Date: 20010306
Docket: IMM-2394-00
Neutral citation: 2001 FCT 149
BETWEEN:
MIKLOS TOTH
MIKLOSNE TOTH
KLAUDIA TOTH
RENATA TOTH
MIKLOS TOTH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Miklos Toth, his wife Miklosne, and their children Klaudia, Renata and Miklos, sought Convention refugee status on the basis of a well-founded fear of persecution as Roma persons from Hungary. They bring this application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD") dated March 15, 2000 where it was decided that they were not Convention refugees.
FACTS
[2] The principal applicant, Miklos Toth, said in his Personal Information Form that he was beaten up many times by skinheads and that the police did not afford any protection to him because many policemen were skinheads themselves or had a son who was a skinhead. Mr. Toth stated that after the political change in Hungary the situation worsened for the Roma people. He recounted that he was discriminated against because of his ethnicity when seeking employment, and that his children were mistreated in daycare and at school because of the fact that they were Roma.
[3] In his oral testimony, Mr. Toth related an incident from 1993 during which he was beaten with a baseball bat by a group of skinheads on his way home from work. Following this incident he made a complaint to the police with no apparent result. In January of 1997, Mr. Toth's younger brother was beaten by skinheads in Budapest and the same group of skinheads apparently tried to break into Mr. Toth's older brother's apartment. A complaint was made to the police, who did not respond. Mr. Toth also testified that after 1997 he was stopped by the police and detained for two hours on the unsubstantiated suspicion that he had stolen money.
[4] The applicants arrived in Canada on February 10, 1999, making a claim to Convention refugee status on the same day. After an abortive first hearing, adjourned because their counsel did not attend, the matter was heard on March 15, 2000. Mr. Toth testified as the principal claimant and the designated representative on behalf of his family. An oral decision was delivered at the conclusion of the hearing by Mr. Rossi, the presiding member of the panel. The other panel member, Ms. Vida Rangan, concurred.
THE CRDD'S DECISION
[5] The CRDD made an adverse finding of credibility in respect of an important part of Mr. Toth's testimony, the skinhead attack of 1997. The CRDD accepted some parts of Mr. Toth's testimony recounting incidents of racial discrimination, but concluded on the basis of the panel's view of the documentary evidence that the applicants failed to establish a well-founded fear of persecution should they return to Hungary.
[6] The material portions of the CRDD's reasons, as given orally, are as follows:
| This case turned out to be extremely problematic and was unfortunately decided on the basis in large part of the lack of credibility on the part of the principal claimant. |
| What we did base it on is the trouble you had in recounting with precision and clarity and order the events that were alleged to have occurred the night or day you were in the apartment with the other men and your sister-in-law came to talk about the beating. Your testimony was confusing. One minute, the Skinheads had come to your place first. Later, they didn't come until they saw your sister-in-law coming to the apartment. |
| And then when you finally did go to where your brother had allegedly been beaten, a Hungarian lawyer who happened to be visiting calls the police on his cellular phone and the police don't come. And you say that it's because the police already knew who was getting beaten up because one of the Skinheads was his son. That may very well be, but it certainly doesn't explain away the fact why the police didn't show up when the lawyer never identified who was being beaten and, most importantly, he did not disclose the ethnicity of the person. How could the police pick and choose with no information whom they were going to assist? |
| The panel might have put more weight in your story if the Counsel had -- if the lawyer had said: "There's a Roma being beaten," because the documentary evidence tells us that police do abuse Roma. But without that information, you then proceeded to, I believe, fabricate your knowledge of how it was possible the police wouldn't respond. |
| You even went so far as to say that the son of one of the police officers, a member of the Skinhead group, calls the police in advance and says: "Dad, we're going to beat you-know-what out of somebody. Don't come because we're going to beat this Roma today." |
| Well, Sir, there's no evidence to support that, none whatsoever. If anything, it undermines your credibility with respect to this story. You have no evidence to base that and, at best, that's a speculative statement. We assign that no weight whatsoever. The panel can't even be sure whether that event even took place. There's no evidence that such an event occurred. At best, we have your unreconciled and conflicting testimony. |
| Then you said that that same day, you went to Florijan Farkus [sic] or that your brother went to his residence and said: "We're organizing because we think there's going to be an attack." Your brother wasn't there very long when Florijan Farkus said he had already been instructed from higher circles that if you guys went and organized that things would get even worse. |
| Well, how would the police know that? I mean that's a discussion amongst yourselves. There's no word you were communicating with the Skinheads. There's no evidence the Skinheads knew you were going to group, retaliate or defend yourselves. Frankly, we just don't assign any weight to the allegation that Florijan Farkus even had any knowledge of this event. |
| And then, you were asked what incidents you might have experienced after 1997 and you said there were no Skinhead attacks and you said there was no police attack but the police detained you one night coming home from work for two hours because you had some money on you, presumably your pay cheque. |
| We accept that that happened and it's unpleasant and it's unfair when a Hungarian person, probably a co-worker, coming home with you is let go simply because he's Hungarian. That type of discrimination is wrong and it did happen towards you, but that is not an indication that you've been persecuted or that you face the risk of persecution by the police if you return to Hungary today. |
[7] Earlier in its decision, the CRDD also found that Mr. Toth confused the reasons for coming to Canada, stating:
| You started your hearing by saying: "We came mostly because of the Skinhead attacks." You finished your hearing by saying it was for the sake and welfare of your children. Your Counsel tried to help you very clearly in theat regard, identify whom you feared, and unfortunately, you were able to say that while some of the events you allege occurred impacted, it was for your children. |
[8] While the applicants raised a number of issues, in my view it is only necessary to consider whether the CRDD's findings of credibility were based on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before it.
ANALYSIS
[9] As the CRDD noted, its decision was based "in large part" on the conclusion as to Mr. Toth's credibility. This conclusion was reached after an oral hearing that, according to the Hearing Information Sheet, started an hour and fifteen minutes late and lasted for two hours and ten minutes from 9:45 a.m. to 11:55 a.m., inclusive of two breaks and the delivery of oral reasons.
[10] As to what the CRDD characterized as Mr. Toth's confusion over the reasons for coming to Canada, at the commencement of the hearing his testimony was clear. In response to the first question put to him by his counsel, "[w]hat was the main reason that you decided to come to Canada?", Mr. Toth stated, "[t]he main reason was mostly the Skinhead attacks".
[11] There followed a hearing which counsel for the Minister carefully characterized as "less than ideal". Mr. Toth's later testimony, which gave rise to the CRDD's characterization of confusion, followed this exchange (Mr. Toth has related in the direct examination by his counsel that in 1997 the police had detained him on his pay day because of an unsubstantiated suspicion that he had stolen money; a Hungarian friend found carrying the same amount of money was released:
| ROSSI: Okay. They let him go. What did they do to you? |
| MALE CLAIMANT: They took me to the police station... |
| MALE CLAIMANT: ...and held me there for two hours. |
| MALE CLAIMANT: And then later let me go. |
| COUNSEL: Were you arrested? |
| MALE CLAIMANT: I don't know whether this is being arrested but you know, two hours... |
| ROSSI: The claimant wasn't arrested. He was detained for two hours. |
| COUNSEL: Were you denied the use of a toilet? |
| COUNSEL: Were you given food? |
| COUNSEL: Were you abused in any way? |
| MALE CLAIMANT: No. They didn't abuse me. |
| COUNSEL: They didn't shake you up? |
| COUNSEL: To be detained? Was it a good experience? Was it pleasant? |
| RANGAN: Mr. Kubes, come on. |
| COUNSEL: But they didn't shake you up? |
| RANGAN: A good experience. |
| COUNSEL: Well, I'm trying to find out. |
| ROSSI: Was it pleasant? Was it delightful staying in the police station and... |
| COUNSEL: Well, was it unusual to be arrested... |
| ROSSI: Let's withdraw that testimony, okay, and the questions. |
| COUNSEL: The jury will disregard it? |
| ROSSI: There is no jury here, Sir. |
| COUNSEL: Thank you. What is... |
| ROSSI: There is just a panel trying to get to the truth. |
| COUNSEL: What is it -- I mean isn't it unusual to be detained like that? |
| ROSSI: Counsel, no -- don't ask him that because it gives in the documentary evidence records that Romas are routinely mistreated by the police. The documentary evidence also indicates that they are routinely held and detained without charge. We acknowledge that. It's on the record. I don't think this claimant's experience on that occasion, if indeed it happened, is so dissimilar from what others might have experienced, similarly situated. I'm sure you're delighted I stated that on the record. |
| ROSSI: Anything else? Anything else after 1997, Sir? |
| COUNSEL: That made you want to leave Hungary? |
| MALE CLAIMANT: After `97, no. |
| COUNSEL: Not even with your family? |
| COUNSEL: Your children? We're talking about anything that made you want to leave Hungary. |
| ROSSI: Now, it's -- to be fair to him. He means: Now, is there other reasons that made you flee -- that may take you before 1997 -- as relates to your family? |
| COUNSEL: I understood that you had some -- well, we're not talking about necessarily Skinhead attacks. |
| MALE CLAIMANT: Yes. The children in school. |
| COUNSEL: What specifically happened in school? |
| MALE CLAIMANT: For example, my son wanted to enrol, to choose English, to study the English language, but the teachers didn't let him, only German. |
| COUNSEL: Well, I think the panel is aware of the extreme discrimination in education, unemployment, health care and in all the spheres of social life, but the question is: After `97, was there anything that happened that you say, "Okay. I'm going to leave now from Hungary and come to Canada"? |
| MALE CLAIMANT: As I said, mainly the children, they weren't treated properly in school. |
| COUNSEL: M'hm. Okay. Did anything happen to any family members after 1997? I mean your extended family. You've told us about Skinhead attacks on your brother Istvan. |
| ROSSI: Just one sec. Just one sec. I'm not going to allow that particular wide open question. What I'm going to say is this and just answer now please for me -- you've been given more than enough opportunity by your Counsel to answer this: After 1997, we have an incident of police behaviour where you were checked and held for two hours at the station. Did that contribute to your decision to leave Hungary? Yes or no? |
| ROSSI: No. Okay. After 1997, you said that your children weren't treated properly in school. Did that contribute to your decision to leave Hungary? |
| ROSSI: Was there anything else that contributed to your decision to leave Hungary? |
| MALE CLAIMANT: Only the children. |
[12] I find the later answer, given in response to a question about whether anything else contributed to the decision to leave Hungary, not to be inconsistent with Mr. Toth's initial answer that the main reason for coming to Canada was the skinhead attacks. The characterization that Mr. Toth confused the reasons for coming to Canada was made without proper regard to his testimony.
[13] The panel then characterized Mr. Toth's evidence about the events in January of 1997 as confusing. The panel stated that Mr. Toth had trouble recounting with precision and clarity and order the events that were alleged to have occurred.
[14] This finding makes it necessary to review his testimony in some detail. It was as follows:
| MALE CLAIMANT: Yes. In `97, around the middle of January -- I don't know precisely the date -- my younger brother was going with car to the 13th District. |
| COUNSEL: What's his name? |
| MALE CLAIMANT: He stopped at a traffic sign or light and Skinheads smashed or vandalized his car from a number of sides and he was also beaten up with baseball bats. He was hospitalized. Later on, the same group -- my older brother who lives at number 21 Utag (phon.) Street. |
| COUNSEL: What's his name? |
| MALE CLAIMANT: Josef. May I continue? |
| MALE CLAIMANT: Later on, the same group came up to my older brother's residence and they wanted to get into the apartment to wipe out the whole family. There was a number of us guys there and this is what prevented them from coming in. |
| COUNSEL: Did anybody call the police at that point? |
| MALE CLAIMANT: Yes. A lawyer was present -- yes. The lawyer called the police and the police said that no, they can't provide any protection. |
| COUNSEL: And do you know why they said that? |
| MALE CLAIMANT: Yes, because in the Skinhead group -- the son of one of the policemen was in the Skinhead group. |
| COUNSEL: How do you know that? |
| MALE CLAIMANT: Because we know him. |
| COUNSEL: Did you see the Skinheads? |
| MALE CLAIMANT: Yes. We saw the Skinheads and we knew that one of the Skinheads is the son of a policeman. |
| COUNSEL: Now, did anything happen to your brother Andrei in Hungary? |
| MALE CLAIMANT: I wanted to continue. |
| MALE CLAIMANT: I think we stopped at the point where we stopped the Skinhead attack. |
| COUNSEL: While you were in the apartment and you stopped them from coming in? |
| MALE CLAIMANT: Yes, we prevented them. There was a number of us. |
| COUNSEL: So how many Skinheads were there about? |
| MALE CLAIMANT: There were many of them. There was a hallway. There must have been at least fifteen of them. |
| COUNSEL: And then inside the apartment, how many of you guys were there? |
| MALE CLAIMANT: There were six of us. |
| COUNSEL: All right. And so, they tried to get in and that's where you left off. |
| MALE CLAIMANT: Yes, and they didn't succeed. The same day, later on, the Skinheads made statements like "We are going to wipe you out today." |
| COUNSEL: This is through the door? |
| MALE CLAIMANT: They were going down the stairs. |
| MALE CLAIMANT: In the stairway. And then we notified a couple of our friends to help because we have been attacked. |
| COUNSEL: Now, did you call your friends for help before or after you called the police -- the lawyer called the police? |
| MALE CLAIMANT: Later, after that. |
| COUNSEL: So you tried the police first? |
| COUNSEL: The police said: "No, we can't help you"? |
| COUNSEL: So then you called your several friends? |
| COUNSEL: And what happened? |
| MALE CLAIMANT: Later on that evening, nothing happened, and because we could see that it was such a big attack... |
| ROSSI: Well, what attack, Sir? I don't hear any attack. I hear some people screaming at you and threatening you. What do you mean an attack? |
| MALE CLAIMANT: You know, once, my younger brother was beaten at a lamp post... |
| ROSSI: No, no, no. Just a minute. Just a minute. Just a minute. We're still in the apartment; is that correct? They came over to your older brother Josef's place but there were some Roma men in the apartment. |
| ROSSI: And so the Skinheads are out on the street, are they, screaming up and yelling or did they come up the stairs to the apartment? |
| MALE CLAIMANT: They came up to the front of the door. |
| ROSSI: They came up to the front of the door. Are they knocking, banging on the door? What are they doing? |
| MALE CLAIMANT: They wanted to smash in. |
| ROSSI: Did you open the door? |
| ROSSI: Did they stop trying to break in? |
| MALE CLAIMANT: Yes, they stopped. |
| ROSSI: So they didn't beat any... |
| MALE CLAIMANT: For a time. |
| ROSSI: For a time. At that time, the lawyer in the apartment -- is the lawyer Roma? |
| ROSSI: No. He's an ethnic Hungarian, is he? |
| ROSSI: Was he there for a social visit or some business reason? |
| MALE CLAIMANT: He was just visiting. |
| ROSSI: Just visiting. He called the police? |
| ROSSI: He said: "The Skinheads at this door of this apartment are trying to break in. Come now." Is that right? |
| MALE CLAIMANT: What happened was my younger brother's wife was coming up, was screaming that her husband has been beaten badly, and then we were going down together with the lawyer and that is when the lawyer called the police right at the scene. |
| COUNSEL: From a mobile phone? |
| MALE CLAIMANT: Yes, the street phone. |
| ROSSI: Who was beaten again? Your younger brother? |
| MALE CLAIMANT: My younger brother Istvan. |
| COUNSEL: On that evening earlier, you were saying that your younger brother Istvan's car was surrounded and beaten up by Skinheads? |
| COUNSEL: I asked who was that. |
| ROSSI: Just let the RCO state -- just a minute. No. Stop. |
| RCO: I'm sorry, Mr. Chairman. I didn't hear the claimant say that it was that evening. |
| ROSSI: Neither did I. In fact, I find his testimony extremely convoluted. It's all over the place. That's why I'm going through this. |
| COUNSEL: Right. I'm going to try it again. |
| ROSSI: Let's assume -- that's okay. |
| ROSSI: We'll be here all day. |
| ROSSI: Let me take this. The wife came up the stairs saying that your younger brother had been beaten, her husband? |
| ROSSI: And the car vandalized? |
| ROSSI: How far was that from the apartment? |
| MALE CLAIMANT: About 100 metres. |
| ROSSI: Okay. So really close? |
| ROSSI: So then all the men start running out of the apartment because you guys have been upstairs in the apartment? |
| ROSSI: You go out, you find him at the car, he's all messed up and everything and beaten? |
| ROSSI: And at that point, the lawyer gets on the cellphone and calls the police? |
| ROSSI: Okay. And the police don't come though? |
[15] I do not find the presiding member's characterization of Mr. Toth's testimony as "extremely convoluted" or "all over the place" to be fair or accurate. Nor does the transcript provide any apparent justification for the presiding member's interjection into what appears to be an orderly direct examination conducted by Mr. Toth's counsel.
[16] The panel then proceeded to discredit Mr. Toth on the basis of what it perceived to be his inability to explain the motive behind the failure of the police to respond to the reporting of the incident. The panel did not refer to Mr. Toth's evidence that he saw one of the skinheads and knew him to be the son of a policeman. Mr. Toth subsequently testified that he learned that where there is to be such a skinhead attack the son calls his father to say that they want to attack a Gypsy so that the police should not respond. The panel rejected that testimony stating that there was no evidence to support it and that it undermined Mr. Toth's credibility. In the absence of valid reasons to question Mr. Toth's credibility, it was an error to require corroborating evidence of Mr. Toth's testimony (see Ahortor v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 39 (F.C.T.D.).
[17] Finally, the panel disbelieved Mr. Toth's testimony that Florian Farkas advised that he had already been warned that if the Roma organized things would get even worse. This incredulity was premised on the CRDD's view that the police could not yet know that Mr. Toth and his friends and family were contemplating organizing. The testimony on this point was as follows:
| COUNSEL: Did you ask for help from Farkus Florijan [sic] in that incident? |
| MALE CLAIMANT: My brother Andrei went to his residence... |
| COUNSEL: And again, Andrei, is that his -- like you said before -- his brother-in-law? |
| MALE CLAIMANT: Yes. He went to his residence and took his children there. |
| MALE CLAIMANT: To protect the children. |
| COUNSEL: To protect the -- and so what happened? |
| MALE CLAIMANT: That is when Andrei asked Florijan Farkus [sic] for help. |
| COUNSEL: And what did he say? Farkus Florijan, [sic] what did he say? |
| MALE CLAIMANT: That he can't help. He said -- that's when he said: "Don't organize" because it will be worse for us. |
[18] Two things can be seen from the evidence. First, that the advice from Mr. Farkas not to organize was not linked to this specific skinhead attack. Second, I do not find it logical that in a climate of what the panel accepted to be "systematic abuse of Roma people" it was necessary that word reach authorities of an intent to organize for the authorities to "put out the word" that organizing would make things worse. It is equally logical, in my view, to accept that the authorities would take the view that any organizing by Romas would lead to harsh or retaliatory counter measures.
[19] In the result, I have concluded that the panel's assessment that Mr. Toth's testimony lacked credibility was not justified on the panel's analysis of the evidence before it and was made without regard to the material before the panel. It follows that the application for judicial review will be allowed.
[20] It is therefore not necessary for me to consider the applicants' submission that the panel further erred by interrupting Mr. Toth's testimony, ridiculing Mr. Toth's counsel, and pressuring Mr. Toth into hurrying the matter so that it was concluded by lunch time. However, as can be seen from portions of the transcript quoted above, this was a case where the presiding member of the panel intervened to a significant extent. In addition to the passages quoted above, the transcript reflects the following comments made by the presiding member of the CRDD:
At page 273:
| MALE CLAIMANT: Yes. When the Skinheads hit my knee in `93, I had to go and see a doctor. There was a fracture in the cartilage or kneecap and for a whole year, the doctors treated it with... |
| INTERPRETER: Just a moment. |
| INTERPRETER: Some kind of medication. I'm trying to remember the name of the substance. |
| ROSSI: I don't want the name. I don't want the name. It's not relevant. Medication. It was treated. Unless it was a poison or something, a flesh-eating disease or something. |
And at page 275:
| ROSSI: Post-1997, were you targeted for maltreatment by any State organ or by any Skinhead or other person? And then, he can relate it in, right. |
| ROSSI: After `97 and before you came to Canada -- real specific and to the point, Sir, today. |
| MALE CLAIMANT: After `97, there was no Skinhead attack. |
[21] Mr. Toth swore in his affidavit in support of this application, upon which he was not cross-examined, that he did not believe he was given a full opportunity to present his evidence and that he was questioned by the presiding member in an accusatorial fashion. Mr. Toth swore that he found the presiding member to be impatient and rude. Mr. Toth stated that when he gave his evidence of being detained for two hours for no good reason the panel made fun and laughed at the possibility that this was a painful experience for him. Mr. Toth swore that he felt belittled by the panel's comments and behaviour particularly in circumstances when the panel accepted, as noted in its reasons, that Roma are routinely detained and abused by the police.
[22] Members of the CRDD are entrusted with responsibility to make quasi-judicial decisions which have profound significance upon the lives of the individuals who appear before them. With that responsibility comes the duty imposed on each member of the CRDD to conduct themselves according to the highest standards. Patience, respect and restraint are required at all times.
[23] To conclude, this application for judicial review will be allowed, the decision of the CRDD set aside, and the matter remitted for redetermination before a different panel. Counsel did not submit a serious question for certification and none is certified.
J.F.C.C.
Toronto, Ontario
March 6, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MIKLOS TOTH |
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
| DATE OF HEARING: TUESDAY, JANUARY 30, 2001 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR JUDGMENT BY: DAWSON J. |
DATED: TUESDAY, MARCH 6, 2001
| APPEARANCES BY: Mr. Peter Ivanyi |
| SOLICITORS OF RECORD: Rochon Genova |
Barrister & Solicitor
121 Richmond St. West, Suite 3903
Toronto, Ontario
M5H 2K1
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20010306
Docket: IMM-2394-00
Between:
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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