Date: 20020918
Docket: IMM-6551-00
Neutral citation: 2002 FCT 979
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant,
- and -
ISTVAN NYARI (a.k.a. TIBOR KOLOMPAR), ERIKA GOMAN,
RENATA KOLOMPAR, RICHARD KOLOMPAR
SANDOR ROLAND KOLOMPAR, RENATO GOMAN
Respondents.
REASONS FOR ORDER
KELEN J.:
This is an application for judicial review of the decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board, dated March 1, 2000 wherein the applicants were found to be Convention refugees.
[2] The issues in this matter are:
- · whether the CRDD came to a finding of credibility that was patently unreasonable; and,
- · whether the CRDD erred in its interpretation and application of Article 1F(b) of the UN Convention Relating to the Status of Refugees.
[3] The respondents are a family of Hungarian Roma consisting of the parents and four children. They alleged a well-founded fear of persecution by reason of their ethnicity.
[4] In its decision, the CRDD reviewed in detail the poor conditions in which the respondents lived in Hungary. The panel noted certain particulars:
- · that one of the minors witnessed the mother being raped;
- · that housing was not available to them;
- · that the unstable lifestyle made it difficult for the male claimant to find work; and,
- · that the children were harassed at school.
[5] The panel then analysed the efforts of the Hungarian government to remedy the disadvantages facing the Roma, and concluded that the cumulative effect of these conditions were adequate to give rise to a well founded fear of persecution.
[6] The panel then considered the exclusion of the respondents on the basis that the male respondent, Istvan Nyari, fell within the definition of Article 1F of the Convention on the Status of Refugees, which reads:
The provisions of the Convention shall not apply to any person with respect to who there are serious reasons for considering that:
[...]
b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
[7] The panel analysed the crimes the male respondent committed in Hungary, specifically:
- · impersonating another person;
- · escaping prison;
- · cattle and pig theft;
- · assault causing bodily harm; and,
- · forgery.
[8] Regarding the charge of impersonation, the panel stated that the applicant identified himself as "Tibor Kolompar" and stated that "Istvan Nyari" was the alias he used to escape Hungary.
[9] The panel noted that the cattle theft was committed to feed his children, and decided that this did not constitute a "serious crime" as required by the Convention.
[10] The panel also considered the evidence of a letter from Interpol, dated April 19, 2000, stating a Nyari and Kolompar are the same person, and that he had a lengthy record of offences in Hungary including theft, forgery, and injury to property.
[11] The panel considered the crime of impersonation and document fraud, and found that this was an action typical of refugees attempting to flee a country, and not grounds for exclusion. In its considerations, the panel mentions that the applicant was sentenced to twenty months in prison for injuring a Roma girl with whom he had had a relationship, during a fight with her and her parents upon the break-up of the relationship. He escaped from prison before serving the full sentence.
[12] The panel acknowledged that the offence of "assault causing bodily harm" was a serious crime in the context of Article 1F(b), but found that the "brawl between two people" that took place cannot be considered a serious crime:
He was in prison because he hit somebody. The panel has determined this not to be a serious crime.
[13] The panel then noted that the applicant testified that he had forged and fixed documents in order to sell horses, and had been convicted and sentenced to three years for this crime. The panel
found that the penalty for the offence of forgery under the Canadian Criminal Code did not exceed ten years and was therefore not a "serious offence".
[14] The applicant brings the present application seeking judicial review of the CRDD's decision on the grounds that the panel came to a finding of credibility that was patently unreasonable, and erred in its interpretation and application of Article 1F(b) of the UN Convention Relating to the Status of Refugees.
ANALYSIS
Credibility of the Male Respondent
[15] The standard of review for findings of credibility by the CRDD is patent unreasonableness, as set out in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, [1993] F.C.J. No. 732 (F.C.A.), as per Decary J.A. at paragraph 4:
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.
[16] The CRDD failed to properly assess the credibility of the respondents' evidence. From the serious inconsistencies and untruths in the evidence of the adult male and female claimants, the criminal records of the claimants, the evidence from Interpol about the outstanding criminal charges against the claimants, I conclude that the CRDD's finding of credibility is patently unreasonable. The overwhelming evidence is that these adult claimants lived their life in Hungary by consistently lying, cheating and stealing. When they left Hungary for Canada, the male claimant had escaped from prison and was wanted on several criminal charges. Interpol says that the female claimant was wanted for forgery, which the female claimant denies. Accordingly, it is difficult for this Court not to conclude that the CRDD either failed to consider the credibility of the claimants with any proper analysis or else made credibility findings that were patently unreasonable. Considering the manner in which the hearing was conducted over six months, with the male applicant being incarcerated in Canada for most, if not all of that time, it is clear that a new hearing is warranted and necessary so that the CRDD can make a proper determination under the Convention.
[17] Upon reviewing the transcript of the hearing, it is evident that the hearing was awkward in that it was held over four days, each day one month or more after the last day. The hearing commenced on February 9th, 2000 and concluded August 22, 2000, a period of over six months. In reviewing the transcript, it is evident that both adult claimants were caught in apparent blatant lies which the CRDD ignored or failed to apprehend. For example, at pages 446 and 498 of the Record, the male claimant testified emphatically that he had never committed a crime. This is a blatant lie in the face of the overwhelming evidence of his criminal record. Perhaps it can be explained by poor translation, but when taken in the context of the whole evidence, it does not seem out of character. At page 554 of the Record, the male adult claimant admits that the whole of his Personal Information Form ("PIF") is incorrect and fictitious except the name of his wife and children. However, on further questioning it appears that only the name which the male claimant used is false. At page 512, the male claimant testifies that his wife has never committed a crime outside of Canada in the thirteen years that they have been together as a couple. In fact, this was not true. The Interpol evidence states that the female adult claimant is being sought for forgery, and was "punished" for forgery in the past (see page 475 of the Record).
[18] The evidence of the male claimant is confusing since he uses an alias. The male claimant stated in his PIF that he had never been convicted of any crime, but his lawyer later sent a letter admitting that he had committed three criminal offences. Then the male claimant explained that these three criminal offences were committed by the real person he was impersonating and not by himself, and that his criminal offences are accurately described in the Interpol document (see Record at page 510 and 511).
[19] The claimant also admitted that he is currently wanted by Hungarian police for "minor thefts". Interpol states that he is wanted on six criminal charges.
[20] In Canada, the male claimant admits to having been charged with shoplifting. The male claimant went to Court and received a warning from the Judge. The male claimant then spoke of having gone on a farm without an appointment to look at an old bus that was for sale. The claimant stated that he was not charged, but the Record shows that he was charged with break and enter and pled guilty to that charge (see Record at pages 525 and 526). Later at page 542 of the Record he admits that he was charged with break and enter.
[21] With respect to the credibility of the female claimant, she makes no mention on the PIF of her alleged rape. She blames the omission on her counsel at the time, a statement which this Court is not prepared to accept without corroborating evidence. It is inconceivable that counsel would omit one of the most significant alleged events supporting the refugee claim.
[22] When the male adult claimant spoke about rape, he stated at page 535 of the Record "Well, the reason why I left jail was because they wanted to rape my wife at the settlement and there was another Gypsy girl who was actually raped ....". This suggests that his wife was not in fact raped.
[23] Finally at pages 454 and 455 of the Record, the female claimant says that she does not know anything about committing a crime in Hungary, notwithstanding the information from Interpol that she was punished for forgery.
[24] Based on transcript, which reflects real confusion as well as apparent blatant lies, I am satisfied that the findings of credibility by the CRDD are patently unreasonable. The transcript, together with the fact that the adult male claimant has a criminal record in Hungry, and now in Canada, means that the credibility of the adult male claimant needs to be carefully considered by another panel. Similarly, the finding of credibility by the CRDD with respect to the female adult claimant is so unreasonable as to warrant intervention by this Court.
Article 1F(b)
[25] With respect to the second issue, I am satisfied that the CRDD did not err in its interpretation and application of Article 1F(b) of the UN Convention relating to the status of refugees. The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 held at paragraph 4:
[...] it is clear to me that Article 1F(b) cannot be invoked in case where a refugee claimant has been convicted of a crime and served his or her sentence outside Canada prior to his or her arrival in this country.
[26] Accordingly, the past convictions of the claimants cannot be invoked except for the convictions where the claimants have not completed serving his or her sentence in Hungary. The adult male claimant was serving a twenty month prison sentence for causing bodily harm to person when he escaped from prison. The CRDD is at liberty to analyse the "serious nature" of this crime in deciding whether the claimant is excluded under Article 1F(b). In this case, the CRDD found that this was not a serious crime in the context of Article 1F(b). The Court will not interfere with that assessment.
Ignored Evidence about Fugitives from Justice
[27] The CRDD erred in law in failing to consider whether the refugee applicants are not in reality fugitives from justice or whether their criminal character does not outweigh their character as bona fide refugees. The CRDD ignored the Interpol evidence that the adult male claimant was wanted on six outstanding charges and the female adult claimant is wanted on one outstanding charge.
[28] This evidence, which was not referred to by the CRDD, raises the question whether the adult refugee claimants were fleeing criminal justice, as opposed to persecution related to one of the Convention grounds. This question of fact needs to be addressed as a matter of law.
CONCLUSION
[29] Considering the evidence, the awkward and confusing transcript, the unsatisfactory conduct of the hearing spread over six months, the criminal records of the adult male and female claimants, I am satisfied that this decision should be set aside and the matter referred back to a newly constituted panel of the CRDD for a new hearing.
[30] It is noted that the refugee claimants were not represented by counsel throughout their CRDD hearing and that they now have excellent counsel. In my view, it is important that the respondents be properly represented to avoid the confusion and awkwardness, which contributed in part to the need for this new hearing. In the circumstances, the Court will exercise its discretion to award costs to the respondents in the amount of $3,000.
Page: 10
[31] With respect to the credibility issue upon which the Court is setting aside the decision, neither counsel proposed any question of serious general importance to be certified on appeal. The Court agrees and no question is certified.
(signed) Michael A. Kelen _________________________
JUDGE
OTTAWA, ONTARIO
September 18, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-6551-00
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
ISTVAN NYARI ET AL
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, SEPTEMBER 12, 2002
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MICHAEL A. KELEN
DATED: WEDNESDAY, SEPTEMBER 18, 2002
APPEARANCES BY: Mr. Jamie Todd
For the Applicant
Mr. Rocco Galati
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
For the Applicant
Galati, Rodrigues, Azevedo & Associates
Barristers and Solicitors
637 College Street
Suite 203
Toronto, Ontario
M6G 1B5
For the Respondent
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