Date:
20140214
Docket:
IMM-3688-13
Citation:
2014 FC 145
Ottawa, Ontario,
February 14, 2014
Present: The
Honourable Mr. Justice Roy
BETWEEN:
Monika
JOZSA
Kira KOVACS
Applicants
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND
ORDER
[1]
This is an application for judicial review filed by the
applicants under subsection 72(1) of the Immigration and Refugee
Protection Act, SC (2001), c 27 (the Act ). The applicants complained of
the decision rendered on April 18, 2013, by the Refugee Protection Division of
the Immigration and Refugee Board (IRB) that refused their refugee claims.
[2]
Considering the evidence, the submissions filed by the
parties and the arguments heard before this court, the application for judicial
review was dismissed for the reasons that follow.
[3]
The applicants, the mother and her very young daughter, are
of Hungarian nationality and Roma ethnicity. Essentially, the principal
applicant alleged discrimination against her in Hungary and she claims that she
was attacked by skinheads in 2009.
[4]
Following this incident she left her country on October 28,
2009, and arrived the next day in Canada. She then sought protection under sections 96
and 97 of the Act. At the time of the decision for which judicial review is
requested, the principal applicant was 21 years old while her daughter was
4 years old.
[5]
In my view, the principal applicant’s claims are divided in
two very separate parts. First are her claims that precede her arrival to Canada.
Second is the situation that she would face if she had to return to her country
of nationality. In either case, the RPD’s decision is based on the applicant’s absence
of credibility.
[6]
Thus, everything that is alleged by the applicant before
her arrival in Canada is discrimination that she allegedly experienced in Hungary
and an attack that required stitches. The RPD did not consider that these acts could
constitute persecution and this conclusion is reasonable. Indeed, as to the
single violent incident put forward by the applicant, if it could have been
sufficient, her story in 2013 is different from that which was given at first. Her
testimony is in fact different from what she submitted in writing in March
2013. In short, the applicant was not able to offer any corroboration of the incident
that she said she was a victim of. She was not able to support her allegations by
any documentation from the hospital where she allegedly went or from authorities
that she made a complaint to, then withdrew it. A witness of the incident, who the
applicant says is a friend, also did not provide any testimony, by letter or
otherwise. As the RPD noted, it is no longer the age when it was difficult for
written documents to travel. However, nothing of the sort was offered. In
addition, it is certainly possible that the accumulation of harassment and discrimination
could become persecution. However, it must still be proven. That was not done
in the circumstances.
[7]
As for a possible return to Hungary, the applicant alleges
that her relationship with her common law spouse deteriorated in the fall of
2010. He was allegedly violent toward her. Since then, he has been deported
from Canada because of inadmissibility. The applicant claims that he made
threats from Hungary, at a distance, since his expulsion from Canada. Moreover,
as for the allegations made about the applicant’s treatment in Hungary, these
allegations since her arrival in Canada are tainted with a complete lack of
corroboration. Therefore, even the incident that allegedly occurred in Canada and
in which the applicant was the victim of violence is not corroborated by any documentation
that could have come from the Montréal Police Department.
[8]
It is not particularly original to state that the burden of
proof is on the applicant. It is no more original to claim that the applicable
standard of review in this case is that of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Carranza v Minister of Citizenship and
Immigration, 2010 FC 914). The fact remains that it is the burden that the
applicants are faced with.
[9]
It is up to the applicant to establish the elements necessary
to his or her application. The evidence in administrative law may take different
forms, such as hearsay, but it must be credible and sufficient to succeed.
[10]
The principal applicant’s credibility was vital in this case.
Further, limiting herself to generalities, remaining evasive and reticent, certainly
does not favour credibility, which is necessary to compel. When inconsistencies
also appeared in different versions, there should be no surprise if the trier
of facts, who is the master of the assessment of credibility, chooses not to
grant compelling weight to such testimony.
[11]
Without purporting to be exhaustive with respect to the elements
that are considered by the decision-maker, the following passage taken from White
v His Majesty the King, [1947] S.C.R. 268, is almost a classic:
The foregoing is a general
statement and does not purport to be exhaustive. Eminent judges have from time
to time indicated certain guides that have been of the greatest assistance, but
so far as I have been able to find there has never been an effort made to
indicate all the possible factors that might enter into the determination. It
is a matter in which so many human characteristics, both the strong and the
weak, must be taken into consideration. The general integrity and intelligence
of the witness, his powers to observe, his capacity to remember and his
accuracy in statement are important. It is also important to determine whether
he is honestly endeavouring to tell the truth, whether he is sincere and frank
or whether he is biassed, reticent and evasive. All these questions and others
may be answered from the observation of the witness’ general conduct and
demeanour in determining the question of credibility.
[12]
Therefore, it cannot be more surprising that a court in
judicial review shows great deference with respect to the question of the
credibility of a witness (see also Cooper v Minister of Citizenship and
Immigration, 2012 FC 118, at paragraph 4). Witnesses who rely on generalities
could see their testimony be given less weight. To a certain extent, it could
be seen as being evasive or showing some reticence to provide details, which
could go against their claim. One cannot hope to provide a generic version that
is believable in all instances and sufficient. This does not mean that the
application under sections 96 and 97 of the Act is automatically
dismissed. Other evidence must be considered. But if there is none, it would be
difficult to show the dismissal of the application based only on lack of
credibility as not reasonable unless it was the result of a capricious or microscopic
review. A.W. Bryant, S.N. Lederman and M.K. Fuerst in The Law of Evidence in
Canada, 3th Ed., LexisNexis, 2009, remind us that
§12.151 The
assessment of the credibility of witnesses is considered a prime judicial
function. The Supreme Court reaffirmed the principle that the ultimate
conclusion as to the credibility or truthfulness of a particular witness is for
the trier of fact and is not the proper scope of expert opinion evidence.
Laypersons are capable of determining truthfulness based on logic, experience
and exercising their intuition and common sense.
[13]
In this case, the applicant made allegations relating to discrimination
that she had experienced in Hungary and described a single incident that she
was not able to confirm by independent evidence, which in the RPD’s view, could
easily have been available. The finding on the credibility of the applicant’
version can only be reasonable. In the same way, the allegations of violence against
her by her former common-law spouse are vague and result more from speculation of
whether she has to return to Hungary. There is no reviewable error.
[14]
It follows that the application for judicial review is dismissed.
There is no question that warrants certification.
ORDER
The
application for judicial review of the April 18, 2013, determination by the
Refugee Protection Division of the Immigration and Refugee Board is dismissed. There
is no question that is warrants certification.
“Yvan
Roy”
Certified true
translation
Catherine Jones,
Translator
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