Date: 20031001
Docket: IMM-5157-02
Citation: 2003 FC 1133
BETWEEN:
EGERESI, ISTVAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Egeresi is a thirty-three year old homosexual Hungarian citizen who claims to have a well-founded fear of persecution based on his sexual orientation. The Refugee Protection Division (RPD) of the Immigration and Refugee Board, in a decision dated August 29, 2002, determined that he is not a Convention refugee or a person in need of protection. He seeks judicial review of that decision.
[2] The reasons of the RPD are sparse. It stated as follows:
With respect to the harm feared by the claimant, the panel finds that if returned to the country of nationality, the claimant may be faced with some discrimination and perhaps some mistreatment. However, the evidence does not support the conclusion that such discrimination and mistreatment would be such that would constitute persecution or that his life would be at risk or that he would face cruel and unusual treatment or punishment or torture.
[3] The board then made the observation that it, "finds several of the claimant's assertions not credible". It found that the claimant embellished and dramatized some of the recounted events. The board listed three specific examples. One of those examples, that dealing with the army experience, does not constitute a credibility finding. The other two examples, upon review of the transcript of the hearing, are not supported by the evidence.
[4] The board went on to find that the examples cited were not the only aspects of the applicant's story that diminished its probative value. It noted that inconsistencies and implausibilities were also present in the accounts that he gave with respect to other events. No mention was made as to what these inconsistencies and implausibilities might be.
[5] The findings of credibility and implausibility of the RPD are normally insulated from judicial review and properly so. Such findings lie exclusively within the purview of the expert board. However, where negative credibility findings are made they must be expressed in clear and unmistakable terms: Hilo v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.) and they must be supported by the evidence: Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.); Aguebor v. Canada (Minister of Employment and Immigration) (1993) 160 N.R. 315 (F.C.A.).
[6] Although counsel, at the hearing, specifically addressed the issue of cumulative acts of harassment as constituting persecution (tribunal record, p. 166), the RPD did not address this issue. Such failure has been held to constitute reviewable error: Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49 (C.A.); Retnam v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 53 (F.C.A.).
[7] The respondent Minister argues that even if reviewable error is found to exist, the finding of state protection is dispositive in any event. With respect, I conclude that the analysis regarding state protection is sadly lacking. It consists of a reference to legislative steps and a selective reference to documentary evidence in support of the finding. No reference was made to the extensive documentary evidence that did not support its position nor was any reference made to the evidence given by the applicant in this regard. It may well be that this finding was open to the RPD, but it must be evident, from the reasons, that it has undertaken a proper analysis to support its conclusion. This it failed to do and such failure, in my view, constitutes reviewable error.
[8] In the result, the application for judicial review will be allowed and the matter will be remitted back for re-determination before a differently constituted panel of the RPD. An order will so provide. Counsel posed no question for certification and I agree that this matter raises no serious question of general importance.
"Carolyn Layden-Stevenson"
J.F.C.
Toronto, Ontario
October 1, 2003
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5157-02
STYLE OF CAUSE: ISTVAN EGERESI
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 1, 2003
REASONS FOR ORDER BY: LAYDEN-STEVENSON, J.
DATED: OCTOBER 1, 2003
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Ms. Angela Marinos
For the Respondent
SOLICITORS OF RECORD: Waldman & Associates
Barristers and Solicitors
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20031001
Docket: IMM-5157-02
BETWEEN:
ISTVAN EGERESI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER