Date: 20040401
Docket: IMM-5049-03
Citation: 2004 FC 492
Toronto, Ontario, April 1st, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
EDIT FELICIA VALOCZKI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Edit Valoczki is a 30 year old citizen of Hungary. Eight months after arriving in Canada, Ms. Valoczki applied for refugee protection. She claims that she fears returning to Hungary because her former common-law husband had repeatedly assaulted her after he discovered that she had entered into a relationship with another woman. The Refugee Protection Division of the Immigration and Refugee Boardrejected Ms. Valoczki's claim, finding that she did not have a well-founded fear of persecution on the basis of a Convention ground, nor was she a person in need of protection. She now seeks to have that decision set aside, asserting that the Board's findings on the issues of state protection and credibility were patently unreasonable.
Background
[2] After an abusive four year common-law relationship, Ms. Valoczki separated from her husband in 1993. She says that her difficulties with her ex-husband started in 1995, after she became involved in a same-sex relationship. According to Ms. Valoczki, her ex-husband attacked her and her female partner on August 21, 1998. Her ex-husband was drunk and threatened to kill Ms. Valoczki because she had 'turned into a lesbian'. On several occasions, friends of her ex-husband threatened to rape Ms. Valoczki and her new partner. These individuals also killed Ms. Valoczki's cat.
[3] Ms. Valoczki claims that on September 10, 1999, her ex-husband attempted to rape her, while she was on her way home from work. That same day, her new partner was beaten by her ex-husband's friends. She says that this type of conduct continued through the year 2000.
[4] Ms. Valoczki left Hungary, arriving in Canada on March 14, 2001. She made her claim for refugee protection on November 27, 2001. Ms. Valoczki asserts that she is fearful as a result of the actions of her ex-husband, which, she says, were motivated by the fact that she is a lesbian.
The Board's Decision
[5] Noting that Ms. Valoczki had never reported any of her ex-husband's actions to the police, the Board found that state protection would have been available to Ms. Valoczki in Hungary. The Board found that the Hungarian government has made serious efforts to offer protection to gays and lesbians, and that it continues to try to improve the level of protection available. Non-governmental organizations also provide support to gays and lesbians.
[6] Referring to the decision of the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130, the Board found that while those efforts may not always have been successful, the degree of state protection afforded to gays and lesbians in Hungary was nevertheless adequate.
[7] The Board also examined the issue of state protection as it related to abused women, again finding that adequate protection was available to Ms. Valoczki in her home country. As a result, the Board concluded that it was not necessary to offer surrogate protection to Ms. Valoczki in Canada.
[8] The Board concluded that Ms. Valoczki was not a lesbian. Further, noting that Ms. Valoczki was no longer involved in a same-sex relationship, the Board held that she would no longer be at risk from her ex-husband if she were to return to Hungary.
[9] The Board considered the timing of Ms. Valoczki's departure from Hungary. It observed that the last violent incident involving her ex-husband specifically referred to in Ms. Valoczki's Personal Information Form was alleged to have occurred on September 10, 1999. Ms. Valoczki only left the country in March of 2001. When she was asked about the delay at the hearing, Ms. Valoczki testified that she had been subjected to an extremely violent attack by her ex-husband just four days before she left Hungary, and that this attack was the triggering event leading to her departure. Given the importance of this event, and the fact that no mention was made of it in Ms. Valoczki's PIF, the Board concluded that "... the last minute addition of this alleged attack is an embellishment aimed at bridging a very significant gap in violent incidents ...".
[10] The Board also rejected as improbable Ms. Valoczki's explanation for the eight month delay in filing her refugee claim, after she arrived in Canada.
[11] As a result, the Board concluded that Ms. Valoczki was neither a Convention refugee, nor a person in need of protection, and thus rejected her claim.
Issue
[12] Were the Board's findings on the issue of state protection and credibility patently unreasonable?
Analysis
[13] Dealing first with the issue of state protection, I am satisfied that the Board's conclusion that adequate state protection was available in Hungary to abused women and to gays and lesbians should not be disturbed.
[14] There is no obligation on the Board to mention every document entered into evidence, and the failure of the Board to mention a particular document does not mean that it did not take the document into account: See Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102 and Hassan v. Canada (Minister of Employment and Immigration), 1992, 147 N.R. 317.
[15] In this case, the Board noted that there was some evidence before it to suggest that Hungary was not always successful in its efforts to protect abused women, gays and lesbians, but found that the preponderance of documentary evidence established that adequate state protection was indeed available. It is not the role of this Court to re-weigh the evidence that was before the Board on the issue of the availability of state protection. I see no basis for interfering with the Board's finding that there was no objective basis for Ms. Valoczki's alleged subjective fear of persecution.
[16] Insofar as the Board's credibility findings are concerned, 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 paragraph 40, and Aguebor v. Canada (Minster of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[17] In this case, Ms. Valoczki's testimony regarding her sexual orientation was inconsistent and confusing, to say the least. Having reviewed the transcript, I am satisfied that while the Board's finding that Ms. Valoczki was not a lesbian was probably technically correct, the Board did not consider the very real possibility that Ms. Valoczki was bisexual. However, given the Board's findings on the issue of state protection, I am satisfied that this error did not have any impact on the ultimate outcome of the case.
[18] I am further satisfied that the Board's finding that Ms. Valoczki's alleged fear of her ex-husband was undermined by her delay in leaving Hungary, and in pursuing her refugee claim once she was in Canada, was reasonable, and ought not be disturbed. I am similarly satisfied that the Board's rejection of Ms. Valoczki's testimony regarding the alleged assault in March 9, 2001 was entirely reasonable.
[19] For these reasons, I have concluded that Ms. Valoczki has not demonstrated that the Board committed a reviewable error. Accordingly, this application is dismissed.
Certification
[20] 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-5049-03
STYLE OF CAUSE: EDIT FELICIA VALOCZKI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 31 , 2004
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: APRIL 1, 2004
APPEARANCES:
Mr. Peter G. Ivanyi
FOR THE APPLICANT
Mr. Marcel Larouche
FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROCHON GENOVA
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
DEPUTY ATTORNEY GENERAL OF CANADA
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040401
Docket: IMM-5059-03
BETWEEN:
EDIT FELICIA VALOCZKI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER