Docket: IMM-2254-13
Citation:
2014 FC 542
Ottawa, Ontario, June 4, 2014
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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TAMAS FARKAS
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TAMASNE FARKAS
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TAMAS FARKAS
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This judicial review is of a decision by the
Refugee Protection Division [RPD] rejecting the Applicants’ (Hungarian Romas)
claim for refugee protection. The substantive issues are the right of the
Applicants to file post-hearing evidence and the obligation of the RPD to
confront the Applicants with credibility concerns arising from that evidence.
II.
Background
[2]
The Applicants’ case was heard on October 15,
2012. They submitted that, as Roma, they had faced discrimination and
harassment in Hungary due to their Roma ethnicity. In particular, the husband
and wife had been threatened and assaulted by the Hungarian Guards, a
self-appointed right-wing vigilante group. The police responded to both specific
incidents relied on by the Applicants to support their refugee claim.
[3]
The RPD Member initially concluded that he had
concerns about the Applicants’ account that they had sought police assistance
in the absence of any corroborating police reports. The concerns regarding the
Applicants’ narrative were put to them at the hearing.
[4]
On November 14 the Applicants’ then counsel applied
to submit post-hearing evidence limited to “corroborative police and/or medical
documents” in response to concerns expressed by the Member at the hearing
regarding the Applicants’ credibility in relation to key events.
[5]
The Refugee Protection Division Rules,
SOR/2012-256, permit such post-hearing evidence under Rule 43.
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43. (1) A party who
wants to provide a document as evidence after a hearing but before a decision
takes effect must make an application to the Division.
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43. (1) La partie
qui souhaite transmettre à la Section après l’audience, mais avant qu’une
décision prenne effet, un document à admettre en preuve, lui présente une
demande à cet effet.
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(2) The party must attach a copy of the document to the
application that must be made in accordance with rule 50, but the party is
not required to give evidence in an affidavit or statutory declaration.
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(2) La partie joint une copie du document à la demande, faite
conformément à la règle 50, mais elle n’est pas tenue d’y joindre un
affidavit ou une déclaration solennelle.
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(3) In deciding the application, the Division must consider any
relevant factors, including
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(3) Pour statuer sur la demande, la Section prend en considération
tout élément pertinent, notamment :
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(a) the document’s relevance and
probative value;
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a) la
pertinence et la valeur probante du document;
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(b) any new evidence the document
brings to the proceedings; and
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b) toute
nouvelle preuve que le document apporte aux procédures;
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(c) whether the party, with reasonable
effort, could have provided the document as required by rule 34.
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c) la
possibilité qu’aurait eue la partie, en faisant des efforts raisonnables, de
transmettre le document aux termes de la règle 34.
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[6]
The RPD, having determined that such evidence
was crucial to its decision, accepted the Applicants’ request.
[7]
The Applicants did not provide the type of
documents for which post-hearing submission was allowed. The evidence provided
was a second letter from the National Advocacy Association of the Ethnic
Minorities [NAA] and a letter from a lawyer.
[8]
Both pieces of post-hearing evidence raise more
questions than they answer. Both are replete with and to some extent repeat
inconsistencies already identified by the RPD.
[9]
The RPD concluded that, due to credibility
concerns, the Applicants had not established past persecution with credible and
trustworthy evidence. Further, the RPD found that the Applicants had not shown that
state protection was not available to them.
III.
Analysis
[10]
The sole issue in this judicial review is
whether the RPD erred in its assessment of the post-hearing evidence
principally by failing to provide the Applicants with an opportunity to respond
to any adverse inference drawn by the RPD from it.
[11]
The issue is one of procedural fairness and is
subject to the correctness standard of review.
[12]
Firstly, as held in Aguilera v Canada (Minister of Citizenship and Immigration), 2008 FC 507, 167 ACWS (3d) 967, the Immigration
and Refugee Board has no duty to accept post-hearing evidence or to allow
submissions thereon. The leave to file post-hearing evidence granted in this
case was an exceptional circumstance which the Applicants squandered.
[13]
Secondly, it is important to note that the
post-hearing documents actually submitted do not fit within the type for which
the RPD had given leave to file, that is to say “corroborative police and/or
medical documents”. As the post-hearing evidence did not fall within the scope
of the RPD’s grant of permission, the RPD would have been justified rejecting
it. However, having accepted the evidence, the RPD had to deal with that
evidence properly which it did. Having said that, the Applicants’ failure to
respond to the RPD’s concerns in their post-hearing evidence is good grounds
upon which to draw an adverse inference.
[14]
Thirdly, it is difficult to find any breach of
procedural fairness where the Applicants were confronted with the RPD’s
credibility concerns at the hearing and given an opportunity post-hearing to
address those concerns. The Applicants used this opportunity to submit
non-responsive contradictory evidence for which they ask for yet another
opportunity to address concerns about the post-hearing evidence.
[15]
The Applicants were accorded more opportunity to
address the weaknesses in their case than they had a right to claim. They can
hardly complain once again when they failed to respond to the RPD’s concerns.
[16]
In any event, the post-hearing evidence did not
assist the Applicants and the RPD’s conclusions in this case were reasonable.
[17]
Therefore, there is no breach of procedural
fairness notwithstanding the efforts of the Applicants’ new counsel to persuade
the Court otherwise.
IV.
Conclusion
[18]
Therefore, this judicial review will be dismissed.
There is no question for certification.
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