Docket: IMM-3933-14
Citation:
2015 FC 619
Toronto, Ontario, May 11, 2015
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
|
ROZALIA PETER
SZINDI LENA PETER
LASZLO JOZSEFNE BERCZE
VIKTOR BERCZE
|
Applicants
|
and
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
Respondent
|
ORDER AND REASONS
[1]
The Applicants in the present Application are
members of a family composed of the principal claimant, her minor child, her
common-law husband and his mother, all Romani citizens of Hungary who claim
protection because of subjective and objective fear that, should they be
required to return to Hungary, they will suffer more than a mere possibility of
persecution under s. 96 of the Immigration and Refugee Protection Act, SC
2001, c 27, or probable risk under s. 97 at the hands of the Hungarian Guards
and her former common-law husband, the father of the minor claimant.
[2]
The Refugee Protection Division of the
Immigration and Refugee Board (RPD) accepted the Applicants’ identity but made
negative findings of credibility with respect to the evidence tendered by each
adult applicant of past persecution suffered in Hungary. Nevertheless, with
respect to prospective risk should the Applicants be required to return to
Hungary, the RPD made the following acknowledgement supported in the decision
by the quotation of extensive detailed evidence:
I acknowledge that there is information in
the country documentation to indicate that there is widespread reporting of
incidents of intolerance, discrimination and persecution of Romani individuals
in Hungary.
(Decision, para. 63)
[3]
As a result, the RPD made the following
findings:
It is against this background and in taking
into consideration the particular circumstances relating to this claim that I
must determine whether or not adequate state protection exists for this [sic]
particular claimants in Hungary. The Court has indicated that it is not enough
to say that steps are being taken that some day may result in adequate state
protection. It is what state protection is actually provided at the present
time that is relevant. "Regard must be given to what is actually happening
and not what the state is endeavouring to put in place." Any efforts must
have "actually translated into adequate state protection" at the operational
level.
(Decision, paras. 70 and 71)
[4]
Further, as a result, the RPD made the following
finding with respect to the existence of state protection in Hungary:
I recognize that there are some
inconsistencies among several sources within the documentary evidence; however,
the objective evidence regarding current country conditions suggests that,
although not perfect, there is adequate state protection in Hungary for Roma
who are victims of crime, police abuse, discrimination or persecution, that
Hungary is making serious efforts to address these problems, and that the
police and government officials are both willing and able to protect victims.
[Emphasis added] (Decision, para. 75)
[5]
With respect to the RPD’s findings, the
Applicants make two basic arguments: the negative credibility findings of past
persecution are perverse; and the finding that adequate state protection exists
in Hungary is unintelligible. For the reasons that follow, I agree with both
arguments.
I.
The Negative Credibility Findings
[6]
As an introduction to the making of a set of
negative credibility findings, the RPD made the following statement:
Credibility is an issue to be considered in
all claims before the Immigration and Refugee Board (IRB). In order to
determine whether the claim is well-founded, I must find, on a balance of
probabilities, that the evidence is credible and trustworthy. A claimant's
testimony is presumed to be true unless there are valid reasons to doubt its
truthfulness. The existence of contradictions, discrepancies, and
implausibilities in the evidence of a claimant is a well-accepted basis for a
finding of a lack of credibility. A general finding of lack of credibility may
extend to all relevant evidence emanating from an applicant's testimony.
In assessing credibility, I was mindful of the
claimants' ages, education, and background. In addition, I am cognizant of the
difficulties faced by a claimant in establishing a claim, including cultural
factors, the milieu of the hearing room, and the stress inherent in responding
to oral questions through an interpreter. I have taken these considerations
into account in arriving at my negative credibility findings.
I have serious credibility concerns in
regard to each of the adult claimants.
[7]
In the introduction to the decision, the RPD
correctly states the cardinal principle of making a credibility finding: a
claimant's testimony is presumed to be true unless there are valid reasons to
doubt its truthfulness [Maldonado v Canada (MCI), [1980] 2 F.C. 302].
However, with respect to the balance of the introduction, I wish to express
this caution. To find that a person is lying is a serious matter. Convincing
reasons must support reaching such a conclusion. It is not every contradiction,
discrepancy, or inconsistency that can ground such a finding. Each such
incident must be carefully considered in the context in which it arises to
reasonably and fairly determine whether its existence is evidence going to
prove that a lie has been, or is being, told. If such a conclusion is reached,
the reasons for reaching it must be carefully and clearly explained. Some
twenty-four years ago, Justice Heald confirmed this requirement in Hilo v.
Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d)
199 (C.A.) (Hilo):
In my view, the Board was under a duty to
give its reasons for casting doubt upon the appellant's credibility in clear
and unmistakable terms. The Board's credibility assessment quoted supra is
defective because it is couched in vague and general terms.
The RPD’s “serious
credibility concerns” concluding in negative credibility findings are
repeated immediately below, followed by my concerns about the quality of the
decision-making undertaken.
A.
Regarding the Principal Claimant (Rozalia)
[8]
First, the RPD addressed Rozalia’s credibility:
Claimants' counsel indicated that the
principal claimant suffered from panic attacks. Therefore during the hearing I
allowed the claimant to have a break whenever she needed one. I also attempted
to minimize the number of questions directed at the claimant.
The claimant testified that she fears the
Guardists and the father of the minor claimant. The claimant described how her
former common-law husband, the father of the minor claimant, did not want her
to give birth to the child and wanted her to have an abortion. His parents also
threatened her unless she got an abortion because they did not want their son,
who is in [sic] a non-Roma, to have a Roma child. The claimant went into some
detail in describing have [sic] how this man was on drugs and even attacked her
father. She testified that he used to stalk her and sit in front of her house,
and when she called the police they would come and just release him a few
blocks away. She stated that she was always afraid that he would kidnap the
child when she went to school. She testified that this behavior continued even
after she started living with her present common-law husband Viktor in 2007.
She testified that she wanted to contact the police, but did not do so because
they do not do anything in regard to cases of domestic violence unless there is
blood.
She testified that he is still interested in
locating her and has been harassing and threatening her parents. In fact,
she submitted a letter from her parents to that effect. However in her CIC
application for refugee protection, the claimant indicated that she has no idea
where the father of the minor claimant is. She indicated further that when
she got pregnant her daughter's father disappeared and he has never seen the
child, and that she has the custody papers from the court stating that the
father is unknown. The claimant had no explanation for the inconsistency,
and said that she doesn't know why she indicated that he disappeared. I draw
negative [sic] inference.
The claimant also gave confusing explanation
as to why she fabricated the name of her daughter's father on the birth
certificate. She testified that when she was getting a letter confirming
custody that she was told that she had to fill in the father's name in the
application, and that therefore she entered her own father's name, but with a
different birthday that [sic] her father. She testified that she obtained a new
birth certificate for her daughter that actually had the child's grandfather's
name on it and a birthday that she made up. I do not find the claimant
credible that the authorities would actually ask her to provide false
information or [sic] an official document.
I find that the claimants lack of
credibility in regard to her daughter's father makes me question the veracity
of the rest of her allegations. Since the claimant has no corroborative
evidence, such as police reports or medical reports, to indicate that she was
actually attacked, I find, on a balance of probabilities, that these incidents
never actually happened as she alleges.
[Emphasis added] (Decision, paras. 37-40)
Thus, the RPD made three negative findings
with respect to Rozalia’s evidence, each of which will be addressed in turn.
[9]
As to the “inconsistency”
of Rozalia’s evidence concerning her knowledge of the whereabouts of her daughter’s
father, as a possible explanation Counsel for the Applicants points to the
dates of the two elements of evidence. The letter from Rozalia’s parents
post-dates her statements upon arrival in Canada; Rozalia entered Canada on
June 26, 2011, and the letter is dated November 5, 2012. I accept Counsel for
the Applicants’ argument that the date details act to undermine the RPD’s
finding that an inconsistency exists in Rozalia’s evidence.
[10]
As to Rozalia’s attributed statement that “she doesn't know why she indicated that he disappeared,”
there is no detail in the decision as to precisely what was said, where and
when the statement was made, nor the context in which it was made. As a result,
I find it is an error in fact-finding for the RPD to have used the statement in
reaching a conclusion on credibility.
[11]
As to Rozalia’s conduct in registering her
daughter’s birth, on the evidence quoted there is no suggestion that she was
told to provide false information; she did what she did for reasons of her own.
To arrive at any other conclusion on the evidence, including the one attributed
to her by the RPD, is perverse.
[12]
As to extending the three negative findings to
impugn the whole of Rozalia’s evidence, I find that the RPD engaged in an
unreasonable over-extension. In my opinion, for independent negative
credibility findings to rise to a level of concern that warrants extending them
to a global negative credibility finding, which essentially eradicates a
claimant’s claim for protection, requires far stronger supportable reasons for
concern than those delivered by the RPD with respect to Rozalia’s evidence.
[13]
For the reasons provided, I find that the
evaluation of Rozalia’s evidence was conducted in reviewable error.
B.
Regarding Viktor Bercze (Viktor)
[14]
Second, the RPD addressed Viktor’s credibility:
The claimant testified that the
precipitating incident that caused him to leave Hungary occurred on June 8,
2011 when he was in a car accident. The claimant described how his car was hit
from behind by another car when he was stopped at a stop sign, how he got out
and then was attacked by two men who were in the other car. These two men
called him a "stinking gypsy" and beat him. He testified that these
two men were wearing Hungarian guard vests.
The claimant was asked whether he believes
that this was an accident. He responded that he does not know that he believes
that it was done on purpose. When it was noted for the claimant that these two
men would not have known that he was Roma when they hit him, the claimant then
responded that they would know he was Roma by his appearance and then he
changed his mind and said that he does not know. I find that it's unlikely
that they would have known he was Roma if they were following behind. Since
the claimant testified that the other car sustained some damage to its bumper,
he was asked why these two men would purposely cause damage to their own car.
Again the claimant responded that he does not know.
The claimant provided a police report in
regards to this incident. It is presumed that the information in the police
report would have originated with the claimant. However there are
inconsistencies between the police report and the claimant's testimony. The
claimant testified that he was stopped at the stop sign when he was hit
from behind, whereas the police report indicates that he was decelerating,
and not that he was stopped when he was hit from behind. The claimant had no
explanation for the inconsistency, only reiterating that he was stopped. I
find it would be reasonable to expect that the police would have indicated that
he was stopped if that was what the claimant had told them.
In regard to the same incident the claimant
testified that he got into his car and started driving away, but before he
could get away the two men came and damaged his car. The claimant was asked if
he saw the men get into their car and drive away. He responded that he did not,
because he was the first who took off. However the same police report
indicates that the two men sat in the car and then drove away. The claimant
had no explanation for the discrepancy, only reiterating that he does [sic]
what happened in that he took off right before they did.
Since this was the precipitating event that
made the claimant leave Hungary, I find that his recollection of the events and
what he told the police should be consistent. I draw a negative inference.
The claimant testified that he went to the
Roma self-government organization allegedly for getting help in respect of
legal matters concerned with the car accident. However the claimant was very
vague as to what he expected them to do. He testified that he did not know what
he wanted them to do because police did not help him. He was asked if the Roma
community did not help him because they didn't have the opportunity to help or
because they did not want to help him. The claimant responded that he felt
that they could not help him. However in his PIF the claimant indicated that
they did not help because they were afraid of losing their jobs, and therefore
did not want to help him. As a way of explaining the inconsistency, the
claimant stated that what is written in the PIF is not correct and did not
explain [sic] inconsistency. I draw negative [sic] inference.
In fact, the claimant testified that the
last major problem he had was in the year 2000, when he alleges that he was
attacked by security guards at a disco club. There is no indication that he was
attacked because he was Roma; he could have been attacked, for example, if he
had become unruly. What is obvious is that in the previous 11 years he was able
to work, more or less continuously. He was involved with the Roma
self-government organization. He must have earned good money because he was
able to engage in his hobby of diving, traveling to several countries for diving,
including Croatia, Austria and Egypt. He also indicated that as a child he
traveled to Spain and Germany for holidays.
[Emphasis added] (Decision, paras. 41-47)
Thus, the RPD made four negative findings
with respect to Viktor’s evidence, each of which will be addressed in turn.
[15]
As to the RPD’s finding that “it's unlikely that they would have known [Viktor] was Roma
if they were following behind”, the RPD is speculating that the incident
occurred for a reason other than persecution. The implausibility finding, which
grounds this speculation, is unsupported conjecture delivered completely out of
context. Viktor’s account of the severity and duration of the violence supports
the conclusion that the incident was based in persecution. In my opinion, the
RPD’s failure to consider the evidence in context negates its evaluation of the
incident.
[16]
As to whether Viktor said he was “stopped” as opposed to “decelerating,”
the RPD’s fixation on a perceived difference exposes a willingness to engage in
aggrandizing minutia to the point of making a finding that Viktor is lying
about the whole incident. In my opinion, this element of the RPD’s decision is
perverse fact-finding. The finding that “it would be
reasonable to expect that the police would have indicated that he was stopped
if that was what the claimant had told them” is merely speculation.
Because the RPD’s expectation is based on speculation, it is unreasonable.
[17]
As to the “inconsistency”
found by the RPD with respect to Viktor’s experience with the Roma self-government
organization, on a reasonable consideration of the evidence quoted, there is no
inconsistency. Reasonably read together, the two statements identified go to
establish the impotence of the organization. The RPD’s unwillingness to
consider this perspective cannot properly result in the ambiguous negative
credibility finding, “I draw negative [sic] inference”.
[18]
In my opinion, the use of the phrase “I draw a negative inference” as a credibility finding
does not conform to the standard required by the decision in Hilo as
quoted above. The RPD was required to give specific reasons for finding that a
credibility issue arises from the two statements quoted. It is simply not
enough to find a perceived “inconsistency” and
to use that perception as the basis of a negative credibility finding without
providing a careful rationale.
[19]
As to the RPD’s dismissal of Viktor’s evidence
of being attacked in a bar in the year 2000, the only reason given by the RPD
for not accepting his evidence is the fanciful statement that “there is no indication that he was attacked because he was
Roma; he could have been attacked, for example, if he had become unruly”.
In my opinion, the RPD was required to consider the incident in context with
the evidence it quoted in the decision of the horrific persecution of Roma in
Hungary. The RPD’s failure, presently under consideration, to comprehend and
consider this reality in receiving and concluding on Viktor’s evidence
constitutes capricious decision-making.
[20]
For the reasons provided, I find that the
evaluation of Viktor’s evidence was conducted in reviewable error.
C.
Regarding Laszlo Jozsefne Bercze (Laszlo)
[21]
And third, the RPD addressed Laszlo’s
credibility:
The claimant described two major incidents
that caused her great distress. I find that she was not credible in regard to
either incident.
The first incident occurred in 2007 when her
family went to the amusement park. The claimant testified that there was a
right-wing party at the amusement park who attacked them, and that she tried to
protect herself and her grandchildren but her older son was bleeding so they
fled the scene. When the claimant was asked what happened to her grandchildren,
she testified that they were running back and forth because they were scared.
The claimant testified further that they went to get medical help for her son
who was hurt, but that the doctor didn't even give them a bandage because he
said there was no serious problem with her son. The claimant was asked if
anyone else was hurt beside her son, she responded that no one else was hurt,
and that her grandchildren were only scared and were not beaten up, although
one of them had been pushed. However when it was noted for the claimant that
in her PIF she indicated that the Hungarian guard beat up her three sons and
the grandchildren, the claimant then responded that there was a mistake in the
PIF narrative, and that her son was the only one hurt. I draw a negative
inference from the claimant's failure to explain inconsistency [sic].
The claimant testified that the second
incident occurred on the same date as her son's car accident referred to above.
In her PIF she indicates that this incident occurred in May 2011. The claimant
was not questioned in regard to this discrepancy.
The claimant testified that on the evening
of June 8, 2011, she was sitting on her porch and some skinheads came and
attacked her. They threw stones at her and spat at her. They called her a
"stinky Gypsy" and said that she will die. The claimant went into her
house and in the morning when her son came he told her that there was some
graffiti on the house which said "you will die stinky Gypsy." The
claimant called the police but they didn't seem to take the case seriously
since they said perpetrators [sic] were unknown.
The claimant submitted a police report which
refers only to the graffiti and nothing about the attack on the claimant. I
do not find it credible that if the incident happened as alleged, that the
police would have focused on some words instead of on the actual physical
attack on the claimant.
In sum, I find that the claimants
collectively were not credible in regard to their experiences of persecution in
Hungary.
[Emphasis added] (Decision, paras. 48-53)
[22]
Thus, the RPD made two negative findings with
respect to Laszlo’s evidence, each of which will be addressed in turn.
[23]
As to the amusement park evidence and the
negative inference drawn by the RPD from the perceived failure of Laszlo to
explain the inconsistency in her evidence, I find that the RPD did not take
sufficient care in reaching and expressing a conclusion. Laszlo gave an
explanation for the inconsistency between her PIF and her evidence: a mistake
was made in the PIF. She swore to the truth of this statement, and her
statement must be accepted unless a reason is found not to believe her. On the
face of the decision, the RPD failed to provide a reason. As was stated in the
analysis of the RPD’s findings with respect to Viktor, a “negative inference”
finding is devoid of content. Reasons supported by evidence must be provided.
[24]
As to the content of the police report, there is
no evidence upon which a conclusion can be drawn as to why the report reads the
way it does. The RPD’s statement that “I do not find it
credible that if the incident happened as alleged, that the police would have
focused on some words instead of on the actual physical attack on the claimant”
is completely speculative. As a result, I find that the statement constitutes
an unsupported implausibility finding (see: Zakhour v Canada (MCI), 2011
FC 1178).
[25]
For the reasons provided, I find that the
evaluation of Laszlo’s evidence was conducted in reviewable error.
II.
The State Protection Finding
[26]
Further to the evidence of persecution of Roma
in Hungary, and the RPD’s positive finding that state protection exists in
Hungary as stated in paragraphs 2 to 4 above, in my opinion, there is no clear
line of reasoning from the wealth of evidence that the state in Hungary does
not provide adequate protection to Roma at the operational level, to the RPD’s
conclusion that it does; the reasoning leading to the conclusion is
unintelligible. As a result, I find that the RPD’s finding that the Applicants
failed to rebut the presumption of state protection is not reasonable, and the
decision under review is not defensible in respect of the facts and law (see: Hanko
v Canada (MCI), 2014 FC 474).
III.
Conclusion
[27]
For the reasons provided, I find the decision
under review is unreasonable.