Date:
20140225
Docket: IMM-11649-12
Citation:
2014 FC 177
Ottawa, Ontario,
February 25, 2014
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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CSABANE BABOS
CSABA BABOS
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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 for judicial review of the decision of Michele Pettinella, a
member of the Refugee Protection Division of the Immigration and Refugee
Protection Board [the Board], pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act]. The Board dismissed
the Applicants’ claim for refugee protection, concluding that they were not
convention refugees or persons in need of protection under sections 96 and 97
of the Act.
I. Issue
[2]
The
issue raised in the present application is as follows:
A.
Was the Board’s decision unreasonable with respect to its findings on
credibility and state protection?
II. Background
[3]
The
Applicants consist of Csabane Babos [the Principal Applicant or PA] and her
son, Csaba Babos [the Minor Applicant or MA]. They are Hungarian citizens of
Romani origin.
[4]
The
PA alleges in a half-page initial Personal Information Form narrative [First
PIF Narrative], filed on April 5, 2011, that harassment and attacks are
everyday issues in Hungary as a result of her race. She states that the MA has
been physically assaulted many times at school because of his Roma ethnicity.
In 2010, the PA states that the MA was attacked on the street, and when she
turned to the court system for help, the man suspected in the MA’s beating
threatened him in an attempt to dissuade him from pursuing the incident with
the police. In addition, she stated that she has been chased off of public
transit and insulted because of her ethnicity. On September 12, 2011, the
Applicants filed a first amended Personal Information Form narrative. This
mainly corrects typographical errors and is functionally identical to the First
PIF Narrative.
[5]
On
February 11, 2012, the Applicants filed a second amended Personal Information
Form narrative [Amended PIF Narrative]. This Narrative is ten pages long and
contains many substantial allegations that were not included in the First PIF
Narrative. These include refusal of medical help, difficulty finding
employment, and many incidences of verbal and physical abuse of the Applicants
by skinheads and Hungarian Guardists, starting in the early 1990s.
[6]
The
Applicants left Hungary on February 8, 2011, to claim refugee protection in Canada.
[7]
The
Board found that the Applicants’ allegations were not credible and that they
had not rebutted the presumption of state protection.
A. Credibility
[8]
With
regard to credibility, the Board made six primary findings.
[9]
First,
the Board found the PA’s explanation as to the differences between the First
and Amended PIF Narratives to be unconvincing. The Amended PIF Narrative
contained one specific incident of persecution while the Amended PIF Narrative
contained approximately 36. When asked by the Board for an explanation
regarding this discrepancy, the PA stated that her former lawyer told her to
keep her First PIF Narrative to one or two pages in length. The Board did not
find it credible, instructions from counsel notwithstanding, that the PA would
not at least provide a cursory description of these additional incidences in
her First PIF Narrative.
[10]
Second,
the PA states in her Amended PIF Narrative that she contacted police “more than
5-6 times,” but describes in the same Narrative more than 15 incidents when police
were contacted. When asked by the Board as to how many times she contacted
police, she stated that she did not know and only guessed in her Amended PIF
Narrative. The Board found it not credible that someone could not recall a more
consistent estimate of how many times police were contacted.
[11]
Third,
the PA failed to provide the Board with police or medical reports for
incidences other than one which occurred in February, 2010. The Board did not
accept the PA’s explanation that she had to obtain them personally, as
documentary evidence suggests the contrary. The Board drew a negative inference
on her credibility.
[12]
Fourth,
the PA told the immigration officer at her Port of Entry interview about the
February, 2010 incident by stating that the MA’s bracelet was taken and the
police did nothing to respond. Despite this, no police reports indicate the
MA’s bracelet was taken. When questioned by the Board, the PA stated that it
either fell off during the incident or was taken. The Board drew a negative
inference from this inconsistency.
[13]
Fifth,
the Board noted several incidents during testimony where the PA and her
common-law spouse [the Witness] had difficulty remembering events described in
the Amended PIF Narrative. This was evident by the PA and the Witness failing
to respond, stating that she did not know the answer, or misremembering key
details about the incidents on which she was being questioned. While noting
that it is natural that some details may be difficult to recall, the Board drew
a negative inference based on the fact that both the Witness and the PA
repeatedly had great difficulty remembering many events which allegedly led
them to flee Canada.
[14]
Finally,
the Board addressed submissions from the Applicants’ counsel that the PA
suffers from depression, migraines, and tremors and the Witness was sedated at
the time of the hearing, factors that would have impacted their credibility.
The Board rejected this explanation on the basis that insufficient credible
medical evidence was presented that showed that the Witness was sedated on the
date of the hearing or that the conditions and prescriptions at issue would
impact the credibility of the PA.
[15]
Consequently,
the Board did not believe the persecution described by the Applicants occurred,
except for the assault of the MA in February, 2010.
B. State Protection
[16]
With
respect to the assault on the MA in February, 2010, the Board found that the
police responded quickly and appropriately to the MA’s complaint, as they
tracked the suspected perpetrators based on the MA’s description and a license
plate number, brought the perpetrators to the police station, and a court date
was set. The police kept the MA and the PA apprised of developments in their
investigation. No evidence was provided that would suggest the police would
have not followed through on the court case had the MA remained in Hungary.
[17]
The
Board also reviewed country condition information that notes that while Hungary has problems with discrimination against the Roma minority, on balance Hungary is a democracy with appropriate police, political and administrative agencies to offer
recourse to persecuted individuals.
[18]
The
Board considered this information in light of the particular circumstances of
the Applicants’ case, including the February, 2010, incident and the police
follow-up.
III. Standard of Review
[19]
The
standard of review is that of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at para 47; Tamas v Canada (Minister of Citizenship
and Immigration), 2012 FC 1361, at paras 20, 22).
IV. Analysis
[20]
The
Applicants dispute the Board’s credibility findings for several reasons. First,
they assert that the Board showed no sensitivity to the PA’s medical issues,
noting Wardi v Canada (Minister of Citizenship and Immigration), 2012 FC
1509, at paras 19-20.
[21]
Second,
the Applicants state that the Board erred by making a negative credibility
finding on the basis of the substantive changes in the Amended PIF Narrative.
In Feradov v Canada (Minister of Citizenship and Immigration), 2007 FC
101, at paras 18-19, the Court stated that a PIF amendment alone is not a basis
to undermine the Applicant’s credibility where the amendment adds detail to the
Applicant’s story. Further, the Applicants note that they have filed a
complaint to the Law Society about their original lawyer advising the PA to
write a short First PIF Narrative – a fact which helps explain the differences
between the two narratives.
[22]
In
addition, the Applicants argue that the Board erred when it drew a negative
credibility inference from the fact that the PA described at one point in her
Amended PIF Narrative that she contacted the police “more than 5-6” times but
later described 15 times. The Applicants note that “more than 5-6” is not
inconsistent with 15, and the Board ought to have examined the credibility of
the incidences themselves, but did not do so.
[23]
The
Applicants also argue that the Board conducted a microscopic analysis of the
evidence and inappropriately required corroboration as a condition precedent to
finding the evidence credible. The Applicants draw particular attention to the
Board’s finding regarding the inconsistency between the PA’s Port of Entry
interview and her testimony as to how the MA’s bracelet went missing during the
February, 2010 assault. The alleged discrepancy only arises to the extent that
the police report states that the MA’s bracelet “disappears,” not that it was
“stolen.” The Applicants argue that this inconsistency is minor and a negative
credibility inference ought not to be drawn (Fatih v Canada (Minister of Citizenship and Immigration), 2012 FC 857, at paras 67-69).
[24]
The
Board’s credibility analysis was well within the Dunsmuir standard of
reasonableness. The Board noted the substantial differences between the First
and Amended PIF Narratives and was not convinced by the PA’s explanation that
it was on her lawyer’s direction. The Board’s decision was supported by several
other findings, including the inconsistencies between the number of incidences
described in the Amended PIF Narrative, the failure by the Witness and the PA
to recall key events during testimony, and the lack of corroborating evidence
save for the February, 2010 incident. Moreover, the Board considered the PA’s
medical condition and concluded that insufficient evidence existed to justify
the argument that the PA was unable to give complete testimony.
[25]
On
the whole, the Board’s credibility findings were justifiable, intelligible and
sufficient.
[26]
With
regard to state protection, given that I accept the Board’s credibility
finding, the only incident necessary to assess is the February, 2010 incident. It
was the Applicants’ burden to show state protection is inadequate. The facts
that are known are that the police identified the perpetrators based on the
information provided by the MA, a court date was set, and witnesses were
summoned. The absence of information as to what happened to the court case
after the Applicants left Hungary does not aid the Applicants in discharging
their burden to show that state protection was inadequate.
[27]
In
this case, it was reasonable for the Board to conclude, after reviewing country
condition information and the Applicants’ personal circumstances, that state
protection was adequate.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application is dismissed;
2.
No
question is to be certified.
"Michael D.
Manson"
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