do I know yours?”
[17]
This
line of questioning is inappropriate. The Board member’s appearance is of no
relevance. Identifying the birth place or ethnicity of the Board member does
nothing to advance the search for the truth. Needless to say, witnesses should
not be questioned “just for fun”. These are serious issues, and Board members
must, regardless of their view on whether the claim is genuine or not, maintain
minimum standards of decorum and formality. A Board member may reasonably
question a claimant regarding her knowledge of Roma culture, for example, but
it is unacceptable to fixate on skin, hair and eye colour, which demonstrates
minimal understanding of ethnicity. This was not a minor digression or one-off
comment. Rather it went on for three pages of the transcript.
[18]
The
Board member’s pursuit on this unfair and irrelevant questioning created a
hostile atmosphere. Indeed, the applicant responded that she was nervous. To
this, the Board member stated, “You don’t have to be nervous. You testified to
certain things. I didn’t go there. You went. So, I’m trying to clarify in my
mind and I’m using me as an example. But you won’t answer the question.”
[19]
Determination
of ethnicity is a difficult task. The function of the Board is inquisitorial
and Board members seldom have the assistance of counsel. Hard questions are
necessarily asked and inconsistencies or omissions are not to be shied away
from simply because to do so may upset sensibilities. But the questions asked
must be relevant to the facts in issue, and the answers they elicit must have
some potential probative value. Asking a witness to guess a Board member’s
ethnicity meets neither of these criteria.
[20]
Ethnicity
can be determined without resort to stereotypes and assumptions. Questions can
and should be asked about family history, residence, language, religion,
school, holidays, celebrations, special events, cultural associations and other
objective indicia of ethnicity. The questioning in this case fell dramatically
short of this standard. Appropriate questions directed to an objective determination
of ethnicity were not asked. In the end, this entirely inappropriate
examination gave rise to no breach of procedural fairness because the
applicant’s ethnicity was accepted. However, this goes to the reasonableness
of the decision, not the overall fairness of the hearing. As I have found that
the inappropriate examination created a hostile atmosphere and coloured the
appreciation of the evidence, the proceeding was unfair.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to the Immigration Refugee Board for
reconsideration before a different member of the Board’s Refugee
Protection Division. There is no question for certification.
"Donald J.
Rennie"
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