Docket: IMM-3972-13
Citation:
2014 FC 1155
Ottawa, Ontario, December 1, 2014
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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JOZSEF SZTOJKA
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to subsection 72 (1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA) of the May 24, 2013 decision (the Decision) of J.M.
McCabe, a Member (the Member) of the Immigration Division of the Immigration
and Refugee Board, wherein the Member determined that Jozsef Sztojka (the
Applicant) is inadmissible on grounds of serious criminality pursuant to
paragraph 36(1)(c) of the IRPA.
[2]
The allegation against the Applicant that
underlies the Decision is that he sexually assaulted a minor. Though the
Applicant raised a number of issues in his Memorandum of Fact and Law, his
counsel advised at the hearing of this application that he was pursuing only one:
that the Member erred in rejecting the Applicant’s assertion that the sexual
assault allegation against him was fabricated. This argument is based mainly on
three allegations: (i) the psychological problems of the alleged victim; (ii)
antagonism against the Applicant by the mother of the alleged victim; and (iii)
antagonism against the Applicant by the police.
[3]
For the reasons provided below, I do not accept
the Applicant’s arguments and I dismiss the present Application.
II.
Facts
[4]
The Applicant is a 72-year-old citizen of
Hungary of Roma ethnicity. He came to Canada with his common-law spouse in
December 2011, and sought refugee protection on the basis of alleged
persecution due to his Roma ethnicity.
[5]
In 2009, the home of a Roma family, neighbours
of the Applicant in Dabas, Hungary, was set on fire by a Molotov cocktail. The
father and his five-year-old son were shot multiple times and killed when they
fled the burning house. The Applicant alleges that, despite abundant evidence
of murder, the Dabas police concluded that the father and his son had died of
smoke inhalation.
[6]
The alleged antagonism against the Applicant by
the Dabas police arose when his spouse, Lidia Horvath, began publicly demanding
that the matter be properly investigated and the assailants brought to justice.
[7]
The Applicant alleges that there was a
subsequent plot to kidnap and kill Ms. Horvath and another plot to set fire to
the Applicant’s house. Shortly thereafter, the Applicant’s house was indeed
destroyed by fire. The Applicant alleges that firefighters did not intervene.
The Applicant and his wife were later accused of setting the fire themselves,
and charged with fraud and arson. The trial on those charges was ongoing when
the Applicant and Ms. Horvath fled Hungary, citing concerns that they would not
receive a fair trial as well as increasing threats and mistreatment from the
Dabas police.
[8]
The allegation of sexual assault against the
Applicant is based on a complaint filed in October 2011, by Tamaya Chekosh who
is the mother of the alleged victim, Tamaya Lazar, who was then nine years old.
The complaint detailed allegations by the daughter that the Applicant touched
her sexually. A warrant for the Applicant’s arrest was later issued by the
Dabas police.
[9]
Based on the oral representations of the
Applicant’s counsel, it is not disputed that the alleged offence can be a basis
for a finding of inadmissibility on grounds of serious criminality per
paragraph 36(1)(c) of the IRPA.
III.
Decision
[10]
The Member concluded that the Applicant is
inadmissible on grounds of serious criminality. In so concluding, the Member
considered: (i) the complaint filed with the Dabas police; (ii) the testimony
of Ms. Horvath and her nephew Robert Horvath concerning the alleged victim’s
psychological problems; (iii) the psychologist’s report of the alleged victim;
(iv) a letter written by the mother of the alleged victim withdrawing her
complaint; and (v) the warrant for the Applicant’s arrest.
[11]
In his oral reasons, the Member mentioned among
other things that the “state of relations between the
police and judiciary in Dabas and [the Applicant]” were not directly
relevant to the matter to be decided (Decision, at p. 7). The Member dismissed
the Applicant’s submission that the Member should not give weight to the
information from the Dabas police because counsel had not offered a “compelling basis for this proposal” (Decision, at p.
7).
[12]
The Member noted that the complaint was signed
by the alleged victim’s mother and filed with the Dabas police. The Member also
noted that the complaint form contained a caution as to the consequences of
making false accusations.
[13]
With regard to the alleged antagonism against
the Applicant (and Ms. Horvath) by the alleged victim’s mother, the Member
noted that the only evidence was unsubstantiated speculation.
[14]
Regarding the letter allegedly written by the
mother of the alleged victim withdrawing the complaint, the Member stated that
he did not “give full weight” to the document as
it “is not notarized and [it] is virtually impossible to
verify the author”. The Member decided that greater weight should be
given to the initial complaint because it mentions specific events related to
the alleged sexual assault. The Member also noted that the withdrawal letter
did not indicate that the alleged assault did not occur.
[15]
The Member considered the psychologist’s report
on the alleged victim and concluded that the psychologist expressed no opinion
that the alleged victim should not be believed or that there is any
psychological problem that would cause one to question her statements.
[16]
The Member also gave full weight to the police
warrant “for the purpose of establishing that certain
acts are an offence where they are committed”.
IV.
Issue
[17]
The only issue is whether the Member erred in
finding that the evidence supports a conclusion that there are reasonable
grounds to believe that the Applicant sexually assaulted Tamaya Lazar.
V.
Analysis
A.
Standard of review
[18]
Whether the Member erred in assessing the
evidence is a question of fact and mixed fact and law to be reviewed on a standard
of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at para 53 [Dunsmuir]).
As mentioned in Dunsmuir, at paragraph 47:
A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to the
process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
B.
Did the Member err in assessing the evidence
[19]
In deciding whether a foreign national is
inadmissible on grounds of serious criminality, the Member must determine
whether there are “reasonable grounds to believe”
that an act was committed that falls within the scope of section 36 of the IRPA.
In Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC
40 [Mugesera], at para 114, the Supreme Court of Canada held that “reasonable grounds to believe will exist where there is an
objective basis for the belief which is based on compelling and credible
information”. The standard of “reasonable grounds
to believe” requires more than a mere suspicion, but not as much as a
balance of probabilities (Mugesera, at para 114).
[20]
Oral argument by the Applicant’s counsel
focussed on the allegation of sexual assault itself, including the following
issues:
i.
The psychologist’s report concerning the alleged
victim;
ii.
Testimony as to possible motivations for
fabricating the allegations, including alleged psychological problems of the
victim and the alleged antagonism of the victim’s mother, and;
iii. The letter in the name of the victim’s mother withdrawing the allegation
of the sexual assault.
[21]
In my view, the Applicant was well advised not
to pursue his argument based on antagonism of the police in Dabas against the
Applicant. The Member considered the issue to be peripheral (he said “not directly relevant”) and I find this conclusion
reasonable. The starting point of the sexual assault allegation is a complaint
made to the police, not by the police. There is no evidence that the police
coerced the filing of the complaint and any argument to that effect would be no
more than speculation. In any case, this matter turns on the credibility of the
sexual assault allegation, not the credibility of the police. I am satisfied
that the Member was aware of this fact and gave it reasonable consideration.
[22]
Having reviewed the psychologist’s report, I
conclude that it was reasonable for the Member to conclude that it does not
support the theory that the alleged victim fabricated her story, or that she
has psychological problems that could have led her to do so.
[23]
The Member considered but was not satisfied by
the testimony from witnesses who know the alleged victim concerning her alleged
psychological problems. In my view, it was reasonable for the Member to
conclude that “[n]one of these character traits are borne
out in the [psychologist’s] report”.
[24]
It was also reasonable for the Member to
conclude that there was no evidence, other than speculation, to support the
allegation that the victim’s mother fabricated the sexual assault allegation
out of antagonism against the Applicant and Ms. Horvath.
[25]
Further, it was reasonable for the Member to
doubt the authenticity of the letter from the victim’s mother withdrawing her
complaint, and also to note that it did not indicate that the alleged sexual
assault had not happened. I am also of the view that it was reasonable for the
Member to consider the relevance of the caution on the complaint form against
making false allegations.
[26]
In a recent decision, my colleague Justice Henry
Brown set aside another decision of the Immigration Division which concerned
the Applicant’s spouse, Ms. Horvath, and which had ruled her likewise
inadmissible (Horvath v Canada (Citizenship and Immigration),
IMM-6254-13, October 21, 2014). In my view, there are reasons to distinguish
that case from the present case and not to follow its result. Firstly, the
asserted inadmissibility in Ms. Horvath’s case concerned charges alleging fraud
and arson for which her trial in Hungary is ongoing. The allegation against the
Applicant in the present case is distinct from these charges. The impugned
decision concerning Ms. Horvath refused to consider the background of
antagonism by the Dabas police, even though the inadmissibility asserted
against her was based on allegations that relied on evidence gathered by the
Dabas police. In her case, the impugned decision opined that the evidence
submitted in her defence should have been objected to.
[27]
By contrast, the basis of the inadmissibility of
the Applicant in the present case is a complaint made by a third party.
Moreover, even though the Member indicated that the state of relations between
the Applicant and the authorities was not “directly”
relevant, he did comment on those allegations, stating that “[t]he nature of the relationship between the Dabas police and
the Dabas authorities and you are such that it should raise serious doubts as
to the reliability of any allegation made by them”. In my view, it was
reasonable for the Member to focus on the specific allegations before him.
VI.
Conclusion
[28]
In my opinion, the application for judicial
review should be dismissed.
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