Date: 20000111
Docket: IMM-2756-99
Between:
FLORENTA TANASE,
LEVENTE HADHAZY,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
Muldoon J.
[1] This is an application for judicial review, pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, Chap I-2 (the Act) of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board, dated May 13, 1999, determining that neither of the two applicants is a convention refugee. The applicants were granted leave to seek judicial review by an amended order of Madam Justice Sharlow dated October 15, 1999. They seek an order for a writ of certiorari quashing the CRDD decision.
Facts
[2] The first applicant is Ms. Florenta Tanase born of Romanian ethnicity in 1968 and currently a citizen of Romania. The second applicant is Mr. Levente Hadhazy, born of Hungarian
ethnicity in 1971 but also a citizen of Romania. The two are husband and wife and have one child, born in Canada in 1997.
[3] The applicants" journey to Canada began in 1996, when Mr. Hadhazy left Romania, entering the U.S. with a fake visa, and waited a year for Ms. Tanase to join him. Together once again, they crossed the border through a forest and into Canada, hitchhiking their way to Vancouver before boarding a bus for Regina. On September 14, 1997, the applicants applied for convention refugee status. A hearing before a panel of the Convention Refugee Determination Division of the Immigration and Refugee Board (the panel) was held on January 12, 1999.
[4] Mr. Hadhazy"s application was based on his fear of persecution in Romania due to his nationality, his living together with his Romanian wife, who was his fiancee at the time, and his political opinions as a member of the UDMR political party. Ms. Tanase based her claim on a fear of persecution in Romania due to her relationship with Mr. Hadhazy at the time.
[5] At the hearing and in his personal information form (hereinafter PIF), Mr. Hadhazy testified that he had been a member of the UDMR and that he had attended at its meetings, demonstrations and had occasionally handed out pamphlets. He also testified that his troubles started in 1993, when he moved in with his wife. The windows of their apartment were broken, threatening telephone calls were made, threatening letters sent to them and their front door was vandalized, all without the police finding out who was responsible. Neither applicant, unfortunately, could corroborate any of these events in any way at the hearing. Though not
mentioned in his PIF, Mr. Hadhazy noted during the hearing that he was arrested in 1993 and held for a few hours, along with several others, after taking part in a demonstration.
[6] Mr. Hadhazy also testified that, in 1995, he and his wife were attacked in front of their apartment and savagely beaten. Both ended up in the hospital, Ms. Tanase tragically having a miscarriage and apparently being told that both her ovaries had been removed. Mr. Hadhazy alleges that, in 1996, he was summoned to a police station, interrogated concerning manifestoes denouncing President Ilescu, shown pictures taken of himself distributing pamphlets and detained with several other UDMR members. On declining to sign a document declaring that he had conspired against the government, Mr. Hadhazy was beaten by the police and then beaten by other prisoners who had been informed that he was Hungarian. He alleges that he lost consciousness at this point, was driven out into the city, dumped and only eventually taken to hospital where he remained for five days. After being asked by the panel whether he could acquire any documents to show that he had been in hospital, he stated, "I don"t know. I doubt it." When asked whether his father could get such documents he replied, "I doubt it. I hear it is in some hospital master file."
[7] Mr. Gary Mitchell, a past employee of the respondent, also testified at the hearing, telling the panel that he had got to know the applicants very well and that he believed without question their allegations of mistreatment. Also presented at the hearing was a letter written by Dr. S.C. Mahood of Regina, containing Ms. Tanase"s tale of horror in respect of her stay in the Romanian hospital and speculation as to why a large incision had been made in her stomach. It provided:
| Physical examination demonstrated an 18 cm midline abdominal scar spreading from the pubic bone to the epigastrium. She also has a second smaller scar in the right lower quadrant, likely secondary to a post operative drain |
| The abdominal scar is much more extensive than one would expect with appendectomy, or oophorectomy. and would suggest a large explorative incision, perhaps to look for intra-abdominal hemorrhage [sic] secondary to the beating. |
[8] In a decision dated May 13, 1999, the panel, comprised of Mr. Benjamin Ayorech and Mr. Andrew Rozdilsky, turned down both applications for convention refugee status. In its reasons, the panel began by noting Mr. Hadhazy"s omission of the 1993 arrest from his PIF and noted what it believed to be a vague description of the arrest and detention. It claimed that the claimant was merely trying to create an impression that he had suffered persecution. The panel then went on to draw a negative inference from what it perceived to be Mr. Hadhazy"s unwillingness to make an effort to obtain a document which would confirm his stay in hospital after the 1996 beatings.
[9] The panel also turned its mind to the submission by the applicants that a bill from a Regina hospital had been sent to Romania and intercepted there by the authorities. It went so far as to find that this was a "fabrication aimed at creating an impression that the Romanian authorities are still interested in the applicants." Attached to the application filed with this Court is, however, a letter from the hospital in question confirming that the bill had been sent to Romania. It is exhibit "D" to the applicants" affidavit. This is a grave error on the panel"s part, which could in light of the exhibit"s prominence, indicate negligence if not bias on their part. As to the remaining aspects of the applicants" submissions, the panel noted for the most part that
they were uncorroborated by evidence of any kind, however in view of the grave error just noted, the foregoing is of rather little significance.
Legal Issues
[10] The applicants raise several issues in respect of the panel"s decision and the conduct of the hearing. The first main issue concerns whether the panel breached its duty of fairness owed to the applicants. The second main issue concern whether the panel was over-zealous in looking for discrepancies in the applicants" stories. The next two issues concern whether the panel ignored evidence proffered by Mr. Gary Mitchell and Dr. Mahood and whether it erred in not detailing why the evidence was rejected. The next issue concerns whether the panel required corroboration of the applicants" evidence. The final issue relates to whether the panel ignored the presumption of truth from which applicants benefit.
[11] The applicants first submit that the panel breached its duty of fairness in a number of ways. To begin with, they submit that the panel acted unfairly by not providing them with notice of its concerns with respect to the credibility of their claim that a hospital bill had been mailed to Romania, allegedly just to prop up their claims. Nor were they provided with an opportunity to address these concerns. The applicants submit that they are entitled to know of any credibility concerns which the panel may have prior to these concerns being incorporated into the panel"s reasons. The respondent submits that the duty of fairness does not require that the panel notify claimants either that their credibility is at issue or that a witnesses" credibility may be in
question. However in grave matters such as this, reasonable folk would expect the panel to be careful in avoidance of unfairness. It failed, and judicial review should be granted.
[12] The applicants submit several cases in support of their claim that a panel must give notice and a chance to claimants to address any concerns it may have in respect of a claimant"s evidence. Some of the cases, however, merely show that some panels did, in fact, ask a claimant to clarify an inconsistency in his or her testimony prior to making a finding in respect of credibility. Other cases show, nevertheless, that the law surrounding this issue has yet to be settled by this Court. But it should never be forgotten that federal adjudicative panels, such as the CRDD, are in the "business" of fairness and justice.
[13] As for Gracielome v. Canada (Minister of Employment and Immigration) (A-507-88 and A-529-88, May 30, 1989) (F.C.A.) (hereinafter Gracielome), this has often been relied on for the propositions advanced by the applicant. See for instance Nadesu v. Canada (Minister of Citizenship and Immigration) (IMM-4606-96, October 21, 1997) (F.C.T.D.) and Vorobieva v. Canada (Solicitor General) (IMM-4863-93, August 15, 1994) (F.C.T.D.). Unfortunately, Gracielome, supra has been misinterpreted time and again by counsel. In it, Hugessen J. wrote:
| It is worth noting that in none of the three cases were the applicants confronted with the alleged contradictions or asked for explanations. On the contrary, it is apparent that each example was found by the majority [of the Board] after the fact from a painstaking analysis of the transcripts of the evidence. In these circumstances, the Board is in no better position to weigh the contradictions than is this Court. |
[14] This passage stands for the proposition that, where a claimant is not confronted by a panel with alleged contradictions or asked for explanations prior to a decision on credibility being made, the reasons for showing deference to the panel are severely diminished as it is in no better position to weigh the contradictions than is this Court. This proposition does not imply, however, that the duty of fairness requires a panel to alert a claimant to a potentially adverse credibility finding in every case or in matters of trivial importance. The duty is strong here. Though neither party submitted the case of Kahandani v. Canada (Minister of Citizenship and Immigration) (IMM-2742-98, November 17, 1999) (F.C.T.D.), this Court notes that in it, Pinard J. reaches a similar conclusion. Also of note is Ayodele v. Canada (Minister of Citizenship and Immigration) (IMM-4812-96, December 30, 1997) (F.C.T.D.).
[15] The applicants rely, in addition, on Gabor v. Canada (Minister of Citizenship and Immigration) (IMM-1187-97, October 6, 1998) (F.C.T.D.) wherein this Court supported the applicants" propositions. This case is distinguishable, however, on its facts. In it, a panel determined that an allegation of the claimant was not credible as it appeared to conflict with the date found on a document presented by the claimant after the Convention Refugee Determination Division hearing. In the present case, the CRDD accused - in blatant contradiction of obvious fact - the applicants of fabricating evidence of crucial import. They are refugee claimants, not just small claims plaintiffs. They are maligned by the CRDD in regard to the Regina hospital bill, and its alleged purpose in support of their case.
[16] Finally, a consideration of the factors enumerated in Baker v. Minister of Citizenship and Immigration (No. 25823, July 9, 1999) (S.C.C.), demonstrates clearly that the duty to be fair does not require a panel to provide claimants an opportunity to address every concern over credibility. In particular, this Court notes that paragraph 65(1)(a) of the Act gives the Ministry the power to determine the CRDD"s practice and procedure. More importantly, however, subsection 68(5) of the Act requires that a claimant be given a chance to address a panel only when it wishes to take judicial notice of some factor. Similarly, subsection 69.1(9.1) of the Act implies that credibility findings do not need to be shown to a claimant prior to being made. Section 69.1(9.1) provides:
| (9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim.
|
(9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut.
|
[17] This Court is mindful that a panel"s decision has great importance to an individual and determines, in essence, whether a claimant will continue to benefit from all the rights inherent in a life in Canada. The procedure used during the hearing is a fairly relaxed one, as a perusal of section 68 of the Act makes immediately clear. This too indicates that relatively few procedural safeguards are required in order that the final decision be fair - but of quintessential importance, it must be fair!
[18] The second submission relating to the duty to be fair concerns the applicants" assertions in their affidavit that they were not allowed to tell the whole of their stories at the hearing because of frequent interruptions. Ms. Tanase relates one instance where the refugee claims officer allegedly cut her off before she could explain why no medical records were adduced before the hearing. The respondent submits that the applicants have no support for their submission save and except their own statements that it is so. The Court should add that, as CRDD hearings are taped, it could have been relatively easy for the applicants to submit a transcript of the hearing in order to show the Court just how bad these alleged interruptions were. No such evidence was adduced, however, and no reasons for opting not to do so were advanced. This Court does not find, therefore, that the applicants" assertions are adequate ground on which to overturn the panel"s decision. Similarly, the complaints found in the applicants" affidavit surrounding the interpreter present at the hearing must not be dismissed. However, because the CRDD"s decision is now to be quashed the matter is open to the parties to exploit as they may be advised.
[19] The applicants next submit that the panel engaged in an over-vigilant, microscopic examination of their testimony. This is based on the applicants" contention that the panel was wrong to highlight the fact that Mr. Hadhazy, while noting at the hearing that he had been arrested in 1993, had failed to note this in his PIF. The applicants also submit that the panel put them in a catch-22 situation by finding that they were not credible due to the surfeit of details they had provided during the hearing. This point, too, may be exploited in any lawful manner as the parties may be advised.
[20] A panel will err if it undertakes too detailed an examination or, as Mr. Justice Hugessen stated, if it is over-vigilant in its microscopic examination of a claimant"s story as told through an interpreter; Attakora v. Canada (Minister of Employment and Immigration) (A-1091-87, May 19, 1989) (F.C.A.). The respondent submits, however, there is no evidence that the panel was over-zealous in its analysis of the applicants" claims. Clearly, the detention in 1993, the first of many to come, was not the most significant instance of persecution suffered by Mr. Hadhazy. Nevertheless, he based his claim for refugee status, in part, on the fact that he feared persecution for his political opinions. It is surprising, therefore, that he would omit any mention of a detention suffered due to his political activity when composing what was otherwise a very long and detailed PIF. Though this Court may not agree with the weight given by the panel to its
absence, the panel failed, despite plain evidence, to find persecution based on ethnic hatred, perpetrated with complicity on the part of agents of the State.
[21] The applicants" third submission is based on testimony given at the hearing by Mr. Gary Mitchell, a past employee of the respondent, on behalf of the applicants. He told the panel that, in his opinion, the applicants were credible. He also stated that he believed, without question, their allegations of mistreatment in Romania. The applicants submit that the panel, however, chose not to comment on this evidence in its reasons and gave no indication of why it, apparantly, rejected this testimony. Their submission, in essence, is that if the panel did not find Mr. Mitchell credible, it had a duty to explain why. The Court is profoundly moved by this argument.
[22] The essence of Mr. Mitchell"s evidence is that he believed the applicants and that, therefore, the panel should too. Although this Court would not go so far as the respondent and say that character references are inadmissible, it does accept that this sort of back-slapping may have little probative value. As such, the lack of any mention of it in the reasons can be considered a reviewable error of tribunal negligence. Though neither party adduced the case of [1975] 1 S.C.R. 382">Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn. [1975] 1 S.C.R. 382, this Court notes what Dickson J. stated:
| A tribunal is not required to make an explicit written finding on each constituent element, however subordinate, leading to its final conclusion. |
[23] The lack of mention in the reasons is a sign that the panel probably ignored the evidence in question.
[24] The next submission by the applicants is based on a passage in the panel"s reasons noting first, that no medical records were adduced by the applicants to confirm treatment at a hospital following several alleged beatings and second, that no documents were adduced supporting their allegations of injuries sustained in attacks. The applicants submit that the letter of Dr. Mahood should be considered as evidence that injuries were suffered. They argue that this letter must have either not been considered or not given the weight one would expect a professional observation to be given. The doctor"s letter ought at least to have been taken into account by the CRDD. Is it not a relevant professional observation of the type found in Zapata v. Canada (Ministry of Employment and Immigration) (IMM-4876-93, June 29, 1994) (F.C.T.D.)?
[25] The next submission by the applicant rests on several passages in the panel"s reasons where the panel notes that certain allegations were not corroborated by any documentary or other evidence. The applicants submit that their allegations do not need to have been corroborated in order for the panel to believe them. The respondent argues that the panel did not require corroborative evidence but that it was well within its powers when considering a lack of corroboration as a factor in assessing the credibility of the applicants" claims.
[26] Neither party entered any evidence as to the law relevant to this submission. Nevertheless, this Court recognizes that it has commented frequently on the matter in question. For instance, though the panel may reject the applicants" evidence in the absence of corroboration, this Court has stated that uncontradicted testimony does not need to be corroborated; Miral v. Canada (Minister of Citizenship and Immigration) (IMM-3392-97, February 12, 1999) (F.C.T.D.).
[27] The applicants are correct to note that the panel made much of the fact that various parts of the story of the applicants went uncorroborated. This does not imply, however, that it required corroboration of each of these parts. Rather, it merely implies that the panel regularly turned its mind to the matter, something it was empowered to do. True, there is one noteworthy passage, at page 5 of the decision, where the panel appears to state that the applicants" allegations of injuries are not credible only because of a lack of corroboration. This statement must be read, however, in the context of its earlier conclusion that Mr. Hadhazy did not seem too interested in trying to obtain documentary proof of having been admitted to hospital and treated for injuries. In light of this earlier note, the passage in question cannot be properly interpreted and the question can be dealt with and sorted out by the next panel.
[28] Finally, the applicants may complain that the panel did not presume them to be truthful. It is clear, however, that the sudden mentioning by Mr. Hadhazy of his 1993 arrest during the hearing gave the panel very little reason to doubt his testimony. In light of this, the anxious search for corroboration cannot always be considered to be an error; Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (F.C.A.), but the next panel will have to be less rigid and more understanding of alleged refugees" plights in confronting ethnic prejudice.
Conclusion
[29] The matter of certification of a serious question was discussed by counsel and the Court. The applicants" counsel proposed such a question and furnished a proposed text for it. The Court, however, declines to certify any question herein.
[30] Judicial review is granted and the applicants" refugee claims are referred to a newly assembled CRDD panel who shall take careful note of these reasons and make a decision according to law.
"F.C. Muldoon"
Winnipeg, Manitoba Judge
January 11, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2756-99
| STYLE OF CAUSE: FLORENTA TANASE, LEVENTE HADHAZY |
v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
| DATE OF HEARING: January 10, 2000 |
REASONS FOR ORDER
| OF THE COURT: The Honourable Mr. Justice Muldoon |
DATED: January 11, 2000
APPEARANCES
David Matas for the Applicants
602 - 225 Vaughan St.
Winnipeg MB R3C 1T7
Aliyah Rahaman for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg MB R3C 0S6
SOLICITORS OF RECORD
David Matas for the Applicants
Morris Rosenburg for the Respondent
Deputy Attorney General of Canada
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