THE MINISTER OF CITIZENSHIP v. IMMIGRATION, 2003 FCT 388

Date: 20030401 Docket: IMM-5014-01 Neutral citation: 2003 FCT 388 BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Applicant - and - OTTO SZORADI Respondent REASONS FOR ORDER MacKAY J. [ 1 ] This is a judicial review, under s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 , as amended, of a decision dated October 11, 2001, by a Convention Refugee Determination Division panel granting the application of Otto Szoradi for Convention refugee status in Canada.

The applicant Minister seeks an Order quashing the decision of the panel and remitting the matter for reconsideration by a differently constituted panel. [ 2 ] The respondent, a Hungarian citizen, 49-years old at the time of his application, claims refugee status on the basis of persecution by reason of race and nationality (Hungarian Roma). He has an 8 th grade education.

There was evidence before the panel from a psychiatrist, with a preliminary diagnosis that the respondent suffers from a psychiatric disorder which manifests itself in difficulty recalling and reporting information reliably, in inconsistencies in memory and in some hallucinations.

The respondent's mental state was a factor considered by the panel in its assessment, but the panel determined that he was competent to conduct his own hearing and therefore they did not appoint a representative for him. [ 3 ] The respondent left Hungary on October 14, 1999, with a valid Hungarian passport and arrived in Canada that same day. He made a Convention refugee claim on January 13, 2000. He came to Canada with his brother, Jeno, and the latter's family. Jeno, his wife, children and grandchildren all applied for Convention refugee status at the same time as the respondent.

All of the brother's family were granted status on the ground that they faced persecution if returned to Hungary because of the pervasive and frequently violent discrimination against Roma in that country. On October 16, 2001, the panel also found the respondent, Otto Szoradi, to be a Convention refugee. [ 4 ] Otto Szoradi claimed there were three violent attacks upon him as the basis of his claim. Twice in 1996, he says he was attacked in bars by skinheads who shouted racial epithets and beat him, once with brass knuckles and once with baseball bats.

In his Personal Information Form ("PIF"), the respondent states that, after the second beating, he went to the police who ignored his complaint. According to the PIF, one of the officers said, "There are too many of you Gypsies, it wouldn't do any harm to thin out your number, like in Hitler's time." The third event was in 1999, when, he states, skinheads surrounded his house, breaking glass and shouting racial denigrations.

They set the house on fire, and he only barely escaped. [ 5 ] The applicant submits that the panel based its decision on an erroneous finding, in both law and fact, particularly with reference to the respondent's criminal record while in Hungary, his medical condition, the general credibility and reliability of his testimony, and his failure to seek state protection. I address each of these issues in turn. The Respondent's Criminal Record [ 6 ] In his original PIF, the respondent did not indicate that he had a criminal record and his work history showed no gaps for any time that he spent in prison.

However, on April 4, 2001, he amended his PIF, indicating he had been convicted of robbery and served six years, 1990-1996, and he was convicted of theft in 1998, when he served three months in prison and was fined. [ 7 ] The respondent stated in his oral testimony that he was innocent, and wrongly convicted on the charges which led to his six- year sentence. He was in Germany when the charges were laid, and he returned to Hungary in order to clear his name, against his brother's recommendation.

The respondent's brother, who attended the trial, was not allowed to give testimony and was evicted from the courtroom for protesting the respondent's innocence. The respondent stated, to the psychiatrist who examined him in Toronto, that the reason he was imprisoned for six years was that he got into a fight when someone called him a "gypsy". [ 8 ] Mr. Szoradi told the panel that the reason he did not disclose his criminal record in his original PIF was that he was afraid that he would be sent back to Hungary if it were known.

Nonetheless, his counsel brought the information to the panel and, through them, to the Minister's attention. The panel determined that while it did not condone failure to mention such a significant detail, the

failure to disclose: in the context of this claimant's past experience, speaks to his subjective fear of going back to Hungary. The panel finds that on a balance of probabilities, he had not had enough experience with the Canadian authorities at the time he completed his PIF to trust that his honesty could lead to anything but that which he fears most - being sent back to Hungary....

The fact that a claimant has not been truthful about some of his evidence does not necessarily result in the rejection of all of his evidence as untruthful; the panel is entitled to believe some of the testimony without believing all of it. The panel does not draw a negative inference about the claimant's general credibility from his initial misrepresentation of his contact with the criminal justice system in Hungary. [ 9 ] In the hearing before the panel the respondent was not able to give any details concerning his convictions.

He apparently indicated to his original counsel that he had been convicted of break-and-enter, murder and sexual assault. Jeno Szoradi, his brother, indicated in his own PIF that Otto had been wrongly convicted of interfering with a grave site, and possibly other charges, including theft of gold from a woman.

However, counsel for the Minister, who had intervened, provided evidence that the respondent had been convicted of aggravated theft in 1990 and robbery in 1998, and that he was wanted for rowdyism allegedly committed four days before he left Hungary. [ 10 ] In its decision, the panel considered the respondent's criminal record with reference to the definition of Convention refugee in s-s. 2(1) of the Immigration Act , which incorporates

Article 1F(

b) of the International Refugee Convention . The definition thus excludes individuals who have committed serious non-political crimes outside the country of refuge prior to admission as a refugee. The panel stated with respect to this issue: ...the panel received evidence on this issue of

Article 1F(

b) with respect to the claimant. In his submissions, post-hearing, the Minister's counsel indicated that the Minister would not pursue a finding under

Article 1F(

b) in light of the evidence presented and the case law. The panel agrees with this submission. The panel finds that on the evidence presented, the claimant is not excludable under

Article 1F(

b) as the panel does not have serious reasons for considering that he has committed a serious non-political crime for which he has not served his sentence outside the country of refuge prior to his admission as a refugee. [emphasis in original] [ 11 ] While it seems to me the panel's decision as it applied to

Article 1F(b), incorrectly states that provision, since this was not argued before the panel or before this Court, that is considered irrelevant to this judicial review. [ 12 ] The revelation of the respondent's criminal record required the panel to review the timing of the beatings alleged.

Its decision concluded that "while inconsistency in dates can often help to support a negative credibility assessment, the panel does not find this discrepancy helpful here." The panel concluded that if there were merely an error in dating the first beating, there was no negative inference to draw; and if the incident did not occur at all, the panel stated that they would likewise draw no negative inferences from a potentially false claim of the respondent.

For the sake of the analysis whether the respondent suffered persecution in Hungary, the panel assumed the first incident alleged by the respondent did not occur. [ 13 ] The applicant Minister urged the Court that the positive determination of refugee status is a result of the panel failing to attribute appropriate weight to the criminal record of the respondent; particularly, for failing to provide any reason for preferring his unreliable testimony to the Declaration, filed on behalf of the Minister, relaying information from Interpol Budapest by way of the RCMP.

This stated that the applicant had committed aggravated theft and robbery in 1990 for which he was sentenced in 1991 to six years in jail, and theft, in 1998, for which he was sentenced to two months in jail. [ 14 ] Drawing an analogy between a criminal conviction and other documents generated by a national government, the applicant refers to Ramalingam v. Canada (M.C.I.) , 1998 CanLII 7241 (FC) , [1998] F.C.J.

No. 10 (T.D.) (Q.L.) at para.5, wherein Dubé J. held that "...identity documents issued by a foreign government are presumed to be valid unless evidence is produced to prove otherwise...." The documents in that case were birth certificates issued by the state the validity of which the panel had unreasonably questioned. Here the panel, it is argued, looked behind the face of the declaration of conviction and sentence submitted by the Minister. [ 15 ] In Ramalingam , supra , Mr. Justice Dubé commented: [i]t must be held that

an act of state - a passport or a certificate of inquiry - is prima facie valid. The recognition of sovereignty of a foreign state over its citizens or nationals and that comity of nations make any other finding untenable. The maxim omnia praesumuntur rite et solemniter esse acta applies with particular force here, establishing a rebuttable presumption of validity.

By analogy, it seems it would be a reviewable error of law in this case for the panel to have found, without support of direct contradictory evidence, that the respondent's criminal record was in fact a miscarriage of justice, or that he had been wrongfully convicted. However, the panel did not draw this conclusion.

Rather, it considered his criminal record, indicated by the certificate, part of the ground for considering his status as a refugee. [ 16 ] In assessing the respondent's credibility, what weight should be assigned to the fact that he had a criminal record, one that he did not at first disclose to CIC as required? Reading the panel's decision, it is clear that this is the question the panel considered, a question clearly within its mandate, and one that should be reviewed by this Court with the considerable deference.

The panel states: Although [the respondent's claim that he was convicted because he fought with a man who called him a gypsy] is at odds with the document on this point, it does not undermine his evidence that he was in jail for 6 years; it just raises a question about his reliability as a witness in terms of the reason....

The panel does not find the claimant's explanation for his initial failure to disclose unreasonable in light of his brother's testimony that when [the respondent] tried to set the record straight in 1989 when he believed he was innocent, his honesty led to his going to jail for crimes he does not believe he committed. [ 17 ] The panel determined that the respondent did not disclose his record as he feared being returned to Hungary because of it. The panel clearly made a decision to not draw a negative inference from the initial misrepresentation of his contact with the criminal justice system in Hungary.

The panel did not indicate that it found the conviction itself to have been wrongful - the panel does not look beyond the face of the criminal record evidence submitted from Interpol Budapest via the RCMP - but merely makes a credibility determination from the fact that the respondent at first did not disclose it. This credibility assessment is properly characterized as a question of fact and it is trite law, which the applicant acknowledged, that the appropriate standard of review for a finding of fact by the panel is whether the finding is patently unreasonable.

The conclusion drawn by the panel in its credibility assessment was not patently unreasonable, based on the evidence before the panel in the form of the testimony of the respondent and his brother, and their apparent unfamiliarity with details of the convictions. The Respondent's Medical Condition [ 18 ] The applicant submits the panel erroneously ignored the respondent's medical condition in accepting his testimony as reliable. The applicant urges that the panel relied on contradictory and unreliable evidence, that being the testimony of the respondent, in finding him to be a Convention refugee.

The applicant argued that the respondent's difficulty, and his inability to provide reliable evidence, was supported by the medical report submitted by the respondent, and that it was an error of law for the panel to accept the testimony in spite of the reliability issue raised by the diagnosis. [ 19 ] However, the panel was required to consider the medical report as one of the factors in assessing the respondent's credibility. It is a question of discretion as to how much weight to give testimony that is potentially unreliable because of a medical condition.

The appropriate standard of review to adopt in examining the panel's decision in light of the medical condition is whether it was patently unreasonable to rely on any of his testimony. Again, based on the evidence provided to the panel, its decision was not patently unreasonable, i.e., that the respondent's testimony was reliable in some respects. [ 20 ] The panel in this case recognized that the mental illness the respondent suffers from affects his testimony, and this was taken into consideration when assessing the respondent's credibility and the reliability of his testimony.

As the respondent points out, the panel set out its reasons for accepting the respondent's testimony in light of the medical diagnosis: The panel does not find it implausible that someone suffering from a mental disorder such as that set out in Dr. Baruch's report would sometimes be rational and sometimes (within the same time frame) be irrational; there is nothing in Dr. Baruch's report to suggest that the claimant's mental illness results in the claimant never having touch with reality and never being able to carry on a rational conversation.

The General Credibility of the Respondent [ 21 ] The respondent was able to explain his fear of returning to Hungary to the satisfaction of the panel. Given the evidence, including the testimony of both the respondent and his brother, and the country condition information, it was not patently unreasonable for the panel to determine that the respondent had a well-founded fear of persecution if he were forced to return to Hungary. [ 22 ] The Minister also made general submissions concerning the propriety of reliance by the panel on the respondent's testimony, regardless of his medical condition.

The question of the credibility to ascribe to evidence of the respondent before the panel is wholly within the purview of the panel. The Court must be reluctant to re-examine the evidence when the panel was in a better position to draw appropriate conclusions. The decision must be untenable on the evidence considered in order to for it to be set aside. [ 23 ] The applicant cites many references in the panel's decision to the fact that the respondent's testimony was at times verbose and difficult to focus, and there were issues that raised the question of his reliability.

As well, the panel's decision states that the respondent's brother was at times overly dramatic and "somewhat unreliable as a witness as he was not present at many of the crucial incidents on which the claim is based." The latter, of course, is not relevant to the reliability of the respondent's own testimony. [ 24 ] However, the selected quotes from the panel's decision cited by the applicant do not reflect the entirety of the panel's conclusions as to the reliability of the respondent's testimony.

The panel was specific in its decision to not consider elements of his testimony that they found potentially tainted by his mental illness (such as the first beating incident).

The panel states quite clearly that it found the respondent's initial reluctance to reveal his criminal record understandable in light of his testimony, and that while his mental illness made it difficult for him to focus his thoughts, he was still coherent and credible with respect to the incidents he reported regarding his persecution by skinheads. [ 25 ] The panel's decision had regard for aspects of the evidence provided by the respondent and his brother, as well as for the documentary evidence and the submissions provided by the Refugee Claims Officer and the Minister's representative.

These are reflected in the decision. The conclusion that aspects of the respondent's evidence were credible was not made capriciously or perversely, or without regard to the evidence before the panel. The Necessity to Seek State Protection [ 26 ] Finally, I turn to the question of adequate state protection. The applicant submits that the respondent was obliged to seek

assistance and protection from his home state before seeking refuge elsewhere. The appropriate test for this assessment is found in Ward v . Canada (M.C.I.), 1993 CanLII 105 (SCC) , [1993] 2 S.C.R. 689. In Ward , LaForest J. stated at para.50: ...clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize.

Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. [ 27 ] The applicant submits that there has been no complete breakdown of the state apparatus in Hungary, which is recognized as a democratic state whose justice system, while slow at times, is reliably just.

Recognizing these facts about Hungary, the panel noted: The documentary evidence also describes serious attempts on the part of the Hungarian government to curb the problem of racial violence and discrimination against minorities and the slowly emerging court enforcement of Roma rights. The panel is aware of the evidence documenting police brutality and discrimination against Roma. However, the panel is also aware of attempts made to encourage Roma to enter the police force and attempts to train the police in the Roma culture and conflict management.

The panel is aware of the fact that the protection need not be, nor will be, perfect. The documentary evidence indicates that the state has put protective programmes into place. [ 28 ] The panel explicitly acknowledged there was no complete breakdown of the state in Hungary. The panel's decision also recognizes that there is a presumption of state protection, and there is no requirement that the protection be perfect. Yet, as noted in Zhuravlvev v.

Canada (M.E.I.), 2000 CanLII 17128 (FC) , [2000] 4 F.C. 3 (T.D.) at para.19, "[w]here the state is shown to be the agent of persecution, one need not inquire into the extent or effectiveness of state protection; it is, by definition, absent". [ 29 ] Based on the evidence outlined by the panel in its decision, the panel's decision on the question of the respondent's failure to avail himself of state protection was not patently unreasonable.

As the alleged persecutors in this case are both the police and non-state actors (skinheads), the panel needed to find that the respondent satisfied the burden set out by LaForest J. in Ward to find him to be a Convention refugee.

The panel found sufficient evidence by examining his persecution by skinheads, as well as his own history with the police and their beating of him. [ 30 ] The respondent, in his PIF, and his brother in oral testimony, described the experiences of other Roma around the same time and the police response to those people, including a shooting of a Roma man by the police, a shooting that failed to lead to any investigation. This evidence of persons "similarly situated", in addition to Mr.

Szoradi's personal experience, led to the panel's conclusion that he had presented proof that the state was unable or unwilling to protect him. [ 31 ] The assessment of whether certain evidence is credible and whether it meets the burden of proof required is a question of mixed fact and law. This aspect of the panel's decision should be reviewed with some deference, against the standard of reasonableness simpliciter . Based on the evidence considered by the panel, and the totality of evidence presented at the hearing, the decision cannot be characterized as unreasonable.

Conclusion [ 32 ] For the reasons set out, this application for judicial review is dismissed by separate order. [ 33 ] Neither party suggested a serious question of general importance for possible certification pursuant to paragraph 74 (

d) of the Immigration and Refugee Protection Act . No question is certified. (Sgd.) "W. Andrew MacKay" JUDGE VANCOUVER, B.C. April 1, 2003 FEDERAL COURT OF CANADA Names of Counsel and Solicitors of Record DOCKET: IMM-5014-01 STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Applicant - and -

OTTO SZORADI Respondent PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: Thursday, December 5, 2002 REASONS FOR ORDER: MACKAY J. DATED: April 1, 2003 APPEARANCES BY : Ms. Rhonda Marquis For the Applicant Ms. Elizabeth Jaszi For the Respondent SOLICITORS OF RECORD : Morris Rosenberg Deputy Attorney General of Canada For the Applicant Elizabeth Jaszi 1267 St. Clair Ave W Toronto, ON M6E 1B8 For the Respondent