Date: 20160308
Docket: IMM-2713-15
Citation:
2016 FC 284
Ottawa, Ontario, March 8, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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GABOR HUSZAR
ESZTER KORONKA
DAVID GERMUSKA
KIRA KINSCO GERMUSKA
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to s 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA or the Act] challenging a decision from the Refugee Protection
Division of the Immigration and Refugee Board [RPD or the Board]. In the
decision under review, the RPD found that the Applicants are neither Convention
refugees nor persons in need of protection within the meaning of ss 96 and
97(1) of the Act. The Applicants are seeking to have the decision set aside and
referred for rehearing by a differently constituted panel.
[2]
For the reasons that follow, the application is dismissed.
I.
Background
[3]
On October 6, 2010, Ms. Koronka, Mr. Germuska
(Ms. Koronka’s common-law spouse at the time), and their two children, David
and Kira Germuska, all citizens of Hungary, entered Canada and claimed refugee
protection the following day.
[4]
On August 25, 2011, Mr. Germuska violently
attacked and stabbed Ms. Koronka outside their home in Mississauga. Their neighbour
at the time, Mr. Huszar, intervened and was stabbed as well. Mr. Germuska was
convicted of attempted murder for the attack and sentenced to a term of
imprisonment of 6.5 years. Ms. Koronka claims that Mr. Germuska has threatened
to kill her as soon as he is released from prison.
[5]
On May 8, 2012, Mr. Germuska’s refugee claim was
deemed abandoned.
[6]
Ms. Koronka and Mr. Huszar, a refugee claimant
himself, have since started a relationship and have a child together. Their
claims were eventually joined.
[7]
On January 7, 2015, the Applicants appeared
before the RPD, which issued a negative decision on March 20, 2015.
[8]
On June 1, 2015, in anticipation of filing this
application for judicial review, the Applicants’ counsel requested an audio
recording of the RPD hearing in order to have a transcript prepared. The
Applicants’ counsel was ultimately advised that the hearing was not recorded
and therefore no copy or transcript could be provided.
[9]
On June 10, 2015, the Applicants filed their application
for judicial review of the RPD’s decision.
II.
Impugned Decision
[10]
The Board rejected the adult Applicants’
protection claims and since the minor Applicants’ claims rested on those of Ms.
Koronka and Mr. Huszar, it rejected their claims as well. The Board found that
aspects of the claims were not credible, an Internal Flight Alternative [IFA]
was available in Budapest, and the presumption of state protection had not been
rebutted.
III.
Issue
[11]
The over-arching issue in this application is
whether the absence of the transcript of the hearing violates procedural
fairness. This raises two sub-issues:
1. Are the Applicants required to demonstrate their inability to
respond to determinative issues of the decision caused by the absence of the
transcript?
2. Is the transcript required to permit the Court to adequately review
the Board’s decision regarding state protection?
IV.
Standard of Review
[12]
The parties did not advance submissions on the
applicable standard of review. However, it is trite law that correctness is the
applicable standard of review of procedural fairness issues: Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43.
[13]
In the circumstances of this case, the Court
need not consider whether any deference is owed to the RPD’s choice of
procedures. The allegation of unfairness was caused by the inadvertent loss of
the audio recording, rather than any deliberate decision by the RPD to govern
its own process.
V.
Parties’ submissions
[14]
The Applicants submit that the absence of a
transcript of their hearing before the RPD has led to a denial of natural
justice. The Applicants assert they require the transcript to effectively
challenge the RPD’s findings, which they contend are either founded on, or in
some way affected by, negative credibility findings.
[15]
According to the Applicants, the unfairness is
exacerbated by a number of circumstances, including the fact that both Mr.
Huszar and Ms. Koronka testified at the hearing; the RPD decision rested on
negative credibility findings, which in turn informed the conclusions on the
IFA and state protection; the reasons for decision contained other reviewable
errors, such as the finding that the second prong of the IFA test is only
applicable if the agent of harm is the government, or the finding that the
Applicants lacked subjective fear of persecution by Mr. Germuska despite the
undisputed fact that he tried to murder them and may face deportation back to
the Applicants’ country of nationality.
[16]
The Respondent advanced various submissions. It
argues that the Applicants are required to identify specific errors of the
Board’s decision that are impacted by a lack of transcript. It further submits
that the record is sufficient, without the transcript, to support the Board’s IFA
and state protection conclusions.
VI.
Analysis
A.
Are the Applicants required to demonstrate their
inability to respond to determinative issues of the decision caused by the
absence of the transcript?
(1)
The Applicants’ onus
[17]
There being no statutory right to a recording or
transcript of proceedings before the RPD, it is the Courts’ duty to determine
whether the record before it allows it to properly dispose of the application
for judicial review. Moreover, a new hearing must be ordered if the absence or
gaps in the transcript raise a “serious possibility” of the denial of a ground
of review. These principles are intended to ensure the fairness of the
decision-making process while recognizing the need for flexibility in applying
these concepts in the administrative context: Canadian Union of Public
Employees, Local 301 v Montreal (City), [1997] 1 S.C.R. 793 at para 81, also
citing Kandiah v Canada (Minister of Employment and Immigration) (1992),
141 NR 232 at paras 7-9.
[18]
In determining whether the absence of the
transcript amounts to a serious possibility of procedural unfairness, the case
law establishes a number of factors to consider. In Benavides v Canada
(Minister of Citizenship and Immigration), 2006 FC 323, Justice O’Keefe
cited with approval the factors considered by Justice Lemieux in Goodman v
Canada (Minister of Citizenship and Immigration) (2000), 185 FTR 102 (TD),
summarized as follows:
(1) the grounds for review advanced;
(2) the importance of the impugned
findings to the refugee claim;
(3) the basis upon which the RPD
arrived at its findings;
(4) the subject matter of the
transcript gaps, and the significance of the transcript gaps to the impugned
findings;
(5) other means the tribunal used to
fill the gaps; and
(6) other means available to the
Court to determine what went on at the hearing.
[19]
The above cases should be read in conjunction
with Agbon v Canada (Minister of Citizenship and Immigration), 2004 FC
356, where at para 3, Justice O’Reilly succinctly described the test to
determine whether an applicant had discharged her onus to establish procedural
unfairness. Citing Vergunov v
Canada (Minister of Citizenship and Immigration), [1999] FCJ No 584 (QL) (TD), he
stated that the applicant must raise an issue that affects the outcome of the
case that can only be determined on the basis of a record of what was said at
the hearing, such that the absence of a transcript thereby prevents the Court
from properly addressing the issue.
[20]
Additionally, Justice Snider’s decision in Cletus
v Canada (Minister of Citizenship and Immigration), 2008 FC 1378, cited by
the Respondent, stands for the proposition that the Court should carefully
consider the record to determine whether the omissions and contradictions in
the applicant’s evidence, which gave rise to negative credibility findings by
the RPD, were sufficiently documented in the record before the Court to permit
judicial review.
[21]
In Canada (Minister of Citizenship and
Immigration) v Liang, 2009 FC 955, Justice Mainville, relying on a number
of authorities of this Court, found that a new hearing may be warranted where
the absence of a transcript precludes the Court from reviewing the
reasonableness of the RPD’s assessment of credibility of a witness’ testimony
where “the Court has no basis on which to review how
and why the Panel disregarded these issues” (para 25).
(2)
Are the Applicants required to make their best efforts
to provide alternative evidence of what occurred at the hearing?
[22]
I think it follows that if the Applicants bear
the onus to demonstrate a breach of procedural fairness by the absence of the
transcript, they must demonstrate that they were unable to provide alternative
evidence on the salient points of the case in lieu of the transcript. This is a
relevant consideration to the Respondent’s further submission that the mere
absence of the transcript does not present any issue of procedural unfairness
nor prevent the Court from reviewing the Board’s determinations on state
protection.
[23]
The Applicants recognized their obligation to
provide the Court with some explanation as to why it was not possible to
provide alternative information with respect to the Board’s credibility
findings. In that respect, the Applicants submitted an affidavit of the male
Applicant, Mr. Huszar. In his affidavit, he deposed that he and the female
Applicant Ms. Koronka, agreed that they needed to order a transcript:
[W]e could not
remember everything we had said at the hearing, which took several hours and
that [sic] which we both testified. While I have some recollection of my
testimony, there are areas of the testimony I do not recall and some questions
to which the Board member refers in his reasons, that I have no recollection of
being asked.
[24]
However, in reviewing the record, the Court is
concerned that Mr. Huszar was perhaps not in a good position to provide this
evidence. I say this because the written final submissions filed by the
Applicant’s counsel consisting of some 30 pages acknowledged that Mr. Huszar
had difficulty testifying and was confused in his evidence.
[25]
In the section on credibility, counsel first
reviewed and tried to explain away the female Applicant’s three amendments to
her narrative, which the Board found to be inconsistent. She argued that the
amendments could not form the basis for a negative credibility inference, a submission
the Board rejected. More importantly, however, are counsel’s limited comments
referring to Mr. Huszar’s credibility, whose testimony she compared with that
of Ms. Koronka, as follows from page 4 of her submissions:
As clear and
consistent as Eszter’s testimony was, it is equally clear that Gabor (the male
Applicant) had some difficulty testifying and his testimony confused details in
his written narrative.
[26]
In light of these written observations of the
Applicant’s experienced counsel on the respective capacities of the Applicants
to relate what occurred before the Board, I am not satisfied that the
Applicants have fully discharged their onus to demonstrate that the absence of
a transcript prevents the Court from addressing the salient issues,
particularly that of state protection. Quite clearly, Ms. Koronka should have
been the deponent speaking to her recollection of what occurred at the hearing.
[27]
In addition, I accept the Respondent’s
submission that, within reason, the Applicants were required to identify any
specific errors that were impacted by a lack of transcript that the Court is
unable to assess, aside from broadly mentioning credibility. This argument is
particularly persuasive in the area of state protection where most of the
evidence was objective documentary materials.
[28]
My final unrelated point on the issue of
providing alternatives to an unavailable transcript is to suggest that it is
open to the parties to request the decision-maker to provide copies of his or
her hearing notes. They would of course, be redacted so as to refer only to
evidence recorded during the hearing, as opposed to disclosing comments and
information reflecting on the decision-making process. Although there may be no
obligation on the decision-maker to respond, the decision-maker might assent to
such a request, rather than see the efforts that went into the decision being
wasted for want of a transcript due to a technical slip or some similar
problem.
B.
Is the transcript required to permit the Court
to adequately review the Board’s decision regarding state protection?
[29]
The Respondent submits that the Board’s
credibility findings do not impact its decision regarding the existence of an
IFA available to the Applicants in Budapest. The Court, however, is satisfied
that general credibility findings played a role in the IFA decision. Therefore,
the Court limits its attention to the Board’s decision that the Applicants were
afforded state protection that they failed to avail themselves of.
[30]
In considering this analysis, the Court notes
that the Applicants relied principally upon the objective evidence to
demonstrate the inadequacy of state protection for Roma in Hungary. Of the 12
volumes of evidence before the Court, 11 treated this issue. Credibility
submissions were less than half a page and basically defensive in nature, as
reported above. The Applicants have not challenged the Board’s conclusions on
state protection. The only area of contention in respect of the missing
transcript therefore relates to the Applicants’ attempts to obtain state
protection.
(1)
The Female Applicant
[31]
In its reasons, the Board relied upon two
statements by the adult female Applicant regarding state protection. First,
that she had called the police only one time in February 2004 regarding past
incidents of domestic violence, and second, that in a custody dispute with her
ex-husband she did not return to the court after six months as recommended by
the court, but instead decided to move back in with him because he would not
allow her to see the children. The Board found the latter statement
unreasonable, which seems logical given that the custody dispute was at the
very time before the court. This was the only statement that could remotely be
described as a credibility finding in the reasons relating to the adult female
Applicant’s attempts to obtain state protection.
[32]
The two underlying statements upon which the
Board’s analysis reposed (only seeking police assistance once in respect of the
domestic disputes and returning to reside with her ex-husband instead of
seeking court intervention) are reported in the Applicant’s Personal
Information Form [PIF], as well as repeated in her counsel’s 30 page final written
submissions to the Board.
[33]
Accordingly, I do not find that the absence of
transcripts prevents me from reviewing and upholding the Board’s decision that
Ms. Koronka failed to demonstrate that state protection in Hungary is
inadequate, or that she had taken all reasonable steps in the circumstances to
seek protection before claiming refugee protection.
(2)
The Male Applicant
[34]
The Board made clear credibility findings
against the adult male Applicant as part of its reasons and concluded that he
had not provided clear evidence that state protection was inadequate. However,
these findings came after reviewing the Applicant’s testimony concerning the
attacks made on him and the alleged reports to the police.
[35]
The Board referred to the Applicant’s evidence
that he was attacked by skinheads and made two reports to police, one when he
was 12 years old, and the other in 1998 when he was 17 years old, neither of
which were serious, at which time the police did nothing. These incidents are
set out in his written narrative accompanying his PIF. Notably, while he
references these two incidents, he failed to indicate in his narrative that he had
reported them to the police.
[36]
The Board's initial line of reasoning was based
upon the version of the two attacks occurring, without regard to whether he
reported them or not. It found that the last complaint when living in Hungary,
being some nine years prior to leaving the country, does not amount to a lack
of police protection. Thereafter, the Board further rejected the probative
value of this evidence on several bases: that the state capacity to protect at
the national level was most important rather than the local apparatus; that
random assaults, where the assailants are unknown, are difficult to prosecute; and
that state protection cannot be based on an incident where the Applicant was
unable to identify the assailants.
[37]
I find the Board’s reasoning that the evidence
of the male Applicant’s personal incidents was very dated and limited,
sufficient to support a finding that the Applicant had not demonstrated the
inadequacy of state protection.
[38]
In any event, it was only after this analysis
that the Board set out in detail the Applicant’s inconsistent evidence in his
narrative and his live testimony regarding whether he reported these incidents
to the police. The only missing evidence that the transcript could provide on
this issue was to confirm the Board’s recitation of the Applicant’s testimony that
he had reported these incidents to the police. As mentioned, the narratives
give no indication that he had done so.
[39]
I am of the view that the male Applicant, or
certainly his spouse, should have had a sufficient recollection to recall
whether he testified that he had reported these incidents to the police and
that he was questioned on the inconsistency of his testimony with his written
narrative. Accordingly, counsel's submission at the hearing that “Gabor had some difficulty testifying and his testimony
confused details in his written narrative” likely relates in part to the
male Applicant testifying that he had reported these incidents to the police,
when this evidence was not disclosed in his written narrative. As such, the
credibility findings made against the male Applicant based on the
inconsistencies in reporting his incidents to the police appear justified. As
mentioned however, these findings were not necessary, as I accept that the
incidents, whether reported or not, are too dated and would not justify a
conclusion of a history of inadequate state protection of the male Applicant in
any event.
[40]
In these circumstances therefore, I find that
the absence of the transcript produced no procedural unfairness to the male
Applicant in the Court's ability to review the state protection findings concerning
his evidence. Otherwise, I find no reviewable error in the Board's conclusion
that the Applicant failed to demonstrate on the balance of probabilities that
state protection in Hungary was inadequate.
VII.
Conclusion
[41]
For the reasons described above, the Court
dismisses the application. No question is certified for appeal.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is
dismissed, with no question certified for appeal.
"Peter Annis"
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