Date: 20040224
Docket: IMM-1271-03
Citation: 2004 FC 275
Toronto, Ontario, February 24th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
TIBOR LAHOCSINSZKY
ANITA PETO
MARTON LAHOCSINSZKY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Tibor Lahocsinszky, his spouse Anita Peto, and their child, Marton, are a family from Hungary, who arrived in Canada on April 30, 2001. Four days later, they filed refugee claims, claiming that they were the victims of persecution by reason of their status of victims of crime. The Refugee Protection Division of the Immigration and Refugee Board rejected their claim, finding that the actions of the applicants in filing amended Personal Information Forms (PIFs) at the hearing were "... a ploy intended to strengthen the claims and mislead the Board ...". The Board found that the applicants had not provided credible evidence that the incidents described in their amended PIFs ever took place. Further, the Board concluded that adequate state protection was available to victims of crime in Hungary.
[2] The applicants seek to have the decision of the Board set aside, asserting that it erred in focussing its analysis exclusively on the timing of the filing of their amended PIFs. Having ruled that it would accept the amended PIFs, the applicants say that the Board ignored their explanation as to why the documents were filed late, and failed to have any regard for the evidence contained therein. Further, the applicants say that the Board erred in finding against them on the issue of state protection, when the presiding member specifically advised them that the only issue under consideration at the hearing was the credibility concerns relating to the late filing of the PIFs.
Background
[3] The applicants' refugee claim was filed on May 4, 2001. On May 10, 2002, their claims were declared to have been abandoned. However, the applicants' former counsel brought an application to reopen the claims, which was successful.
[4] By August 9, 2001, the applicants' counsel had evidently received translated copies of the applicants' PIFs. That day, he wrote to the Board seeking an extension of time to August 22 to allow him to review the documents, in order to ensure that they were complete. The extension was granted, and counsel filed the applicants' original PIFs with the Board on August 22, 2001. Despite counsel's representation that the additional time was required to ensure that the forms were properly completed, it does not appear that any such review was ever carried out, as the forms filed with the Board were incomplete. No answers were provided in a number of areas, and the narrative portion of the principal applicant's form consists of only a few lines, where general information with respect to the applicant's family is provided. No mention is made of any experiences that the applicants' may have had that would make them victims of crime: indeed, there is nothing referred to in the form that could give rise to a refugee claim.
[5] The applicants and their counsel explained to the Board that the interpreter retained to assist the applicants was seriously ill, and at times incoherent, when he translated the PIF forms. The interpreter had since died of his illness. By July of 2002, the applicants were aware of errors in their PIF forms, at which time their counsel advised them to provide completed forms to him as soon as possible. The applicants did not provide this information to their counsel until December of 2002. Because counsel was still waiting for other information from the applicants, he did not file the documents with the Board until January 8, 2003, that is the day before the hearing. The documents were not before the Board at the outset of the hearing. After hearing submissions from the applicants, including their explanation as to why the documents were being filed late, the presiding member agreed to accept the amended PIFs.
[6] The amended PIFs recount the experiences of the principal applicant, who says that he was approached by several individuals, one of whom was a policeman. These individuals wanted the principal applicant to become involved in the drug trade. After he refused, the principal applicant says that he and the other members of his family were threatened and beaten. His son Marton was injured sufficiently seriously that he required hospital treatment for his injuries. After Marton was released from hospital, the family fled to Canada.
The Board's Decision
[7] The Board focussed its decision almost exclusively on the credibility of the claimants, specifically as it related to their failure to provide any information to support their claims of persecution for some twenty months after their arrival Canada. The Board noted that the applicants were represented by counsel, and that they had had a number of opportunities to bring forward their allegations of persecution. The applicants did not provide any information with respect to their allegations of persecution at the port of entry, at the time that their refugee claims were first filed, during the abandonment hearing or when their original PIFs were prepared. Having rejected the applicants' explanation for the late filing, the Board also concluded that the incidents described in the amended PIFs did not take place. As a result, the Board concluded that there was no credible or trustworthy evidence before it to establish that the applicants were either Convention refugees or persons in need of protection. As previously noted, the Board also concluded that adequate state protection was available to the applicants in Hungary.
Issues
[8] The applicants submit that the Board failed to consider the evidence as a whole, and that the Board's credibility findings were patently unreasonable.
Analysis
[9] The Immigration and Refugee Board has a well-established expertise in the determination of questions of fact, including the evaluation of the credibility of refugee claimants. Indeed, such determinations lie at the very heart of the Board's jurisdiction. As a trier of fact, the Board is entitled to make reasonable findings regarding the credibility of a claimant's story, based on implausibilities, common sense, and rationality. Accordingly, before a finding of fact made by the Board will be set aside by this Court, it must be demonstrated that such finding is patently unreasonable. Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 40, and Aguebor v. Canada (Minster of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[10] The Board rejected the applicants' claim because it did not accept their explanation as to why their allegations of persecution were not put forward until 20 months after they arrived in Canada. In my view, that finding was reasonably open to the Board on the basis of the evidence before it. A review of the Board's reasons discloses that the Board did consider the applicants' evidence with respect to the illness and death of their interpreter. However, the Board rejected this explanation. The weighing of evidence is a matter within the purview of the Board, and I see no basis for this Court to intervene in that exercise.
[11] While the Board did not specifically mention the explanation that the principal applicant provided for his failure to fully articulate his allegations of persecution at the port of entry, the Board is presumed to have weighed and considered all of the evidence before it, unless the contrary can be shown: Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.).
[12] I am satisfied that the Board did err in relation to its treatment of the issue of state protection. Having advised the applicants that the only issue under consideration at the hearing was credibility, particularly as it related to their explanation for the late filing of their amended PIFs, it was a breach of natural justice for the Board to then base its decision, in part, on its finding that adequate state protection was available to the applicants in Hungary.
[13] Not every breach of natural justice will, however, result in a decision being set aside. A reviewing court will not set aside a decision where the court is satisfied that the breach could not have affected the result: Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. at page 228, cited in Yassine v. Canada (Minister of Employment and Immigration), (1994), 172 N.R. 308 at para. 9 (F.C.A.).
[14] In order to succeed, a refugee claimant must establish that he has a subjective fear of persecution in his home state, and that this fear is objectively well founded: Canada (Attorney General v. Ward, [1993] 2 S.C.R.689. Having found that the applicants failed to provide credible or trustworthy evidence that the incidents described in their amended PIFs ever took place, the applicants failed to meet the first branch of the Ward test. Given that the bipartite test is conjunctive, the Board's finding on the first issue is fatal to the applicants' claim. As a consequence, I am not satisfied that the breach of natural justice that occurred with respect to the issue of state protection ultimately had any effect on the result of the case.
[15] The applicants also contend that the delay in filing their amended PIFs was attributable to incompetence on the part of their original counsel. Incompetence on the part of counsel can certainly be a basis for having a decision set aside. However, the onus is on the applicants to show that there is a reasonably probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different: Strickland v. Washington, 466 U.S. 668 (1984), cited in Robles v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 520. While it is clear that the applicants could have been represented with greater diligence, given that much of the delay in filing the amended PIFs was attributable to the actions of the applicants, I am not satisfied that the Court's intervention in this regard is warranted.
Certification
[16] Neither party has suggested a question for certification, and accordingly none will be certified.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is dismissed.
2. No serious questionof general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1271-03
STYLE OF CAUSE: TIBOR LAHOCSINSZKY
ANITA PETO
MARTON LAHOCSINSZKY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 23, 2004
REASONS FOR ORDER
AND ORDER BY : MACTAVISH J.
DATED: FEBRUARY 24, 2004
APPEARANCES:
Mr. Peter Ivanyi
FOR APPLICANTS
Mr. Jeremiah Eastman
FOR RESPONDENT
SOLICITORS OF RECORD:
Rochon Genova
Toronto, Ontario
FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040224
Docket: IMM-1271-03
BETWEEN:
TIBOR LAHOCSINSZKY
ANITA PETO
MARTON LAHOCSINSZKY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER