Matte v. Canada (Citizenship and Immigration)

Matte v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2012-06-15
Neutral citation
2012 FC 761
File numbers
IMM-7256-11
Decision Content
Federal Court
Cour fédérale
Date: 20120615
Docket: IMM-7256-11
Citation: 2012 FC 761
Ottawa, Ontario, June 15, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ZSOLT MATTE; ERZSEBET ILONA KEREKES; VIVIEN MATE;
ZSOLT MATE JR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC­ 2001, c 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 6 September 2011 (Decision), which refused the Applicants’ application to be deemed Convention refugees or a persons in need of protection under sections 96 and 97 of the Act.
BACKGROUND
[2] The Male Applicant and his common-law partner, the Female Applicant, are citizens of Hungary. The Secondary Applicants are their son Zsolt, who is twenty years old, and their daughter Vivien, who is eighteen years old. The Secondary Applicants are also citizens of Hungary. All of the Applicants are Roma.
Original Narrative
[3] After they claimed protection in Canada, the Applicants submitted Personal Information Forms (PIFs) on 1 June 2009. They submitted a single narrative, written from the Male Applicant’s perspective, on 17 June 2009 (Original Narrative). This narrative described how the Secondary Applicants had been discriminated against in school, where teachers and classmates wanted them to drop out. The Original Narrative said that Zsolt wanted to get a job as a waiter, but people told him he would never get such a job because no one wanted a Roma person to serve them.
[4] The Applicants went to the Roma Rights Center (RRC) to complain about the discrimination the Secondary Applicants had faced at school. The worker there said the RRC would write a letter to address the discrimination, but the Applicants did not get a copy of this letter and nothing changed for the Secondary Applicants at school. The Secondary Applicants were not allowed to change for their physical education classes in the same rooms as the other children at school. When non-Roma children lost their possessions, the Secondary Applicants would always be suspected of theft. On one occasion, Vivien’s name was chosen as the most unpopular name in her class.
[5] In January 2008, the Male Applicant’s friend was attacked by skinheads. The skinheads forced the friend’s car off the road and killed the friend and his son. Even though there were witnesses to the crash, the police refused to investigate; the police ruled the crash was an accident.
[6] In February 2009 the Applicants were attacked by skinheads while they were grocery shopping. The skinheads threw the Male Applicant to the ground and made him and the Secondary Applicants kneel while the skinheads slapped them. A passing bus-driver intervened and took the Applicants to the police station to report the attack. Rather than investigating, the police asked the Applicants what they had done to provoke the attack. The police did not take the Applicants’ report, even though the Male Applicant and Zsolt had visible injuries.
[7] The February 2009 attack led the Applicants to leave Hungary for Canada, as they felt they could not get effective help from the police. The situation they faced in Budapest, where they lived, was bad, and the Applicants believed conditions in the rest of Hungary would be as bad or worse.
Amended Narratives
[8] After submitting the Original Narrative, the Applicants submitted new narratives for the Male Applicant, Female Applicant, and Zsolt on 1 December 2010 (Amended Narratives).
[9] The Male Applicant’s amended narrative (Narrative 1) said he had grown up with prejudice in Hungary because he is Roma. He had had to leave his employment as a bridge builder in February 1997 because of this discrimination.
[10] Narrative 1 also said the Male Applicant’s cousin had been driven off the road by members of the Hungarian Guard – a nationalist organization in Hungary – in January 2009. The crash killed the cousin and his son. Although witnesses spoke to the police, the police did not believe them and ruled the crash an accident. This incident was publicized on the internet, but witnesses did not come forward with what they knew.
[11] The February 2009 attack also appeared in Narrative 1. In this version, the Male Applicant said one of the skinheads who attacked the Applicants twisted his arm and hit him. The skinheads pulled the Female Applicant’s hair to make her kneel, and slapped Zsolt to make him stop crying “Roma tears.” The skinheads made the Applicants apologize for making them nervous because they were visibly Roma. Although the bus driver stopped and took them to the police station, he said he would not be a witness for the Applicants. At the police station, an officer asked the Applicants what they had done to invite the beating. Other officers said the Applicants were lying and called them stinking gypsies.
[12] On 26 March 2009, the Male Applicant was attacked on a streetcar by several members of the Hungarian Guard. One of the Hungarian Guards grabbed the Male Applicant by the arm and beat him. The Male Applicant broke free and ran to a train station, where he was able to hide in the crowd.
[13] The Female Applicant’s amended narrative (Narrative 2) said she was discriminated against in school. The abuse she suffered as a child was so bad she once considered committing suicide. The Female Applicant said she could not continue her education because schools rejected her because she is Roma. Although she got a job in a garment factory, other workers damaged her sewing machine. She later got a job as a street car cleaner, but her coworkers often stole money from her. The coworkers refused to use cleaning tools the Female Applicant had touched.
[14] The Secondary Applicants could not play sports in school because they are Roma. Zsolt became a waiter, although he was told he would never get a job in his profession.
[15] The Female Applicant’s account of the February 2009 attack in Narrative 2 was identical to that of the Male Applicant in Narrative 1.
[16] Zsolt’s amended narrative (Narrative 3) said he was made a fool of in primary school because he is Roma. Once, three other students urinated on him while he was on a school trip. He said Vivien was often beaten at school and he could not protect her. After Zsolt began seeing a non-Roma girl at school, she was harassed because he is Roma. This led them to end their relationship. Zsolt wrote that, during the February 2009 attack, he watched four skinheads beat the Male Applicant. He also said his cousin and his cousin’s father were forced off the road and killed some time before the February 2009 attack.
Procedural History
[17] The Applicants arrived in Canada on 3 May 2009 and claimed protection on 4 May 2009. The RPD joined all four claims under subsection 49(1) of the Refugee Protection Division Rules SOR/2002-228 (Rules) and appointed the Male Applicant as representative for Vivien, because she was a minor at the time. The RPD heard the Applicants’ claims over three sittings on 25 January 2011, 28 April 2011, and 4 July 2011.
[18] At the first sitting, the Applicants affirmed that their PIFs and narratives were complete, true, and correct. The Male Applicant also testified at this sitting. At the end of the first sitting, the Applicants made a motion to strike the Original Narrative from the record because it was prejudicial to their claim. They said the Male Applicant spoke to an interpreter (Farkas) who recorded his answers in English as the Original Narrative. Farkas made mistakes in the interpretation which were detrimental to the Applicants’ case. The RPD adjourned the hearing to decide whether to exclude the Original Narrative. The RPD asked the Applicants to provide a letter from the Roma Community Center (RCC) in Toronto – where they said they had met Farkas – to show they had complained about the quality of interpretation she provided.
[19] At the second sitting on 28 April 2011, the RPD noted it had received a letter from the RCC (RCC Letter). The letter said the RCC could not give the Applicants Farkas’s contact information. The RPD told the Applicants it had decided not to exclude the Original Narrative.
[20] After the third sitting on 4 July 2011 the RPD considered the Applicants’ claims. It rejected them on 6 September 2011 and notified the Applicants of the Decision on 27 September 2011.
DECISION UNDER REVIEW
[21] The RPD rejected the Applicants’ claims because they had not rebutted the presumption of state protection. It also found there was not a serious possibility they would face persecution on the basis of their Roma ethnicity in Hungary.
Motion to Strike
[22] The RPD denied the Applicants’ request to strike the Original Narrative from the record. It found their explanation for how their PIFs and the Original Narrative were created was not reliable.
[23] At the first sitting of the RPD hearing, the Applicants said there were problems with the translation of the Original Narrative and the errors in translation would unduly prejudice them. Applicants’ counsel said that Farkas came to his office and the Applicants introduced her to counsel as a friend. They also told counsel the RCC recommended Farkas as a translator. Although Farkas had good intentions, it became clear over the course of their dealings that she and the Applicants did not understand one another. The Male Applicant, however, said he understood Farkas.
[24] The Applicants also said that, because she had moved, they had been unable to contact Farkas after they discovered errors in the translation. They said the RCC was unable to give them her current telephone number. The RCC Letter said “we have no contact with [Farkas] and do not know who she is.” The Applicants said they met Farkas at the RCC as she was leaving the RCC office one day, but they did not know if she actually worked there. The RPD found the Applicants’ explanation unreasonable because it was inconsistent with the RCC Letter.
[25] The RPD also found the Applicants could not have met Farkas at the RCC. The RCC Letter said the Applicants had volunteered there in approximately February 2010. The Applicants submitted the Original Narrative in June 2009, after completing it with Farkas’s help. The RPD concluded it was impossible for the Applicants to have met Farkas at the RCC in 2009 because they had only started going to the RCC in 2010.
[26] The RPD said it had no reason to believe Farkas would not have written down what the Applicants had told her to. Farkas told Applicants’ counsel she was their friend, so she would have accurately written down what they said. The Applicants had also signed the Original Narrative to indicate the statements in it were their own. The declaration they signed in their PIFs said the forms and any attachments were interpreted to them. Farkas had also signed declarations on the Applicants’ PIFs saying she had interpreted the PIFs and any attached documents accurately. Although the RPD received the Original Narrative two weeks after the PIFs, it found Farkas would have followed the same procedure as she did with the PIFs.
Merits of the Claims
[27] After dealing with the Applicants’ motion to strike the Original Narrative, the RPD dealt with the merits of their claims. It found the Applicants had established their identity and citizenship through oral and documentary evidence.
Credibility
[28] The RPD found the Applicants’ evidence was not credible because there were inconsistencies between their oral testimony, the Original Narrative, the amended narratives, and form IMM 5611 – the port of entry notes the Male Applicant completed on arrival in Canada.
[29] First, the Applicants’ evidence showing their cousin was driven off a road and killed was unreliable. Narrative 1 said the cousin and his son were forced off the road in January 2009. The Original Narrative said this event occurred in January 2008 and it was the Male Applicant’s friend and his son who were killed. It was reasonable to expect the Male Applicant to know if it was a friend or a cousin who was killed.
[30] Before the hearing, the Male Applicant had spoken with Dr. Judith Pilowsky – a psychologist practicing in Toronto – who produced a report he submitted to the RPD (Pilowsky Report). The Pilowsky Report said the Male Applicant became frightened when he saw a car like the one involved in the crash which killed the cousin. Because he did not actually see the crash occur, the RPD could not understand why this kind of car would frighten the Male Applicant.
[31] The Original Narrative said the Hungarian police responded to the 2009 crash and ruled it an accident even though witnesses saw what happened. Narrative 1 said the police ruled the crash was an accident because they did not believe the witnesses. At the RPD hearing, the Applicants said the witnesses were afraid to talk to the police, so the police could only conclude this was an accident. All of this evidence was inconsistent.
[32] In light of its credibility concerns, the RPD expected the Applicants to produce evidence to corroborate their story about the crash. However, they could not provide any documentary evidence to show this event had occurred as they said it did. The RPD drew a negative inference from the Applicants’ failure to provide corroborating evidence and found there was no evidence this incident was caused by the Hungarian Guard. The RPD concluded the January 2009 car crash had not occurred as the Applicants had described it.
[33] The Applicants said Farkas was responsible for the inconsistencies on this point, but the RPD rejected this explanation. It found there was no evidence Farkas did anything other than write what she was told to.
[34] Second, the RPD found inconsistencies in the Applicants’ story about the February 2009 attack. In IMM 5611, the Male Applicant said members of the Hungarian Guard kicked grocery bags out of the Applicants’ hands, forced them to kneel, and spat on them. The Original Narrative said the Applicants were forced to kneel and were slapped. It also said skinheads kicked the Male Applicant when he complained about them kicking the grocery bags around. In Narrative 1, the Male Applicant wrote that the skinheads twisted his arm and punched him until he lost his breath. He also said the skinheads pulled the Female Applicant’s hair to force her to kneel and slapped Zsolt. The RPD found these were three escalating versions of the attack.
[35] The Applicants’ evidence about the injuries they suffered in the February 2009 attack was also inconsistent. At the hearing, the Male Applicant said he was injured from kicks and Zsolt was slapped. The Original Narrative said he and Zsolt both had visible injuries. The RPD rejected the Applicants’ argument that these inconsistencies arose from inaccurate translation.
[36] The evidence with respect to the bus driver’s role in the attack was also inconsistent. The Original Narrative said the bus driver left his bus to rescue the Applicants and the police would not take his statement. Narrative 1 said the bus driver told the skinheads to stop or he would call the police. At the hearing, the Applicants said the driver told the skinheads he would call the police if they prevented him from doing his job. Further, the Original Narrative said the police would not take the bus driver’s statement, but the Applicants testified at the hearing that he was unwilling to give a statement. The Applicants’ evidence on this point was unreliable because it was inconsistent.
[37] At the RPD hearing, the Applicants said they waited hours at the police station after the attack before the police told them their complaint was a waste of time. After the RPD asked if they thought to ask for help, they said they asked for help every half hour. This testimony was contradictory and adapted to show they had made stronger efforts to obtain assistance from the police, so it too was unreliable.
[38] The Applicants also added a detail at the hearing which was not in the Original Narrative. They testified they had gone to the RRC for help, but were told the RRC had no authority over the police. The Male Applicant told the RPD he had mentioned this to the immigration officer when he was completing IMM 5611, but this detail did not appear in that form. The Applicants also said the Original Narrative was incorrect on this point because of Farkas’s improper interpretation. The RPD found the Male Applicant had an interpreter when he completed IMM 5611 and the Applicants could not blame Farkas for all the problems in their evidence. They had not contacted her to allow her to respond to their allegations and their challenge to the accuracy of her interpretation should have allowed for this.
[39] The RPD also found inconsistencies in the Applicants’ evidence about their experience at the RRC in the Hungary, where they went to complain about the police response to the February 2009 attack. The Female Applicant said the RRC could not do anything about the police response without an official report, but the Male Applicant did not say this. The Applicants also did not provide any documents to show they had approached the RRC for help, though they should have been able to provide this evidence.
[40] The RPD found the events surrounding the February 2009 attack were not as the Applicants had described.
[41] Third, the RPD found inconsistencies in the Male Applicant’s testimony about his education which could not be explained by Farkas’s inaccurate translation or attributed to the immigration officer who completed IMM 5611 for the Male Applicant. Narrative 1 said the Male Applicant has only eight years of education, but IMM 5611 says he has ten years of education, including two years at a trade school. At the RPD hearing, the Male Applicant said the Hungarian government paid for his trade school education after he lost his job. The Male Applicant’s statement that he had only eight years education was an embellishment intended to exaggerate the harm the Applicants face in Hungary.
Section 96 Risk
[42] Although the RPD found the Applicants’ evidence was generally unreliable because it was inconsistent, it also analysed whether they faced a risk of persecution in Hungary because they are Roma. It found they did not face such a risk because nothing they faced would deny them their fundamental rights in a way that threatened their lives.
[43] The RPD found much of the evidence which spoke to the risk the Applicants faced was unreliable. However, it examined whether they faced a risk of persecution based on the discrimination they might suffer because they are Roma. Although the Male Applicant and Female Applicant had experienced discrimination in Hungary, this discrimination had not seriously impacted their ability to earn a livelihood; both had become leaders in their jobs. The Secondary Applicants had experienced discrimination in school, but they were not denied access to education and their fundamental rights were not infringed.
[44] The RPD found the February 2009 attack, if it actually occurred, had only amounted to being spat on and forced to kneel. This kind of attack was not serious, persistent, or systemic.
[45] The RPD noted that discrimination can become so serious as to threaten lives or fundamental rights. In this case, the discrimination the Male Applicant suffered led him to attempt suicide, as the Pilowsky Report showed. Dr. Pilowsky diagnosed the Male Applicant with post-traumatic stress disorder. The RPD found this diagnosis was based on the same evidence it found was unreliable, so the cause of his condition was unknown. The RPD also found the Male Applicant would be able to access treatment for his condition in Hungary.
[46] Although discrimination against Roma people in Hungary occurs, and it often results in a lower standard of living for them, this did not result in a denial of fundamental rights which threatened the Applicants’ lives.
State Protection
[47] The determinative issue in the Applicants’ claim was state protection. The RPD reviewed the law on state protection, first noting that Canada (Attorney General) v Ward, [1993] 2 SCR 689 establishes a presumption of adequate state protection. This presumption can only be rebutted with clear and convincing evidence of the state’s inability to protect. See Carillo v Canada (Minister of Citizenship and Immigration) 2008 FCA 94. Further, Zhuravlvev v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 507 teaches that local failures to provide effective policing do not amount to a lack of state protection unless they are part of a larger pattern of the state’s inability to protect.
Applicants’ Experience
[48] The RPD found the Applicants’ evidence regarding their attempts to seek state protection was not reliable. However, it also found that, even if it accepted these events had occurred as the Applicants described them, they did not rebut the presumption of state protection. The Applicants’ stories, if believed, showed only that police in Hungary are not always able to arrest perpetrators of violence, which is not enough to rebut the presumption of state protection.
[49] The Hungarian police were unable to arrest the people who attacked the Applicants in February 2009 because the bus driver was either unwilling to provide a statement or the police were unwilling to take his statement. The evidence the Applicants used to show what happened when they reported to the police was unreliable. The Applicants’ claim that the police turned them away after they waited for five hours amounted only to a local failure in policing. The Applicants had also not sought additional redress for the failure of the police to take their complaint, so their experience at the police station could not rebut the presumption of state protection.
[50] For the purpose of its state protection analysis, the RPD accepted that the Male Applicant’s story about the attack on the train in March 2009 was true. However, it noted he had not approached the police for assistance after this attack, so this experience could not rebut the presumption of state protection. Further, even accepting that the cousin and the cousin’s son were forced off a road in 2009, the police could only conclude this was an accident because the witnesses were not forthcoming about what they saw.
[51] The Applicants also testified that the Female Applicant’s mother found anti-Roma graffiti in the Applicants’ apartment in Hungary after they left for Canada. The police investigated this incident, but suspended their investigation when they could not identify the perpetrator. This event did not rebut the presumption of state protection, as the police said they would pursue the investigation further if new information came to light. The RPD could not find the Hungarian police were not willing and able to respond to calls from Roma people.
[52] The RPD concluded the Applicants’ experience in Hungary was that police will take action when they are called. Although they are not always able to prevent attacks or solve crimes where there is a lack of evidence, this does not show a lack of state protection.
Documentary Evidence
[53] Against the Applicants’ experiences in Hungary, the RPD examined other documentary evidence which showed the steps which the Hungarian government is taking to improve the situation of Roma people. The RPD found the Hungarian government is making serious efforts to reduce the discrimination Roma people face. Even though progress is slow, positive change is occurring.
[54] The RPD noted that social attitudes toward Roma people had to change for discrimination against them to be reduced. In Hungary, a recent economic downturn had increased extremism and discrimination against Roma people. Roma people are often deprived of social housing and schools are segregated because of discrimination. However, the Hungarian Government had banned the Hungarian Guards and the Hungarian Supreme Court had upheld this ban. After a gathering by the Hungarian Guards in 2007, the Hungarian police had taken action against many people for being involved in a banned organisation. In 2008, in response to a wave of violence, the Hungarian National Police Chief increased the number of detectives assigned to investigate violence against Roma people.
[55] Hungary’s Ministry of Justice and Law enforcement currently operates the Roma Anti-discrimination Customer Service Network. This organization provides legal aid to Roma people who encounter discrimination based on their ethnicity and has helped more than 7,200 people since 2004. The Equal Treatment Authority also provides Roma people with a direct avenue to assistance for dealing with discrimination against them. People who experience discrimination can also seek compensation in the courts.
[56] The RPD concluded that the Applicants had access to programs in Hungary which would allow them to defend their rights against discrimination.
[57] The RPD also found Hungary does not condone, and generally does not allow, discrimination against Roma people. There are laws in place to combat discrimination against Roma people and the Department for Roma Integration coordinates government efforts to include Roma people in society. In 2007, the Hungarian Government adopted the Strategic Plan of the Decade of Roma Inclusion. Like other minority groups in Hungary, Roma people can elect their own Minority Self Government to handle cultural and educational affairs.
[58] Although under-employment is a problem for Roma people, the Hungarian Government has dedicated significant resources to employment and opportunity programs to address this issue. In 2008, a company was fined for refusing to hire people because of their Roma ethnicity. Government programs have given many Roma people employment.
[59] The RPD found progress with respect to education was slow, but there were positive signs of improvement. Roma children are often segregated in schools, which contributes to under-employment and poverty. However, there are programs in place to address segregation. In 2010, the Hungarian Supreme Court awarded compensation to children who had been segregated, which showed the justice system is sending a message that discrimination cannot continue without costs.
[60] With respect to housing for Roma people, the authorities have a goal of reducing Roma ghettos. The Hungarian Government instituted a program to encourage Roma people to move into refurbished homes in towns and villages near where they reside. In 2009, the Budapest Court fined the 2nd District of Budapest for evicting 40 Roma people from housing they were occupying.
[61] With respect to prevailing racist attitudes, the Hungarian Supreme Court has ruled that radio stations erred by refusing to air an advertisement from the Jobbik political party that referred to “Gypsy Crime.” This showed the court upholding a political party’s right to equal time for campaigning, and that broadcasters are not responsible for content.
[62] The RPD found that, although slow, progress was occurring in Hungary and there was no clear and convincing evidence that Hungary would not be reasonably forthcoming with adequate protection. Although the Applicants had been mistreated in Hungary, there were avenues available for them to address this mistreatment.
[63] The RPD found the Applicants were not Convention refugees and that they had not rebutted the presumption of state protection. These findings disposed of their claims under both sections 96 and 97 of the Act.
ISSUES
[64] The Applicants raise the following issues in this application:
a. Whether the RPD erred by not excluding the Original Narrative from the record;
b. Whether the RPD erred by relying on the Original Narrative;
c. Whether the RPD failed to make a necessary finding of fact;
d. Whether the RPD’s reasons are adequate;
e. Whether the RPD’s state protection finding was unreasonable;
f. Whether the RPD applied the incorrect test for state protection.
STANDARD OF REVIEW
[65] The Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[66] The first issue challenges the RPD’s decision to admit evidence. In Lai v Canada (Minister of Citizenship and Immigration) 2005 FCA 125, the Federal Court of Appeal held at paragraph 43 that the standard of review with respect to the admissibility of evidence is reasonableness.
[67] The second issue challenges the RPD’s reliance on documentary evidence which the Applicants submitted. It is well established that the RPD has expertise in assessing evidence and that its findings are to be given deference. The standard of review on the second issue is reasonableness. See Hassan v Canada (Minister of Employment and Immigration), [1992] FCJ No 946 (FCA) and Ched v Canada (Minister of Citizenship and Immigration) 2010 FC 1338 at paragraph 19.
[68] On the third and fourth issues, the Supreme Court of Canada recently held, in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62 at paragraph 14, that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” The Court must examine whether the reasons and the record together support the RPD’s findings. See also Lezama v Canada (Minister of Citizenship and Immigration) 2011 FC 986, at paragraph 22 and Niyonzima v Canada (Minister of Citizenship and Immigration) 2012 FC 299 at paragraph 24.
[69] In Carillo, above, the Federal Court of Appeal held at paragraph 36 that the standard of review on a state protection finding is reasonableness. Justice Leonard Mandamin followed this approach in Lozada v Canada (Minister of Citizenship and Immigration) 2008 FC 397, at paragraph 17 as did Justice Danièle Tremblay-Lamer in Chaves v Canada (Minister of Citizenship and Immigration) 2005 FC 193. The standard of review on the fifth issue is reasonableness.
[70] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[71] The standard of review on the sixth issue is correctness. In Ramotar v Canada (Minister of Citizenship and Immigration) 2009 FC 362 Justice Michael Kelen held at paragraph 12 that the standard of correctness applies where an applicant asserts that a decision maker applied the wrong test. Justice Yves de Montigny held at paragraph 35 in Saeed v Canada (Minister of Citizenship and Immigration) 2006 FC 1016, the correctness standard applies when examining the RPD’s application of the test for state protection. Justice Paul Crampton made a similar finding in Cosgun v Canada (Minister of Citizenship and Immigration) 2010 FC 400 at paragraph 30.
STATUTORY PROVISIONS
[72] The following provisions of the Act are applicable in this proceeding:
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries;
[…]
Person in Need of Protection
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning ­ of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care
[…]
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
[…]
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
[…]
[73] The following provisions of the Rules are also applicable in this proceeding:
5. (1) The claimant must complete the Personal Information Form and sign and
date the included declaration that states that
(a) the information given by the
claimant is complete, true and correct; and
(b) the claimant knows that the declaration is of the same force and effect as if made under oath.
[…]
(3) If the claimant completes the Personal Information Form with an interpreter, the interpreter must sign and date the included declaration that states
(a) the interpreter is proficient in the languages or dialects used, and was able to communicate fully with the claimant;
(b) the completed form and all attached documents were interpreted to the claimant; and
(c) the claimant assured the interpreter that the claimant understood what was interpreted.
[…]
6. […](4) If a claimant wants to change any information given in the Personal Information Form, the claimant must provide to the
Division three copies of each page of the form to which changes have been made.
The claimant must sign and date each new page and underline the change made. This subsection does not apply to a change in the choice of language for the proceedings or the language of interpretation.
5. (1) Le demandeur d’asile remplit le formulaire sur les renseignements personnels
et signe et date la déclaration figurant sur le formulaire portant :
a) que les renseignements qu’il fournit sont complets, vrais et exacts;
b) qu’il sait que la déclaration a la même force et le même effet que si elle
était faite sous serment.
[…]
(3) Si le demandeur d’asile remplit le formulaire sur les renseignements personnels
avec l’aide d’un interprète, ce dernier signe et date la déclaration y apparaissant
attestant:
a) qu’il maîtrise les langues ou dialectes utilisés et qu’il a pu communiquer parfaitement avec le demandeur d’asile;
b) qu’il a interprété pour le demandeur d’asile le formulaire rempli et tout document joint à celui-ci;
c) que le demandeur d’asile lui a assuré qu’il avait bien compris ce qui avait été interprété pour lui.
[…]
6. […] (4) Pour modifier un renseignement fourni sur le formulaire sur les renseignements personnels, le demandeur d’asile transmet à la Section trois copies de toute
page du formulaire qui doit être modifiée. Il date et signe chaque page ainsi modifiée
et souligne la modification. Le présent paragraphe ne s’applique pas dans le cas
d’une modification du choix de la langue des procédures ou de celle de l’interprétation.
ARGUMENTS
The Applicants
Failure to Strike the Original Narrative
[74] The Applicants argue that the RPD should have excluded the Original Narrative because this document contained errors in translation. By relying on this document, the RPD breached their right to procedural fairness.
[75] The Applicants discovered errors in the translation of the Original Narrative and submitted amended narratives to the RPD. They had a right to submit amended narratives under the Rules. However, the RPD violated their right to procedural fairness by accepting the Original Narrative and relying on it to make negative credibility findings.
[76] The translation of the Original Narrative contained significant errors, but the RPD focussed on irrelevant or minor considerations when it chose not to strike this evidence from the record. Rather than acting as it should have, the RPD blamed the Applicants for not being able to find Farkas. The RPD was also overzealous when it analyzed the RCC Letter, even though the RPD had led the Applicants to believe that this letter would address its concerns with the translation issue. Although the RCC Letter confirmed the relevant facts, the RPD based its decision not to strike the Original Narrative on irrelevant sentences. The RPD did not consider how significant the errors in translation were.
Failure to Make Necessary Findings of Fact
[77] The RPD was obligated to make clear findings with respect to the events the Applicants alleged, but it did not do so. Its finding that the events they described had occurred, “but not as the [Applicants] would have me believe,” is not a proper finding of fact. The RPD failed to accept or reject the evidence in a way that allows a meaningful review of the Decision. The Applicants alleged they had been attacked by members of the Hungarian Guard in February 2009, but the RPD only found that this did not happen in the way the Applicants described it.
[78] The RPD also failed to make clear credibility findings for all of the Applicants. It should have assessed Zsolt’s claim separately because he was an adult at the time the RPD heard the Applicants’ claims.
Reasons Inadequate
[79] The RPD’s failure to make necessary findings of fact shows that its reasons are not adequate. The reasons do not show why the RPD conc