Ottawa, Ontario, April 4, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
ERVIN GONDI and CSILLA MARIA KOVACS
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Although the applicants have raised three grounds for judicial review, I am satisfied that this matter turns on the issue of breach procedural fairness and that the application for judicial review should be allowed on that basis.
I. Background
[2] The applicants are husband and wife and are citizens of Hungary. They claim to be Convention refugees or persons in need of protection on the basis of their Roma ethnicity. The Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) dismissed their claims on the basis that the applicants "did not provide clear and convincing evidence that Hungary was not willing and able to protect them". In other words, the applicants did not rebut the presumption of state protection.
[3] After previously being denied refugee status in Canada, the applicants returned to Hungary. As a result of various incidents - the details of which are set out in the personal information form (PIF) and include, among other things, their experiences with the police and their efforts to obtain assistance - they travelled back to Canada, after only three months in Hungary, and submitted a new claim.
II. The Hearing
[4] The transcript of the hearing before the RPD is just over 18 pages. The first 9 pages are comprised of introductory remarks, procedural matters, and other details. The last 4 ½ pages consist of discussions between the presiding member and either the refugee protection officer (RPO) or counsel for the applicants. The transcript of the evidence is contained in the remaining 4 ½ pages. The evidence is comprised of the male applicant's responses to questions from the RPO.
[5] The RPO's questions covered the following topics:
· what and whom the applicants fear;
· whether other "gypsies" in Hungary are in the same situation;
· whether the applicants have family in Hungary, the applicants' contact with them, do they also have problems, and why do they remain in Hungary;
· whether the applicants attempted to obtain protection when they returned to Hungary, how, when, what happened, did they receive help, did they receive advice, and did they obtain [corroborating] documents;
· whether the applicants were aware that there are a "lot more institutions in place since 2001";
· did the applicants think that they could get protection if they were to go to all of the offices now available or to one of the four cities where the mayor is a Roma.
[6] The RPO made brief submissions at the end of the hearing, referred the board to the British Home Office Report in the IRB Documentation Package and posed the following question: "So did the claimant (sic) offer clear and convincing evidence to rebut all those presumptions of protection in the documentation?".
[7] The applicants' counsel requested and was granted the opportunity to make written submissions. Those submissions were some 19 pages in length and included numerous references to the documentary evidence including the United States DOS Reports for 2003, the Amnesty International Report for 2004, the IRB Research Directorate for 2001 and the written comments of the European Roma Rights Centre Concerning the Republic of Hungary submitted for consideration to the 74th session of the United Nations Human Rights Committee.
[8] Synoptically, the applicants' submissions referenced information - partially set out in the non-exhaustive list of factors below - with respect to the Roma in Hungary:
· existing programs are considered to be inadequate;
· government has decided not to address certain aspects of the problems;
· government lacks a clear picture of the problems the Roma experience;
· spending more on programmes fuels negative sentiment against the Roma and would result in loss of votes in the next election;
· NGOs and Roma self-governments denounce a lack of control over the realization of the Roma-targeting program;
· racism is systemic within the police forces;
· education programs are available but there is no willingness to ensure that allocated funds are spent appropriately; and so on.
III. The Decision
[9] The board's reasons are sparse (less than 3 pages). The first page describes the "alleged facts". It appears, at least from the reasons, that the RPD accepted the facts as stated by the applicants. The respondent concedes that credibility is not an issue. The "analysis" begins on page 2 and begins with a comment that the RPD was satisfied as to the applicants' identities. Then, the following statement appears:
The principal claimant was confronted with credible documentary evidence found in the National Binder on Hungary, Exhibit A-1, section 2.4, Home Office Immigration and Nationality Directorate, Operational Guidance Notes, Hungary, section 3.6.2, which state (sic) that the level of discrimination experienced by Roma in Hungary does not amount to persecution, torture or inhuman and/or degrading treatment.
[10] The remainder of the second page summarizes the contents of 4 paragraphs from the British Home Office Report.
[11] Page 3 of the reasons begins:
Confronted, the claimant declared that the Roma self-government could not give them the address of the Ombudsman or its telephone number.
[12] This comment is followed by 4 brief paragraphs referring to portions of the male applicant's testimony at the hearing. The board's drafting (of these paragraphs) implies that the applicant was responding to questions put to him regarding the documentary evidence. The RPD then states:
The tribunal concludes that the claimant did not provide clear and convincing evidence that Hungary was not willing and able to protect him.
[13] Last, is the "conclusion" stating that the applicants are neither Convention refugees nor persons in need of protection.
IV. Analysis
[14] There are two primary reasons for my conclusion that there was a breach of procedural fairness in this matter. First, during the hearing, the male applicant was not referred to or questioned about any documentary evidence. The respondent claims that, "in substance", the questions of the RPO covered the contents of the country conditions documents. I have carefully and repeatedly reviewed the transcript, which did not take long, and this is simply not so. The RPO's questions were put to the male applicant in very general terms and there was absolutely no reference to any document. The reasons misrepresent what transpired at the hearing. While the misrepresentation may have been unintentional, the reasons do not reflect the careful consideration of the circumstances that should emanate from the RPD, an entity entrusted with significant adjudicative responsibilities.
[15] Second, the RPD had before it a wealth of documentary evidence. The applicants' counsel specifically referred the board to various excerpts from the contents of the documents contained in the IRB Documentation Package as well as to additional documents submitted by the applicants. This is not a situation where the board has included a statement, in its reasons, that in making its finding, it has considered all of the evidence. Indeed, there is not so much as an acknowledgement, by the board, of the existence of any document, other than the British Home Office Report. The respondent argues that the document, relied upon by the RPD, in any event, incorporates the contents of the documents relied upon by the applicants. This position is not helpful. The British Home Office Report devotes only a single paragraph to the "plight" of the Roma. The remainder of the report is dedicated to the various initiatives undertaken to improve their situation.
[16] It is settled law that the board is presumed to have had regard to all of the documents before it and it is not required to refer to every piece of evidence and to explain how it dealt with it: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). However, the need to refer to and analyse specific evidence increases with the importance of the evidence: Cepeda-Gutierrez v. Canada(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.). It is not suggested, here, that the evidence referenced by the applicants was not important to their claim. In the circumstances, it was incumbent on the board to indicate in its reasons, the existence of the evidence that contradicted its conclusion and to indicate the impact, if any, that such evidence had upon the claim.
[17] The duty of fairness owed by the RPD falls at the high end of the continuum of procedural fairness: Geza et al. v. The Minister of Citizenship and Immigration 2006 FCA 124. That duty was breached in the circumstances of this matter. In so finding, I am mindful of the applicants' duty to raise the issue of a breach of procedural fairness at the earliest reasonable opportunity. I am satisfied that the applicants could not have known of the breach until they were in receipt of the board's reasons.
[18] As stated at the outset, this matter turns on the question of procedural fairness and I need not address the other alleged errors, including the applicants' counsel's compelling arguments regarding the test for state protection and whether it was properly applied by the RPD in this case. It follows that counsel's proposed question for certification on the issue of state protection will not be certified.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT the application for judicial review is allowed and the matter is remitted for determination before a differently constituted Refugee Protection Board.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3991-05
STYLE OF CAUSE: ERVIN GONDI and CSILLA MARIA KOVACS
v.
MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 30, 2006
AND JUDGMENT: Layden-Stevenson J.
APPEARANCES:
| Rocco Galati
|
|
| Kristina Dragaitis
|
SOLICITORS OF RECORD:
| Rocco Galati Barrister and Solicitor Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |