Docket: IMM-7227-13
Citation:
2016 FC 635
Ottawa, Ontario, June 8, 2016
PRESENT: The
Honourable Mr. Justice LeBlanc
|
BETWEEN:
|
|
ATTILA MOLNAR,
GERGO MOLNAR, SZILVIA JANO, MILAN MOLNAR
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of a decision
of the Refugee Protection Division of the Immigration and Refugee Board (RPD), dated
October 17, 2013, which found that the Applicants are neither Convention
refugees nor persons in need of protection under sections 96 or 97 of the Immigration
and Refugee Protection Act, SC 2001 c 27 (the Act).
II.
Background
[2]
The Applicants are common-law partners and their
two minor sons. They are Roma from Miskolc, Hungary.
[3]
The principal Applicant, Attila Molnar (Mr.
Molnar), alleges that he has suffered discrimination amounting to persecution
because of his inability to secure permanent employment in Hungary, which he
alleges is due to the fact that he is Roma.
[4]
Mr. Molnar alleges that he and his family were
attacked by Hungarian Guardsmen in August 2010 and that one of his son’s was
discriminated at school due to a policy of segregating Roma from non-Roma
students.
[5]
In June 2011, two police officers stopped Mr.
Molnar on the street and proceeded to beat him with a rubber baton for no
apparent reason. He alleges having filed several complaints with various
authorities following the beating such as the police, an oversight unit in the
city of Debrecen, a Roma organization and the military persecution office. A
few weeks after reporting the assault to the police, Mr. Molnar began receiving
threatening notes in his mailbox. Fearing for his life, he moved out of his
home to live with different family members before fleeing to Canada with his son Gergo in November 2011.
[6]
Mr. Molnar’s wife, Szilvia, alleges that after
her husband left, paramilitaries from a nearby neighbourhood came to their home
several times looking for her husband. They kicked in the gate of the family
residence and verbally assaulted her with anti-Roma comments.
[7]
Szilvia and Mila joined Mr. Molnar and Gergo in
Canada in December 2011.
[8]
Mr. Molnar’s adult son Attila, came to
Canada in March 2012 and made a refugee claim, but then withdrew his claim to
return to Miskolc, Hungary the following July to be with his common-law partner
who had just given birth to their child.
[9]
As a preliminary matter, the RPD dismissed the
Applicants’ application pursuant to Rule 50 of the Refugee Protection
Division Rules, SOR/2012-256 (RPD Rules), seeking among other requests,
that the RPD make a fair determination, that the RPD not endorse the actions of
the then Minister of Citizenship and Immigration, that the designation of
Hungary as a Designated Country of Origin contradicts significant country
evidence and jurisprudence and that it will not be a factor in the assessment
of Hungarian Roma refugee claims. Counsel for the Applicants wanted the RPD to
determine the former Minister of Citizenship and Immigration to be engaged in
inappropriate behaviour when signs were erected in certain locations in
Hungary, inhabited by Romas, with a view of discouraging such persons and/or
others in making refugee claims that were not genuine and that such actions had
an influence on the RPD’s processing of Hungarian refugee claims.
[10]
The RPD found that credibility and state
protection were dispositive of the matter and made the following credibility
findings:
a.
The Applicants submitted insufficient credible
and trustworthy evidence demonstrating that Mr. Molnar suffered acts of
discrimination tantamount to persecution in regard to his inability to secure
permanent employment since he did not know if only Romas were unable to secure
permanent construction work or if this problem extended to non-Romas as well. Moreover,
Mr. Molnar was never denied the opportunity to receive social assistance;
b.
No credible or trustworthy evidence was put
forward by the adult son to support Mr. Molnar’s claims of being harassed by
the police. Moreover, Mr. Molnar testified that his adult son has not had any
problems from the police who allegedly beat him or from any other authority since
returning to Hungary;
c.
The RPD found that it was not credible for Mr.
Molnar to not have made arrangements to provide a medical report to the RPD from
the time he was treated for being beaten with the rubber baton;
d.
The Applicants provided insufficient credible
and trustworthy evidence showing that the police failed to take appropriate
action and investigate the alleged attack;
e.
The Applicants provided no proof that they
sought the assistance of a Roma organization following the attack. Moreover, Mr.
Molnar was unable to recall when he sought assistance and was unable to recall
when he received the threatening letters by mail; and
f.
The Applicants failed to demonstrate that they
made reasonable efforts to obtain corroborating evidence that a complaint was
filed with the military prosecution office.
[11]
The RPD also found that the Applicants could
reasonably seek and obtain state protection. The RPD recognized that Romas in Hungary suffer discrimination and racist attacks. However, the RPD found that the
Applicants submitted insufficient evidence to conclude that they had contacted
the police for assistance and that adequate assistance was not provided.
[12]
The Applicants submit that the RPD violated
procedural fairness in three ways. First, by failing to provide a written
response to their application pursuant to Rule 50 of the RPD Rules within the prescribed
timelines. Second, by questioning the Applicants’ motivation to get off social
service support in Hungary and Mr. Molnar’s expectation to avoid social support
and obtain employment in Toronto with only a grade 8 education. Third, in
demonstrating bias by questioning Mr. Molnar’s ability to sustain himself in Canada.
[13]
The Applicants also contend that the RPD erred
in its credibility analysis and failing to apply the correct test for
determining state protection and for rebutting the presumption of state
protection.
[14]
The Applicants were ordered to leave Canada in November 2014. They sought, but were denied, a stay of their removal order on the
grounds that while there is evidence of discrimination and persecution in
Hungary, based on Roma ethnicity, the Applicants failed to establish that they
would personally suffer irreparable harm upon return to Hungary (Molnar v
Minister of Public Safety and Emergency Preparedness, (November 14, 2014), Toronto
IMM-7594-14 (FC).
III.
Issue and Standard of Review
[15]
The issue to be determined in this case is
whether the RPD committed a reviewable error as contemplated by section 18.1(4)
of the Federal Courts Act, RSC 1985 c F-7.
[16]
It is well-established that decisions of the RPD
as to questions of fact and credibility are reviewed on the reasonableness
standard (Nava Flores v Canada (Citizenship and Immigration), 2010 FC
1147, at paras 25-26, 378 FTR 95 [Nava Flores]; Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]). Moreover,
considerable deference is owed to the RPD’s credibility findings because decisions
concerning credibility lie within the “heartland of the
discretion of triers of fact” (Siad v Canada (Secretary of State)
(1996), [1997] 1 FC 608, at para 24, 123 FTR 79; see also Nava Flores, at
para 26; Navaratnam v
Canada (Citizenship and Immigration), 2015 FC 274, at para 33 [Navaratnam]; Roy v Canada (Citizenship and Immigration), 2013 FC 768, at para 15 [Roy]).
[17]
Questions regarding procedural fairness are
reviewed on the standard of correctness (Navaratnam, at para 32; Roy,
at para 14; Khosa v Canada (Minister of Citizenship and Immigration),
2009 SCC 12, at para 43, [2009] 1 S.C.R. 339).
IV.
Analysis
A.
No breach of procedural fairness
[18]
Rule 51 of the RPD Rules states that a party
responding to a written application must provide the RPD and the other party
with a response no later than 5 days after the date on which the party receives
the copy of the application. I therefore agree with the Respondent’s position
that Rule 51 of the RPD Rules does not oblige the RPD to respond to a Rule 50
application within 5 days. Rather, Rule 51 applies to a party seeking to
respond to a written application. Since the RPD is not a party to the
application but the decision-maker, the timeline set out in Rule 51 does not
apply to it. The RPD is therefore not obliged to respond to a written
application within 5 days of it being filed.
[19]
Moreover, the RPD thoroughly assessed the
Applicants’ application pursuant to Rule 50 of the RPD Rules before dismissing
the application. The RPD noted that while the Applicants may have concerns
regarding the new refugee determination system, the matter was being assessed
under the former legislation, which does not have the same timelines imposed
for the processing of claims. In response to the Applicants’ submissions that
the RPD not endorse the actions of the then Minister of Citizenship and Immigration,
the RPD explained that it is an independent tribunal that assesses each claim
on its own merits and provides reasons for its decisions in a fair and
independent manner. In support of this, the RPD cited Chief Justice Crampton’s
decision in Cervenakova v Canada (Citizenship and Immigration), 2010 FC
1281, 381 FTR 74, where he indicated at paragraphs 49 and 60 that statements
made by the Minister do not compromise the RPD’s independence nor do they give
rise to a reasonable apprehension of bias.
[20]
I am also of the view that the Applicants’
submissions regarding bias on the part of the RPD panel member are unfounded. The
test for bias is “what would an informed person,
viewing the matter realistically and practically- having thought the matter
through-conclude” (Committee for Justice and Liberty v Canada
(National Energy Board), [1978] 1 S.C.R. 369, at 394). In my view, while
questioning Mr. Molnar about his job prospects in Canada and whether the
Applicants are living off welfare in Canada may be inappropriate and irrelevant
to determining whether the Applicants fall under sections 96 and 97 of the Act,
the line of questioning is not indicative of bias on the part of the RPD. I do
not agree with the Respondent’s submissions that it was open to the panel to
ask Mr. Molnar questions about his situation in Canada to assess the
allegations of discrimination in Hungary relating to his inability to find
stable work there because of his Roma ethnicity. However, as indicated in Chamo
v Canada (Minister of Citizenship and Immigration), 2005 FC 1219, “energetic questioning by a Board member and frequent
interruptions will not necessarily give rise to a reasonable apprehension of
bias” (at para 12). Further to reviewing the decision as a whole, it is
clear that the RPD considered the Applicants’ testimony in light of the country
documentation when assessing the Applicants’ claims of persecution,
discrimination and lack of state protection, thus keeping an open mind.
B.
RPD’s decision is reasonable
[21]
Applicants are presumed to be telling the truth
when testifying before the RPD (Puentes v Canada (Citizenship &
Immigration), 2007 FC 1335, at para 16; Valtchev v Canada (Minister of Citizenship & Immigration), 2001 FCT 776, at paras 6-8, 208 FTR 267; Aguirre
v Canada (Citizenship and Immigration), 2008 FC 571, at para 15 [Aguirre]).
Thus, where an applicant’s claims are not corroborated by any documentation,
the jurisprudence has established that the failure to file corroborating
documentation “cannot be related to the applicant's
credibility, in the absence of evidence to contradict the allegations” (Ahortor
v Canada (Minister of Employment & Immigration), 65 FTR 137, at para
46, 41 ACWS (3d) 863). Yet, where the RPD has valid reasons to doubt an
applicant’s credibility, an applicant’s failure to provide corroborating
documentation may be considered by the RPD if it does not accept the
applicant’s explanation for their failure to produce that evidence (Amarapala
v Canada (Minister of Citizenship and Immigration), 2004 FC 12, at para 10;
Singh v Canada (Minister of Citizenship and Immigration), 2003 FCT
556, at para 9, 233 FTR 166). Moreover, the Federal Court of Appeal
found in Canada (Citizenship and Immigration) v Sellan, 2008 FCA 381,
that where the RPD makes a general negative credibility finding, “that determination is sufficient to dispose of the claim
unless there is independent and credible documentary evidence in the record
capable of supporting a positive disposition of the claim” (at para 3).
[22]
Further to a review of the record, including the
transcript of the hearing, I find that the RPD reasonably found that Mr. Molnar
lacked credibility and, as a result, that it was reasonably open for the RPD to
reject the Applicants’ claim in the absence of corroborating documentation. In
my view, the RPD’s finding that it was reasonable to expect some credible and
trustworthy evidence from the Mr. Molnar’s adult son to support allegations of
persecution as he would likely have been aware of the problems of the claimants
since he lived with the Applicants at the time the persecution occurred and had
attempted to claim refugee status in Canada for the same grounds, was not
unreasonable.
[23]
Moreover, Mr. Molnar claimed to have filed
several reports and complaints with various persons in positions of authority.
Notably, he alleged that he obtained a medical report following being beaten by
police, which he used to file a police report. When asked if he had proof of
the medical report, Mr. Molnar replied by saying, “I do
not have any papers like that here with me in Canada.” When asked if he
had the police report, he told the RPD that he did not, but that he was advised
by the police that the file was closed since they did not know who the
perpetrators were. Mr. Molnar also testified that he sought the assistance of a
Roma organization. When asked if he had proof that he sought assistance of the
organization, he testified that he did not. When asked when he asked for the
organization’s help, he testified that he could not remember. Mr. Molnar also
testified that he filed a complaint with the military prosecution office. Again,
when asked if he had proof of this complaint, Mr. Molnar said he did not and
that in order to acquire proof, he would have to go to the military prosecution
office personally. In my view, it was not unreasonable for the RPD to reject Mr.
Molnar’s reasons for not providing corroborating evidence and as a result find
that Mr. Molnar, who was represented by counsel before the RPD, did not make
reasonable efforts to obtain corroborating evidence from the military
persecution office, the hospital or the police.
[24]
In my view, the central allegation of the
Applicants’ refugee claim is the police attack and subsequent harassment from
the police. The RPD’s finding that Mr. Molnar’s account of the attack was not
credible since no reasonable explanations were provided for the Applicants’
failure to provide corroborating evidence was determinative to the disposition
of the Applicants’ claim as no other evidence was submitted to establish that
the Applicants face greater discrimination than other Romas in Hungary.
The Applicants bore the burden of proving their claim and it was well within
the RPD’s discretion to reject the Applicants’ explanations for failing to
produce evidence in support of their claim (Singh, at para 9). Therefore,
I am of the opinion that the RPD’s negative credibility finding falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law. (Dunsmuir, at para 47).
[25]
As I find that the RPD’s decision regarding the lack
of credibility of the Applicants’ refugee claim is reasonable, there is no need
for me to decide the question of the adequacy of state protection. I will add
however, without commenting on the substance of the RPD’s decision in this
respect, that this Court has, in several instances, refused to interfere with
RPD findings that although not perfect, state protection is available to Romas
in Hungary (see Molnar v Canada (Citizenship and Immigration), 2012 FC 530; Paradi
v Canada (Citizenship and Immigration), 2013 FC 996; Csonka v Canada (Citizenship
and Immigration), 2012 FC 1056).
[26]
For these reasons, the application for judicial
review is dismissed. No question is certified.
Email this Content