[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7 as amended, for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "tribunal") dated August 6, 1999, wherein the tribunal determined that the applicants were not Convention refugees.
Facts
[2] The applicants are members of the same family, and are citizens of Hungary. They base their claims on a well-founded fear of persecution by reason of their membership in an ethnic group: the Roma. Karoly Horvath, the male claimant, arrived in Canada on July 21, 1998. His common-law spouse, Timea Smajda, arrived with their four children on November 23, 1998, and shortly after their arrival a fifth child was born in Canada. Timea Smajda was the children's designated representative before the tribunal.
[3] Karoly Horvath was born in Aika, Hungary, of Roma parents. After school, he married Timea Smajda. He joined the army in 1995, but he was excused from military service to support his family, which by then included two children. He worked at odd jobs in the construction industry. During the summer of 1997, he was attacked by three skinheads while on his way to work. After causing him to fall from his bicycle, they kicked him in the head, leaving a scar. His wife attended to his wound. He did not go to a hospital for he feared that he would be mistreated because he was Roma. He also received threats by skinheads to leave the country. Finally, he feared for his and his family's safety after a right-wing party, perceived to be against the Romani, was successful in having representatives elected to the Hungarian Parliament in May 1998.
[4] Timea Smajda testified that her sister-in-law received poor medical treatment while in labour, when she was not attended to by medical staff. Eventually she required a caesarian section to deliver the baby and she subsequently developed complications as a result of the delivery. Timea Smajda testified, though no reference to this was included in her Personal Information Form ("PIF"), that she experienced poor treatment at the hospital when she was delivering her first child, when she was left alone in the delivery room while in labour. Eventually a nurse assisted her, but no doctor attended until the baby's umbilical cord was to be cut. When the doctor did appear, he treated her poorly, and verbally harangued her because she was Roma. When she was pregnant with her fifth child, she found the doctors would not perform standard examinations. This prompted her to leave Hungary and to join her husband in Canada.
[5] The applicant mother testified, supporting the claims set out in her husband's PIF, about discriminatory mistreatment they had experienced in Hungary, including attacks by skinheads, and about their fears for their children, in education and employment, in the circumstances prevailing against the interests of Roma generally in their country. They claimed refugee status on the basis of fear of persecution by reason of their membership in an ethnic group, the Romani minority in Hungary.
[6] The tribunal's decision accepted that the claimants are Roma, but it noted that the adult claimants and their children do not have physical characteristics that identify members of the Romani community, i.e., the claimants did not have dark skin, or eyes or hair. Despite the mother's claim that they would be identified in Hungary as Roma because of their surnames and by reason of the appearance of their family members, the panel concluded that since the children are "not easily identified as Roma", the minor claimants will suffer less discrimination and will have a better chance to integrate into the regular education system. Further, the claimants might be better off in a larger town where their families are not well known. In sum, the panel found that discriminatory treatment of Roma in education, and also in employment, are matters of serious concern, but in neither case did this constitute persecution.
[7] Insofar as the applicants feared attacks by skinheads, though each of the adults had been attacked once and the father had been threatened by skinheads to leave Hungary, the panel relied upon documentary evidence that such attacks had decreased, and in the late 1990's the state and the police had adopted measures designed to deal with assaults against members of ethnic minorities. Ultimately the panel found there is adequate state protection available to the claimants in Hungary. The panel found that though the claimants might face discrimination if they return to Hungary, there is not a serious possibility that they will be persecuted. Thus, their claimed fear of persecution is not well-founded.
The issues
[8] The applicants submit that the panel erred in law
a) in suggesting, without appropriate analysis, that the applicants had an internal flight alternative in Hungary;
b) in failing to consider all of the evidence before it;
c) in failing to assess whether the consistent discriminatory treatment of the claimants in several aspects of their life in Hungary cumulatively constituted persecution.
An Internal Flight Alternative
[9] In the reasons for its decision, the tribunal twice urged that the applicants should seek an internal flight alternative (an "IFA") within Hungary. In both instances this suggestion is interrelated with the panel's assessment that in their appearance the applicants did not appear with the usual characteristics of dark skin, dark eyes and dark hair of most Roma.
[10] In my opinion, the tribunal committed an error by failing to discuss evidence upon which its conclusion about an IFA rests, and by failing to assess that evidence in terms of the test established in Rasaratnam v. M.E.I., [1992] 1 F.C. 706 (C.A.). Moreover, having made no adequate assessment itself of a possible IFA the panel then comments that the applicants have not provided reasons to establish that an IFA would not be reasonable in their circumstances. Unless the evidence supports a proper finding of an IFA there is no reason for an applicant to establish a proposed IFA is not reasonable.
[11] The respondent submits that even if the panel's analysis of an IFA was in error, the decision should stand if it correctly found that the applicants did not have a well-founded fear of persecution in Hungary. I am not persuaded, however, that the finding of an absence of well-founded fear of persecution can be supported on the bases relied upon by the tribunal.
The panel's consideration of the evidence
[12] In part the panel's finding is based on its emphasis on the fair appearance of the applicants from which the panel infers they are not easily identifiable as Roma, ignoring some documentary evidence concerning a variety of factors other than appearance which, in Hungary, may be used to identify Roma. The emphasis of the panel also ignores its own acceptance of the applicants' ethnicity as Roma, the testimony of the mother that their family names and the appearances of extended family members would be perceived in Hungary as those of Romani people, and finally, it ignores the uncontradicted evidence of the adult claimants that they were victims of discrimination, harassment and personal attack because they were known or perceived to be Roma.
[13] The panel's emphasis on the inference drawn from personal appearances of the applicants, in the absence of discussion of the evidence of other relevant factors, is clearly misplaced.
[14] In large part the panel's ultimate finding of a lack of well-founded fear of persecution is based on subordinate findings that are based on reliance upon selective portions of the documentary evidence. It is not the Court's function to question the weighing of evidence by the panel unless its findings are found to be perverse or patently unreasonable. It is accepted that failure to refer to specific documents does not imply the documents were ignored. Yet where the panel makes no reference to documentary evidence of generally acceptable sources which contradicts the portions on which the panel relies, it is difficult to conclude that the panel did consider all relevant evidence.
[15] Here, the Board concludes, while acknowledging the applicants' concerns about difficulties they faced in education, in accessing health care, in employment, in dealing with harassment and attacks by skinheads, that government and other measures to deal with the problems of the Roma minority in Hungary now provide effective means to protect their interests. That appraisal is less clearly supportable from certain regularly accepted documentary evidence. In my view, the failure to refer to that evidence in the circumstances here is indicative of the panel's failure to consider all the relevant evidence. So is its failure to consider, without questioning its credibility, the evidence of the adult claimants of attacks upon them by skinheads, as a basis of a continuing threat of violence, in view of decreasing numbers of reports of such attacks and the panel's perception that if the applicants would move from their home town, their fair appearance would lead to less likelihood of difficulties.
Discrimination or persecution
[16] In this case the panel, while not fully accepting the evidence of the applicants' PIFs and the mother's testimony, does accept that the applicants, as Roma, would, if returned to Hungary, face discrimination in education, in employment, in access to health care, and in harassment generally in relation to public services. It accepts that there is discrimination against Roma in virtually all of the areas of concern to the lives of the applicants. It did not consider whether cumulatively the treatment experienced by the applicants could give rise to a well-founded fear of persecution.
[17] It may be that had the panel considered the cumulative effects of discriminatory treatment of the applicants, it might have concluded that these did not provide a basis for a well-founded fear of persecution. But in the circumstances of these claimants, on the evidence before the panel, it was an error on its part to fail to consider the cumulative effects of the treatment that the panel consistently accepted as discriminatory, and indicative of serious problems facing Roma in Hungary.
[18] Assessment of the cumulative effects of harassment as a possible basis for a finding of persecution is recognized by the Court of Appeal in Retnem v. M.E.I. (1991), 132 (N.R.) 53 at 55 (F.C.A.). It is also set out in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status in the following terms:
53. In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to a well-founded fear of persecution on "cumulative grounds".
Conclusion
[19] In my opinion, the panel in this case erred in its apparent reliance upon an IFA which was not supported by evidence referred to, or by analysis, by the panel. It erred also by failing to consider relevant evidence contrary to many of its findings which were thus unreasonable. Further, in the circumstances of this case the panel erred by not assessing whether the cumulative effects of discriminatory treatment, based on ethnic origin, constituted persecution.
[20] For these reasons, the impugned decision of the CRDD is set aside and the applicants' claim for Convention refugee status is sent back for redetermination by a differently constituted panel of the CRDD.
[21] No question was suggested by counsel for either party for consideration of the Court of Appeal pursuant to s. 83(1) of the Immigration Act, and none is certified pursuant to that section.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
April 27, 2001
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