Date: 20030808
Docket: IMM-5526-02
Citation: 2003 FC 955
Ottawa, Ontario, this 8th day of August, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JAMES RUSSELL
BETWEEN:
JANOS ERDOS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
FACTS
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board (the "Board"), dated October 22, 2002 deciding that Janos Erdos (the "Applicant") was not a Convention refugee. The Applicant is a citizen of Hungary and claims a well-founded fear of persecution based on his Roma ethnicity and political opinion.
[2] The Applicant claims that, while living in Hungary, he worked on a secret government project called Citadella. He sought and was granted political asylum in the 1970s but he returned to Hungary in 1985 after 11 years because of the poor health of his wife. Upon his return to Hungary, the Applicant claims that he was questioned by the secret police, badly beaten, subjected to electrical shocks and threatened with a gun.
[3] The Applicant's first wife died in 1987 and he remarried in 1988. He and his new wife came to Canada in September 1989 where they made a refugee claim. They did not mention that they were Roma in that claim. They were refused convention refugee status in Canada and went to the U.S. in November, 1992. There they applied for political asylum, which was also refused. The Applicant's second wife died in the U.S.
[4] On November 25, 2000, the Applicant was told by the U.S. to voluntarily leave the country or he would be deported. Upon returning to Hungary, the Applicant was accused of being an American spy by the secret police. He claims to have been detained, interrogated, tortured, beaten, and drugged. The Applicant then returned to Canada on December 14, 2000 and claimed refugee status on December 27, 2000. The hearing with the Board took place on October 8, 2002, and a decision was rendered on October 22, 2002 (the "Decision"). At the Hearing, the Applicant raised new information about the death of his brother while in the custody of Hungarian police.
ISSUES
[5] Did the Board err by determining that the central element of the Applicant's claim related to his ethnicity?
[6] Did the Board err by rejecting the Applicant's additional testimony given by written statement a few days before the hearing?
[7] Did the Board err by not making findings of credibility in clear and unmistakable terms?
[8] Did the Board err by not making findings of credibility based on primary considerations?
[9] Did the Board act perversely and capriciously, and without regard to the material before it, by coming to the conclusion that persecution of the Applicant after the end of the Cold War because of his involvement with the Citadella project was no more than a mere possibility?
[10] Did the Board act in denial of the duty of fairness?
STANDARD OF REVIEW
[11] The Court must first determine what the appropriate standard of review is for this case.
[12] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, the Federal Court of Appeal discussed the standard of review for Refugee Division decisions:
4. There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. ...
[13] The Court should not seek to re-weigh evidence before the Board simply because it would have reached a different conclusion. As long as there is evidence to support the Board's finding of credibility and no overriding error had occurred, the decision should not be disturbed.
[14] With respect to the issue of natural justice and procedural fairness, the standard of review is correctness. If the Court finds that there was a violation of natural justice or procedural fairness the Court must intervene (NAV Canada v. Canadian Air Traffic Control Assn., [1999] F.C.J. No. 1799 (Fed. C.A.); and Lai v. Canada (Attorney General), [2001] F.C.J. No. 1088 (Fed. T.D.)).
ANALYSIS
Did the Board err by determining that the central element of the Applicant's claim related to his ethnicity?
[15] At page 5 of its Decision, the Board concluded " the panel finds the claimant not to be credible in relation to central elements of his claim. There is insufficient credible evidence upon which to make a finding that the claimant is a Convention refugee."
[16] In relation to this crucial finding on credibility the Applicant points out that the Board Member never stated what he viewed as being the central elements of the claim. Nor did the Board Member give any reasons why he found the Applicant's evidence not to be credible. The Applicant says that he regarded his fear of persecution at the hands of Hungarian authorities for his underground activities as the focus of his claim. Even if the Board Member did not believe his Roma connections, this did not destroy the basis of his persecution claim.
[17] The Respondent argues that he Applicant's ethnicity claim was not secondary because he said he was being persecuted because he was a Roma who had disclosed state secrets to nationals of other countries. The fact of his being a Roma was a central aspect of his whole story.
[18] The Tribunal record reveals that the Applicant did indeed place considerable emphasis on the Roma aspect of his claim, but this does not mean that his other evidence on political persecution was not a central aspect of his claim.
[19] There were two distinct bases to the Applicant's claim: ethnicity and political opinion. The fact that the Applicant emphasized the Roma aspects did not diminish the importance of the political aspects. The Board should have treated the political aspects of the claim as central and addressed them as such in its decision.
[20] In effect, the Board could not accept the Applicant's evidence regarding the death of his brother, his Roma background and certain embellishments produced in his second narrative. But there were other important aspects of the claim, namely the whole political dimension, that the Board should have addressed more fully to decide whether Convention refugee status was proved. In failing to do so the Board committed a reviewable error.
Did the Board err by rejecting the Applicant's additional testimony given by written statement a few days before the hearing?
[21] The Applicant complains that the Board used additional testimony he gave in his written statement provided a few days before the hearing inappropriately. He argues that a claimant should be able to add to his original personal information form statement without fear that the additions will lead to an adverse credibility finding. Reed J. in Singh v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 1034 (Fed. T.D.) addressed this issue as follows:
19 The Board drew an adverse inference from the fact that the applicant had not mentioned two letters in his PIF which he mentioned in his oral testimony. It drew an adverse inference from the fact that his wife went to Canada and then returned to India. It drew an adverse inference from the fact that he did not know the expiry date of his visitors visa. The Board stated: "The Panel finds it inconceivable that the claimant was not aware of that date".
20 It is difficult to understand why the Board drew adverse inferences from these facts. The PIF is supposed to be a brief recitation of the applicant's claim, not a documentation of his whole case. There was no evidence that it was unsafe for his wife to return to India, or even to the area from which the applicant alleged he was fleeing. Also, why is it inconceivable that the applicant would not know the expiry date of his visitor's visa?
[22] In the case at bar the Applicant points out:
[The] central elements of the Applicant's claim in relation to the Citadella project were in his personal information form statement. The Board member referred to the additions in the amended narrative only as "embellishments" rather than as a whole new basis of claim. The Board member gave no reason why the original testimony in the personal information form was rejected.
[23] The Applicant also points out that the Board rejected his testimony regarding the death of his brother by referring to that testimony as an "embellishment."
[24] It is trite law that omissions of a significant or important fact from a claimant's PIF can be the basis for an adverse credibility finding (Grinevich v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 444 (F.T.D.)). In the present case, however, the Board appears to have concluded that later "embellishments" destroyed the credibility of the evidence provided in the Applicant's PIF, without providing a proper rationale as to why otherwise uncontradicted evidence should be discredited in this way.
[25] The Board committed a reviewable error in rejecting the Applicant's additional narrative out of hand and in not giving reasons for rejecting the original information from the Applicant's PIF.
Did the Board err by not making findings of credibility in clear and unmistakable terms?
[26] The Applicant alleges that the Board never found in clear and unmistakable terms that his testimony about the Citadella project and Hungarian government suspicion that he may have disclosed information about that project to foreign governments was not credible. The Board discussed the Applicant's submissions relating to the Citadella project briefly on page 6 of the Decision and concluded that the "panel finds that the Claimant's fear of persecution for reasons of his involvement in construction projects during the Cold War, is not well-founded were he now to return to Hungary."
[27] The Court is generally reluctant to interfere with decisions of the Board relating to credibility. As Tremblay-Lamer J. emphasized in Malik v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 645 (Fed. T.D.):
9 On the adverse finding of credibility, it is trite law that this Court is reluctant to interfere with a decision of the Board based on the credibility of a witness, given the Board's ability to assess the witness in oral testimony before it (Ankrah v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 385 (Q.L.)). Where the Board finds a claimant not credible based on implausibility findings which are open to it on the evidence, this Court will not interfere in the decision unless an overriding error has been made by the Board (Oduro v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 106).
[28] The Applicant argues, however, that decisions of the Court have consistently held that findings of credibility must be made in "clear and unmistakable terms." The Respondent points out that the Board "is entitled to infer that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in 'clear and unmistakable terms'." As the Applicant points out, however, this requirement does not just mean that the Board must find clearly and unmistakable that the applicant is not credible. It also means that the Board must state in clear and unmistakable terms what elements of the claim are not credible and why they are not credible. The Board's failure to do this in its decision was a reviewable error.
Did the Board err by not making findings of credibility based on primary considerations?
[29] The Federal Court of Appeal in Salamat v. Canada (Immigration Appeal Board) [1989] F.C.J. No. 213 concluded that the Immigration Appeal Board erred by considering matters not supported by evidence. The Applicant argues that, in the case at bar, the Board made its finding of adverse credibility based on peripheral considerations, namely, his testimony relating to his Roma ethnicity, the account of how his brother died, and the so-called "embellishments" in the amended narrative, but these issues were not central to his claim.
[30] The Applicant refers to the case of Ahangaran v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 772 (Fed. T.D.) where a decision was reversed because the board failed to consider the totality of the evidence tendered in support of the claim. In that case, "certain documents tendered by the applicant to support his allegations of persecution in Iran were found to be authentic." It seems that the tribunal had not considered this important element in making its decision. The Respondent correctly asserts that most of the cases the Applicant relies on for this point do not stand for the proposition advanced by the Applicant because the Court overturned the Board's decision on erroneous findings of inconsistency, contradictions and non-credibility and not because the findings were peripheral. The Respondent argues that Ahangaran, supra is distinguishable from this case. Tremblay-Lamer J. applied Ahangaran, supra, in her decision in Sampu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1100 (Fed. T.D.):
8 Counsel for the applicant submits that the Board erred in law in rejecting the applicant's claim solely on this issue without evaluating his credibility concerning one of the central aspects of the claim. I agree.
9 While the Board was entitled to consider all of the matters it relied on in assessing the applicant's credibility, including the applicant's membership in the UDPS, it failed to consider the substance of his claim, namely his arrest and torture due to his performance of a song viewed as critical by the government authorities and his escape from forcible enrolment in the army.
10 I find that the Board erred in law by failing to consider the totality of the evidence tendered in support of the applicant's claim.
[31] Although I recognize that the issues in Ahangaran, supra, were more peripheral than in the case at bar, I agree with the Applicant that the Board failed to properly evaluate the credibility of his evidence on the central aspects of his claim. This was a reviewable error.
Did the Board act perversely and capriciously, and without regard to the material before it, by coming to the conclusion that persecution of the Applicant after the end of the Cold War because of his involvement with the Citadella project was no more than a mere possibility?
[32] The Board found "in the alternative" that the Applicant's fear of persecution in Hungary was not well founded. The Respondent, in its arguments, felt that there was no need to address this alternative ground because the Applicant "was not credible in relation to central elements of his claim."
[33] As the Applicant points out, however, if the Board were to accept his account of what had happened to him as a result of his involvement in the Citadella project it would be perverse and capricious to decide there was no more than a mere possibility of persecution and such a finding would be a total disregard to the material before it.
[34] I agree with the Applicant in this regard.
Did the Board act in denial of the duty of fairness?
[35] This issue was raised by the Applicant in his application but he did not fully develop any arguments relating to this ground and I do not find it necessary to deal with this issue as part of this review.
[36] For the reasons stated above, the application for judicial review will be allowed.
[37] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5526-02
STYLE OF CAUSE: Janos Erdos v. MCI
DATE OF HEARING: May 21 2003
PLACE OF HEARING: Winnipeg, Manitoba
REASONS FOR ORDER BY: Justice James Russell
DATED: August 8, 2003
APPEARANCES BY:
David Matas
For the Applicant
Nalini Reddy
For the Respondent
SOLICITORS OF RECORD:
David Matas
Winnipeg, Manitoba
For the Applicant
Nalini Reddy
Winnipeg, Manitoba
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030808
Docket: IMM-5526-02
BETWEEN:
JANOS ERDOS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER