Docket: IMM-5309-16
Citation:
2017 FC 651
Toronto, Ontario, July 6, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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LASZLO CSOKA
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ANA CSOKANE
FEKETE
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MARTIN CSOKA
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LASZLO JR CSOKA
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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
I.
Background
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27 [Act or IRPA], of a Pre-removal Risk Assessment [PRRA]. The PRRA Officer’s
[the Officer] October 31, 2016 negative decision [the Decision], under review,
found that the Applicants lacked credibility and provided insufficient evidence
to trigger either section 96 or 97 of IRPA. For the reasons explained below, I
am dismissing this application.
[2]
The Applicants arrived in Canada in January 2011
and submitted a refugee claim. Before the Refugee Protection Division [RPD],
the Principal Applicant [PA], Mr. Csoka, explained that he tried to report an
event to police but was prevented from doing so. He said that he was thereafter
assaulted by a police officer. He then filed a complaint, for which he was
subsequently harassed by law enforcement. At the RPD hearing, he could not name
the officer against whom he made the complaint.
[3]
The RPD dismissed the claim in November 2012.
That decision was challenged before this Court, but leave was denied. During
this process, the Applicants were represented by Mr. Hohots, who had engaged in
professional misconduct, misrepresenting cases involving Roma claimants, as
found by the Law Society of Upper Canada.
[4]
The Applicants retained new counsel for their
first PRRA application. In light of the Law Society of Upper Canada’s findings
with respect to the disciplinary action taken action against Mr. Hohots, the
officer who assessed the Applicant’s first 2015 PRRA [PRRA1] application (of
2015) accepted all the evidence, not only new evidence. The Applicants
accordingly submitted new facts in their PRRA1 application, which was
considered by the officer. They were helped by a second lawyer [2015 Counsel] in
their PRRA1 application. The officer ultimately rejected the PRRA 1 application.
[5]
The Applicants subsequently dismissed their 2015
Counsel. As discussed further below, they now say that the 2015 Counsel who
represented them during their PRRA1 application, was negligent because she
submitted an uncertified, unsworn and unsigned personal statement [the Personal
Statement] of the PA.
[6]
With assistance of new counsel in 2016 [2016
Counsel], the Applicants challenged the PRRA1 decision before this Court; on
June 13, 2016, Justice Fothergill sent it back for re-determination (Csoka v
Canada (Citizenship and Immigration), 2016 FC 653). Justice Fothergill
found that the PRRA1 officer had failed to provide adequate reasons and was
unable to understand the officer’s reasoning with respect to the insufficiency
of evidence related to state protection, as well as the refusal to grant the
Applicants’ oral hearing request.
[7]
For the 2016 PRRA [PRRA2], the Applicants relied
on what they alleged to be widespread harassment, abuse and discrimination that
constituted persecution, including through:
•
Work: In 2002,
Mrs. Csoka, who worked with the PA, was physically, verbally and sexually
harassed and abused at work. She was threatened with dismissal if she reported
it. The PA, however, filed a complaint. The PA subsequently had his salary
reduced by half and was demoted on discriminatory grounds. He was eventually
dismissed.
•
The Police: In
2007 (and onwards), the PA and his son, Martin, say that they witnessed a
police officer, Mr. Casaba Kadar, tamper with evidence at a car accident scene,
and a confrontation ensued. When the PA unsuccessfully tried to file a
complaint to the authorities, he was further threatened by the police officer.
Mr. Kadar would thereafter stop the PA and fine him for false traffic
violations, and told him that if he talked back, he would be shot and killed.
•
Politics: In
2010, Mr. Kadar’s friend, whom the Applicants say is a member of a right-wing
and anti-Roma group, was elected to the position of Mayor of the municipality.
•
Schooling: In
2010, the PA’s children were deemed mentally ill at school due their Roma
ethnicity, suffered asthma attacks from the stress and Child Services
threatened to take them away.
[8]
In 2011, the Applicants left Hungary. They
allege that in 2015, Mr. Kadar returned to their home and told the PA’s mother
that if they should return to Hungary, he would murder them.
II.
The Decision under Review
[9]
During the October 26, 2016 PRRA2 oral hearing
by videoconference, the Officer asked if the Applicants felt comfortable
sharing personal details of their circumstances in Hungary; they agreed to do
so. The Officer also asked Ms. Csoka if she wanted to be interviewed alone,
given the sensitivity of some the issues raised. The Officer allowed them to
take breaks.
[10]
The Officer advised of her concerns regarding
contradictions between the 2015 Personal Statement and the 2016 Affidavit. In
the PRRA2 Decision under review today, the Officer noted that in spite of the
inconsistencies, omissions and discrepancies put to the Applicants during the
oral hearing, she was unsatisfied with the vast majority of the responses she
received and was therefore unable to set aside her concerns with respect to the
Applicants’ credibility.
[11]
Specifically, the Officer noted various
inconsistencies that arose from their PRRA2 hearing, which at times diverged
significantly from their PRRA1 Personal Statement. These inconsistencies
included when and the circumstances under which they met; the work histories of
both the PA and Ms. Csoka; having filed a complaint with the police regarding
the alleged abuse suffered at work by Ms. Csoka; and harassment by neo-Nazi
groups – a fact which had not been alleged prior to the PRRA2.
[12]
When asked to explain the discrepancies noted
above, the Applicants stated either that they did not know they existed and
that they were now telling the truth, or that there had been interpretation
issues previously. 2016 Counsel responded that some of these events happened a
long time ago. The Officer rejected these answers and drew negative credibility
findings accordingly.
[13]
The Officer further noted that upon reviewing
the evidence, the Hungarian State had made some improvements in addressing
discrimination against their Roma citizens, but that discrimination was still
prevalent in some sectors of Hungarian society, such as education and housing.
However, she found that while the evidence did point to discrimination against
Roma, there was insufficient evidence to establish personalized risk or to
conclude that State protection was inadequate.
[14]
The Officer rejected the PRRA2 application,
which is now the subject of this judicial review. Sometime after the oral
hearing, the Applicants once again retained new counsel [2017 Counsel] to
represent them in the present judicial review.
III.
Analysis
[15]
The Applicants say that the Officer’s (1)
negative credibility findings, (2) assessment of the personalized risk evidence,
and (3) state protection analysis were all unreasonable. I view these as two
issues: first the credibility findings, and second, assessment of evidence.
[16]
The Applicants assert that the reasonableness
standard applies except with respect to the test used for state protection. However,
as I find that as the Officer did not choose the wrong test, the applicable
standard of review is reasonableness (Fadiga v Canada (Citizenship and
Immigration), 2016 FC 1157 at paras 8 and 34).
A.
Credibility Findings
[17]
The Applicants argue that the Officer’s
credibility findings in PRRA2 were unreasonable because she erred in (i) taking
into account the RPD findings in her decision, and (ii) taking into account a
Personal Statement submitted with PRRA1, that was unsworn and translated, and
in any event had been superseded by a more reliable Affidavit that was
submitted with PRRA2. The Applicants highlight that there is no evidence in the
record establishing that the PA ever authored or otherwise wrote PRRA1’s
Personal Statement. The Applicants argue that sworn documents and testimony
should have been preferred or given more weight than the unsworn, unsigned, and
uncertified Personal Statement, which 2017 Counsel contends was too
sophisticated in its level of English for the PA to have drafted.
[18]
The Applicants submit that since they had no
idea that the Personal Statement was submitted by 2015 Counsel, it then follows
that their inability to provide satisfactory answers to the Officer regarding
discrepancies between the Personal Statement, the 2016 Affidavit and oral testimony
was reasonable in the circumstances.
[19]
The Applicants also dispute specific findings
coming out of the PRRA1’s Personal Statement, such as submitting a police
complaint. There is no evidence that 2016 Counsel, who was competent (the
Applicants provided no evidence otherwise), disputed the Officer’s reliance on
the Personal Statement or objected to the Officer’s line of questions relating
to certain inconsistencies.
[20]
Even if I were to agree with the Applicants that
the PRRA1’s Personal Statement should not be considered, there are still
residual points of inconsistency not related to it.
[21]
The Applicants argued in written submissions
that 2015 Counsel was negligent due to having submitted the Personal Statement.
The Applicants rely on Pusuma v Canada (Citizenship and Immigration),
2015 FC 658 at para 83 for the proposition that they should not be penalized
for their previous counsel’s negligence.
[22]
These arguments cannot be sustained, because
firstly 2016 Counsel neither raised such arguments before the Officer, nor made
any complaint either to the competent law society, nor raised the issue with
2015 counsel (a requirement of the 2014 Protocol on Allegations Against
Counsel or Other Authorized Representative in Citizenship, Immigration and
Protected Person Cases before the Federal Court; see also: Canada
(Citizenship and Immigration) v Singh, 2016 FCA 96 at para 67). It is
incumbent upon the applicant to put his or her best foot forward and make his
or her case before the administrative decision-maker, rather than waiting until
a hearing before the Court to do so. In this case, the Applicants had the
benefit of an oral hearing and the opportunity to explain the previous lawyer’s
alleged negligence or incompetence before the Officer, but opted not do so. The
Applicants also had the benefit of an interpreter and of counsel at the PRAA2 oral
hearing.
[23]
In my view, it would therefore be inappropriate
for the Court to find the Officer erred in failing to consider 2015 Counsel’s
alleged incompetence or negligence, when that information was not communicated
to the Officer, 2015 Counsel or before the Law Society of Upper Canada.
[24]
Second, while I agree with the Applicants that
they should not be penalized for past counsels’ professional misconduct or
negligence, here, the Officer took note of the one instance of clear misconduct
– namely the RPD hearing, and noted the disciplinary action taken against Mr.
Hohots by the Law Society of Upper Canada.
[25]
Lastly, with respect to the Officer’s finding
that the Personal Statement indicated that the PA successfully filed a complaint
with the police, I agree that it does not say that. Indeed, it says that the PA
tried to file a complaint twice. While viewed on its own, this finding may be
incorrect or speculative, I cannot find that this oversight on the Officer’s
part makes the Decision unreasonable as a whole. It is trite law that the
Officer need not provide perfect reasons; they need be reasonable overall. In
this case, the Officer’s credibility findings were reasonable in their totality.
B.
Assessment of Evidence
[26]
The Applicants argue that the Officer erred in
her assessment of the evidence on risk, including ignoring country condition
evidence pertaining to persecution and state protection, namely in terms of
mobility, employment, education, housing and homelessness and she failed to
weigh this evidence against the Applicants’ personal circumstances.
[27]
I also find that the Decision withstands review
on this second ground. First, there is a presumption that the Officer
considered all the evidence, which, as the Applicants correctly state, can be
rebutted if important contradictory evidence was unreasonably ignored (Cepeda-Gutierrez
v Canada (Citizenship and Immigration), 1998 157 FTR 35 (FC)) at para 17).
Here, the Officer accepted that discrimination against Roma persists in many
respects in Hungary, namely with respect to housing and education.
[28]
As to risk, I find that the Officer considered
the key objective evidence in the record, noting some of the difficulties that
Roma experience in Hungary. Rather, the issue here was that the Officer found
insufficient corroborating or individualized evidence that related to the
Applicants’ personal situation in Hungary, including a lack of any evidence
relating to central components of the claim such as traffic violations, school
segregation, hospital records, affidavits from witnesses or friends or family,
and car accident records.
[29]
To rule otherwise in this case would amount to
reweighing the evidence, which is not the role of a judicial review.
[30]
As for state protection, I agree that some of
the wording used by the Officer (“concrete serious
efforts”) was less than ideal when she talked about what the government
was hoping to put in place. Nonetheless, in the absence of corroborative
documentation noted by the Officer (see above), I do not find that the
documentary evidence establishes a general inability of the state to protect,
or the fact that general discrimination against Roma amounts to persecution. To
that end, I also note that discrimination in and of itself does not amount to a
breakdown of adequate state protection (Gebre-Hiwet v Canada (Citizenship
and Immigration), 2010 FC 482 at para 17).
[31]
I also wish to note that, normally, the role of
the PRRA officer is not to re-assess state protection. That function remains
with the RPD and/or the Refugee Appeal Division. The role of a PRRA officer is
to assess whether the applicant has submitted sufficient new evidence, not
before the RPD, that establishes new risk of persecution if returned to his or
her home country. However, in this case, the Officer noted and considered the
fact that the Applicants’ counsel before the RPD was disciplined and further
noting that she was not bound by the RPD decision.
[32]
Finally, Applicants’ 2017 Counsel stated that
many of the same errors of PRRA1 were repeated in PRRA2 rather than being remedied
after the first judicial review: the Officer chose not to heed the gaps identified
by Justice Fothergill in the lack of clarity about state protection and
credibility. For the reasons explained above, I find that the Officer not only provided
an oral hearing for PRRA2, but in her Decision also provided sufficient
justification, transparency and intelligibility to allow this Court to ‘connect the dots,’ unlike in PRRA1. The Decision,
while not perfect, is reasonable.
IV.
Conclusion
[33]
I find that the Officer was alert and alive to
the Applicants’ unfortunate previous representation (Mr. Hohots) before the
RPD. Absent other evidence, the mere fact that she reached the same outcome as
the RPD is not indicative of any lack of sensitivity in that regard. I also
find that the Officer addressed the PRRA1 gaps identified by Justice
Fothergill, regarding both credibility based on inconsistencies, and state
protection. Discrimination can certainly rise to the level of persecution where
the evidence bears that out. Here, there was simply a lack of documentation
bearing out the treatment complained of, whether that be traffic, fines,
hospital records, witness affidavits, or otherwise. In light of the above, this
application for judicial review is dismissed.
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