Date: 20020628
Docket: IMM-3173-01
Neutral citation: 2002 FCT 715
BETWEEN:
OTTO FENYAK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRANT
Respondent
[1] On June 21, 2001, the Refugee Division of the Immigration and Refugee Board (the "tribunal") determined Otto Fenyak (the "applicant"), age 20, a citizen of Romania, living in Satu Mare not to be a Convention refugee.
[2] The applicant claimed a well-founded fear of persecution at the hands of the Romanian Internal Intelligence Service ("SRI") because of his Hungarian nationality, his Roman Catholic religion and his political opinion.
[3] The tribunal accepted the applicant was of Hungarian nationality and was a Roman Catholic. It also accepted he was an active member of MADISZ, an organization dedicated to promoting Hungarian culture and education. It is the youth wing of the Hungarian Democratic Union of Romania ("UDMR"), a political party which his father and brother belong to.
[4] The tribunal rejected his claim for two reasons. First, the tribunal found taken cumulatively "the incomplete, vague and sometimes confused nature of the claimant's testimony supports a finding of a lack of credibility with regard to the harassment and persecution at the hands of the SRI" [emphasis mine]. Second, the tribunal preferred the documentary evidence in relation to ethnic minority Hungarians in Romania, Roman Catholics there, and in relation to members of MADISZ and UDMR to the evidence provided by the applicant.
[5] As I see it, in order to succeed, the applicant must persuade the Court the tribunal erred in what are essentially findings of fact which can only be set aside under paragraph 18.1(4)(d) of the Federal Court Act, that is, because the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. This provision equates to the patently unreasonable standard of review.
[6] As stated by the Supreme Court of Canada in Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at 509, a reviewing court can only intervene where the evidence, reasonably viewed, is incapable of supporting the tribunal's findings.
[7] My review of the record satisfies me the tribunal's decision must be set aside. The applicant is entitled to succeed on two grounds raised which primarily relate to that aspect of his claim which intertwines his Hungarian ethnicity and his membership in the youth movement of the UDMR.
[8] First, the tribunal found as a fact there was no evidence before it indicating active members of MADISZ or UDMR are currently victims of persecution by agents of the State of Romania.
[9] This finding ignores the evidence provided by counsel for the applicant in lengthy written submissions related to the objective basis for the applicant's claim. In those submissions, there is direct reference to documentary evidence on the activities of the SRI focussing on national minorities and on the UDMR. What the tribunal failed to do in this case was to weigh that documentary evidence with the other documentary evidence before it. This error is central to the applicant's claim who feared persecution at the hands of the SRI.
[10] Second, as noted, the tribunal made a credibility finding based on its appreciation of the applicant's testimony which, in certain instances, it found incomplete, vague, sometimes confusing and in one case embellished. It gave examples.
[11] As I interpret the tribunal's decision, it did not base its credibility finding on the applicant's demeanor nor did it ground that credibility finding on contradictions or inconsistencies in his testimony. Moreover, the tribunal did not find the applicant to be an untrustworthy witness nor did it reject his evidence outright. Indeed, the tribunal seems largely to have accepted his evidence but minimized it because of its preference for the documentary evidence which it said did not corroborate the claimant's contention of problems with the SRI.
[12] The first example the tribunal gave relates to why he believed the SRI interrupted the funeral of his friend, Gabor Kis. The applicant had testified Mr. Kis died at the hands of the SRI after he, Mr. Kis and two others, had been arrested by the SRI and detained while on a camping trip organized by MADISZ.
[13] The tribunal concluded the applicant failed to establish, on a balance of probabilities, the men who interrupted the funeral were from the SRI because such identification by the applicant was based on the way they were dressed, the fact the men never told him they were from the SRI and the implausibility the SRI would stop a funeral of a person whom they had arrested and was shortly after that found dead.
[14] A transcript review does not reasonably support the tribunal's conclusion. The applicant's testimony on the point was quite clear and without ambiguity. Rather, this finding ignores the totality of the applicant's evidence as to why he believed the various encounters he had were with men from the SRI. As to the implausibility drawn, it is not based on evidence but on conjecture. Moreover, what happened at the funeral was not central to his claim. What was central to his claim was his arrest the previous night combined with a string of other arrests and detentions he suffered at the hands of the SRI, evidence which the tribunal did not come to grips with. For example, it was through multiple arrests and encounters with the SRI he was able to identify them by their dress and appearance.
[15] The embellishment cited by the tribunal relates to the details he gave how men he alleged were from the SRI set fire to the family cottage resulting in his mother being badly burned. The embellishment, which was neither in his PIF nor in his POE, according to the tribunal, occurred when he testified the men threw inflammable material on the roof and at the door.
[16] I do not find troublesome the tribunal's characterization of the evidence. However, what was central to his claim was not how the fire started but his allegation the fire was started by the SRI which resulted in a complaint to the police by his father and his father's arrest and inquiries about the applicant's whereabouts which led to his flight from Romania. Once again, the tribunal did not come to grips with the applicant's story.
[17] The tribunal gave another example of vagueness and confusion related to why and how he feared the SRI and why he and the family were specifically targeted. What the tribunal masks as a credibility finding related to vagueness and confusion was, in reality, an evidentiary finding. When the transcript is examined, that evidentiary finding cannot stand because the tribunal misstates the evidence.
[18] In my view, the tribunal misstated the evidence in the following ways:
(i) the applicant did not answer "I don't know" on why he feared the SRI and it is a misreading of the evidence to state the applicant answered his Hungarian ethnicity and Roman Catholicism only when encouraged to do so;
(ii) it is not a correct reading of the evidence to state when the applicant was asked why the SRI was targeting him specifically, he answered it was because his parents were UDMR members. The question asked was why the SRI was targeting his family;
(iii) the applicant never stated the SRI also wanted him because of his brother. The question asked was what were his brother's problems.
[19] The tribunal's finding on this point is a further illustration the tribunal never came to grips with the applicant's evidence.
[20] The last example given by the tribunal leads to a similar conclusion. The tribunal found he was not able to clearly state why he was wanted by the authorities. A reading of the transcript shows otherwise.
[21] In summary on this aspect, the tribunal had the obligation to deal with the evidence before it, determine whether it was credible or not and, if credible, assess and weigh that evidence along with the totality of the evidence before it. This the tribunal did not do.
[22] For all of these reasons, this judicial review application is allowed, the tribunal's determination the applicant was not a Convention refugee is set aside and the applicant's claim is to be reconsidered by a differently constituted panel. No certified question arises.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3173-01
STYLE OF CAUSE: OTTO FENYAK v. The Minister of Citizenship and Immigration
PLACE OF HEARING: SASKATOON, SASKATCHEWAN
DATE OF HEARING: February 13, 2002
REASONS FOR ORDER OF The Honourable Mr. Justice Lemieux
DATED: June 28, 2002
APPEARANCES:
Mr. John HardyFOR THE APPLICANT
Ms. Glennys BembridgeFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Hardy & HardyFOR THE APPLICANT
Saskatoon, Saskatchewan
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada