Date: 20080507
Docket: IMM-603-07
Citation: 2008 FC 581
Halifax, Nova Scotia, May 7, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
OSZKAR
HOLMIK
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Oszkar Holmik, applies for judicial review pursuant to section 72(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c.27, of a
decision made by the Refugee Protection Division of the Immigration and Refugee
Board (the “Board”), dated December 21, 2006, which determined that the
Applicant was not a convention refugee nor a person in need of protection.
[2]
The
Applicant is a citizen of Hungary. He alleged that members
of an organized crime element would make unauthorized deposits into his bank
account and compel him to withdraw money in a laundering and extortion scheme.
He further alleged he was threatened to ensure compliance with the illegal
scheme.
[3]
This
is the second occasion where the Board heard the Applicant. The first board
decision was set aside and is cited as Holmik v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1745 (Holmik 2004).
Justice Mactavish found the credibility findings by the board were patently
unreasonable since the board failed to consider both the Applicant’s
explanation of events and the documentary evidence which supported his claim.
In addition, Justice Mactavish found that that the board did not consider country
condition evidence that was contrary to its finding that adequate state
protection was available to victims of organized crime in Hungary.
[4]
In
the case at bar, the Board concluded that some of the Applicant’s evidence was
not credible and that the Applicant did not rebut the presumption of state
protection.
ISSUES
[5]
The
issues arising in this application are:
1.
Was
the Board’s December 21, 2006 decision contrary to the decision in Holmik 2004?
2.
Did
the Board err in making its credibility determinations and findings of fact?
3.
Did
the Board misapply the test for state protection?
4.
Was
the Applicant denied natural justice by the Board’s failing to confront him
with alleged contradictions at the hearing?
STANDARD OF REVIEW
[6]
The
Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9, held that there are only two standards of review: correctness and
reasonableness (Dunsmuir at para. 34). The Court stated that questions
of fact, discretion and policy as well as questions where legal issues cannot
be easily separated from factual issues will attract the standard of reasonableness.
Legal issues will attract a standard of correctness although some legal issues
may attract the more deferential standard of reasonableness.
[7]
The
Supreme Court of Canada also said determination of the standard of review involves
two steps (Dunsmuir at para 62). First, courts must ascertain whether
the jurisprudence has already determined in a satisfactory manner the deference
to be accorded to a particular category of question. If the degree of
deference has not been determined by prior jurisprudence, then the reviewing Court
must proceed to analyze the relevant factors to identify the proper standard of
review.
[8]
Questions
of fact or credibility within the expertise of the Board have been previously
determined to be reviewed on a deferential standard (Aguebor v. Canada
(Minister of Citizenship and Immigration) (1993), 160 N.R. 315 (F.C.A.)). Recently,
Justice de Montigny in Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427 at para. 15, in applying Dunsmuir,
above, held that the standard of review for credibility determinations and
findings of fact is reasonableness.
[9]
The
question of state protection involves an application of a legal test to set of
facts (Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193 at para. 11). This is a
question of mixed fact and law and in accordance with Dunsmuir, above,
at para. 51, attracts the standard of review of reasonableness (Lozada v. Canada (Minister of
Citizenship and Immigration), 2008 FC 397 at para. 17; Eler v. Canada (Minister of
Citizenship and Immigration), 2008 FC 334 at para. 6).
[10]
Finally,
the duty to comply with the rules of natural justice and procedural fairness
applies to all administrative bodies acting under statutory authority. A
breach of the rules of natural justice or procedural fairness will result in the
decision being set aside (Moreau-Bérubé v. New Brunswick (Judicial
Council),
[2002] 1 S.C.R. 249 at paras 34, 74, 75).
ANALYSIS
Was
the Board’s December 21, 2006 decision contrary to the decision in Holmik 2004?
[11]
In
the preceding judicial review, Justice Mactavish stated (Holmik 2004,
above, at para. 26):
It was open to the Board not to accept
Mr. Holmik’s testimony regarding what the Board itself identified as a central
issue in the case. However, before coming to the conclusion that his story was
implausible, the Board had an obligation to at least consider Mr. Holmik’s
explanation, and to refer to the documentary evidence that supported his
claim. If the Board chose to reject this evidence, it was, in my view,
incumbent upon it to explain why it did so. Having failed to do so, I find the
Board’s finding with respect to the implausibility of Mr. Holmik’s money
laundering was patently unreasonable.
[12]
Justice
Mactavish did not make a finding of credibility or fact. She stated it was
open to the board to reject the Applicant’s testimony as long as it considered
his explanation and any other relevant evidence, as well as explain its reasons
for rejection. Justice Mactavish also found that the board’s state protection
analysis was flawed because it ignored documentary evidence which contradicted
its findings.
[13]
In
setting aside the previous board’s decision, Justice Mactavish identified the
flaws in the earlier board’s decision and sent the matter back for
re-determination. The decision of this Board will stand or fall on its
treatment of relevant evidence and its analysis.
Did the Board err in its
credibility determinations and findings of fact?
[14]
The
Board found that some of the Applicant’s evidence was not credible. He had
reported that his vehicle was forced off the road and later that day his
vehicle was broken into by thieves. In arriving at its findings of fact, the
Board considered the Applicant’s explanations and the evidence which he submitted
to support his claim. The Board considered:
§
The
Applicant’s inconsistent evidence between the 2002 and 2006 hearings concerning
details of being forced off the road.
§
The
inconsistent evidence about his activities after his claim of being forced off
the road.
§
The
Applicant’s failure to give a straightforward description of how the thieves
fled the scene.
§
The fact
that the police report signed by the Applicant made no mention of his being
forced off the road.
The Board concluded that the Applicant had
not had his vehicle forced off the road nor was the Applicant present when his
car was broken into.
[15]
The
Board also considered whether the Applicant reported his problems concerning
unauthorized deposits made by organized crime to his bank account to the
police. The Board had considered the Applicant’s evidence and the contents of
the police report, which contained no reference to unauthorized deposits or
organized crime, and concluded that the Applicant had not reported his problems
with organized crime to the police. The Board also considered the Applicant’s
reasons why he had no records to support his story. The Board reasoned that
had deposits, whether authorized or unauthorized, occurred, bank records would
have existed and would have been obtainable. The Board concluded that there
were no unauthorized deposits made into the Applicant’s account. The
significance of this finding is that the Applicant was not a victim of
organized crime as he had described.
[16]
I
am satisfied that the Board considered the Applicant’s evidence and gave
adequate reasons for not accepting that evidence. Its decision was not
unreasonable.
Did the Board misapply
the test for state protection?
[17]
The
Board considered the issue of state protection. The Board acknowledged the documentary
evidence which reported that Hungary was vulnerable to money
laundering by organized crime. The Board considered evidence about Hungary’s attempt to
deal with organized crime and corruption and noted the mixed success of those
efforts. It concluded that Hungary still had serious
problems with organized crime and corruption but it generally operated under a
rule of law. Corruption within the police force was being dealt with in a systematic
manner and, generally, the police did not operate with impunity. The Board remarked
that while Hungary may not
provide perfect protection, it was satisfied that the government was making
serious efforts to provide adequate protection.
[18]
The
Board did not accept the Applicant’s explanation that he did not seek the
assistance of Hungarian authorities because of the extent of police corruption.
The Board concluded that the Applicant had not rebutted the presumption of
state protection.
[19]
I
do not find that the Board ignored evidence of Hungary’s problems
with organized crime and police corruption. In my view, the Board’s decision
to reject the Applicant’s reason for not pursuing state protection was not
unreasonable.
Was
the Applicant denied natural justice by the Board’s failing to confront him
with alleged contradictions at the hearing?
[20]
At
the start of the hearing the Board member stated:
All right. Now even though I didn’t
formally identify credibility as a concern and it wasn’t a great concern in the
earlier hearing, there may always be issues of credibility that come up today
that (inaudible) the first panel or the first panel didn’t notice them. If I
hear anything of that nature I’ll undertake to at least identify it for your
counsel as best I can.
The Applicant submitted that the Board
deprived him of natural justice by failing to identify alleged contradictions
or inconsistencies at the hearing.
[21]
However,
the transcripts reveal that, later in the hearing, the Board member stated:
Thank you. Go ahead counsel. We’re
still dealing with state protection. There is some credibility concerns but
I’ll leave those for you to explore -- particularly around –
Counsel: About what?
Presiding member: Just the car. The
questions I asked, you heard the questions I put to him.
[22]
A
review of the transcript shows that the Board asked questions of the Applicant
and the Applicant had full opportunity to answer. Further, counsel had the
opportunity, following the Board’s questioning, to put questions to his client to
clarify or expand his evidence.
[23]
The
Board had stated at the start of the proceeding that issues of credibility may
arise. The Applicant was represented by counsel who would understand that the
Applicant had the burden of providing evidence to prove his claim for
convention refugee status or his need for protection. Counsel would also be
well aware that the Board has a duty to assess credibility and make findings of
fact. Counsel would also be aware that when the Board questioned the Applicant,
credibility and facts may be at issue.
[24]
I
find that the Board highlighted the areas of concern with the Applicant’s
claim. Further the Applicant had the benefit of counsel. On review of the
evidence, I conclude that there was no breach of natural justice.
CONCLUSION
[25]
I
find that the Board’s findings of credibility and fact are not unreasonable. I
further find that the Board did not misapply the test for state protection. Finally,
I do not find that any breach of natural justice or procedural fairness
occurred. The application does not succeed.
[26]
The
Applicant has submitted two questions for certification on the issue of state
protection. The Respondent is opposed to the application. With leave of the
Court, the Respondent made further submissions after the hearing to which the
Applicant has responded.
[27]
Given
that I have found the Board’s finding that the Applicant did not have any
unauthorized deposits made into his bank account to be not unreasonable, the
Applicant was not a victim of organized crime and would not be at risk on
return to Hungary. Accordingly,
the issue of state protection does not arise. In result, a certification of a
question related to state protection would not be dispositive of this matter. I
find that no question of general importance arises on the issue of state
protection.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The
Application for judicial review is dismissed.
2. No question
of general importance is certified.
"Leonard
S. Mandamin"
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