Docket: IMM-1546-05
Toronto, Ontario, this 7th day of December, 2005
PRESENT: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
ELEMER SIKET, ANIKO SIKETNE CSORBA,
SARA REBEKA SIKET and BENJAMIN MATYAS SIKET
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Elemer Siket (the "Applicant") is 29 years old. Aniko Siketne Csorba (the "Applicant's Spouse") is 27 years old. They and their two children (collectively, the "Applicants") are citizens of Hungary. The children's claims before the Refugee Protection Division of the Immigration and Refugee Board (the "RPD") were based on their parents' independent but inter-related claims.
[2] The Applicants left Hungary and arrived in Canada in August 2001. The Applicant alleged persecution at the hands of skinheads, his brother-in-law and his brother-in-law's friends on the ground that he is a Gypsy. The Applicant's Spouse alleged persecution at the hands of her brother and step-father on the same basis.
[3] The RPD denied the claims, finding the Applicants not credible. The Applicants are disputing that decision, alleging that:
a) the RPD make several faulty credibility findings; and that
b) the RPD failed to take into account the Gender Guidelines when assessing the credibility of the Applicant's Spouse.
[4] It is not disputed that the standard of review regarding findings of credibility is patent unreasonableness. (See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.).)
[5] The Applicant proffered interpretations of the testimony regarding the number of threatening phone calls he allegedly received and the alleged phone call to the hospital in Hungary that were different from the findings made by the RPD. However, I am not satisfied that the RPD's findings were untenable, let alone patently unreasonable.
[6] The key findings in the RPD's decision underpinning its finding of a lack of credibility were:
a) the discrepancy between the Port of Entry notes ("POE") and the Personal Information Form ("PIF") regarding the date of the assault that allegedly caused the Applicant to lose a kidney;
b) the lack of medical evidence from Hungary concerning the removal of the Applicant's kidney;
c) the failure of the Applicant and the Applicant's Spouse to mention (in either the POE or PIF) that the Applicant's brother-in-law, the principal cause of their fear, was in jail for over two years, and thus during such time they had no reason to fear him; and
d) the fact that the Applicant's Spouse testified that she would feel secure in another city in Hungary.
[7] None of these findings have been successfully challenged by the Applicants and thus the decision cannot be considered patently unreasonable.
[8] As far as the Gender Guidelines are concerned, it is true that the RPD did not refer to them in its decision, and the Respondent conceded this point. However, it is well established that the Gender Guidelines are not binding but, rather, are an aid for the RPD in the assessment of the evidence of women who allege that they have been victims of gender-based persecution. (See Newton v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 294 (F.C.) at para. 17.)
[9] Moreover, failure to consider the Gender Guidelines does not in itself give rise to a reversible error where there is a sufficient basis for the tribunal's conclusion. (See Sy v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 462 (F.C.) at para 18.)
[10] As stated above, the RPD here advanced sufficient reasons for its finding of a lack of credibility. Thus, its failure to consider the Gender Guidelines is not fatal to its decision.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1546-05
STYLE OF CAUSE: ELEMER SIKET, ANIKO SIKETNE CSORBA,
SARA REBEKA SIKET and BENJAMIN MATYAS SIKET
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 6, 2005
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: DECEMBER 7, 2005
APPEARANCES BY:
Peter Ivanyi FOR THE APPLICANTS
Sharon Stewart-Guthrie FOR THE RESPONDENT
SOLICITORS OF RECORD:
Rochon Genova
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT