Ehmann v. Canada (Minister of Citizenship and Immigration), 2002 FCT 108

Date: 20020130

Docket: IMM-4109-00

Neutral citation: 2002 FCT 108

BETWEEN:

                                                                     ZSOLT EHMANN

                                                                                                                                                    Applicant

AND:

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                              REASONS FOR ORDER

ROULEAU, J.

[1]                 This is an application for judicial review under subsection 82.1 of the Immigration Act ("the Act") of the decision of Barbara Hodgins, Presiding Member of the Immigration and Refugee Board, Convention Refugee Determination Division ("the CRDD"), dated July 19, 2000, finding the applicant not to be a Convention Refugee.

[2]                 The facts alleged by the applicant in the present case are important as the CRDD did not accept them as credible and were not be relied upon.

[3]                 The applicant is a 26 year-old citizen of Hungary who claims to have a well-founded fear of persecution on the grounds of race and membership in a particular social group, Roma, owing to harassment he received from a gang of skinheads located approximately 30 km away from his home. He officially changed his own surname from Barasci, "which might identify (him) as a gypsy", to Ehmann. Having visited with his sister in Germany, he chose not to remain because Germany is too close to Hungary. He contacted friends in Canada to arrange a visit. Before leaving he obtained a driver's license and passport in his new name. During this period, he stayed with friends, not his mother and siblings, but continued to work were he had worked at the time until he left Hungary in February 1998. On March 26, 1998, three weeks after his arrival, he filed a refugee claim. On July 14, 2001, the Refugee Board provided the applicant with written reasons for its determination that he was not a Convention refugee and that there is no credible basis to his claim.

[4]                 The applicant now seeks judicial review of the negative decision of the CRDD on the basis that its findings were unreasonable. By order dated October 17, 2001, leave to commence a judicial review application in respect of that decision was granted.

[5]                 In the opinion of the CRDD, the determinative issues before it were credibility ans subjective fear. The CRDD's negative credibility finding was central to its determination; the applicant had not established a well-founded fear of persecution. The CRDD offered detailed reasons for its decision that the applicant was not a credible witness, citing numerous implausibilities and contradictions in the applicant's evidence, which concerned central aspects of his refugee claim such as his personal identity and ethnic group. The CRDD noted several inconsistencies in his testimony and concluded:

"THE CLAIMANT'S ETHNICITY IS NOT ROMA. HIS EVIDENCE THAT HE WAS HARASSED FOR DEFENDING GYPSIES IN HUNGARY IS NOT CREDIBLE AND HAS NO BASIS IN THE OBJECTIVE COUNTRY INFORMATION. HIS FAILURE TO MAKE A REFUGEE CLAIM IN AUSTRIA AND GERMANY DEMONSTRATES A LACK OF SUBJECTIVE FEAR. THESE FINDINGS ARE DETERMINATIVE OF THE CLAIM AND THE OTHER ISSUES IDENTIFIED AT THE OUTSET DO NO NEED TO BE ANALYZED.

FOR ALL THE REASONS ABOVE, THE REFUGEE DIVISION FINDS THAT THE CLAIMANT HAS NOT PROVIDED SUFFICIENT CREDIBLE AND TRUSTWORTHY EVIDENCE TO ESTABLISH HIS CLAIM. THE REFUGEE DIVISION DETERMINES THAT ZSOLT EHMANN, A.K.A ZSOLT BARACSI, IS NOT A CONVENTION REFUGEE. FURTHERMORE, GIVEN THAT THE ESSENTIAL ELEMENTS OF HIS CLAIM HAVE BEEN FOUND TO LACK CREDIBILITY AND THAT THERE IS NO OBJECTIVE BASIS FOR WHAT IS LEFT, THE REFUGEE DIVISION ALSO FINDS THERE IS NO CREDIBLE BASIS UPON WHICH THE CLAIMANT COULD HAVE BEEN DETERMINED TO BE A CONVENTION REFUGEE."

[6]                 The appropriate standard to be applied in reviewing a decision of the CRDD is that of patent unreasonableness. It is well established that the question for consideration on an application for judicial review is not whether this Court would have reached a different conclusion, but rather, whether the decision of the CRDD was reasonably open to it based on all the evidence : Owusu v. Canada (Minister of Employment and Immigration) (1993), 64 F.T.R. 13 (F.C.T.D.); Grewal v. Canada (Minister of Employment and Immigration), [1983] F.C.J. No. 129 (QL) (F.C.A.). Thus, "At the end of the day, the decision will have to stand thorough examination by the reviewing Court in order to enable the Court to evaluate if the tribunal's reasons are in accordance with the evidence and to ensure that they are not clearly illogical or irrational" : Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (QL) at para. 17 (F.C.T.D.).

[7]                 In order for any alleged error of fact to be reviewable, the findings of fact must be truly erroneous, the finding must be made capriciously or without regard to the evidence, and the decision must be based on the erroneous finding : Rohm and Haas Can. Ltd. v. Anti-Dumping Tribunal (1978), 91 D.L.R. (3d) 212 (F.C.A.); Kuang v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1157 (QL) (F.C.T.D.). I am satisfied that, in the present case, none of the three conditions precedent have been met. The tribunal's inferences and conclusions were reasonably open to it on the record.

[8]                 Until such time as the applicant is declared to be a Convention refugee pursuant to s. 2 of the Immigration Act, the burden rests upon the applicant to provide clear and convincing proof of the well-foundedness of his claim for Convention refugee status. Assessing a claimant's credibility is crucial to the decision-making function of the CRDD. It would not be able to perform its function at the hearing if it could not assess and decide adversely with respect to the credibility of the oral testimony of the claimant on the basis of contradictions and inconsistencies in the applicant's story, or the basis that the evidence is simply implausible. Thus, where such negative findings are clearly made, and reasons given in clear and unmistakable terms, this Court should not interfere, even if the evidence could conceivably lead to a different conclusion, unless an overriding error has been made by the CRDD : Lin v. Canada (Minister of Citizenship and Immigration), January 8, 1998, No. IMM-1156-97 (F.C.T.D.); Alizadeh v. Canada (Minister of Employment and Immigration), January 11, 1993, No. A-26-90 (F.C.A.).

[9]                 I am satisfied that the CRDD did not base its assessment on irrelevant considerations or ignored evidence which did not substantiate its findings.

[10]            The Court rejects as unfounded the applicant's allegations that the questioning of the applicant by the members of the CRDD was evidence that the panel was not independent or impartial or was somehow biased against the applicant. The questions designed to gain information on the applicant's credibility, and, as such, were legitimately open to the CRDD. Though raised in argument, there is no evidence to support an allegation of bias.

[11]            The trend in the authorities is that Tribunal members will be given significant latitude in their handling of a hearing before their conduct will be found to give rise to a reasonable apprehension of bias. Extensive and energetic questioning by CRDD members will not in itself give rise to a reasonable apprehension of bias : Peraza v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 93 (F.C.T.D.).

[12]            The applicant's assertion that the CRDD had pre-judged his case is without merit. The applicant failed to provide any examples from the Transcript of Proceedings to demonstrate that the conduct of the Presiding Member at the hearing gave rise to a reasonable apprehension of bias.

[13]            The onus was on the applicant to provide clear and convincing proof of the well-foundedness of his claim to Convention refugee status. In the case at bar, the applicant simply did not adduce sufficient credible evidence to establish that the fear of persecution was well founded, and so failed to discharge his onus. The CRDD's conclusions were reached having regard to the objective documentary evidence and all the facts before it. It was reasonably open to them to find on the basis of the evidence before it that the applicant was not a Convention refugee. The applicant failed to show that a perverse or capricious finding central to the decision to refuse his claim can be supported.

[14]            For all the reasons above, the Court will not interfere with the CRDD's decision and this application for judicial review is dismissed.

[15]            The parties have agreed that no summary question is to be certified.

     JUDGE

OTTAWA, Ontario

January 30, 2002