Date: 20030930
Docket: IMM-6329-02
Citation: 2003 FC 1125
Toronto, Ontario, September 30th, 2003
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
JOZSEF OLAH, MARIA JOZSEFNE OLAH
KALMAN OLAH, AND ZOLTAN OLAH
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] A Pre-Removal Risk Assessment (PRRA) officer determined that Mr. Olah, his wife and two children would not be at risk if they were returned to Hungary. They seek judicial review of that decision.
[2] The applicants are of Hungarian Roma ethnicity. They claimed a well-founded fear of persecution on that basis and their claim was rejected by the former Convention Refugee Determination Division (CRDD) of the Immigration Refugee Board. They asked the CRDD to re-open their case after Mrs. Olah's cousin was murdered by an off-duty policeman in Pand, Hungary. They relied on the fact that the eldest son of Mr. and Mrs. Olah, upon his return to Hungary, travelled to Pand to visit the grave site and was beaten by the same policeman who had murdered the cousin. They also submitted evidence of other relatives who spoke to the difficulties they encountered in Hungary, allegedly because of the murder. The motion to re-open the claim was denied and leave to apply for judicial review of that decision was dismissed.
[3] The applicants assert that their daughter and her husband were found to be Convention refugees on the basis of evidence of the cousin's murder. A niece and her husband were afforded Convention refugee status on the same basis. When applying for the PRRA, the applicants relied on the murder of the cousin to support their claim of persecution and risk of torture, risk to life and risk of cruel and unusual treatment or punishment if returned to Hungary. They also relied upon the affidavit of their son regarding the beating he sustained as well as the Personal Information Form (PIF) submitted by each of the relatives afforded refugee status. The applicants contended that members of their family were being targeted.
[4] The Olah family submits that the PRRA officer ignored evidence that went to the crux of the decision. While acknowledging that it is not necessary for the tribunal to specifically refer to every piece of evidence, they maintain that critical evidence was either ignored or misapprehended. It is argued that an oral hearing ought to have been held because, realistically, the officer simply did not believe the applicants. Therefore, pursuant to paragraph 113 (b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and section 167 of the Immigration and Refugee Protection Regulations SOR/2002-227 (the Regulations), there should have been a hearing. Finally, the applicants say that all of this adds up to the fact that they were denied a fair hearing.
[5] The respondent submits that there was no issue with respect to credibility; the issue was the sufficiency of evidence. The officer did not disbelieve the applicants; rather, he was simply not satisfied that there was enough evidence to conclude that there existed an objective fear of persecution. The submissions were considered; the officer weighed the evidence, and decided. The intervention of the court is not warranted.
[6] A large part of the applicants' argument centred on the fact that other relatives had been declared to be Convention refugees. I agree with the respondent that the PRRA officer was correct in stating that each case is assessed on its own merits. Hence, the officer did not ignore that "evidence" as alleged by the applicants. He did not consider it determinative and was correct in this respect. I agree that there is a possibility that the officer may have misapprehended the evidence regarding the beating of the applicants' son. It is not clear, from his reasons, that the PRRA officer was not relying on the applicants' statement that their son had been beaten by the same officer who allegedly murdered the cousin when their submissions included the son's sworn affidavit in this regard. However, I do not view the son's affidavit through the applicants' eyes. The affidavit is skeletal, at best, and the photograph that accompanied it has no probative value. It is, in view of the fact that the PRRA officer specifically states at the beginning of his reasons that [the officer] was "later involved in an attack on [the] adult son, Jozef Olah Jr. when he returned to the village of Pand to visit the widow and to lay flowers of (sic) his grave", more likely that the affidavit was not specifically referred to because it was of little value and contained insufficient evidence to bolster the applicants' claim.
[7] At the end of the day, in my view, I need not decide whether the matter turned on the sufficiency or the credibility of the evidence because even if I were to determine that there exists an error (and I have not done so), the officer concluded that state protection existed. The applicants argue that the decision of Madam Justice Tremblay-Lamer in Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339 (T.D.) is directly applicable to the facts of this case. That is not the case. The PRRA officer, here, specifically recognized that Romas continue to suffer widespread discrimination in Hungary and that police do fail to intervene to prevent violence against Roma. The officer also conducted an extensive review of the documentary evidence detailing the efforts of the government and authorities to deal with the problems of the Romas. He then proceeded to consider the circumstances of the applicants' particular case, thus distinguishing this matter from Molnar, supra. He concluded that the applicants may have been subjected to persecution in the past, but that it did not amount to persecution.
[8] Regarding the fear arising from the murder of the cousin, the officer noted that the applicants were not in Hungary in June, 2000, when the murder occurred; they had never lived in Pand; there was insufficient evidence to indicate that the person who killed the cousin would be interested in harming them today; there was no evidence that any inquiries had been made about the applicants or their whereabouts; there was no evidence that the murderer could or would access a nation-wide nationalist movement to harm or kill the applicants; the applicants have relatives to assist them in their return to Budapest, and if problems ever did arise, the applicants can seek the protection of the state, including the police. Should the police fail to respond, the office of the public prosecutor as well as the supervision and control department of the ministry of the interior are accessible.
[9] The PRRA officer's finding with respect to the availability of state protection is cogent, comprehensive and reasonable. It does not warrant the intervention of the court. My finding in this respect is sufficient to dispose of this application.
[10] Counsel for the applicants suggested three questions for certification all of which relate to the provisions of IRPA and the Regulations regarding an oral hearing. I agree with the respondent that the proposed questions do not arise on the facts of this case. While questions regarding the interpretation of these provisions as well as the officer's failure to conduct an oral hearing may well have to be addressed, they are best left to cases where the facts support them.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is dismissed. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6329-02
STYLE OF CAUSE: JOZSEF OLAH, MARIA JOZSEFNE OLAH
KALMAN OLAH, AND ZOLTAN OLAH
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: SEPTEMBER 17, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: SEPTEMBER 30, 2003
APPEARANCES BY: Mr. Rocco Galati
For the Applicants
Ms. Lisa Hutt
For the Respondent
SOLICITORS OF RECORD: Galati, Rodriques & Associates
Toronto, Ontario
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20030930
Docket: IMM-6329-02
BETWEEN:
JOZSEF OLAH, MARIA JOZSEFNE OLAH
KALMAN OLAH, AND ZOLTAN OLAH
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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