Date: 20040325
Docket: IMM-767-03
Citation: 2004 FC 449
Ottawa, Ontario, this 25th day of March, 2004
Present: The Honourable Justice James Russell
BETWEEN:
LASZLO DOKA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), dated January 3, 2003 ("Decision") dismissing the refugee claim of Laszlo Doka ("Applicant").
BACKGROUND
2. The Applicant is a 30-year-old male citizen of Hungary. He claims to have a well-founded fear of persecution at the hands of the Russian mafia in Hungary based on his political opinion and his membership in a particular social group of Russian-speaking persons targeted by the Russian mafia in Hungary. He also claims to be a person in need of protection pursuant to ss. 97(1)(a) and 97(1)(b) of the Immigration and Refugee Protection Act ("IRPA").
3. The Applicant says he was born to ethnic Hungarian parents in Ukraine in 1972. He was initially a citizen of the Soviet Union and, later, Ukraine. He moved to Budapest, Hungary, in October, 1994, where he became a landed immigrant in 1995 and a Hungarian citizen in 2000. He was unable to find work in his chosen occupation as a railway engine electrician when he first moved to Hungary. He says this was because the railway company only hired Hungarian citizens. He worked instead as a Hungarian-Russian interpreter almost until the time he departed Hungary.
4. Over time the Applicant developed a personal relationship with a number of wealthy Russian families who attempted to draw him into the illegal trade in mercury, weapons and drug-related substances. As these activities are illegal in Hungary, the Applicant says he immediately refused to participate.
5. Following this, the Applicant started to receive frequent personal and telephone threats. He described in his viva voce testimony that the caller would threaten to kill him, set his house on fire, and torture his family to death. At the hearing, the Applicant also presented three hand-written notes in Russian, each of which had been left at his house or on his car.
6. The Applicant decided to leave Hungary with his wife and stepson; he sent his infant daughter to live with his wife's mother in Romania. The Applicant, his wife and stepson left Hungary on June 17, 2001. They arrived in Canada the same day and made refugee claims at the port of entry. The wife and stepson withdrew their refugee claims and left Canada to travel to Romania on February 3, 2002. Because her mother had become ill, the wife was needed to care for the young daughter.
DECISION UNDER REVIEW
7. The Board refused the Applicant's refugee claim for two reasons. First, it found that the Applicant's claim was not credible. Second, it found that the Applicant failed to discharge the onus of providing clear and convincing confirmation that state protection would be unavailable to him in Hungary.
ISSUES
8. The Applicant raises the following issues:
Did the Board err in its analysis of the Applicant's credibility?
Did the Board err in its preference for documentary evidence over the Applicant's credible testimony?
Did the Board err in its conclusion that adequate state protection was available to the Applicant?
ANALYSIS
Standard of Review
What is the applicable standard of review to apply to the Decision of the Panel?
9. 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. ...
10. The Court should not seek to reweigh 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.
Did the Board err in its analysis of the Applicant's credibility?
11. The Applicant notes that the Board indicated as follows in its reasons:
The claimant testified in a forthright manner. His viva voce testimony did not exhibit any obvious contradictions or inconsistencies with his PIF narrative. There were, however, some omissions from his PIF, which I find impugn his credibility. He provided viva voce evidence that men came looking for him at his parents' home in Munkacs, Ukraine on two occasions, first in December 2001 and later in March or April 2002 ..... He does not mention in his PIF that the alleged persecutors had tracked down his family in the Ukraine. I find that this testimony is an embellishment.
12. The Applicant signed his PIF on September 24, 2001.
13. The Applicant notes that, at the hearing, he filed an IRPA Question 55 Addendum in which he added the information that the men were looking for him at his father's place in December, 2001 and in March, 2002.
14. The Applicant submits that the Board erred in finding an omission from the Applicant's PIF.
15. The Applicant further submits that the Board erred in that it failed to make a clear finding on credibility. The Board, on the one hand, stated that the "claimant testified in a forthright manner," but then found that some omissions from his PIF impugned his credibility (Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.)).
16. The Applicant submits that, if the Board believed only part of his evidence, it was obliged to state how much was accepted and how much was rejected (Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 150 (F.C.A.)).
17. The Applicant submits that he provided evidence that he feared members of a Russian organized crime group who issued death threats against him. He observes that the Board in its reasons noted that the PIF did not mention the written threats and found that the Applicant "produced these items in an attempt to embellish his claim."
18. The Applicant argues that the Board erred in failing to give the Applicant an opportunity to explain why the written threats were omitted from his PIF narrative (Gracielome v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 237 (F.C.A.)).
19. The Applicant submits that the Board did not distinguish between cases in which a claimant has omitted significant details from the initial statement and those cases where, in oral testimony, he or she merely adds further details to the written statement. The Applicant suggests that, in the case of the latter, no adverse inference should be drawn (Ahangaran v. Canada (Minister of Citizenship and Immigration) (1999), 168 F.T.R. 315 (T.D.)).
20. The Applicant testified that the hand-written notes were sent to him by his neighbour, a former police officer, in August, 2002. The Board found it implausible that "a neighbour would hold on to scraps of paper for more than one year and then mail them to the claimant shortly before his hearing."
21. The Applicant submits that decisions based on findings of implausibility are vulnerable on review. This Court has indicated that it will not extend undue deference to a board's assessment of plausibility because such assessments involve the drawing of inferences and are subject to challenge, especially when they are based on extrinsic criteria such as "rationality" or "common sense" (Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.)).
22. The Applicant further notes that the Board, in its reasons, went on to make other implausibility findings:
... the claimant testified in a forthright manner. His viva voce testimony did not exhibit any obvious contradictions or inconsistencies with his PIF narrative.
...
I have an issue with the plausibility of the central premise of the claimant's story. I find it implausible that the claimant's refusal to become involved in the illegal business activities of casual acquaintances would result in such a brutal response including threats of torture and death to the claimant and his family members.
...
If these alleged Russian mobsters were as ruthless as the claimant contends and threatened him incessantly and viciously, I would question why they did not carry out any threats in the three-month period until the claimant left Hungary.
...
23. The Applicant submits that the Board erred in that it failed to give the Applicant an opportunity to address the Board's inferences with respect to central aspects of his claim. The Applicant notes that, if there is an area that is central to the claim and the Board finds the evidence implausible, there is an obligation to put that concern to the claimant and provide an opportunity to explain why the evidence is plausible (Nkrumah v. Canada (Minister of Employment and Immigration) (1993), 20 Imm. L.R. (2d) 246 (F.C.T.D.))
24. The Respondent concedes that the Board erred in drawing a negative inference as a result of overlooking the addendum. The question is, then, whether this error is material and central to the Decision. See Owusu v. Canada (Employment and Immigration Commission), [1988] F.C.J. No. 434 (C.A.); Damen v. Minister of Citizenship and Immigration, [2003] F.C.J. No. 1165 (T.D.) and Miranda v. Minister of Citizenship and Immigration, [1993] F.C.J. No. 437 (T.D.).
25. The first ground for denying the claim was that the Board found the Applicant was not credible. This adverse credibility finding was based upon the following:
1. the alleged omission from the Applicant's PIF of the evidence of being tracked down to his family home that was provided in the addendum;
2. the implausibility finding in relation to the 3 hand-written notes that he left with his neighbour;
3. the implausibility finding related to the "central premise of the claimant's story." If the mobsters were as ruthless as the Applicant claimed, then why didn't they carry out their threats? This inference was bolstered by the Board's view that the Applicant just didn't have a profile that would make him "such a critical ongoing interest to the Russian mafia in Hungary."
26. It is very difficult to say from reading the Decision how significant the PIF error was for the overall negative credibility finding. Had the Board not found omissions in the PIF, would it have found the account of the hand-written notes and the central premise of the claim more plausible?
27. My conclusion on this is that the Board's real concern was with overall plausibility and not with omissions from the PIF. This is why it says "[e]ven more than the omissions from his PIF, I have issue with the plausibility of the central premise of the claimant's story." In my view, then, the erroneous omissions finding does not vitiate the whole credibility finding. The credibility finding must stand or fall on the way in which the Board handled plausibility.
28. To begin with, I find the Board's findings on plausibility and credibility, and the basis for those findings, are clear. Saying that the "claimant testified in a forthright manner" and that his "viva voce testimony did not exhibit any obvious contradictions or inconsistencies with the PIF narrative" does not contradict the finding. It merely means that the Applicant's narrative was consistent but, in the end, not believable. Also, I do not believe on these facts that there was any obligation on the Board to put its plausibility concerns to the Applicant. See Ayodell v. Minister of Citizenship and Immigration, [1997] F.C.J. No. 1833 (T.D.); Singh v. Minister of Citizenship and Immigration, [2002] F.C.J. No. 1724 (T.D.).
29. The real issue, in my opinion, is how much deference should be afforded to the implausibility findings. The Applicant is correct to point out that such findings are not entitled to undue deference. However, after reviewing the record, the Court cannot say that the Board's concerns in this regard were unreasonable or that the Court should intervene in the Decision on this ground.
30. In Aguebor, supra, the Federal Court of Appeal indicated that the Board was a specialized tribunal that had jurisdiction to draw inferences and to gauge credibility. Therefore, this Court will not intervene unless the Board's inferences are so unreasonable as to warrant intervention:
3. It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
Did the Board err in its preference for documentary evidence over the Applicant's credible testimony?
31. The Applicant submits that the Board had documentary evidence that clearly corroborated his allegations that the Russian mafia are connected to the Hungarian police and that the Hungarian state is ineffective in providing protection for victims of organized crime. The Applicant cites a number of reports indicating high levels of police corruption in Hungary.
32. The Applicant says that, in its reasons, the Board made absolutely no adverse finding of credibility with respect to the Applicant's testimony that the police and the Russian mafia were connected and yet the Board preferred selected documentary evidence over the Applicant's sworn testimony.
33. The Applicant says that the Board erred because it failed to make an adverse finding of credibility on this issue and preferred documentary evidence over selected pieces of the Applicants' sworn statements. Gibson J. held in Munkoh v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 863 (T.D.) as follows:
19. Without a clear finding of want of credibility with respect to the applicant's sworn testimony, supported by an appropriate analysis, I find no justification for the preference of documentary evidence over that of the applicant ...
34. The Applicant further submits that, because his testimony on this issue was uncontradicted and credible, it did not need corroboration by other evidence (Ovakimoglu v. Canada (Minister of Employment and Immigration) (1983), 52 N.R. 67 (F.C.A.)).
35. The Applicant points out that, if there was a conflict between the documentary evidence and the evidence of the Applicant as to country conditions, the Board should have provided good grounds for rejecting his sworn testimony and it erred in law because it failed to do so (Okeyere-Akosah v. Canada (Minister of Employment and Immigration) (1992), 157 N.R. 387 (F.C.A.))
36. The Applicant also argues that he provided evidence that he feared returning to Hungary because the same men would find and kill him. The Applicant submits that Cullen J. in Parada v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 353 (T.D.) held that, if a claimant testifies that he or she fears for their lives, and there is evidence to reasonably support those fears, it is improper for the Board to reject that testimony out of hand without making a negative finding of credibility.
37. In my opinion, the Applicant is raising similar objections on this issue to those that were raised in Pehtereva v. Minister of Citizenship and Immigration, [1995] F.C.J. No. 1491 (T.D.) and that were dealt with by MacKay J. in the following manner:
13. Finally, the tribunal's decision does not set out in precise terms why it preferred certain documentary evidence and not other evidence, but that does not constitute error. Here, the applicant's concern is primarily that the documentary and other evidence offered by the RHO was relied upon without specifying why evidence of the applicant was not. But that preference of the tribunal, related to evidence of the general circumstances within Estonia, of which the applicant's experience was but an example. The general circumstances based on documentary evidence from recognized sources provided the basis for objectively assessing the applicant's expressed fear. In my opinion, the tribunal did not err by ignoring evidence offered by the applicant, or by failing to specify reasons for preferring other sources of evidence, particularly in seeking an objective overview of circumstances within Estonia. Nor am I persuaded that the tribunal misunderstood or misstated the evidence of the applicant in any way significant for its ultimate finding that the applicant is not a Convention refugee, because it found no serious possibility or reasonable chance she would be persecuted for any reason set out in the definition of Convention refugee should she return to Estonia.
38. In essence, the Applicant is asking the Court to reweigh the evidence before the Board and reach a different conclusion. However, the following words of Blanchard J. in Khan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 520 (T.D.) provide concise and elegant reasons why this Court should decline to engage in such an exercise:
18. The jurisprudence of this Court has clearly established that it is within the specialized jurisdiction of the CRDD to decide how much weight to assign to the evidence. It is also well established that the CRDD is entitled to rely on documentary evidence in preference to the testimony provided by a claimant. Furthermore, the tribunal is also entitled to give more weight to the documentary evidence, even if it finds the applicant to be trustworthy and credible. [Zhou v. Canada (M.E.I.), [1994] F.C.J. No. 1087 (F.C.A.) Online: QL].
Did the Board err in its conclusion that adequate state protection was available to the Applicant?
39. The Applicant claims that he provided evidence that he did not turn to the police or other agencies for protection because he had knowledge about the connections between the police and the Russian mafia. He provided evidence that he was concerned for his family and did not want to take any risk. He notes that if he had gone to the police the mafia would have found out and would have killed him and his family members.
40. The Applicant notes that the Board found that "the claimant is obliged to approach his home state for protection before seeking the protection of other states." The Applicant submits that the Board erred in law in that it incorrectly applied the test in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. While the Supreme Court of Canada has held that there is a presumption that state protection exists, that presumption is a rebuttable one. The presumption can be rebutted with clear and convincing confirmation of the state's inability to protect.
41. The Applicant concedes that he did not approach the police for protection. However, he argues that this is not detrimental to his claim. The Applicant, knowing that the police were intertwined with the mafia, realised that protection was not available to him. A claimant is only required to approach his or her state for protection in situations in which state protection might reasonably be forthcoming. The Applicant submits that given his experiences, the experiences of those similarly situated, and the documentary evidence, such protection would not have been reasonably forthcoming in his case.
42. The Applicant also submits that the Board found that he would be afforded adequate state protection in Hungary. But the Board failed to analyse the effectiveness of the protection being offered. The Applicant notes the following relevant words of Tremblay-Lamer J. in Bobrik v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 13 (T.D.) at 16:
Thus, even when the state is willing to protect its citizens, a claimant will meet the criteria for refugee status, if the protection being offered is ineffective.
43. The Applicant notes that Gibson J. in Vodopianov v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 964 (T.D.) overturned the decision of the board in that case because there was no analysis of the meaningfulness, effectiveness and durability of recent changes in a given country.
44. The Federal Court of Appeal held in Cuadra v. Canada (Solicitor General), [1993] F.C.J. No. 736 that "change must be meaningful and effective enough to render the genuine fear of the appellant unreasonable and hence without foundation."
45. In answer to these assertions, the Respondent submits that the Board made no such errors. The Respondent notes that the Supreme Court of Canada formulated the following test regarding the onus on refugee claimants to approach their respective states for protection in Ward, supra, at 724:
49. Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
46. The Respondent submits that, in addition, the Supreme Court held that refugee claimants must provide "clear and convincing" confirmation of a state's inability to protect them in order to rebut the presumption that states are capable of protecting their citizens. Rothstein J. of the Federal Court of Appeal, sitting as an ex officio member of the Trial Division, has held that it is not erroneous to conclude that "clear and convincing" confirmation requires a higher standard of proof than the bottom end of the broad category of a "balance of probabilities." Specifically, he stated the following in Xue v. Canada (Minister of Employment of Immigration), [2000] F.C.J. No. 1728 (T.D.):
12. Having regard to the approach expressed by Dickson C.J.C. in Oakes, i.e. that in some circumstances a higher degree of probability is required, and the requirement in Ward that evidence of a state's inability to protect must be clear and convincing, I do not think that it can be said that the Board erred in its appreciation of the standard of proof in this case. If the Board approached the matter by requiring that it be convinced beyond any doubt (absolutely), or even beyond any reasonable doubt (the criminal standard), it would have erred. However, the Board's words must be read in the context of the passage in Ward to which it was referring. Although, of course, the Board does not make reference to Oakes or Baker, and while it would have been more precise for the Board to say that it must be convinced within the preponderance of probability category, it seems clear that what the Board was doing was imposing on the applicant, for purposes of rebutting the presumption of state protection, the burden of a higher degree of probability commensurate with the clear and convincing requirement of Ward. In doing so, I cannot say that the Board erred.
47. The Respondent notes that, in the case at bar, the Board found that the Applicant failed to rebut the presumption that state protection would be available to him in Hungary. The Respondent submits that this finding is not patently unreasonable on the evidence before the Board. The Applicant's arguments amount, once again, to asking this court to re-weigh the evidence, which is not a basis for judicial intervention.
48. After reviewing the Decision and the record, I have to come to the same conclusion as did MacKay J. in Pehtereva, supra, that "I am not persuaded that the tribunal erred in its conclusion that the applicant did not establish a basis for a reasonable conclusion that the state was unable or unwilling to provide protection."
ORDER
THIS COURT ORDERS that
1. This Application for judicial review is dismissed.
2. There are no questions for certification.
"James Russell"
JFC
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-767-03
STYLE OF CAUSE: DOKA, LASZLO v. MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: February 4, 2004
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER: The Honourable Justice Russell
DATED: March 25, 2004
APPEARANCES BY: Ms. Elizabeth Jaszi
For the Applicant
Mr. Greg George
...................................
...................................
For the Respondent
SOLICITORS OF RECORD: Ms. Elizabeth Jaszi
Mississauga, Ont.
For the Applicant
Mr. Greg George
Department of Justice Ontario Regional Office.
130 King St. W. Suite 3400, Box 36 Toronto,Ont.
M5X-1K6
For the Respondent