Date: 20020612
Docket: IMM-3915-00
Neutral citation: 2002 FCT 661
BETWEEN:
ANDRAS ERNO BOROS, ANDRASNE BOROS,
KRISZTIAN BALOGH, DOLORESZ BOROS,
ANDRAS BOROS, LIVIA BOROS and PETERNE ROZSA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants, a family unit, are Roma from Hungary. They challenge a negative decision of the Refugee Division of the Immigration and Refugee Board (the "tribunal") dated June 22, 2000, holding they are not Convention refugees. Andras Erno Boros is the father and Andrasne Boros, the mother. Livia and Andras Boros are their two children. Krisztian Balogh and Doloresz Boros, ages eight and six, are Livia Boros' children and Peterne Rozsa is Andrasne Boros' mother. They came to Canada on January 25, 1999. Peterne Rozsa followed three months later.
THE TRIBUNAL'S DECISION
[2] The tribunal, in its reasons, identified the following attacks alleged by the applicants to have been perpetrated on them by skinheads in Hungary and in one instance by the police:
(1) In December 1995, Andras Boros (son) was attacked by skinheads and, as a result, he lost three of his teeth and had to have his right knee operated on; this incident was reported to the police who did nothing;
(2) In August 1996, Livia Boros was attacked by skinheads who beat and raped her; a report to the police came to nothing;
(3) In May 1997, some young boys tried to grab the minor claimants and push them in front of a moving car;
(4) The father was assaulted in March 1998 by skinheads after shopping at the market; the police did nothing to assist;
(5) In April 1998, at 2:00 a.m., their apartment was raided by a police commando assault team. The father and mother were beaten and a pistol was pointed at the father's head. The attack was filmed on videotape by a police crew which sold the video to a national T.V. station who aired it the next day. The incident was described by Mr. Boros as a staged blunder, an example amongst several aired on a daily basis in Hungary.
(6) Peterne Rozsa claims she was taunted and pursued by three or four young men in the summer of 1997. The tribunal quoted the following extract from her PIF:
The incidents which occurred to my daughter and me destroyed my psychology. My daughter, Ella, came to Canada in January but unfortunately, I was very ill at that time and could not come with her. My daughter, Ella is the one who is closest to me. She is the one who has been looking after me. I have no family left in Hungary and therefore I especially fear for my safety. The police cannot protect me. They do not care about an old Gypsy woman like me.
[3] The tribunal's overall conclusion reads at page 3:
After carefully reviewing all of the evidence presented, the panel concludes that the claimants did not present credible or trustworthy evidence in support of their claims to Convention refugee status. Further, despite counsel's written submissions to the contrary, the panel finds that the claimants do have adequate and effective state protection should they return to Hungary today. [emphasis mine]
[4] In support of their finding, the applicants did not present credible or trustworthy evidence in support of their claims, the tribunal found:
(1) An implausibility that they were assaulted by the police in April 1998 from the fact the applicants were unable to obtain a copy of the video assault broadcasted nationally, in prime time, on Hungarian T.V.;
(2 ) Inconsistent testimony between husband and wife as to whether they had sought assistance of the Gypsy self-government when in Hungary after the video assault;
(3) The lack of probative value in a psychotherapist's report on the psychological problems Livia Boros suffered as a result of the sexual assault because the psychotherapist was neither a medical doctor nor a psychiatrist and because of problems in interpretation associated with the report. The psychotherapist stated Livia Boros had told her, because her skin was lighter, she was not recognized as a Roma. This statement Livia Boros denied as incorrect attributing it to the interpreter;
(4) The father and mother left Hungary and went to Poland in 1995 on a shopping spree. This, according to the tribunal, showed a lack of subjective fear in that it constituted a re-availement; and
(5) The father's lack of familiarity with the Ombudsman's Office in Hungary and with the Legal Defence Bureau. This, according to the tribunal, was an indication the claimants were not experiencing the difficulties they claimed they were facing.
THE ISSUES
[5] The applicants attack the tribunal's decision in two fundamental ways.
[6] First, they argue the tribunal's findings on lack of credible evidence to support their claim were made in a perverse or capricious manner because they were reached without regard to the evidence.
[7] Second, the applicants say the claims of the grandmother and minor children were ignored.
ANALYSIS
(1) The credibility findings
[8] Findings of lack of credible evidence by the tribunal are findings of fact which can only be set aside under section 18.1(4)(d) of the Federal Court Act if the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it, a standard of review which equates to the standard of patent unreasonableness. (See, Canadian Pasta Manufacturers' Association v. Aurora Importing and Distributing Ltd. (1997), 208 N.R. 329 (F.C.A.).
[9] In Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, Justice Cory concluded:
[45] When a court is reviewing a tribunal's findings of fact or the inferences made on the basis of the evidence, it can only intervene "where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact". [emphasis mine]
[10] When a reviewing court is obliged to examine the record to determine the basis for the challenged findings of fact, the court will review the record to determine if there was any evidence which could reasonably support a particular factual finding. However, as Justice Cory stated in Toronto Board of Education, supra, at page 509, the reviewing court should not weigh the evidence as if the matter were before it for the first time and it must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal's findings.
[11] With this approach in mind, and after reviewing the record, I conclude counsel for the applicants has not been able to show the tribunal's credibility findings should be set aside.
[12] First, counsel for the applicants attacked the tribunal's finding of no credible evidence concerning Livia Boros' sexual assault by skinheads. He said the treatment by the tribunal of the medical report produced by the Canadian psychotherapist was perverse as there was no basis for finding she was neither a medical doctor nor a psychiatrist and ignored evidence in the content of the report. He further argued this finding ignored the medical evidence in Hungary.
[13] I am not persuaded by any of these arguments. Clearly, the psycho-therapist is neither a doctor, nor a psychiatrist nor a licensed psychologist. In addition, her counsel before the tribunal argued the report should be given the appropriate weight insofar as it relates to Livia Boros' current state of mind. Her counsel at the time acknowledged the interview was conducted through an interpreter and Livia Boros stated on the record there may have been inaccuracies concerning the quality of interpretation. A review of the medical report received from Central Military Hospital of Hungary shows Livia Boros suffered two nervous breakdowns in 1996 but does not address the cause of it. Accordingly, it is my view the tribunal had evidence before it the applicants had not put forward sufficient credible evidence to establish Livia Boros was sexually assaulted by skinheads.
[14] I note Livia Boros, in answer to a clarification question by a tribunal member, did state her parents were subjected to more humiliation and assault because of the colour of their skin (certified record, page 487), and that an additional promised medical report from Hungary on her condition was not produced.
[15] Second, counsel for the applicants stated the tribunal ignored the medical evidence concerning the son Andras Boros.
[16] While counsel for the applicants is correct in stating the tribunal did not specifically refer to that evidence, the failure to mention it does not, in the circumstances of this case, equate to an erroneous finding of fact made without regard to the evidence. I agree with counsel for the respondent these medical reports were not so cogent that the lack of specific reference to them warrants an inference the evidence was ignored. A review of those reports does not establish the knee surgery Andras Boros needed was as a result of racially motivated attacks by skinheads.
[17] Third, counsel for the applicants attacks the tribunal's finding the father was not assaulted by the police during the staged blunder because he could not obtain a copy of the videotape. He argues the tribunal ignored the evidence that Mr. Boros and his brother-in-law were threatened when, on two separate occasions, they tried to obtain a copy of the videotape. In my view, counsel for the applicants reads the tribunal's decision microscopically. Fundamentally, as I see it, the tribunal disbelieved the applicants' testimony on this point, that is, they would not be able to obtain a copy of a videotape which had been broadcasted nationally. In doing so, it necessarily rejected that aspect of the testimony concerning a threat by the police who were instrumental in having the assault broadcasted in the first place.
[18] Fourth, the transcript of the testimony of Andras Erno Boros contrasted to his wife's testimony supports the tribunal's finding of inconsistent testimony on the point whether they had sought assistance of the Gypsy self-government when in Hungary.
[19] Finally, Mr. Boros testified lack of familiarity with the Ombudsman's Office and that of the Legal Defence Bureau in Hungary and, in the circumstances, the tribunal could draw the inference it did.
[20] As I see it, the major conclusion reached by the tribunal is the applicants had not made out their claim because the evidence advanced by them on central points was not sufficiently credible to substantiate those claims. In my view, there is no basis for this Court's intervention because there was evidence before the tribunal which, when reasonably viewed, is capable of supporting those credibility findings.
(2) Ignoring the grandmother and minor claimants' claims
[21] Counsel for the applicants argues the minor children and the grandmother had their own instances of persecution which the tribunal totally ignored and failed to deal with. He relies on the Federal Court of Appeal's decision in Retnem v. M.E.I. (1991), 13 Imm.L.R. (2d) 317 and Justice Tremblay-Lamer's decision in Seevaratnam et al. v. Canada, (docket IMM-3728-98, November 5, 1999).
[22] In Retnem, supra, the Federal Court of Appeal stated:
In my view the Board was also in clear error in its treatment of the appellant wife's claim. Although it may often be appropriate to treat husband and wife claims identically, in this case the claimants married only in 1989. Although the appellant husband had apparently lived with his wife-to-be's family for some of the other years in question they were not always together (e.g., when she spent some time in India with her family). There were some distinctive elements in the wife's case, and so the Board could not simply decide her case "for the same reasons" as her husband's. [emphasis mine]
[23] In Seevaratnam, supra, the Board rejected a minor's claim based on the failure of the principal applicant's claim. It gave no additional reasons. It failed to expressly state why it rejected the claim of the minor applicants.
[24] In my view, Retnum and Seevaratnam, supra, are different than the case put forth by the applicants here and, in particular, they are different in the following respects:
(1) The tribunal, after listing each of the claimants' PIFs, stated that each one of them relied on the narrative put forward by Andrasne Boros save the PIFs of Andras Boros and Rozsa Peterne whose content was different.
(2) The tribunal, in its reasons, specifically set out Rozsa Peterne's fear.
(3) Only the father, mother and Livia Boros testified.
(4) The tribunal clearly expressed, at several times, its finding that all of the claimants had failed to present credible evidence in support of their claims.
(5) An examination of Livia Boros' testimony concerning her fear for her children shows their claim was dependent on the overall story put forward and testified to by her and their grandparents.
[25] As for Rozsa Peterne, her PIF, recited by the tribunal and her own mother's testimony about what her mother fears, is sufficient for me to conclude the tribunal had an evidentiary basis for rejecting the grandmother's claim and did so because there was no credible evidence establishing that claim.
[26] For all of these reasons, the applicants' application for judicial review is dismissed. In the circumstances, I need not deal with the scope of State protection raised by counsel for the applicant. No certified question was put forth.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 12, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3915-00
STYLE OF CAUSE: Andras Erno Boros, Andrasne Boros, Krisztian Balogh, Dolorez Boros, Andras Boros, Livia Boros and Peterne
Rozsa
- and_-
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 23, 2002
REASONS FOR ORDER : the Honourable Mr. Justice Lemieux
DATED: June 12, 2002
APPEARANCES:
Mr. Rocco Galati FOR APPLICANT
Mr. Kevin Lunney FOR RESPONDENT
SOLICITORS OF RECORD:
Galati Rodrigues & Associates FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada