Docket:
IMM-8808-12
Citation: 2013 FC 975
Ottawa, Ontario, September 25, 2013
PRESENT: The Honourable
Madam Justice Snider
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BETWEEN:
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KLAUDIA KONYA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The Applicant, Ms.
Klaudia Konya, is a citizen of Hungary who arrived in Canada in February 2009. She seeks refugee protection in Canada based on her fear of persecution:
(a) as a Roma; and (b) at the hands of her former common-law partner (I.) who allegedly is the father of her child.
[2]
In a decision, dated
August 3, 2012, a panel of the Immigration and Refugee Board, Refugee
Protection Division (the Board) determined that the Applicant was neither a
Convention refugee, pursuant to s. 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA), nor a person in need of
protection, pursuant to s. 97 of IRPA. While the Board disbelieved the
Applicant’s story of abuse, the determinative finding was that the Applicant
had not rebutted the presumption of state protection.
[3]
The Applicant seeks
to overturn this decision. For the reasons that follow, this application for
judicial review will be dismissed.
II. Issues and Standard of Review
[4]
This application
raises the following issues:
1.
Did the Board’s
conduct in incorporating certain passages into its analysis provided by a third
party and using “boilerplate” copied from other decisions amount to a
reasonable apprehension of bias or lack of procedural fairness?
2.
Did the Board err in
its assessment of the Applicant’s credibility by requiring corroborating
documents or by relying on microscopic inconsistencies in the testimony?
3.
Did the Board err in
its analysis of state protection by:
a.
applying the wrong
test;
b.
failing to do a
meaningful assessment of the effectiveness of state protection for victims of
domestic abuse;
c.
ignoring relevant
documentary evidence; or
d.
ignoring relevant
jurisprudence?
4.
Was the Board’s
finding that the Applicant had an internal flight alternative (IFA)
unreasonable?
[5]
The parties agree
that the question of apprehension of bias is reviewable on a standard of
correctness and that the issues of credibility, state protection and IFA are
subject to a reasonableness standard. As taught by the Supreme Court of Canada,
on a standard of reasonableness, the Court should not intervene where the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]).
A. Issue #1: Lack of Procedural
Fairness or Reasonable Apprehension of Bias
[6]
In the version of the
decision sent to the Applicant, the following words appear as a heading to a
portion of the reasons dealing with state protection:
Background: Situation of the Roma in Hungary (all of this portion I
suggest should go in your discussion of state protection [Underlining
added]
[7]
For an unexplained
reason, the underlined words were deleted from the version of the decision
contained in the Certified Tribunal Record (CTR), such that the heading now
reads “Background: Situation of the Roma in Hungary”.
[8]
This heading is
followed by 14 paragraphs of very general text on the situation in Hungary before another heading (without any additional words) begins. The Applicant submits
that the heading demonstrates a reasonable apprehension of bias on the part of
the Board and that use of 14 paragraphs of boilerplate constitutes a lack of
procedural fairness (relying on comments of the Federal Court of Appeal in Es-Sayyid
v Canada (Minister of Citizenship and Immigration), 2012 FCA 59, 432 NR 261).
[9]
I begin with a
discussion of the impugned 14 paragraphs of text. Like many of my fellow
judges, I have seen those same (or very similar) paragraphs in a number of
decisions involving claims by ethnic Roma from Hungary. These 14 paragraphs are
followed by a section on “State Response to Discrimination against Roma” which
also appears to be a commonly used section in such decisions. The use of such
“boilerplate” is not necessarily an error (Cordova v Canada (Minister of Citizenship and
Immigration), 2009 FC 309 at
para 24, [2009] FCJ No 620).
After all, the country of Hungary and its institutions do not change for each
refugee claimant. A large portion of the general country documentation will
apply across all Hungarian Roma claims. Moreover, the question is really
whether, in incorporating material from others, would a reasonable person
apprised of all the relevant facts conclude that the Board did not put its mind
to the issues and did not make an independent decision based on the evidence
(paraphrasing from Cojocaru v British Columbia Women’s Hospital and Health
Centre, 2013 SCC 30 at para 49, 357 DLR (4th) 585).
[10]
The impugned paragraphs
are based on documentary evidence, and apply to the Applicant’s situation. To
the extent that the Applicant’s claim was based, in part, on the general fear
of being Roma in Hungary, this summary of the existing situation in Hungary is responsive to the Applicant’s general allegations and is entirely justified.
Throughout other sections of the decision, the Board clearly directs its mind
to the particular claims of domestic abuse made by the Applicant. The conduct
of the Board, in copying 14 or more paragraphs of general country conditions
does not, in this case, amount to procedural unfairness or bias. A reasonable
person, having read the entire decision, would not conclude the judge did not
make an impartial and independent decision.
[11]
The second question
arises because of the deleted words. The Applicant states that the underlined
text suggests that someone else was involved in the decision making, and this
is a breach of natural justice or a demonstration of an apprehension of bias
such that the decision must be sent back.
[12]
The Board ought not
to have amended the decision to delete the underlined text, without any
explanation. The changed reasons raise more questions and cause a closer
examination than might otherwise have been the case.
[13]
It is clear from the
deleted words that someone other than this particular Board reviewed the
decision. Given the workload of members of the Board and the desire for
consistency in certain areas, this is neither surprising nor, in and of itself,
a reviewable error. The Applicant does not argue that the Board somehow
misinterpreted the situation in Hungary. Everything referenced in the 14
paragraphs is supportable in the general country condition documentation before
the Board. While I do not condone the deletion of the text from the decision, I
am not persuaded that the conduct of the Board rises to a level of apprehension
of bias or demonstrates a reviewable breach of procedural fairness.
B. Issue #2: Credibility
[14]
It is evident, from
reading the decision as a whole, that the Board did not believe the Applicant’s
claim to have been domestically abused by I. Much of the Board’s conclusion was
based on a lack of corroborating evidence. However, the Board also drew a
negative inference from the Applicant’s failure to list her address when living
with I.
[15]
The Applicant asserts
that it was unreasonable for the Board: (a) not to accept her explanation of
why she had omitted I.’s address from the list of residences; and (b) to
require corroborating documents.
[16]
I agree with the
Applicant that the Board should believe a refugee claimant’s testimony unless
it is given a reason to doubt its truthfulness (Dias Pinzon v Canada (Minister of Citizenship and Immigration), 2010 FC 1138 at para 5, [2010] FCJ No
1411). Further, A decision maker must be able to articulate why it is
suspicious of a claim—the benefit of the doubt must go to the person giving the
evidence (Dias Pinzon, above).
[17]
However, in this
case, the Applicant was notified in the screening form that credibility was an
issue and, in particular, that it was due to the inconsistency between her Port
of Entry notes and the Personal Information Form (PIF) narrative. The Board had
every reason to consider the omission of I.’s address and the length of time
the Applicant lived with I to be material. The Applicant’s co-habitation with I. was an essential element of her claim.
[18]
This omission, and
the Board’s disbelief of the Applicant’s explanation, is sufficient reason for
the Board to require some corroborating evidence (Osman v Canada (Minister of Citizenship and Immigration), 2008 FC 921 at paras 36-39, [2008]
FCJ No 1134). It was not an error for the Board to require corroboration,
particularly when the Applicant’s credibility was called into question.
[19]
The Board made at
least one other credibility finding. It did not believe that the Applicant’s
father, an ethnic Hungarian, would tell the police that I. was her common-law
partner when reporting a beating by I. This is not an illogical inference.
[20]
The only evidence the
Applicant called was her own testimony and documentary evidence. She could have
provided information from other sources, such as her family, police reports, or
otherwise, and chose not to. The onus is on the Applicant to make her case (Bema
v Canada (Minister of Citizenship and Immigration), 2007 FC 845 at para 22,
63 IMM LR (3d) 253; Karanja v Canada (Minister of Citizenship and
Immigration), 2006 FC 574 at para 5, [2006] FCJ No 574; Refugee
Protection Division Rules, SOR 2002/228, Rule 7). Here, she has not done so.
[21]
The Applicant argues
that the Board conducted a microscopic analysis, which is disallowed. For this
proposition, the Applicant cites a number of cases, including Attakora v
Canada (Minister of Employment and Immigration) (1989), 99 NR 168 (FCA),
[1989] FCJ No 444 [Attakora]; Huang v Canada (Minister of
Citizenship and Immigration), 2008 FC 346, 69 Imm LR (3d) 286 [Huang];
Chen v Canada (Minister of Citizenship and Immigration), 2007 FC 270,
[2007] FCJ No 395 [Chen]; and Dong v Canada (Minister of Citizenship
and Immigration), 2010 FC 55, [2010] FCJ No 54 [Dong].
[22]
Reading these cases
together, a microscopic analysis is one in which the Board examines a fact
which has no material relevance to any issue; is outweighed by other evidence;
and, is not central to the issues in the case, but is used to dispose of the
case.
[23]
In the case of the
Applicant, she knew that there were inconsistencies in her Port of Entry
examination and in her PIF. Further, she had the opportunity to amend her PIF,
and did so before the hearing, including new information about her family as
well as her new common-law spouse in Canada. The Applicant did not use this
opportunity to correct the missing information relating to her time in Budapest, either on her PIF questionnaire or in her PIF narrative.
[24]
The Board did not
conduct a microscopic analysis. It examined the Applicant on an inconsistency
in her testimony that was material to the case. The location of the agent of
persecution and where the Applicant lived in Hungary were relevant to the case.
This is not an estimation of numbers of people in an underground church (as in Dong,
above), whether a hole was the exact size of a soccer ball (as in Attakora,
above) or where Noah’s Ark is located in the Bible (as in Chen, above).
The co-habitation with I. is a key issue to the Applicant’s case, and the Board
was entitled to examine this.
[25]
The fact that the
Board is disallowed from a microscopic analysis is not an excuse for the
Applicant to provide non-credible evidence. An Applicant is presumed to tell
the truth, but where concerns arise as to the veracity of evidence or the
credibility of the claim, the Board is entitled to question the Applicant on
it. The credibility finding was reasonable.
[26]
However, even if the
credibility finding was in error, the Board went on to consider the issue of
state protection, including for women who are victims of domestic abuse. Thus,
unless there is an error in the state protection analysis, an error in the
credibility analysis would not result in a successful judicial review
application.
C. Issue #3: State Protection
[27]
The Applicant submits
that the Board’s conclusion that the Applicant failed to rebut the presumption
of state protection is unreasonable. I do not agree.
[28]
The burden lies on a
claimant to demonstrate that state protection is inadequate. It is the
responsibility of the claimant to introduce evidence of inadequate state
protection, and to persuade the trier of fact that the state protection is
inadequate on a balance of probabilities (Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at paras 18-20, [2008] 4 FCR 636).
Where the state is democratic, a claimant bears a heavy burden, making it more
difficult to rebut the presumption (Carrillo, above at para 26; Hinzman
v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at para 57,
282 DLR (4th) 413). Evidence must be “clear and convincing”.
[29]
The Applicant argues
that the Board:
•
applied the wrong
test;
•
failed to analyze the
effectiveness of Hungary’s efforts to provide protection to victims of domestic
violence;
•
ignored certain
documentary evidence; and
•
ignored relevant
jurisprudence.
[30]
In my view, none of
these arguments is sustainable. The decision was not unreasonable.
(1) Wrong Test
[31]
The Applicant argues
that the Board applied the wrong test for state protection. This alleged error
occurs in paragraph 30 of the decision where the Board states:
. . . the claimant has not demonstrated that state protection in Hungary is so inadequate, that she need not have approached the authorities at all
. . . [Emphasis added.]
[32]
This extraction, by
the Applicant, of one specific use of words does not mean that the Board
applied an incorrect test. Throughout the reasons, the Board repeatedly states
that the test for state protection is adequacy. The Board obviously understood
and applied the correct test for state protection. There is no error.
(2) Effectiveness of State Protection
[33]
The Applicant submits
that the Board stopped its assessment after stating the central government is
implementing ways to assist the Roma, and this is an error. The Applicant
argues the onus was on the Board to determine if the state was able to protect
victims. The Applicant asserts that the Board should have assessed and
explained why and how the state could provide adequate protection. In effect,
the Applicant is arguing that the Board should have looked at the effectiveness
of state protection.
[34]
The test for state
protection is not a test of effectiveness, but whether it is adequate (Kaleja
v Canada (Minister of Citizenship and Immigration), 2011 FC 668 at para 25,
[2011] FCJ No 840; Kis v Canada (Minister of Citizenship and Immigration),
2012 FC 606 at para 16, [2012] FCJ No 603). It is not enough for the Applicant
to demonstrate the state is not always effective at protecting persons in the
Applicant’s situation (Lakatos v Canada (Minister of Citizenship and
Immigration), 2012 FC 1070 at para 14, [2012] FCJ No 1152).
[35]
In any event, the
Board did not stop its analysis. It considered the Applicant’s story that she
had left Budapest for refuge at her parents home; that the police did not
assist when asked to do so (in the face of the original refugee claim form
stating that, if I. showed up again, the police would arrest him); and that the
Applicant had not attempted to seek help elsewhere. The Board also considered
there were numerous organizations which could assist her. Further, the Board
considered that the Applicant had two chances to make refugee claims in the United States as a Roma woman suffering discrimination, and she did not. In other words,
the Board examined the effectiveness of many of the measures of state
protection in the factual matrix of the Applicant’s situation.
[36]
The Applicant points
to the Board’s reference to the availability of restraining orders as a factor
that supports its finding of adequate state protection. She relies on the case
of Sebok v Canada (Minister of Citizenship and Immigration), 2012 FC
1107, [2012] FCJ No 1192 [Sebok], where this Court found that the state
protection analysis was fatally flawed due to the heavy reliance by the Board
on the availability of restraining orders.
[37]
Sebok is distinguishable from the case at bar.
In the present case, the Board relied on more than the mere availability of restraining
orders. It considered non-police assistance, such as government-sponsored shelters
and hotlines. It had access to additional information on police training, new National
Police policy on domestic violence, and police attitudes in such cases—something
missing in Sebok (Sebok, above at para 22). Unlike Sebok,
the totality of the evidence does not demonstrate state protection would not be
reasonably forthcoming (Sebok, above at para 25). It was open to
the Board to draw the conclusion it did on this evidence.
(3) Documentary
Evidence
[38]
The Applicant argues
that the Board failed to have regard for certain documentary evidence before it.
It argues this information demonstrated a lack of state protection for victims
of domestic abuse. Specifically, the Applicant refers to a United Nations
document and Information Request HUN103981.E.
[39]
The Applicant is not
correct; these documents were considered and weighed by the Board. Further, the
Board is presumed to have considered all the evidence before it unless the
contrary is shown (Boulos v Canada (Public Service Alliance of Canada),
2012 FCA 193 at para 11, [2012] FCJ No 832, citing Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 at para 1, (11 June
1993) A-1307-91 (FCA)).
[40]
For the UN document,
the Board expressly refers to it at paragraph 46 of its decision. The claim
that the Board considered it then ignored it is an invitation to this court to
reweigh the evidence, which is not the court’s role on judicial review.
[41]
For the Information Request, the Board considers it at paragraph 10, accepting that Roma women are
vulnerable to becoming victims of human trafficking, sexual exploitation and
prostitution. The specific portion the Applicant claims the Board ignored is
quoted in its Further Memorandum of Fact and Law, and appears to stand for the
proposition that police ignore calls from women in Roma neighbourhoods.
However, on reading the original Information Request, it appears the passage
submitted to the court has been selectively edited by the Applicant.
[42]
Reading the passage
in full, it is clear that: (a) the NANE representative’s assertion that claims
are often not taken by police is not corroborated; (b) if complaints are not
followed up on, victims can complain about lack of investigation or a violation
of rights; (c) the European Roma Rights Centre survey some findings are based
on is from 2007, two years before the restraining order law of 2009 came into
effect; and (d) that the entire passage relates to effectiveness of police
protection.
[43]
There is no evidence
indicating the Board did not take this into account in making its decision. It
was before the Board, who referred to it early in the decision and in its
reasoning at paragraph 52.
[44]
In any event, there
is no requirement for the Board to refer to every piece of documentary evidence
or every passage from sources relied on by the claimant which may contradict
the information relied on by the Board. The constraint is whether, in examining
the record as a whole, including the contradictory evidence, the decision is
reasonable (Mejia v Canada (Minister of Citizenship and Immigration), 2011
FC 1265 at para 12, [2011] FCJ No 1551; Rachewiski v Canada (Minister of
Citizenship & Immigration), 2010 FC 244 at para 17, 365 FTR 1; and Velez
v Canada (Minister of Citizenship & Immigration), 2010 FC 923 at
para 33, [2010] FCJ No 1138). Here, the decision was reasonable in the face of
this evidence.
(4) Jurisprudence
[45]
The Applicant refers
to a number of cases of this Court where findings of state protection have been
overturned and argues that the Board ought to have followed those decisions.
There are two problems with this argument.
[46]
First, each case must
be considered on its own facts. It is difficult to apply the finding of a judge
or court from one fact situation to another.
[47]
The second problem is
that the Applicant appears to be using findings of this Court as evidence that
state protection is not adequate in Hungary. This would be a wrong application
of the law. A judge of the Federal Court, sitting in judicial review, is not
determining whether state protection is or is not adequate in Hungary. The task of the judge on judicial review is to review the decision to determine
whether it is reasonable. Each case will be decided on the basis of the facts
and arguments before the Court. In the course of analysis, a judge may express
views of what the documentary evidence tends to show. However, these judicial
comments cannot be elevated to factual findings. Only the Board is able to make
such findings. Use of jurisprudence in the manner proposed by the Applicant is
improper.
D. Issue #4: Internal Flight Alternative
[48]
In addition to
concluding that the Applicant had failed to rebut the presumption of state
protection, the Board found that the Applicant had two IFAs where she could
live without a serious possibility of persecution.
[49]
Given that I have
concluded that the Board’s finding with respect to state protection was
reasonable, there is no need to opine on the reasonableness of the IFA finding.
III. Conclusion
[50]
In conclusion, I am
not persuaded that the Board’s decision should be overturned. The conduct of
the Board did not rise to the level of a reasonable apprehension of bias. There
was no breach of procedural fairness. The decision “falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law” (Dunsmuir, above, at para 47). Further, the decision displays
“justification, transparency and intelligibility within the decision-making
process” (Dunsmuir, above at para 47).
[51]
Neither party
proposes a question for certification.
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