Date: 20040123
Docket: IMM-618-03
Citation: 2004 FC 102
Ottawa, Ontario the 23rd day of January 2004
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
OTTO ISTVAN STADTMULLER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act[1] and section 72 of the Immigration and Refugee Protection Act,[2] upon leave being granted by this Court on October 17, 2003, of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated January 8, 2003, wherein the Applicant was not found to be a Convention refugee.
[2] The Applicant seeks that this Court set aside the decision of the Board in order that this matter be remitted for reconsideration in a manner consistent with the duty and fairness and the principles of natural fundamental justice, and not inconsistent with the reasons of this Court.[3]
[3] Pursuant to section 18(1) of the Act, the Court is able to grant this relief.
[4] The Respondent seeks that the Court dismiss the application for judicial review.[4]
BACKGROUND
[5] The Applicant alleges that he and his family were subjected to harassment and threats[5] due to religious affiliation or perceived (or imputed as specified by his Counsel) affiliation. In addition, the Applicant was physically assaulted several times.[6]
[6] While the Applicant's religious background is other than that of his ex-wife, he was imputed to be of her faith.
[7] The Applicant states that he got a divorce from his wife to stop the persecution. The Applicant believed that the family was targeted because it was thought that he had converted. The harassment and abuse abated, but then resumed again.[7]
DECISION UNDER REVIEW
[8] The Board found that the Applicant had established his personal identity.[8] However, the Board rejected the Applicant's claim on the basis that his evidence was not credible and that he did not have a well-founded fear of persecution.
[9] Even if the Applicant had been mistreated, however, the Board found that it was insufficient to amount to persecution.[9]
[10] Finally, the Board found that the Applicant would not face a serious possibility of persecution if he were to return to Hungary because he no longer lives with his wife and does not practice any religion.[10]
ISSUE
[11] Are the Board's reasons adequate?
ANALYSIS
[12] It is not clear from its reasons that the Board took into consideration as a whole what the Applicant alleged had happened to him.
[13] In fact, the Applicant made a number of allegations, including that one time he was hit, and his hair was set on fire; he was chased down the street a number of times; he was pushed and attacked; and, as the Board mentions, his arm was broken another time.[11] It is true, as the Respondent says, that the Board is presumed to take all the evidence into consideration. Here however, the Board delineates specifically one incident[12] without specifying others.
[14] This is important because the Board went on to find that the Applicant had not been mistreated at all while in Hungary; furthermore, that if the Applicant had been mistreated, then it did not amount to persecution; and that he would not be persecuted were he to return to Hungary. Without the Board demonstrating a clear understanding of the Applicant's allegations, the adequacy of its reasons is drawn into question.
[15] The Respondent argues that the Board found the Applicant to be not credible because it found a major inconsistency in the Applicant's evidence which went to the heart of his claim. In his Personal Information Form (PIF), the Applicant had stated his religion[13] as one in the appropriate box on page 1, while in his oral testimony he stated he was not of that religion.[14] The Board, drawing from this inconsistency, found the Applicant to be not credible. The rest of the Board's reasons flowed from this finding.[15]
[16] It is unclear from the reasons whether the Board took into account the Applicant's testimony that he was thought to have converted by his persecutors, and therefore he was perceived to be as such. Therein lies the need for the Board to provide in clear, not necessarily many, reasons why it doubts the Applicant's story.[16]
[17] Furthermore, the Applicant states in his PIF that he was harassed and assaulted after he was divorced from his wife. Therefore, should he be made to return to Hungary, the Board would have been obliged to assess this evidence in light of credibility. The Board's conclusion that the Applicant would not be perceived or imputed as he described requires reference to the evidence and that is not adequately explained.
CONCLUSION
[18] The application for judicial review is allowed. The decision should be returned to the Board, and not because of the conclusion it reaches, that is for the Board, in this particular case to consider. It is recognized that the Board has an onerous case-load and that a practical need exists for succinct reasons, however, in this case the reasons are simply inadequate
[19] The salient or key points of the evidence must be discussed in the reasons, in a more revelatory fashion. That does not necessarily mean many more words or more space but rather in clear unequivocal terms on what basis the claim was accepted or rejected.
[20] The contradiction as discussed in the decision in respect to religion is key and central to the very core of the claim. That core, alone, could have been elaborated, not at any length, but in a crisp manner, pointing to the conclusion of the Board. In due deference to the Board for its specialized knowledge, that is for it to determine.
ORDER
THIS COURT ORDERS that:
1. The decision be set aside and that the matter be remitted for reconsideration.
2. There is no question to be certified.
______________________________
"Michel M.J" Shore"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-618-03
STYLE OF CAUSE: OTTO ISTVAN STADTMULLER v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 15, 2004
REASONS FOR ORDER BY: The Honourable Mr. Justice Shore
DATED: January 23, 2004
APPEARANCES:
Harvey Savage FOR THE APPLICANT
Robert Bafaro FOR THE RESPONDENT
SOLICITORS OF RECORD:
HARVEY SAVAGE FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
[1]R.S.C. 1985, c. F-7 [the "Act"].
[2]S.C. 2001, c. 27 [ "IRPA"].
[3]Applicant's Application Record, Tab 1, Notice of Application at 2.
[4]Respondent's Memorandum of Fact and Law at 10, para. 19.
[5]Applicant's Application Record, Decision of the Board, Tab 3 at 7 [ the "Decision of the Board"].
[6]Applicant's Application Record, Tab A, Personal Information Form, at 23, 24 paras. 8, 16 [the "PIF"].
[7]PIF, supra at para. 12.
[8]Decision of the Board, supra at 8.
[9]Supra.
[10]Supra at 9.
[11]Board's Reasons, supra at 7.
[12]PIF at 23, 24, para. 8, 17.
[13]Supra at 15.
[14]Supra at 22, para. 5.
[15]Transcript at 172.
[16]Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (C.A.) (QL), Gyarmati v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 580 (QL); also Osipenkov v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 59 (QL)