ATTILA GALAMB RENATA PUTNOKI ATTILA GALAMB KRISZTIAN GALAMB DANIEL PUTNOKI Applicants v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2019 FC 580

Date: 20190503 Docket: IMM-5058-18 Citation: 2019 FC 580 Toronto, Ontario, May 3, 2019 PRESENT: Mr. Justice Diner BETWEEN: ATTILA GALAMB RENATA PUTNOKI ATTILA GALAMB KRISZTIAN GALAMB DANIEL PUTNOKI Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS [ 1 ] The Applicants, a Roma family of five, consist of the Principal Applicant, his wife, and their three children. They allege a fear of persecution based on their ethnicity. I.

Overview [ 2 ] This application judicially reviews a decision [Decision] of the Refugee Appeal Division [RAD] confirming the Refugee Protection Division’s [RPD] decision which found that the Applicants are neither Convention refugees nor persons in need of protection. For the reasons that follow, this application for judicial review is dismissed. [ 3 ] The RPD initially found the Applicants were not credible witnesses and determined they had not rebutted the presumption of state protection, and accordingly dismissed their claim.

The RAD, in its Decision, agreed with the RPD, noting that the Principal Applicant omitted a number of the thirteen incidents of assault or threats contained in his Basis of Claim narrative [BOC] from his oral testimony before the RPD. When questioned by the RPD on these omissions, he failed to provide an explanation. As a result, the RAD found that the Applicants were not credible with respect to the assaults and threats. [ 4 ] Further, the RAD observed that the Applicants provided the RPD with documents they said they had obtained personally in Hungary.

However the documents described events which occurred in 2015 when the Applicants were already in Canada. When faced with this discrepancy, both tribunals found the Applicants failed to provide an acceptable explanation, resulting in further credibility issues. [ 5 ] Finally, the RAD determined that the Applicants’ experience did not amount to persecution. It further found that the Applicants had not established a link between the general documentary evidence indicating that the Roma community in Hungary suffers persecution, and their specific circumstances. II.

Issues and Standard of Review [ 6 ] Two issues are raised by the Applicants. First, they assert that the RAD erred by failing to hold an oral hearing. There is some debate on the standard of review on this issue (see, for instance, Mofreh v Canada (Immigration, Refugees and Citizenship) , 2019 FC 97 at paras 24 and 28 , referencing Canada (Minister of Citizenship and Immigration) v Huruglica , 2016 FCA 93 ). However, I agree with the authorities holding that the standard of review applicable to the RAD’s Decision not to hold an oral hearing is reasonableness as it involves the RAD’s

interpretation of its own statute ( Al-Abayechi v Canada (Citizenship and Immigration) , 2018 FC 360 at para 11 ). [ 7 ] Second, the Applicants impugn the RAD’s assessment of (

a) credibility and (

b) well-founded fear of persecution. A reasonableness analysis also applies to the RAD’s assessment of evidence and credibility findings ( Ba v Canada (Citizenship and Immigration) , 2019 FC 233 at para 4 ). III. Analysis A. Did the RAD err by failing to hold an oral hearing? [ 8 ] The Applicants argue that the RAD should have held an oral hearing in light of the new evidence before it and the credibility issues arising from the RPD hearing. [ 9 ] In its Decision, the RAD examined the Applicants’ new evidence pursuant to the test set out in subsection 110(4) of the Immigration

and Refugee Protection Act, SC 2001, c 27 [IRPA] and Canada (Citizenship and Immigration) v Singh, 2016 FCA 96. It noted that thenew evidence consisted of newspaper articles and a Humanitarian and Compassionate notice of approval in principle with respect to aMr. Horvath (who is not one of the Applicants). The RAD observed that the notice of approval in principle was general in nature and didnot discuss what relied-on evidence might pertain to the Applicants. Accordingly, the RAD gave it no evidentiary weight.

It furtherobserved that certain newspaper articles were readily available to the Applicants prior to the RPD hearing, and as a result, did not admitthem as new evidence. [10] With respect to other newspaper articles, dated after the RPD hearing and admitted as new evidence, the RAD explained as follows: [30] […] The RAD acknowledges that documentary evidence, including new evidence, indicates that members of the Romacommunity do suffer persecution in Hungary. However, a refugee claim must be specific to the experience of theAppellants.

Simply being a member of a Roma community does not, in and of itself, establish that the Appellants would facepersecution if they were to return to Hungary. [11] A hearing is not granted simply because "“new”" evidence is admitted before the RAD (Singh at para 71).

Rather, the newevidence must satisfy the criteria at subsection 110(6) of IRPA before a hearing may be held (Mofreh at para 26). [12] While the RAD did not list or repeat verbatim the subsection 110(6) criteria in determining an oral hearing was not required, itnonetheless considered the essence of the rule when it considered the post-RPD documentation submitted, concluding that the newlyadmitted evidence was not specific to the Applicants’ experience. I note that in any event, the RAD has discretion not to hold an oralhearing even when the criteria under

section 110, read as a whole, are met (Siddiqui v Canada (Citizenship and Immigration), 2015 FC1028 at para 104). [13] Applicants’ counsel argued that the RAD nonetheless erred in failing to hold an oral hearing in light of their statement provided tothe RAD that they did not request a hearing except if the RAD was unable to substitute its decision for that of the RPD.

Counsel urgedthe Court to follow Justice Mosley’s ruling in Horvath v Canada (Citizenship and Immigration), 2018 CF 147 , 2018 FC 147 atparagraph 16 which noted the same request of the RAD. [14] Horvath differs from this situation, however, given the nature of the new evidence submitted to the RAD, which was personal tothe Horvath Applicants, and "“was directly contradictory to the RPD’s findings regarding the Applicants’ residence and which went tothe core of their credibility”" (at para 20). This evidence addressed both medical and residency issues which had been central to theRPD’s findings.

The same cannot be said in the instant case regarding the new evidence presented to the RAD, in relation to theprevious credibility findings. As explained above, the new evidence did not attack the fundamental credibility findings of the RPD,which were different in nature to those of the Horvath case.

Indeed, even if I were to side with counsel on the RAD’s first majorcredibility finding (regarding the Applicants’ failure to address the items in their narrative spontaneously, and only after severalprompts), that still leaves other contradictions regarding the Applicants’ testimony that counsel conceded could not be easily explainedaway. [15] As a result, whether reviewed on the basis of correctness or reasonableness, I do not find the RAD erred proceeding only in writingand with no oral hearing (see by analogy Mofreh at para 28). B. Was the Decision as a whole reasonable?

(1) Credibility [16] The Applicants acknowledge that the RAD enjoys a particular advantage in certain circumstances, but submits that the RAD wasmicroscopic in its assessment of the evidence which renders its credibility assessment unreasonable. [17] I disagree, and find, as already noted above, the RAD’s credibility determination was reasonable, in light of its observationsregarding the Applicants’ testimony on (

a) incidents of abuse and assault and (

b) receipt of eviction documents personally in Hungarywhen they were actually in Canada. On (a), after listening to the recording of the RPD hearing and specifically excerpting exchangeswhere the RPD asked the Principal Applicant about his fear and the alleged threats, the RAD noted that the RPD’s credibility concernwas that the Principal Applicant failed to mention the incidents of assault provided in his BOC narrative and only provided details afterbeing asked by the RPD why he had failed to do so.

There was no explanation submitted for this other than the Applicants’ lack ofeducation and sophistication. [18] Regarding (b), the Applicants failed to provide an explanation as to why the Principal Applicant testified about obtainingdocuments pertaining to the eviction personally when the Applicants were in fact living in Canada. [19] I am not convinced that the RAD’s analysis was "“microscopic”" or that it focused on small differences or inconsistencies –faulting decision-makers for making "“microscopic”" assessments relate to situations where issues irrelevant to the case or peripheral tothe claim were examined (Ruszo v Canada (Citizenship and Immigration), 2018 FC 943 at para 22).

Here, the RAD examined facts thatdealt with specific incidents at the very heart of the Applicants’ claim – particularly with respect to item (b), even if I were to find thatcharacterizing (

a) as an "“omission”" was unreasonable.

(2) Well-founded fear of persecution [20] The Applicants argue that the RAD failed to look at their particular circumstances, their family members’ positive decisions, andthe country condition documentation confirming Hungary’s practice of illegal, racially motivated evictions and its inability to protectRoma – evidence demonstrating that they face a well-founded fear of persecution as Roma in Hungary. [21] In response to the Applicants’ argument that some of their family members have received positive decisions and have been

accepted as refugees, I note that each case is to be decided on its own merits and on the basis of the particular evidence before the decision-maker. The RPD is not bound by the conclusion reached in another claim, even if the claim involves a relative ( Ruszo v Canada (Citizenship and Immigration) , 2019 FC 296 at para 11 ). [ 22 ] The RAD expressly acknowledged that the documentary evidence demonstrates widespread reports of " “incidents of intolerance, discrimination and persecution” " of members of the Roma community in Hungary.

However, it noted that simply being a member of the Roma community was insufficient to establish they would face persecution if they were to return to Hungary. In my view, the tribunals reasonably found that the Applicants had failed to establish a credible link between the documentary evidence and their specific circumstances. [ 23 ] Given the negative credibility findings pertaining to their allegations of persecution, the RAD’s only remaining assessment was of the documentary evidence.

However, this Court has held that applicants cannot rely solely on country condition evidence to establish their claim, as Justice Boswell recently observed in Sharawi v Canada (Citizenship and Immigration) , 2019 FC 74 at paragraph 28 , including citing to Hungarian Roma decisions (see also Justice Kane’s reasons on this point at paragraphs 71–73 of Sallai v Canada (Citizenship and Immigration) , 2019 FC 446 ). [ 24 ] I would be remiss concluding these Reasons without thanking Applicants’ counsel for his very able and respectful submissions.

He did the best he could have done within the constraints of this judicial review. IV. Conclusion [ 25 ] This application for judicial review is dismissed. No questions are certified and no costs are ordered. JUDGMENT in IMM-5058-18 THIS COURT’S JUDGMENT is that : 1 . This application for judicial review is dismissed. 2 . No questions for certification were argued, and none arise. 3 . There is no award of costs. "Alan S.

Diner" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5058-18 STYLE OF CAUSE: ATTILA GALAMB ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 30, 2019 JUDGMENT AND REASONS: DINER J. DATED: May 3, 2019 APPEARANCES: Peter Ivanyi For The Applicants Asha Gafar For The Respondent

SOLICITORS OF RECORD: Rochon Genova LLP Barristers and Solicitors Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent