Docket: IMM-5507-15
Citation:
2016 FC 792
Ottawa, Ontario, July 12, 2016
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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KALMAN KAROLY
HORVATH
KALMAN KAROLYNE
HORVATH
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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
[1]
This is an application for judicial review of a
decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee
Board (Board), dated November 20, 2015. The RAD confirmed the decision of the
Refugee Protection Division (RPD) that the Applicants are not Convention refugees
and are not persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For the reasons that follow, this judicial
review application is dismissed.
I.
Background
[3]
The Applicants, Kalman Karoly Horvath and Kalman
Karolyne Horvath, are husband and wife, are of Roma ethnicity, and are citizens
of Hungary. They left Hungary in December 2014, and made a claim for refugee
status in Canada.
[4]
In their Basis of Claim (BOC) forms, the
Applicants claim they suffered discrimination and persecution based upon their
Roma ethnicity. They state they were forcibly evicted from their home and they
suffered a number of incidents of racial violence.
[5]
The RPD rejected the Applicants’ claims, finding
that they were not credible.
[6]
The Applicants’ appeal to the RAD was dismissed on
November 18, 2015. The RAD, like the RPD, concluded that the Applicants were
not credible and that they had not established a well-founded fear of
persecution. The RAD also held, in this case, that the general country condition
information was not sufficient evidence to prove the claim of persecution.
II.
Issues
[7]
The Applicants raise the following two issues:
1. The RAD failed to properly assess the evidence of their
psychological conditions
2. The RAD failed to consider their general profiles
III.
Analysis
1.
The RAD failed to properly assess the evidence
of the Applicants’ psychological condition
[8]
The Applicants allege that the RAD failed to
conduct its own assessment of the evidence and it failed to properly consider
and analyze the new psychological evidence. The Applicants submit that this
evidence demonstrates that the credibility issues are a result of their
cognitive issues.
[9]
These issues are reviewed on a reasonableness
standard: Canada (Minister of Citizenship and Immigration) v Huruglica,
2016 FCA 93 at para 35 [Huruglica].
[10]
The Applicants also claim that their cognitive
issues were not appropriately accommodated at the RPD hearing, and therefore
their procedural fairness rights were not respected. According to the
Applicants, the RAD failed to remedy this procedural unfairness.
[11]
This issue is considered on the correctness
standard: Canada (Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 43.
[12]
The RAD allowed the introduction of new evidence
in the form of psychological reports of Ms. Riback and Dr. Meier. The
Applicants argue that these reports demonstrate that their ability to testify before
the RPD was severely compromised because of their cognitive difficulties. They
further argue that the RPD was not aware of their cognitive difficulties and
did not modify its procedures to accommodate them as vulnerable persons, and
therefore their procedural fairness rights were not respected. They submit that
the RAD should have conducted an oral hearing to reassess their credibility, or
the RAD should have referred the matter back to the RPD for redetermination.
[13]
The RPD’s findings of fact included credibility
findings based on the Applicants’ oral evidence. In Huruglica, the
Federal Court of Appeal noted that there may be cases where “the RPD enjoys a meaningful advantage over the RAD in making
findings of fact or mixed fact and law, because they require an assessment of
the credibility or weight to be given to the oral evidence it hears”
(para 69).
[14]
The RAD reviewed the RPD’s credibility findings
in the context of the record and the new evidence submitted, including the
psychological reports. The RAD independently concluded that the Applicants were
unable to recall basic details about the incidents described in their detailed
BOC narratives.
[15]
The RAD found that the psychological reports and
the information contained in the reports did not explain the Applicants’
inability to provide basic facts about their claim. The RAD found that these
reports did not cure the major deficiencies in the Applicants’ oral testimony.
[16]
In any event, the RAD noted that the RPD
accommodated the Applicants’ cognitive difficulties by carefully repeating what
it understood to be the Applicants’ evidence. When it became apparent that the
Applicants had difficulty with specific dates and details, the RAD noted that
both the RPD member and the Applicants’ legal counsel proceeded to ask broad
and leading questions about their claim. Even then, according to the RAD, the
Applicants were unable to tell their story in broad generalities.
[17]
In my view, the RAD reasonably assessed the
Applicants’ claim, including the Applicants’ credibility. Deference is owed to
the RAD’s interpretation of subsection 110(4) of the IRPA: Canada (Minister
of Citizenship and Immigration) v Singh, 2016 FCA 96 at para 24. The RAD’s
assessment of the psychological evidence was reasonable, including its decision
not to hold an oral hearing or refer the matter back to the RPD as a result of this
evidence. Given the reasonableness of the RAD’s conclusions in regards to the
psychological evidence, it follows that no unfairness arises from the RAD
conducting the hearing in writing and making its own determination on the Applicants’
claim.
[18]
The RAD noted that no submissions were made by
the Applicants in their appeal on the individual incidents they alleged
happened to them in Hungary as a result of their Roma ethnicity. The RAD, in
agreeing with the RPD, found the Applicants were generally not credible with
respect to these incidents. This is a reasonable conclusion.
2.
The RAD failed to consider the Applicants’
general profiles
[19]
The Applicants submit that even if they were
found generally not credible, they are still illiterate, disabled, and
uneducated Roma, and this profile puts them at risk of persecution. They argue
that these facts make it very difficult for them to access employment, housing,
and healthcare. They submit that it was incumbent on the RAD to independently
assess this particular risk profile.
[20]
The Applicants rely on Sido v Canada (Minister
of Citizenship and Immigration), 2013 FC 1187 at paragraph 16 [Sido],
where the Court states:
[16] The jurisprudence of this Court
establishes that a finding of a lack of credibility does not prevent a person
from being a refugee if other evidence establishes both the subjective and
objective branches of the test for refugee status. That said, there will be no
need to assess documentary evidence where the only evidence linking an
applicant to that evidence is the applicant’s discredited testimony; it will
depend, in each case, on the nature of the documentary evidence and its
relationship to the claim: see Manickan v Canada (Minister of Citizenship
and Immigration), 2006 FC 1525; Fernando v Canada (Minister of
Citizenship and Immigration), 2006 FC 1349.
[21]
The Applicants also rely on Zhuravel v Canada
(Minister of Citizenship and Immigration), 2011 FC 870 [Zhuravel]. In
Zhuravel, the applicant claimed refugee status on the basis of fear of
both gangsters and of domestic violence. The Board in Zhuravel found the
applicant not credible on both grounds, but there was clear objective evidence
in the record corroborating the injuries caused by the applicant’s common-law spouse. The Court found the RPD’s
failure to address this evidence was unreasonable.
[22]
This case is not like Zhuravel. Here
there is no material documentary evidence in the record which contradicts the
Board’s key findings. The nature of the documentary evidence before the RAD in
this case was general country condition documentation concerning the treatment
of the Roma in Hungary.
[23]
The Court in Joseph v Canada (Minister of
Citizenship and Immigration), 2011 FC 548 remarked that the Board need not
look to general country condition evidence in every case to determine whether a
claim is well-founded, citing Mathews v Canada (Minister of Citizenship and
Immigration), 2003 FC 1387 at paragraphs 7-8 [Mathews].
[24]
Here, like in Mathews, the documentary evidence was
general and the RAD did not find it necessary to conduct an assessment of the
country condition evidence in respect of the Applicants’ circumstances, given
their general lack of credibility.
[25]
Pursuant to Sido and Mathews, there
may be no need to assess country documentation evidence where there is no
credible aspect of the claim which links the claimant to this evidence. The
Applicant did not point to anything in the documentary evidence which ties
their particular profile to persecution.
[26]
In the absence of such particular evidence, it
was not unreasonable for the RAD to agree with the RPD that the documentary
evidence on the general profile for the Roma is not enough, particularly in the
face of a general negative credibility: Nagy v Canada (Minister of
Citizenship and Immigration), 2013 FC 640.
[27]
The RAD concluded that while some Roma persons
experience persecution, this does not establish that all Roma face a serious
possibility of treatment that rises to the level of persecution. Having found
the Applicants not credible, the RAD confirmed the RPD finding that the
Applicants are neither Convention refugees nor persons in need of protection.
[28]
In my view, the approach of the RAD and its
resulting conclusions were not unreasonable.
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