Horvath v. Canada (Minister of Citizenship and Immigration), 2001 FCT 583

                                                                                                                                  Date: 20010604

                                                                                                         Court File No.: IMM-2203-00

                                                                                                     Neutral Citation:    2001 FCT 583

Ottawa, Ontario, this 4^th day of June, 2001

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                             FERENC HORVATH, SZILVIA HORVATHNE PARRAG

                                             aka SZILVIA HARVATHNE PARRAQ

                                                          MELANIA HORVATH

                                                                                                                                           Applicants

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The applicants are citizens of Hungary who came to Canada on February 6, 1999 and claimed refugee status on the grounds of their race as Roma or Gypsies. The Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") held, in its decision dated March 30, 2000, that the applicants were not Convention refugees. The applicants have brought this application for judicial review of the CRDD decision.

[2]                In his Personal Information Form, the principal male applicant alleges a long history of attacks against him and his family by skinheads in Hungary. The said applicant describes being beaten, stabbed with a knife, and threatened to have his home set on fire, on a number of occasions between 1997 and 1999. He also describes going to the police to report these incidents, however, he alleges the police refused to help him, including refusing to file any reports.

[3]                The principal male applicant provided the CRDD with a document containing a medical note from Dr. Milkovic Rokus, dated November 30, 1999, which states that the principal male claimant was under his care in October 1998. The document also contains a "verification" from the President of the Gypsy Minority Self-Government, Ajka, which states that the principal male claimant and his family had turned to the President "several times" with complaints about the assaults from skinheads and that "...they are afraid to go to the police because they were threatened that the whole family will be revenged on if they will report them."^[1]

[4]                The CRDD determined that the applicants are not Convention refugees in part because the applicants did not present credible and trustworthy evidence. The CRDD pointed out that the note from Dr. Rokus and the "verification" from the President of the Gypsy Minority Self-Government, Ajka, are facsimile copies rather than the originals, and therefore should not be assigned any weight. The CRDD also pointed out that the "verification" is inconsistent with the applicants' evidence. Specifically, the evidence of the applicants indicates that they went to the police after each attack, however, the police refused to help them. According to the CRDD, this is inconsistent with the "verification" document which states that the applicants were afraid to go to the police. As explained by the CRDD at page 4:

Hence, it is evident that the panel can not give any weight to the alleged medical and verification document not only because it is a facsimile copy but it is not consistent with the claimants' own evidence. However, this document also indicates that the claimants presented contradictory and inconsistent evidence with respect to seeking police protection in Hungary. It also raises serious credibility concerns respecting the veracity of the claimants' evidence respecting their claims to refugee status. Furthermore, the panel finds that RCO's written observations with respect to the claimants not being able to provide credible or trustworthy corroborating medical evidence to support their alleged attacks in July 1997 and October 1998, to be persuasive.

[5]                The CRDD also determined that the applicants failed to provide "clear and convincing" proof of the Hungarian State's inability to provide adequate and effective protection. The CRDD states the following at page 7:

The protection provided by the Hungarian State may be far from perfect, but this must also be weighed against the fact that Hungary is a "parliamentary democracy" with "constitutional provisions for an independent judiciary." For instance, in a landmark case in July 1998, "a court ordered a bar owner in the city of Pecs to pay a $750 fine and take out a newspaper advertisement apologizing for refusing to serve a Roma". It is important to note that the requirements for demonstrating the unavailability of state protection is higher for a liberal democracy than that for a country that has an authoritarian system of government, such as a dictatorship or an oligarchy.

Given the evidence presented in these claims, the panel is not persuaded that there is "clear and convincing proof" of the Hungarian State's unwillingness or inability to provide these claimants with adequate and effective state protection. [Footnotes omitted]

[6]                The applicants raise a number of issues on judicial review. First, at the outset of the CRDD hearing, counsel for the applicants presented an objection to having the transcripts of the specialists in the Hungarian Roma lead cases^[2] entered in the CRDD proceeding because counsel for the applicants did not have an opportunity to cross-examine the specialists. The CRDD denied counsel's objection holding that it would consider all the evidence, including the opinion of the specialists in the lead cases, but would not be bound by this evidence. Counsel for the applicants argues that this preliminary decision by the CRDD is a breach of procedural fairness and natural justice by failing to give the applicants a reasonable opportunity to present evidence, question witnesses, and make representations.

[7]                Subsection 68(4) of the Immigration Act, R.S.C. 1985, c. I-2, allows the Refugee Division to take notice of facts, information and opinions within its specialized knowledge. There is no limitation that the Refugee Division may not take notice of an expert opinion in a lead case and consider it in a subsequent case, provided it does so properly. A lead case is not, in itself, determinative of other cases. Applicant's counsel has a right to comment on the evidence in lead cases, make comments on the appropriate weight to be given to this evidence, and submit his or her own evidence. The CRDD in the case at bar did not breach the duty of procedural fairness in considering the testimony of specialists in lead cases. The CRDD clearly expressed that a lead case is in no way determinative of the case before it and does not limit the right of applicant's counsel to call his own evidence and submit his own arguments on the comments of the specialists in the lead cases. The CRDD states the following at page 2:

The panel ruled that as triers of fact they had a duty and responsibility to weigh all evidence presented in a hearing. The comments expressed by the specialists in the lead case are opinion evidence and the evidence of these specialists is clearly relevant to these claims. The panel is in no way bound by this evidence. The panel will consider all evidence presented and give counsel's own submissions on these specialists' opinions every consideration in reaching its decision in these claims.

The CRDD considered the opinions of the specialists in the lead cases along with the evidence and arguments of counsel for the applicants. The CRDD made no error of law nor did it breach the duty of procedural fairness in so doing.

[8]                The second issue raised by the applicants is that the CRDD made a reviewable error by finding that the applicants' evidence was not entirely credible. As previously discussed, the CRDD noted that the "verification" letter contradicted the applicants' testimony that the principal male applicant went to the police after every alleged attack by skinheads.

[9]                It is important to note at the outset that, generally, findings of credibility by the CRDD are given much deference. It is the CRDD who have the benefit of observing witnesses directly and are in the best position to determine credibility. As the Federal Court of Appeal states in Aguebor v. Canada (M.C.I.):^[3]

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.

This Court should therefore not intervene in the findings of credibility of the CRDD unless they are patently unreasonable. The difference between "unreasonable" and "patently unreasonable" may be difficult to determine. However, as the Supreme Court stated in Director of Investigation & Research v.Southam^[4]:

...The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable.

[10]            The CRDD's finding that the "verification" letter by the President of the Gypsy Minority Government, Ajka, contradicted the principal male applicant's testimony that he approached the police on every occasion after being allegedly attacked, is not patently unreasonable. This contradiction raised concerns for the CRDD about the credibility of the applicants' evidence. Although the applicants attempt to explain this contradiction by stating that the applicants did not go to the police after the last incident in 1999, the testimony of the principal male applicant before the CRDD reveals otherwise:^[5]

SIMEON: But didn't you go to the authorities after the last incident?

MALE CLAIMANT: But I did go to the police after the last incident.

SIMEON: So despite the threats, you went anyway.

MALE CLAIMANT: Yes.

The CRDD's concern about the credibility of the evidence was compounded by the fact that the applicants were not able to provide credible or trustworthy corroborating medical evidence to support their alleged attacks in July 1997 and October 1998. In my opinion, there is no reviewable error in the CRDD's assessment of the applicants' evidence.

[11]            The third issue raised by the applicants is that the CRDD was patently unreasonable in holding that the applicants had not provided "clear and convincing proof" of the Hungarian State's unwillingness or inability to provide the applicants with adequate state protection.

[12]            As the Supreme Court held in Ward v. Attorney General for Canada^[6] the availability of state protection is to be considered in the context of deciding whether the claimant's fear of persecution is well-founded. A well-founded fear of persecution has both an objective and subjective component. An applicant will not have an objective well-founded fear of persecution if a state is able to provide adequate protection. In Ward, the Supreme Court held that absent a complete breakdown of state apparatus, a state is presumed to be capable of protecting its citizens. This presumption, however, can be rebutted. The Court states the following at page 724, para. 69:

The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.

The onus is on the applicant, therefore, to demonstrate through "clear and convincing" evidence that the Hungarian State is unwilling or unable to provide protection. Mr. Justice Pelletier, in Zhuravlvev v. Canada (Minister of Citizenship and Immigration)^[7] considered the Ward decision and the jurisprudence from this Court and concluded the following at paragraph 31:

What conclusions can be drawn from the above? The first is that when the agent of persecution is not the state, the lack of state protection has to be assessed as a matter of state capacity to provide protection rather than from the perspective of whether the local apparatus provided protection in a given circumstance. Local failures to provide effective policing do not amount to lack of state protection. However, where the evidence, including the documentary evidence situates the individual claimant's experience as part of a broader pattern of state inability or refusal to extend protection, then the absence of state protection is made out. The question of refusal to provide protection should be addressed on the same basis as the inability to provide protection. A local refusal to provide protection is not a state refusal in the absence of evidence of a broader state policy to not extend state protection to the target group. Once again, the documentary evidence may be relevant to this issue. There is an additional element in the question of refusal which is that refusal may not be overt; the state organs may justify their failure to act by reference to various factors which, in their view, would make any state action ineffective. It is for the CRDD to assess the bona fides of these assertions in the light of all the evidence.

[13]            The CRDD, in the case at bar, notes that the applicants testified that the police would not provide them with protection or file reports regarding their complaints, however, the applicants did not testify to having any difficulties at the hands of the police. The CRDD pointed out that Hungary is a parliamentary democracy, rather than an authoritarian system of government, and therefore more is required to demonstrate the unavailability of state protection. The CRDD considered that the Hungarian State has made efforts to address the problems of discrimination against the Hungarian Roma. For example, the CRDD refers to a court case in which an owner of a bar is required to pay a fine for refusing to serve a Romany,^[8] the establishment of the Gypsy Self Governments, the Ombudsman for Human Rights, the Ombudsman for the Rights of National and Ethnic Minorities, and the Legal Aid Office for Minorities.^[9] The CRDD acknowledges that the protection from the Hungarian State is far from perfect, however, based on the evidence, the CRDD determined that attacks against the Roma in Hungary are on the decline.

[14]            The CRDD made no reviewable error in finding that the applicants had not provided "clear and convincing" proof of the Hungarian State's unwillingness or inability to provide adequate state protection. The CRDD considered that Roma continue to be attacked in Hungary, and acknowledged that police protection is far from perfect. These facts, however, were weighed against the fact that the Hungarian State has made serious attempts to address discrimination against the Roma. I cannot characterize the CRDD's analysis as patently unreasonable.

[15]            For the foregoing reasons, this application for judicial review will be dismissed.

[16]            The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.

                                                                       ORDER

THIS COURT ORDERS that:

1.         The application for judicial review is dismissed.

                                                                                                                        "Edmond P. Blanchard"                 

                                                                                                                                                   Judge