BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined the Applicant not to be a Convention refugee or a person otherwise in need of Canada's protection. The decision of the RPD is dated the 15th of December, 2004.
[2] The Applicant is a citizen of Hungary and alleges that she is of Roma ethnicity. Before the RPD, she alleged a well founded fear of persecution by reason of her ethnicity and by reason of threats from her former husband, from whom she obtained a divorce in January, 1996. She arrived in Canada in September of 2001 and immediately made her claim for protection.
[3] In its reasons for decision, the RPD, after briefly commenting on the Applicant's ethnic identity, concluded: "...the panel is not in a position to conclude whether the claimant is a Roma...". It thus, very summarily, disposed of the Applicant's claim based on her alleged ethnicity.
[4] The RPD then went on to consider at greater length, the Applicant's claim based on an alleged fear of her former husband. The RPD noted that, in the Port of Entry notes that were before it in relation to the Applicant, it was recorded that the Applicant's former husband was: "...still coming after her and is abusive." The RPD noted in its reasons:
However, her alleged fear of her former husband after their separation in 1995, was a new element to her claim that was omitted from her personal information form... In fact, her PIF stated that in 1995, the claimant separated from her husband because he was abusive and aggressive towards her. She also submitted the Court decision on her divorce which seemed to be an authentic document, referring to the claimant's marriage as not being harmonious.
[5] The RPD was clearly troubled by the failure of the Applicant to identify her fear of her former husband in her PIF. The transcript of the hearing before the RPD discloses that the Applicant was questioned at length on this issue. While the divorce document earlier referred to reflects that the Applicant was substantially abused by her husband during the later years of their marriage, the RPD noted that the marriage had ended more than five years before the Applicant came to Canada. In the end, it was simply not satisfied with the Applicant's explanation why her alleged fear of her former husband was not identified her PIF. It concluded: "The Claimant was neither credible nor trustworthy in the panel's opinion, when she alleged that she was afraid she would face harm from her former husband if she returned to Hungary."
[6] Thus, on both the Applicant's claim based on her ethnicity and her claim based on her alleged fear of her former husband, the RPD rejected her claim on the basis of credibility.
[7] Against a standard of review of patent unreasonableness, despite the able arguments presented on behalf of the Applicant by her counsel, I am satisfied that the RPD's findings of want of credibility were open to it and on that ground alone, this application for judicial review must be dismissed.
[8] The RPD, despite its conclusive findings regarding the Applicant's credibility, went on in its reasons to examine the issue of state protection for the Applicant if she were required to return to Hungary. Counsel for the Applicant urged that the RPD erred in a reviewable manner in its assessment of the Applicant's evidence and of the documentary evidence before it on the issue of state protection. Counsel for the Applicant urged that, if this application for judicial review were to be dismissed, as indeed it will be, the Court should certify the following questions:
1. Does the availability of state protection require a claimant to seek and/or obtain help above, beyond, and/or against the police, where the police are unwilling or unable to provide protection?
2. (a) Can the Federal Court "be divided on the issue of state protection afforded to Roma people" (in Hungary), so that "reasonable arguments can be made for both cases", as held in Racz v. Canada [2004] F.C.J. No. 1562? Put another way, is the test for a given country, vis-avis [sic] a given radical group, on the same country condition evidence, on state protection, to be applied on a "correctness" standard or "reasonableness" standard? and
(b) If it is a reasonableness standard, can there be two janusly [sic] contradictory "reasonable" conclusions with respect to the same country, vis-à-vis the same racial group, on the same evidence, with respect to state protection?
[9] I am satisfied that the issue of state protection is simply not central to the decision of the RPD that is here before the Court since the credibility determinations earlier referred to are determinative and this Court's conclusion that those determinations were open to the RPD is the sole basis for the decision herein. The questions proposed for certification would not be determinative of an appeal from my decision herein and therefore ought not to be certified. (Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (F.C.A.)).
[10] In conclusion then, this application for judicial review will be dismissed and no question will be certified.
JUDGE
Toronto, Ontario
November 17, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-151-05
STYLE OF CAUSE: MAGYAR DEZSONE
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 15, 2005
APPEARANCES:
Rocco Galati FOR THE APPLICANT
John Provart FOR THE RESPONDENT
SOLICITORS OF RECORD:
Galati, Rodrigues & Associates
Barristers and Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.