Date: 20010817
Docket: IMM-6268-99
Neutral citation: 2001 FCT 915
BETWEEN:
MIKLOS CSONKA, MIKLOSNE CSONKA,
LAJOS NAGY and MIKLOS HERMAN CSONKA
Applicant
- and -
THE MINISTER OF EMPLOYMENT AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
A. BACKGROUND
[1] The applicants in this judicial review application challenging a November 29, 1999 decision of the Refugee Division of the Immigration and Refugee Board (the "tribunal") denying their refugee claims are Miklos Csonka (the "principal claimant"), Miklosne Csonka, his spouse, their son Lajos Nagy born on January 21, 1981 and their other son Miklos Herman born on June 19, 1985. The applicants are citizens of Hungary and they based their refugee claims on the ground of race/nationality as being Romany.
[2] At the time of the tribunal's hearing held on November 29, 1999, Lajos Nagy was 18 years old and Miklos Herman Csonka was 14 years old.
[3] The tribunal based its decision on its analysis of the documentary evidence related to the availability of state protection in Hungary. It found the claimants had not rebutted the presumption that Hungary is able to protect them. It discounted the claimants' testimony that protection was not available to them in Hungary and it will not be available if they were to return there now.
[4] In addition, the tribunal did not find the principal claimant's evidence on this issue to be credible. It said "[T]here were numerous inconsistencies and implausibilities in the principal claimant's evidence that led us to find his testimony as not credible and trustworthy".
[5] The tribunal added that relevant to the well-foundedness of the principal claimant's fear was the fact he was in Canada between November 1995 and March 1996 and in Japan between November 1996 and May 1997. The tribunal said he did not consider claiming refugee status and each time he returned to Hungary. It did not believe his explanation for reavailment that he was alone, without his family.
[6] The tribunal found the principal claimant's conduct was inconsistent with a well-founded fear of persecution and determined such conduct had a negative impact on the claimant's subjective fear and, ultimately, on his credibility.
[7] The tribunal concluded with these words about the several claims:
Though the claims were heard jointly, it is recognized that each claim must be considered and determined individually. The panel finds that each claim is based on the same set of alleged facts and there are no distinctive elements to justify different findings on the questions of whether they are Convention refugees. [my emphasis]
B. THE ISSUES AND ARGUMENTS
(a) The Applicants
[8] The applicants raised several issues in their written representations including: (1) the failure of the tribunal to consider a psychological report concluding the principal claimant was suffering from the Post-traumatic Stress Disorder; (2) boiler plate decisions/bias as a result of the Lead Case Backgrounder; (3) errors in the assessment of the documentary evidence on the availability of state protection in Hungary for Roma people; (4) post hearing material does not figure in the tribunal's analysis; and (5) the tribunal was in error when it grafted its credibility findings on the testimony of the spouse and the son, Lajos, who also testified.
[9] However, in argument, counsel for the applicant emphasized as the principal ground the failure of the tribunal, as required by subsection 69(4) of the Immigration Act (the "Act"), to name a representative for the minor child, Miklos.
[10] He stated there was no designation for the minor child: such designation does not appear in the transcript record; such designation does not appear on the title page of the tribunal's decision where there is a blank underneath the printed words "designated representative" and, nowhere in its reasons, did the tribunal make any mention that a representative was designated for the minor child.
[11] Counsel for the applicant points out while his father was testifying, one of the sons (we do not know who) tried to say something but was told by the presiding member "[C]an I ask you again not to intervene during your father's testimony. This is important. Credibility is also an issue...". [see transcript page 572]
[12] Counsel for the applicant noted the mother's testimony of an incident which occurred to the minor child when he was 4 ½ years old; he was severely burned while playing in their apartment with a playmate who lived in the same building. That playmate threw a match at him saying "I don't like you anymore because you are a Gypsy"; his clothes caught on fire. He was hospitalized for six weeks.
[13] Counsel for the applicant asserts that a designated representative speaks for the child; here, the tribunal found his father's testimony not to be credible. As a result, the independent claim of the minor child was tarnished by the credibility finding which would not have been the case if the mother had been designated; her testimony was found to be credible.
(b) The Respondent
[14] Counsel for the respondent argued the designation issue was not ignored. He said somebody was designated for Lajos Nagy and pointed to two extracts from the transcript. In one extract at page 548, the applicant's counsel addressed the question to the principal claimant, Miklos Csonka, by saying "[S]ince you're the designated representative of your son, Lajos Nagy, can you tell the panel whether his father was also Roma?"
[15] In the second extract, counsel for the respondent pointed to pages 645 and 646 of the transcript, where counsel for the applicants, addressing the presiding member of the tribunal, said she wanted to ask Lajos Nagy whether he was satisfied even though he did have a designated representative since his claim was affected by the testimony of his parents.
[16] He points to page 524 of the transcript where the principal claimant, the father, acknowledges he signed the PIFs for his minor son.
[17] Counsel for the respondent said I should look at the circumstances and urged upon me that nothing turned on the lack of designation, if there was such omission. He noted Mr. Lajos Nagy also testified.
[18] In any event, he argued the incident between two young children, the match throwing and clothes burning episode, does not give rise to a fear of persecution especially when the event occurred seven and half years before the family fled from Hungary.
C. LEGISLATION
[19] Subsection 69(4) of the Immigration Act (the "Act") deals with representation and reads as follows:
| (4) Where a person who is the subject of proceedings before the Refugee Division is under eighteen years of age or is unable, in the opinion of the Division, to appreciate the nature of the proceedings, the Division shall designate another person to represent that person in the proceedings. [emphasis mine]
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(4) La section du statut commet d'office un représentant dans le cas où l'intéressé n'a pas dix-huit ans ou n'est pas, selon elle, en mesure de comprendre la nature de la procédure en cause.
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D. ANALYSIS
[20] A review of the record indicates:
(a) Miklosne Csonka, who had filed a separate PIF, testified before the tribunal and was not cross-examined. Although her testimony principally related to the experiences suffered by her sons, she testified as to the basis of her fear of returning to Hungary;
(b) Lajos Nagy, who also filed a separate PIF, testified and also was not cross-examined. He substantiated his father's testimony, described the physical attacks he suffered when he was 14 and the threats to their home as well as the lack of police protection.
[21] My review of the transcript satisfies me that no person was designated as
a representative for the minor child. Most of the transcript extracts referred to by counsel for the respondent related to Lajos Nagy who was 18 at the time. The designation of a minor child under the Act is mandatory and must clearly be put on the record which did not happen here. (See, by analogy, Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 in respect of a consent to a single member hearing.)
[22] It is to be recalled that the Convention Refugee Determination Division Rules provide for a joinder of claims in section 10. Subsection 10(2) provides that, subject to a severance application provided for in subsection (3), family claims are to be processed jointly, which is the situation here.
[23] I am of the view the Tribunal's decision should be set aside with respect to all applicants and, in doing so, I am sidestepping the question whether the failure to designate a representative for the minor child renders void the decision in respect of all other members of the family unit.
[24] The Federal Court of Appeal's decision in Kissoon v. The Minister of Employment and Immigration, [1979] 1 F.C. 301, a case which involved non-compliance with subsection 29(5) of the Act which made it mandatory for the adjudicator to designate a person to represent a minor child who was not so represented by a parent or a guardian, is authority for the proposition the resulting decision is void, not only voidable. Although this distinction has suffered from erosion (see Brown and Evans, Judicial Review of Administrative Action in Canada, chapter 5, page 223 ff.) no demonstration of prejudice or breach of natural justice need be shown where such statutory breach has taken place. Clearly, non-compliance with subsection 69(4) of the Act, insofar as the minor child Miklos Herman Csonka means the decision as it relates to him must be set aside.
[25] The situation with respect to Miklosne Csonka and her son Lajos is different. The tribunal's decision in respect of their claims must be set aside on the authority of the Federal Court of Appeal's decision in Retnem v. Minister of Employment and Immigration (1991), 13 Imm. L.R. (2d) 317. This was a case where a husband and wife claimed refugee status, where their claims had been joined and where the tribunal had dismissed the wife's claim "for the same reasons" as applied to her husband.
[26] Justice MacGuigan was of the view the tribunal was in clear error in its treatment of the appellant's wife's claim. He was of the view there were some distinctive elements in the wife's claim and so the tribunal could not simply decide her case "for the same reasons" as her husband's.
[27] In the case at hand, the tribunal found that each claim was based on the same set of alleged facts and there were no distinctive elements to justify different findings on the question whether they are Convention Refugees.
[28] I see the following errors in respect of the tribunal's finding so far as these two claimants are concerned:
(1) First, while the tribunal found Miklos Csonka's evidence not to be credible, it did not make any adverse credibility findings against Mrs. Csonka and her son Lajos. The tribunal could not simply tarnish these two claimants with the reasons they found the principal claimant non-credible;
(2) Second, both of these claimants brought, in my view, some distinctive elements to their claim which warranted comment and analysis by the tribunal.
[29] Miklos Csonka's claim is yet in another category because of the credibility findings drawn against him by the tribunal and the impact of his reavailment to Hungary. What warrants setting aside the decision in his respect is the failure of the tribunal to mention and consider the psychological report which accompanied his counsel's written submissions. In this respect, I follow Justice Denault in Khawaja v. The Minister of Employment and Immigration (1999), 172 F.T.R. 287, who found a tribunal was wrong to conclude that a claimant was not credible without taking into account and without discussing the content of the psychological report which identified severe Post-traumatic Stress Disorder.
E. DISPOSITION
[30] For all of these reasons, this judicial review application is allowed, the decision of the tribunal in respect of all applicants is set aside and their claims are remitted for reconsideration by a differently constituted tribunal. No certified question was raised.
J. François Lemieux
JUDGE
OTTAWA, ONTARIO
August 17, 2001
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