Date: 20050503
Docket: IMM-4657-04
Citation: 2005 FC 606
Toronto, Ontario, May 3rd, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
ATTILA KACO (Kacso)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Attila Kaco is a Romanian citizen of Hungarian ethnicity. He claims to have a well-founded fear of persecution on the basis of his ethnicity and his membership in the Federation of Hungarian Students in Romania. Mr. Kaco also alleges that he fears persecution if he is forced to serve in the Romanian military.
[2] The Refugee Protection Division of the Immigration and Refugee Board rejected Mr. Kaco's claim, finding that he was not credible, and that he had failed to establish that he had a well-founded fear of persecution. The Board further found that Mr. Kaco failed to rebut the presumption that state protection would be available to him in Romania.
[3] Mr. Kaco, who was representing himself both before the Board and in this Court, asserts that the Board erred in its assessment of his claim, and that, as a result, the Board's decision should be set aside. Mr. Kaco's submissions to the Court were quite limited, and as a result, I intend to base this decision primarily on what I understand to be the issues identified by Mr. Kaco in his written submissions.
Was Mr. Kaco Denied Procedural Fairness in his Refugee Hearing?
[4] Mr. Kaco was originally represented by counsel in relation to his refugee claim. After agreeing to a date for Mr. Kaco's refugee hearing, his counsel subsequently advised the Board that she was no longer available on the date set for the hearing, and requested an adjournment. This request was denied on the basis that counsel had agreed to the date, and further, had failed to provide the Board with alternate dates for the hearing, as required by the Board's Rules of Practice.
[5] Mr. Kaco then appeared at his hearing, without counsel. The presiding member asked Mr. Kaco if he was ready to proceed, and he indicated that he was. Although Mr. Kaco advised the Court that he had requested an adjournment of his refugee hearing, this is not borne out by the transcript.
[6] As a result, I am not persuaded that Mr. Kaco was denied procedural fairness in relation to his refugee hearing.
Were the Board's Credibility Findings Patently Unreasonable?
[7] The Board found that Mr. Kaco was not credible. In support of this conclusion, the Board noted that although the last of the alleged acts of persecution took place in 1998, Mr. Kaco did not seek refugee protection until 2001. Further, after spending time studying in Hungary, Mr. Kaco returned to Romania in 2001. The Board found that the delay in claiming and reavailment undermined Mr. Kaco's assertion that he had a subjective fear of persecution in Romania.
[8] The Board also cited inconsistencies in Mr. Kaco's testimony in support of its conclusion that he was not credible. Most notably, Mr. Kaco claimed in his testimony that he had sought refugee protection while he was in Hungary. No mention was made of this fact, however, in his Personal Information Form (or 'PIF').
[9] This Court can only intervene in relation to a credibility finding made by the Board if the Board's findings are patently unreasonable. Mr. Kaco has not demonstrated that the Board's finding that he was not credible was patently unreasonable.
Did the Board Err in Relation to the Issue of State Protection?
[10] Mr. Kaco asserts that the Board erred in concluding that he failed to rebut the presumption that state protection would be available to him in Romania. However, he has not clearly identified any specific error in the Board's analysis, and I see no basis for interfering with the Board's conclusion in this regard.
Conclusion
[11] For these reasons, the application is dismissed.
Certification
[12] The certification process was explained to Mr. Kaco in the course of the hearing, and he was provided with an opportunity to consider whether he wished to propose a question for certification.
[13] Mr. Kaco did propose a question which I understand to relate to the issue of reavailment and delay. I am not persuaded that the question proposed by Mr. Kaco raises a serious issue of general application, and thus decline to certify it.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4657-04
STYLE OF CAUSE: ATTILA KACO (KASCO)
Applicant
and
THE MINISTER IF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MAY 2, 2005
PLACE OF HEARING: TORONTO, ONTARIO.
REASONS FOR ORDER
AND ORDER BY: MACTAVISH, J.
DATED: MAY 3, 2005
APPEARANCES BY:
Attila Kaco FOR THE APPLICANT
Alison Engel-Yen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Attila Kaco
North York, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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