Docket: IMM-4847-14
Citation:
2015 FC 750
Ottawa, Ontario, June 15,
2015
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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AGNES MAGYAR
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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.
Overview
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision of the Refugee Protection Division of the Immigration
and Refugee Board [RPD], dated May 13, 2014, wherein the RPD found that the
Applicant was not a Convention refugee or a person in need of protection.
[2]
Because the Applicant was removed from Canada, a stay having been refused by this Court, the Respondent brought a motion to
dismiss on the basis of mootness, which motion is also determined in these
reasons. In my view this application is not moot and therefore the Respondent’s
motion is dismissed.
[3]
The application is granted and the matter is
remitted for re-determination by a differently constituted RPD.
II.
Facts
[4]
The Applicant is a 38 year old citizen of Hungary. She claims that she fears her former common-law spouse [Spouse] due to the
physical abuse he began to inflict on her after she revealed to him that she
was of Roma descent.
[5]
She further claims that her Spouse is a police
officer, and that she has therefore been unsuccessful in her efforts to obtain
assistance from the police in Hungary.
[6]
She claims that in May 2012, shortly after she
told her Spouse that she was pregnant and refused to have an abortion, he kicked
her until she fell unconscious, after which she went to the hospital and had a
miscarriage. She told the hospital that she had fallen from a ladder.
[7]
When she found out that she was pregnant again 3
months later, she left her Spouse and went to live with her parents, after
which he shot her dog in front of her house. In addition, his police colleagues
picked up each of her parents on the street in police cars, releasing them
shortly thereafter. Later that year, the Applicant’s Spouse pulled up in a police
car when she was walking on the street in her home town and slapped her. She
made a complaint to the police. The police report pertaining to that complaint
was not submitted to the RPD.
[8]
A few months later, her Spouse pulled up in a
police car when she was out on the street and kicked her such that she fell
down a set of six stairs. She was admitted to the hospital for one night, but
returned again in early January as she wasn’t well. She had a second
miscarriage. She submitted a medical report to the RPD pertaining to the second
hospital visit, which indicates that she had a miscarriage and was in hospital
for a week.
[9]
She claims that at this second visit, she told
the doctor what had happened and he called the police. The police came and took
down the Applicant’s information but before they left, one of the members, whom
the Applicant recognized as a friend of her Spouse, told her that she should
not make up lies about her Spouse. Shortly after her second miscarriage, the
Applicant became depressed and attempted suicide.
[10]
In February 2013, the police closed the
investigation pertaining to the complaint she had made in late 2012. The stated
reason for closing the investigation was that her Spouse had an alibi and two
witnesses. This document was in evidence before the RPD [Police Decision].
[11]
That same month, the Applicant moved to Budapest, stayed in a women’s shelter, found a job in an orphanage, and began seeing a
psychiatrist. However, her Spouse found her in Budapest six months later and
beat her up to the point that she ended up in hospital once again. She was
unable to speak to the police when they attended at the hospital, but went to
the police station afterwards and made a report [Budapest Police Report]. This
report and a medical report pertaining to this incident were in evidence before
the RPD.
[12]
It was at this time that her parents arranged
for her to come to Canada. Since arriving in Canada, she has received three
threatening emails from her Spouse, which she submitted to the RPD.
III.
Decision under Review
[13]
The RPD found that the Applicant was not a
Convention refugee or a person in need of protection, and that the
determinative issues were credibility and state protection.
[14]
The reasons given by the RPD for its negative
credibility finding were as follows:
a)
it is not plausible that the Applicant’s Spouse
did not know that the Applicant was of Roma origin until she told him, nor that
his anti-Roma colleagues did not know;
b)
it is not possible that the Applicant remained
in a women’s shelter for 8 months, as it is common knowledge that the demand in
such shelters is high;
c)
the Police Decision was given no weight on the
basis that it was more than likely fabricated as (i) it is not probable that a
Lieutenant-colonel would refer to an accused as an “offender”;
and (ii) the logical absurdity in the dates (from later to earlier, rather than
earlier to later) was suspicious. The RPD noted that the country condition
documents show a prevalence of fraudulent documents in Hungary;
d)
the Applicant did not provide the following
evidence:
i.
evidence that her Spouse existed or that he was
her common-law partner, except her own testimony, a letter from her father, and
the Police Decision, each of which the RPD found to have problems;
ii.
evidence that her Spouse was a police officer,
except the letter from her father, the threatening emails, the Budapest Police
Report, and the Police Decision. However, one cannot give very much weight to a
letter from a loving father; it is not possible to tell who sent the
threatening emails; nothing arose from the Budapest Police Report as the
Applicant did not follow up on it; and the Police Decision referred to her
Spouse only as a public official and only in the allegations section. In
further support of its finding that the Applicant’s Spouse was not a police
officer, the RPD noted that: the medical reports do not refer to the alleged
perpetrator; the Applicant did not know her Spouse’s rank or what he did on the
job; she did not submit a copy of the police complaint that led to the Police
Decision; and it was not probable that it would have taken her Spouse six
months to find her in Budapest if he were a police officer. The RPD stated that
the Applicant’s failure to establish that he was a ranking police officer
effectively undermined her claim of well-founded fear;
iii.
the psychiatric report from Hungary; and
iv.
medical documents evidencing her first
miscarriage;
e)
the documents were not originals and were not
necessarily current to the event or incident they allegedly corroborated;
f)
the Applicant testified that she met her Spouse
in May 2011 whereas the psychiatrist report states that she met him in 2008;
g)
she amended her narrative with respect to her
first visit to the hospital after the attack in late 2012 from “I told” the doctor what happened, to “I did not tell” the doctor what happened; and
h)
she did not leave Budapest for another month
after the attack that took place there. The RPD did not accept her explanation
that she needed to source funds.
IV.
Mootness
[15]
The Respondent argues that the application
should be dismissed because it is moot by reason of the fact that the Applicant
has been removed to her country of nationality. I disagree for the following
reasons.
[16]
With respect to the first part of the general
test for mootness set out in Borowski v Canada (Attorney General),
[1989] 1 S.C.R. 342, I find that this application is not moot in that there
remains a live controversy between the parties.
[17]
Unlike the cases relied on by the Respondent, in
which the Court found that the judicial review of a Pre-Removal Risk Assessment
[PRRA] was moot because a positive decision at that stage would have no
tangible, concrete or practical effect given that the purpose of a PRRA is to
assess the risk of “removal” itself, including
the Court of Appeal’s decision in Solis Perez v Canada (Citizenship and
Immigration), 2009 FCA 171, the present case deals with judicial review of
a claim for protection under section 96 of IRPA. The determination of an
application under section 96 could still lead to the conferral of rights
regardless of whether an applicant has been removed (Molnar v Canada (Citizenship and Immigration), 2015 FC 345 at para 24 [Molnar]; Magusic et al v
Canada (Minister of Citizenship and Immigration) (22 July 2014) Ottawa, IMM-7124-13 (FC) [Magusic]). As Chief Justice Crampton wrote in Escobar
Rosa v Canada (Citizenship and Immigration), 2014 FC 1234 [Rosa]:
35 In a judicial review of a negative
PPRA decision, there would be little point in sending the matter back for
redetermination by a different PRRA officer, because the applicant would no
longer be "in Canada", as required by those provisions. In that
context, it is readily apparent that the judicial review would be without
object (Solis Perez, above).
36 The same cannot be said with
respect to a judicial review of a negative decision by the RPD under section
96. There is no specific requirement in section 96 that the refugee claimant
still be in Canada at the time of the redetermination. In the absence of clear
wording in the IRPA to the contrary, I reject the Respondent's position that
the RPD does not have the jurisdiction to reconsider an application under
section 96 once the applicant has properly been removed from Canada, even if this Court determines that the RPD committed a reviewable error in denying the
application. Indeed, there is jurisprudence of this Court to the contrary (Freitas
v Canada (Minister of Citizenship and Immigration), [1999], 2 FC 432 at
para 29; Magusic, above, at paras 10-11; see also Thamotharampillai,
v Canada (Solicitor General), 2005 FC 756, at para 16).
[18]
Chief Justice Crampton further held that to
preclude refugee claimants from accessing a remedy following a negative and
unreasonable RPD decision would be inconsistent with the objectives of the IRPA
and the intention of Parliament:
38 The position adopted by the
Respondent would preclude any possibility of a remedy for legitimate refugee
claimants who have been removed from Canada following a negative decision by
the RPD that was unreasonable or otherwise fatally flawed. In my view, such an outcome
would be inconsistent with a number of the objectives set forth in subsection
3(2) of the IRPA, including the following:
-- granting fair consideration to
those who come to Canada claiming persecution (paragraph 3(2)(c));
-- offering a safe haven to persons
who are able to demonstrate that they are a Convention refugee, as defined in
section 96 (paragraph 3(2)(d)); and
-- establishing fair and efficient
procedures that maintain the integrity of the Canadian refugee protection
system, while upholding Canada's respect for the human rights and fundamental
freedoms of all human beings (paragraph 3(2)(e)).
39 The fact that a removal order
comes into force following a negative decision by the RPD and upon the expiry
of the time limit referred to in subsection 110(2.1) if an appeal to the RAD is
not made or is unavailable, does not necessarily imply that Parliament intended
to preclude the RPD from being able to hear an application that is remitted to
it for redetermination after a person has been removed from Canada. The same is
true with respect to the fact that, pursuant to subsection 48(2), persons who
are subject to enforceable removal orders are required to leave Canada immediately and such orders must be enforced as soon as possible. Among other things,
these provisions implicitly assume that the RPD did not commit a reviewable
error in reaching the decision that led to the conditional removal order
becoming enforceable.
[19]
The Applicant in the present case was denied
refugee status by the RPD. While IRPA does not give her a right to an automatic
stay of removal when she applies for leave for judicial review since she is
from a designated country of origin, neither does it remove her right to pursue
judicial review of the RPD’s decision either before or after removal. She
sought leave in accordance with that right and leave was granted. Despite her
removal prior to the determination of her application for judicial review, the
result of the application is not purely academic because, if she is successful
on her application for judicial review, she could have her decision
re-determined by the RPD, and the RPD may allow her claim for refugee
protection.
[20]
I agree with and adopt the findings of Justice
Fothergill in Molnar, currently under appeal. In doing so, I echo his
reluctance to conclude that the effect of the Chief Justice’s ruling in Rosa
is that a failed refugee claimant loses the right to challenge the RPD’s
determination if they are involuntarily removed and seek judicial review from
their country of nationality. The applicant in Rosa was outside his
country of nationality and so the matter was resolved without the need to
consider the question further.
[21]
I also note that when introducing Bill C-31 to
the Standing Committee on Citizenship and Immigration, the Minister stated that
claimants from designated countries of origin, though they would not benefit
from an automatic stay of removal, “would continue to
be able to ask the Federal Court to review a negative decision” (House
of Commons, Standing Committee on Citizenship and Immigration, 41st
Parl, 1st Sess, CIMM-31 (26 April 2012) at 2 (Chair: David Tilson)). To the
extent legislation lacks clarity, resort to Parliamentary debates is permitted
(Canada 3000 Inc, Re; Inter-Canadian (1991) Inc (Trustee of), 2006 SCC
24 at para 57). In my view, the Minister’s statement, unqualified as it was,
implies continued access to this Court notwithstanding removal. This may afford
the Applicant rights under section 96 and also rights under section 97 of the
IRPA.
[22]
Justice Manson confirmed in Magusic that Freitas
v Canada (Minister of Citizenship and Immigration), [1999] 2 FC 432 (TD) [Freitas],
in which Justice Gibson held that a disputed RPD determination is not moot
following an applicant’s removal from Canada, is still good law. I agree with
their conclusions.
[23]
I also note that if being in Canada is a requirement, this Court in Freitas ordered the claimant returned to Canada.
[24]
I further note that in refusing the Applicant’s
motion for a stay, Justice LeBlanc assumed for the purposes of the stay that
there was a serious issue and decided the matter on the basis that there would
be no irreparable harm in allowing the removal to proceed. In my view, it is
inconsistent for this Court to find there is no irreparable harm in removing an
individual, and then to find that her right to a review of the RPD’s decision
has been lost because of that removal. The Court’s finding that she would not
be irreparably harmed by being removed impels me to find at the very least that
her application for judicial review is still active and should be considered.
[25]
However, even if I am wrong and the matter has
become moot by the removal of the Applicant, I agree with Justice Gibson in Freitas
and Justice Fothergill in Molnar in holding that this is nevertheless an
appropriate case in which to exercise the Court’s discretion to deal with this
matter on the merits, and rely on their reasons for so doing.
V.
Issues
[26]
The issues raised by this matter are:
A.
whether the RPD’s credibility findings were
reasonable; and
B.
whether the RPD erred by failing to assess the
adequacy of state protection in Hungary.
VI.
Standard of Review
[27]
The RPD’s conclusions on credibility and state
protection are reviewable on a standard of reasonableness (Rusznyak v Canada (Citizenship and Immigration), 2014 FC 255 at para 23). The Supreme Court of
Canada explained what is required of a court reviewing on the reasonableness
standard in Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, which
states:
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.
VII.
Applicant’s Submissions
[28]
The Applicant submits that the credibility
concerns raised by the RPD rendered its decision unreasonable, and that the RPD
failed to assess state protection. The Applicant had submitted numerous
personal corroborative documents, yet it seemed that nothing short of a pre-set
list of necessary documents would satisfy the RPD about the veracity of the
claim.
[29]
Further, the RPD unreasonably discounted the
corroborating documents submitted by the Applicant, which included a letter
from her parents, the Police Decision, Budapest Police Report, medical reports,
a letter from the women’s shelter in Budapest, threatening emails from her
Spouse, a psychiatric report, and a letter from the Sexual Assault &
Domestic Violence Centre at the Women’s College Hospital.
VIII.
Respondent’s Submissions
[30]
The Respondent submits that while the Applicant
disagrees with the RPD’s conclusions and has offered explanations and
alternative findings that it could have reached, she has not shown that any of
the RPD’s findings are perverse, capricious, or made without regard to the evidence.
[31]
The RPD, as the primary finder of fact, is
entitled to reject even uncontradicted evidence if it is not consistent with
the probabilities affecting the case as a whole, and to make adverse
credibility findings based on the implausibility of a story, common sense, and
rationality.
[32]
The Applicant could not establish her alleged
persecutor’s identity, either as her common-law partner or as a police officer.
It was open to the RPD to require corroborative evidence (Ortiz-Juarez v Canada (Minister of Citizenship and Immigration), 2006 FC 288 at para 7) and to note
that the Applicant had failed to provide original documentation (Refugee
Protection Division Rules, SOR/2012-256, Rule 42(1) [RPD Rules]).
IX.
Analysis
A.
Was the RPD’s credibility finding reasonable?
[33]
The RPD’s reasons raise the issue of whether the
RPD was entitled to find that the Applicant was not credible on the basis of
the absence of certain pieces of corroborative evidence.
[34]
It is well established that a refugee claimant’s
testimony benefits from a presumption of truth unless there is a reason to
doubt its truthfulness (Maldonado v Canada (Minister of Employment and
Immigration), [1980] 2 FC 302 (CA) at para 5 [Maldonado]).
Accordingly, there is no general requirement for corroboration. It is therefore
an error to make a credibility finding based on the absence of corroborative
evidence alone (Ndjavera v Canada (Citizenship and Immigration), 2013 FC
452 at para 6).
[35]
However, it is also well established, and I
agree that the onus is on a refugee claimant to establish the elements of his
or her claim for protection (RPD Rules, Rule 11; Ismaili v Canada (Citizenship and Immigration), 2014 FC 84 at paras 32-34 [Ismaili]).
[36]
The case law states that although the RPD may
not draw negative inferences solely from the fact that a refugee claimant
failed to provide extrinsic documents that corroborate his or her claim, where
there are valid reasons to doubt a claimant’s credibility, the RPD may validly
consider the failure to provide such documentation in making its credibility
determination if it does not accept the claimant’s explanation for that failure
(Ismaili at paras 36-56). Justice Tremblay-Lamer expressed the principle
clearly in Dundar v Canada (Citizenship and Immigration), 2013 FC 452 [Dundar]
as follows:
21 In Amarapala v. Canada (Minister of Citizenship and Immigration), 2004 FC 12, [2004] F.C.J. No. 62
(QL), at para. 10, Kelen J. addressed this issue when he asserted that:
It is well established that a panel
cannot make negative inferences solely from the fact that a refugee claimant
failed to produce any extrinsic documents to corroborate a claim. But where
there are valid reasons to doubt a claimant's credibility, a failure to provide
corroborating documentation is a proper consideration for a panel if the Board
does not accept the applicant's explanation for failing to produce that
evidence.
22 I concur with Kelen J.'s approach
to corroborative evidence. Where valid reasons to doubt a claimant's
credibility exist, the Board may draw negative credibility inferences from a
failure to provide supporting evidence. However, in my opinion, these
inferences may only be drawn where the applicant has also been unable to
provide a reasonable explanation for his or her lack of corroborating material.
[37]
Therefore the first question that arises is
whether a valid reason for doubting the Applicant’s credibility existed. If it
did, the door was open for the RPD to draw a negative inference from the
Applicant’s failure to produce certain corroborative evidence. However, while
the RPD gave two reasons for doubting the Applicant’s credibility prior to
turning to the lack of certain corroborating evidence, I find neither was
sufficient to permit the RPD to draw negative inferences from the absence of
certain corroborative evidence.
[38]
The first finding, that it was not plausible
that the Applicant’s Spouse and his anti-Roma colleagues were previously
unaware of the Applicant’s Roma ethnicity, failed to take account of the
Applicant’s evidence that she and her parents were light skinned and that she
had not been targeted by racists in society. It also failed to take account of
the information in the psychiatric report that the Applicant told him she had
been taught when she was young not to speak about her ethnicity. This plausibility
finding is not based on the evidence nor is it based on special expertise of
the RPD, nor in my view is it a finding made in the clearest of cases, as set
out in Valtchev v Canada (Minister of Citizenship and Immigration), 2001
FCT 776 at para 7. Further, when making a negative credibility finding based on
an implausibility finding, the RPD must clearly articulate why the evidence is
outside the realm of what could reasonably be expected in the specific
circumstances of an applicant’s case (Isakova v Canada (Citizenship and
Immigration), 2008 FC 149 at para 11). I find that this particular finding
was made without addressing the specific circumstances of the Applicant and
that it was made contrary to the evidence before the RPD. It was therefore
unreasonable.
[39]
The second finding, that it was not possible
that the Applicant had remained in a women’s shelter in Budapest for 8 months,
was speculative and was also made contrary to the documentary evidence. This
finding ignored both the letter from the women’s shelter corroborating that the
Applicant had indeed resided there for 8 months. It also ignored the objective
country condition evidence, namely the Government’s own Response to Information
Request HUN103981.E [RIR] which stated that people such as the Applicant may
stay in a general shelter space for up to 18 months in some cases. While the
Respondent correctly points out that the documentary evidence shows that space
is limited in crisis centres nationwide, and that people may stay at “county-run” family shelters for only a couple of
months, this evidence does not support the RPD’s finding that it was not “possible” that the Applicant could have stayed in a
women’s shelter for 8 months. The RIR is directly to the contrary as was the
letter from the shelter and the testimony of the Applicant. In making this
finding, the RPD did not consider whether or not the shelter in question was a
county-run shelter. Further, it found that an abused woman can usually only
find shelter for “weeks”, which does not reflect
even the evidence on county-run shelters. This is not a matter within the
expertise of the RPD, it is not evidence-based and this finding was made
contrary to the evidence. Nor is this the clearest of cases, or based on common
sense or rationality. Therefore it is unreasonable.
[40]
Given the problems with these two findings, I
conclude that the RPD did not have valid reasons to doubt the Applicant’s
credibility prior to faulting her for the lack of corroborative evidence.
Therefore the RPD acted unreasonably by drawing negative inferences from the
Applicant’s failure to produce certain corroborative evidence, contrary to Maldonado
and Dundar.
[41]
Even if the RPD had valid reasons to doubt the
Applicant’s credibility, the second question that would arise is whether the
RPD assessed the Applicant’s explanations for failing to produce corroborating
evidence for certain elements of her claim. As stated above, the RPD may draw a
negative inference from a claimant’s failure to produce corroborating evidence
where it does not accept his or her explanations for failing to do so (Amarapala
v Canada (Minister of Citizenship and Immigration), 2004 FC 12 at para 10).
This requires the RPD to consider the explanations provided. Here, the
Applicant explained why she had been unable to obtain and provide a report from
her psychiatrist in Hungary. She explained why she had been unable to provide
the originals of her documents. She said that, while the letter from her father
explained that he had been unable to gather the psychiatric evaluation and some
of the medical documents as he was often refused due to privacy concerns.
However, the RPD neither mentioned nor evaluated her explanations. The RPD’s
reasons make it clear that the absence of corroborative evidence led directly
to its negative credibility finding, such that I am unable to conclude that
this is simply an issue of the adequacy of the reasons, curable by Newfoundland
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62.
[42]
In the circumstances, the RPD erred by basing
its credibility finding on the lack of certain corroborative evidence. This
error is sufficient to set aside the general credibility finding because it is
not possible to say whether, without this error, the RPD would have reached the
same conclusion on general credibility.
[43]
Without reliance on the lack of corroborative
evidence, the RPD had very little to rely on because its other credibility
concerns were minor ones. In any event, I find that there were a number of problems
with these findings also.
[44]
For example, the RPD unreasonably discounted
much of the corroborating evidence that the Applicant provided to establish
that her Spouse was a police officer, as well as other elements of her claim.
It gave little weight to the letter from her father on the sole basis that he
is a “loving” father, when the law is well
established that it is an error to give evidence little weight simply because
it comes from a relative (Cruz Ugalde v Canada (Public Safety and Emergency
Preparedness), 2011 FC 458 at paras 26-28). The RPD found that the Police
Decision was more than likely fabricated as it referred to an accused as an “offender” and contained a logical absurdity in that
the dates said December 2012 to September 2012. In my view, this constitutes an
unfair and microscopic analysis. The use of the word “offender”
versus “accused” in a foreign police document
coming through translation is not sufficient to impugn the Applicant’s
credibility. The date issue could easily be and most likely is an error on the
part of the police member writing the decision. As such, that error should not
be used to assail the victim’s credibility. The RPD discounted the Budapest
Police Report on the basis that it was merely the Applicant’s statement without
a police finding, and that she didn’t follow up on it. However, regardless of
the outcome of the complaint, this document provides proof that the Applicant
made a complaint to the police. By discounting evidence in the record on the
basis that other evidence was missing or would have been preferred, the RPD put
an unrealistic evidentiary requirement on the Applicant. The RPD misdirected
its focus. It should have considered the Budapest Police Report in the context
of whether the assault happened, and not rejected it simply because other
reports which the RPD may have preferred were not filed (Navaratnam v Canada
(Citizenship and Immigration), 2015 FC 244 at para 9).
[45]
Further, the RPD based its credibility finding
on very minor inconsistencies in the Applicant’s evidence. No doubt the RPD may
look at credibility from the ground up, but these errors are trivial and easily
explained. They were taken too far by the RPD.
[46]
First, the RPD noted that although the Applicant
testified that she met her Spouse in May 2011, the psychiatrist report stated
that she met him in 2008. The RPD failed to give the Applicant an opportunity
to explain this inconsistency, which could easily have been and most likely was
just a simple error on the part of the psychiatrist writing the report (Portillo
Romero v Canada (Citizenship and Immigration), 2011 FC 1452 at paras
102-103; Awolaja v Canada (Citizenship and Immigration), 2010 FC 1240 at
paras 45-55). As such, the RPD erred in considering this to be a “significant” matter in terms of the Applicant’s
credibility.
[47]
Second, the RPD drew a negative inference from
the fact that the Applicant amended her narrative in respect of the first visit
to the hospital after the incident in late 2012 from “I
told” the doctor what happened, to “I did not
tell” the doctor what happened. There is nothing to suggest that the RPD
assessed – as it was required to do – the Applicant’s explanation that she had
not noticed the error when reviewing the original narrative with the
translator, and that perhaps she had not paid enough attention given the effect
of her medication on her ability to concentrate. It was open to the RPD to
reject this explanation, but not to ignore it (Owusu-Ansah v Canada
(Minister of Employment and Immigration), [1989] FCJ No 442 (CA)).
[48]
The RPD criticized the Applicant for not knowing
her Spouse’s rank and what he did on the job. In doing so, the RPD
misapprehended the evidence. The Applicant stated both in her complaint to the
police as recorded in the Budapest Police Report, and in her testimony before
the RPD itself, that her Spouse was a “major”.
As such, the finding that she did not know his rank was contrary to the
evidence. She knew and testified that he was a “major”,
that he worked in an office, and that there were persons working beneath him.
While the RPD clearly expected that the Applicant’s Spouse would have confided
more details about his police work to her, the RPD cannot criticize the
Applicant for his failure to do so without a basis in evidence as it cannot be
said that his not doing so is clearly implausible. Given the confidentiality
that usually envelops police work, of which I take judicial notice, such a
plausibility finding cannot be sustained. On this point, I also note that in
the hearing, the RPD actually told the Applicant and counsel that the issue of
the Spouse’s rank was “not critical”. There is
an unfairness in the RPD telling a claimant that a matter is “not critical” and then subsequently relying on that
same matter to impugn the claimant’s credibility.
[49]
The RPD further doubted the Applicant on the
basis that it was not probable that her Spouse would have taken 6 months to
find her in Budapest if he was a police officer. I note this finding was
explicitly made through the lens of the RPD’s other credibility findings such as
those flawed findings reported above. The RPD erred and should have assessed
this matter separately because it was a new and different ground of attack on
the Applicant’s credibility. In any event, this finding was not grounded in the
evidence, nor in rationality or common sense. The Applicant had testified that
she took precautions to escape detection such as using public phones. Her
explanations, once again, were ignored, all of which renders the finding
unreasonable.
[50]
Finally, the RPD drew a negative inference from
the fact that the Applicant did not leave Budapest for a month after being
attacked there. In rejecting her explanation that she needed to source travel
money before she could leave, the RPD ignored her father’s letter which
corroborated her explanation by stating that they are poor people and that it
was very difficult to gather half the money for the trip, with the other half
being covered by a relative in Canada whom they contacted to help them. The RPD
rejected her explanation without considering the evidence on the record that
contradicted its conclusion, all of which made this finding unreasonable.
[51]
Given the errors I have found with the majority
of the RPD’s findings, I find its general credibility finding to be unsafe and
unreasonable. However, this finding is not determinative because the RPD also
found that the Applicant’s claim failed on the issue of state protection.
B.
Did the RPD err by failing to assess state
protection?
[52]
The RPD wrote at the beginning of its decision
that state protection was a determinative issue, and stated at the end of the
decision that its cumulative reasons above related both to the issues of
credibility and state protection. However, I am unable to find any analysis of
state protection in the RPD’s decision. Perhaps the RPD’s comments that the
Applicant had failed to establish that her Spouse was a police officer were
intended to address the issue of state protection. This is far from clear.
Further, following the RPD’s finding that the Applicant had not established
that her Spouse was a police officer, the RPD did not assess whether the
Applicant could obtain state protection as a Roma woman, independently of her
claim that her husband was a police officer. There is no discussion of the
adequacy or effectiveness of state protection in Hungary, no discussion of the
applicable test, and no discussion of where on the scale Hungary falls. Because I am unable to ascertain how the RPD reached its conclusion on state
protection, I find that its state protection finding was not justified,
transparent, and intelligible (Canada (Citizenship and Immigration) v Balogh,
2014 FC 932; Canada (Citizenship and Immigration) v Bari, 2015 FC 656).
X.
Conclusion
[53]
The application for judicial review should be
allowed, and the matter sent back to be re-determined by a differently
constituted panel of the RPD.
[54]
Neither party proposed a question for
certification, and none arises.
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