Date:
20101012
Docket:
IMM-1897-10
Citation:
2010 FC 1003
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, October 12,
2010
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
GABOR
KOVACS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
Jurisprudence
is evaluated throughout history in the manner it treats the human condition, as
is a country judged in the manner it treats its minorities (summary of the
writings of Emile Zola (1840-1902) on the system of justice and his cry of
conscience for a voice of the voiceless).
La jurisprudence est évaluée à travers
l’histoire par la manière qu’elle traite la condition humaine, comme un pays
est jugé par la manière qu’il traite ses minorités (résumé de l’œuvre d’Émile
Zola (1840-1902) à l’égard du système de justice et son cri de conscience qui
évoque la voix de ceux qui sont sans voix).
II. Introduction
[2]
This
is an application for judicial review, pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of the
decision by the pre-removal risk assessment (PRRA) officer, rendered on
February 17, 2010, that the applicant would not be subject to a risk of persecution
or to a risk to his life if he were to be removed to his country of nationality
within the meaning of sections 96 and 97 of the IRPA.
[3]
The
applicant and his family members are Roma and their ethnicity was not disputed.
Situation of the Roma - History
(Prior to the 21st century – based in
large part on an article from the Courrier international, entitled [translation] “Abandoned on the side of
the road,” dated November 12, 2009, as quoted by the respondent before the
PRRA officer)
[4]
It
was approximately in the year 1000 that the Roma left India, where they were
from originally, to go to Persia. (And, in a number of countries, as a result
of a historical error, they were called gypsies because they were thought to
have come from Egypt. This is as incorrect as the Aboriginal people of Canada being called
Indians as a result of Christopher Columbus’s error.) In the Balkans, the Roma
were called by a name originally given to a sect of Manichean monks, Athiganoi
or Atsiganos, from which came another group of names - Zingaro (in Italian),
Tsigane (in French), Zigeuner (in German), Ciganie (in Slavic languages) and
Cikani (in Czech).
[5]
The
question “who are the Roma?” was answered by chance in 1763 by a Hungarian
theology student named Stefan Vali, who met several Indians, Malabars, in
Leyden, Holland, where they were studying medicine. Vali was intrigued by their
similarity to the Roma he had known in Hungary. He
continued beyond these external similarities, writing down more than a thousand
Malabar words they used, along with their meanings. When he returned to Hungary
and discovered the meanings of the words among the Roma, he was surprised at
the similarity of the two languages. Afterwards, linguists, historians and
ethnologists confirmed the Indian origins of the Roma.
[6]
The
Roma reached the Balkans in around the 14th century. In dispersing throughout Europe,
they adopted the religion of the majority of the European population. It was in
Western
Europe
that their largest wave of migration occurred in the 16th century, from where
some countries deported them to the African and American colonies.
[7]
Up
until the 19th century, the Roma were considered, in the Eastern European
countries, to be people without freedom, often treated as slaves.
[8]
Starting
in 1930, they were victims of the racial policies of the Nazis by extermination
and genocide. Of the 700,000 Roma living in Europe, 250,000 to 500,000 were deported
and killed in gas chambers. For the Roma, this period is called Samudaripen, i.e.
“the murder of all” in the Romani language.
[9]
In
1982, Germany officially recognized its responsibilities toward the Roma. In France, in 1997, the
President of the Republic referred to their situation in a ceremony in memory
of the victims of the deportation.
[10]
The
documents, directly quoted in the list of 19 documents submitted to the PRRA
officer, as listed by the respondent in his supplementary memorandum, show
whether the situation has changed over recent years (this evidence is quoted by
the Court below, as part of the analysis of the evidence).
[11]
A
Macleans article from September 10, 2009, elaborates:
Hungary’s Roma population is so
afraid of attacks by right-wing groups that they have started protecting their
neighbourhoods through night time patrols. Their fear is justified: six Roma
have been murdered in violent assaults since last November. After a huge police
investigation, four men, alleged Roma haters who carefully planned their
crimes, were detained for the deadly attacks in late August.
One of the worst attacks occurred
in Tatárszentgyörgy last February. Erzsebet Csorba woke up to the sound of
gunfire outside her house. She discovered her mortally wounded son not far from
his firebombed house. Her grandson was nearby. “His whole small body was full
with holes from the bullets,” she told Voice of America. The child soon
died.
Many fear the violence directed
at the nation’s 660,000 Roma will continue, despite the arrests. For the poor
ethnic minority, segregation and discrimination increased after the fall of
Communism when unskilled and unemployed Roma tended to concentrate in rural
villages. Life was cheaper than the cities, but with little chance of work.
Tomás Polgár, a popular
right-wing blogger, voices a common refrain among Hungarians: “They are
criminals and they are a threat to us, the majority. They make more children,
they’re taking over.” Ominously, he states, “It’s a war.” In June, Jobbik, a
far-right party with a platform of getting tough on “Gypsy criminality,”
captured 15 per cent of the vote in European elections.
The intimidation can be
frightening. Viktória Mohácsi, a former Roma European politician, receives
countless email threats. “I feel like I’m in a war,” she told a Dutch
newspaper. While she isn’t sure if patrols of Roma areas are a good idea, she
concedes there are few alternatives: “We can either set up an army or flee.”
[12]
A
Reuters article, entitled “As crisis deepens, Roma a powderkeg in Hungary,” from
Wednesday, August 12, 2009, reports:
…
But in Hungary, both the crisis
and the violence are particularly drastic. The country was the first nation in
the European Union to turn to the IMF for help last year, and faces deep
recession and mounting unemployment.
The economic slowdown has
especially hurt the Roma, who account for 6 to 7 percent of the population
and find it hard getting jobs even in prosperous times.
The crisis has reinforced social
tensions, and the recent brutal attacks on the Roma have brought the country to
the brink of open conflict, according to its president.
“We know that the situation is
tense to the point of explosion,” Laszlo Solyom told a news conference this
week, urging Hungarians to feel compassion for Roma, or gypsies: more than half
a dozen, including children, have died in recent violent attacks.
…
“Employers seal the gates,” said
Istvan Szirmai, an official at Hungary’s Labour Ministry. “They have the right
to choose ... and they do not accept Gypsies.”
…
[Emphasis added.]
[13]
As
regards state protection for the Roma in Hungary, it was reported as ineffective
throughout the documentation submitted; according to the “Amnesty International
Report 2009 – Hungary”:
Legal, constitutional or institutional
developments
In June, the Constitutional Court
rejected amendments to the civil code and penal code passed by parliament in
November 2007 and February 2008 respectively. The amendments
represented the fourth attempt by parliament since 1992 to change the law
on hate speech. They would have criminalized incitement targeted against a
minority group and allowed a maximum two-year prison sentence for anyone using
inflammatory expressions about specific ethnic groups or offending their
dignity. The Court considered these amendments to be unconstitutional as they
would curtail freedom of expression.
[14]
Furthermore,
the article entitled “Racist Crime Wave - Hungary’s Roma Bear
Brunt of Downturn,” dated February 24, 2009, explains:
…
ERRC director Kushen says that
while the Hungarian government has made some efforts to address the issues of
the social marginalization suffered by the Roma, not enough has been done and
whatever programs are in place are not sufficiently funded. “It is a failure of
political will to introduce programs that require a higher level of investment,”
he says, adding that officials are often unwilling to take the heat for
supporting unpopular measures.
On Tuesday, Hungary’s
ombudsman on minority affairs, Erno Kallai, took the unprecedented step of
addressing the national parliament about the spate of attacks on Roma families.
“I strongly urge you to come up with an ethnic peace plan,” he said. “Not
hollow statements but concrete measures that can be implemented immediately and
understood by the whole of society.” He also criticized the police for failing
to catch the perpetrators of Monday’s murders.
…
III. Facts
[15]
The
applicant, Gabor Kovacs, was born on May 30, 1989, in Szigetvar, Hungary. He is
a citizen of Hungary.
[16]
His
mother’s name is Erzsébet Kalànyos and his grandmother’s name is Karolyne Bors.
His two brothers’ names are Christopher Rolland Nagy and Reno Nico Nagy, and
his uncle is called Jànos Bors.
[17]
The
applicant and his family are members of the Roma ethnic group.
[18]
The
applicant first came to Canada with his family in February 2001. At that
time he claimed refugee status with his family members: his grandmother,
mother, two brothers and uncle.
[19]
In
October 2001, he returned to Hungary with his family members.
[20]
In
December 2001, the applicant returned to Canada and the
family re-submitted their refugee claim. At that time, he was accompanied by his
mother, grandmother and two brothers.
[21]
On
July 17, 2002, the Refugee Protection Division (RPD) allowed the refugee
claim of the applicant and his family.
[22]
On
February 10, 2004, the
applicant and his family appeared before Citizenship and Immigration Canada
(CIC) to show their intention of leaving Canada. The mother, Erzsébet Kalànyos,
explained that her son, Reno Nico Nagy, was ill and that she wanted to have him
treated in Hungary.
[23]
On
February 23, 2004, the applicant, who was then 15 years old, accompanied
the other members of his family when they returned to Hungary. Also, the
applicant alleges that his family had decided to return to Hungary to accompany
his uncle, Jànos Bors, whose refugee claim had been rejected. Mr. Bors was
gravely ill and, according to the family, he needed urgent care.
[24]
On
April 7, 2004, an application to cease refugee protection was filed with
the RPD.
The basis of the application was that the applicant and his family had again returned
to Hungary.
[25]
On
June 28, 2004, the RPD allowed the application, resulting in the loss of
refugee status for the applicant and his family members.
[26]
Since
their return to Hungary in 2004, the applicant alleges that he and his
family have been the victims of violent physical attacks and insults from
skinheads.
[27]
The
skinheads allegedly beat Jànos Bors a number of times. He purportedly fell into
a coma after an attack by skinheads who allegedly set fire to his house by
throwing Molotov cocktails at it. They also apparently shot at the house.
[28]
The
applicant’s grandmother was also apparently injured when the skinheads allegedly
broke into her home and beat her. She was then purportedly hospitalized and had
to have surgery.
[29]
The
applicant alleged that he could not return to Canada earlier because of financial
difficulties.
[30]
The
applicant started a family in Hungary. His common-law spouse’s name is Mónika
Jozsa and their child’s name is Kira.
[31]
On
October 29, 2009, the applicant returned to Canada with his grandmother,
his spouse and their child, who is a minor. He filed a refugee claim.
[32]
The
applicant’s parents and two brothers still live in Szigetvar.
[33]
As
this is the first application for his spouse and daughter, their hearing before
the RPD was postponed.
[34]
The
same day, the claim for refugee protection by the applicant and his grandmother
was determined to be ineligible under paragraph 101(1)(c) of the
IRPA because of his prior claim with the RPD. The applicant and his grandmother
had to file a PRRA application.
[35]
The
negative PRRA decision was rendered on February 17, 2010. The officer
found that the applicant had not discharged his burden of establishing that the
state of Hungary was unable
to protect him.
[36]
The
applicant filed a motion to stay his removal, which was scheduled for April 15,
2010. The motion was stapled to the application for leave and judicial review.
The motion for a stay was granted by Justice Danièle Tremblay-Lamer on April 12,
2010.
IV. The impugned decision
[37]
After
analyzing all of the evidence, the PRRA officer found that there was no
reasonable possibility of the applicant’s persecution were he to return to Hungary.
[38]
The
PRRA officer found that the applicant had not discharged his burden of rebutting
the presumption of state protection in his country. On this point, part of the
PRRA officer’s decision reads as follows:
[translation]
In this case, the significance of the discrimination
against the “Roma,” the presence of an extreme right group called the “Hungarian
guards” and the marked increase of violence toward this community between
January 2008 and September 2009 are not in dispute. The objective and recent
documentary evidence such as was submitted by the applicant’s representative
shows the existence of these problems within Hungarian society. Despite the
lack of evidence to establish that the applicant was a victim of violence and
attacks because of his “Roma” ethnicity, the documentary evidence shows that, even
so, he could have obtained state protection, although this protection may be
imperfect. As set out in Ward, except in situations of complete
breakdown of the state apparatus, the claimant must provide clear and
convincing evidence that the state is unable to protect him. The applicant has
not discharged his burden of proof. Hungary is a democratic country, a member
of the European Union, which has a functioning judicial system and takes the
necessary measures to protect its citizens, including its “Roma” minority.
(PRRA officer’s decision, p. 5)
V. Issues
[39]
(1)
Did the PRRA officer err in her assessment of the documentary evidence on the
protection of people from the Roma ethnic group in Hungary?
(2) Did
the PRRA officer err in ignoring the evidence or failing to properly assess it?
(3)
In the circumstances, does the discrimination against the applicant amount to
persecution?
VI. The relevant legislative provisions
and their interpretation
[40]
The
UN High Commissioner for Refugees (HCR) published a book entitled Handbook
on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees (Reedited,
Geneva, January 1992) (Handbook). This Handbook provides, among other things,
guidance on the interpretation of section 96 of the IRPA. The Supreme
Court itself emphasized the importance of the Handbook as an instrument for
interpreting the Convention:
[27] ...While not formally binding
on signatory states, the Handbook has been endorsed by the states which are
members of the Executive Committee of the UNHCR, including Canada, and has been
relied upon by the courts of signatory states. …
(Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1)
[41]
In
Chan v. Canada (Minister of Employment and Immigration), [1995] 3
S.C.R. 593, 128 D.L.R. (4th) 213, the Supreme Court referred to the Handbook in
its analysis relating to the admission of a refugee:
[46] ... Instead, as I noted, I
believe the appellant is entitled to have his claim reheard before a Refugee
Board in accordance with the guidelines of the United Nations High Commissioner
for Refugees Handbook on Procedures and Criteria for Determining Refugee
Status, the “UNHCR Handbook.” As I noted in Ward, at pp. 713-14,
while not formally binding upon signatory states such as Canada, the UNHCR
Handbook has been formed from the cumulative knowledge available concerning the
refugee admission procedures and criteria of signatory states. This much-cited
guide has been endorsed by the Executive Committee of the UNHCR, including
Canada, and has been relied upon for guidance by the courts of signatory nations.
Accordingly, the UNHCR Handbook must be treated as a highly relevant
authority in considering refugee admission practices. This, of course, applies
not only to the Board but also to a reviewing court. [Emphasis added.]
[42]
Recently,
the Handbook was adopted and used formally by the Federal Court in Gorzsas
v. Canada (Minister of Employment and Immigration), 2009 FC 458, 346
F.T.R. 169.
[43]
The
following paragraphs of the Handbook are relevant:
(b) Persecution
...
52. Whether other prejudicial actions or
threats would amount to persecution will depend on the circumstances of each
case, including the subjective element to which reference has been made in the
preceding paragraphs. The subjective character of fear of persecution requires
an evaluation of the opinions and feelings of the person concerned. It is also
in the light of such opinions and feelings that any actual or anticipated
measures against him must necessarily be viewed. Due to variations in the
psychological make-up of individuals and in the circumstances of each case,
interpretations of what amounts to persecution are bound to vary.
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 well-founded fear of persecution on “cumulative grounds”.
Needless to say, it is not possible to lay down a general rule as to what
cumulative reasons can give rise to a valid claim to refugee status. This
will necessarily depend on all the circumstances, including the particular
geographical, historical and ethnological context.
(c) Discrimination
54. Differences in the treatment of
various groups do indeed exist to a greater or lesser extent in many societies.
Persons who receive less favourable treatment as a result of such differences
are not necessarily victims of persecution. It is only in certain circumstances
that discrimination will amount to persecution. This would be so if measures of
discrimination lead to consequences of a substantially prejudicial nature for
the person concerned, e.g. serious restrictions on his right to earn his
livelihood, his right to practise his religion, or his access to normally
available educational facilities.
55. Where measures of discrimination are,
in themselves, not of a serious character, they may nevertheless give rise to a
reasonable fear of persecution if they produce, in the mind of the person
concerned, a feeling of apprehension and insecurity as regards his future
existence. Whether or not such measures of discrimination in themselves
amount to persecution must be determined in the light of all the circumstances.
A claim to fear of persecution will of course be stronger where a person has
been the victim of a number of discriminatory measures of this type and
where there is thus a cumulative element involved. [Emphasis added.]
VII. Parties’ allegations
[44]
The
respondent submits that the applicant did not show that the PRRA officer erred
in fact or in law. He submits that the decision is reasonable and that the
documents filed by the applicant in support of his application do not raise any
serious grounds that would warrant this Court’s intervention in this case so as
to set aside the PRRA officer’s decision.
[45]
The
applicant submits that the PRRA officer erred in finding that there was
insufficient evidence without giving weight to the testimonial evidence and
without considering all the documentary evidence submitted for her attention to
the effect that the Hungarian state does not provide effective protection to
the Romani people.
VIII. Standard of review
[46]
The
standard of review applicable in this case is reasonableness. As explained by
Justice Maurice Lagacé in Pareja v. Canada (Minister of Citizenship
and Immigration), 2008 FC 1333, [2008] F.C.J. No. 1705 (QL), the PRRA
officer, in determining his or her findings on the pre-removal risks,
essentially conducts an analysis of the facts submitted to him or her. Great
deference is owed to these findings of fact:
[12] The
pre-removal risk assessment of the PRRA officer rests essentially on an
assessment of the facts to which this Court must afford great deference.
Accordingly, the standard of “unreasonableness” applies to the PRRA officer’s
findings of fact, and indeed the applicant does not dispute the appropriate
standard (Dunsmuir v. New Brunswick, 2008 SCC 9).
[47]
Therefore,
this Court cannot intervene unless the PRRA officer’s decision is unreasonable.
IX. Analysis
[48]
The
PRRA officer’s decision involved two specific points: the lack of corroborative
evidence in the record and the effectiveness of state protection in Hungary. On this
basis, the PRRA officer found that there was no risk if the applicant were to
return to his country of nationality.
(1) Did the PRRA officer
err in her assessment of the documentary evidence on the protection of people
from the Roma ethnic group in Hungary?
Portrait of the Roma in
Hungary
(The following five paragraphs, including
the contents as seen in the document submitted to the PRRA officer “Hungary:
Treatment of Roma; state protection efforts (2006–September 2009)” dated
October 15, 2009, shows the official data describing the prevailing
climate toward the Roma, supported by the 19 documents submitted directly and
also for the attention of the PRRA officer by the applicant, as quoted by the
respondent in his supplementary memorandum.)
[49]
The
Roma ethnic community is a large ethnic minority in Hungary:
According to the Director of the
Autonómia Foundation, NGOs such as the Roma Civil Rights Foundation (RPA), the
Legal Defence Bureau for National and Ethnic Minorities (NEKI) and the Legal
Counselling Office of the Roma Parliament have a better reputation than
government organizations for assisting Romani victims of discrimination (22 Aug.
2009). NGOs with legal expertise also provide anti-discrimination training for
members of the judiciary (UN 4 Jan. para. 49). According to the HHC,
organizations like NEKI and the RPA have “limited financial and human
resources,” which restricts the number of cases that they can take per year
(HHC June 2009, 3). As of June 2009, a coalition of NGOs funded by
the OSI was reportedly in the process of establishing a legal aid program for
victims of hate crimes (ibid.). …
[50]
Hungarian
data protection laws prohibit the gathering of data disaggregated on an ethnic
basis. Thus, concrete statistics on racially motivated violence specifically
targeting the Roma are unavailable. According to Amnesty International (quoted
in the document above), the increasing number of attacks against Romani
individuals and their homes has created a climate of fear and intimidation in
that community.
The Roma and the police
[51]
According
to a report from the European Commission Against Racism and Intolerance (ECRI)
of the Council of Europe, Romani victims of violence are reluctant to report
attacks directed against them for a variety of reasons, such as shame,
fear of retribution or the perception that their complaint will not
lead to positive action.
[52]
Reports
from the Council of Europe noted that there have been a number of cases
of police brutality against the Roma. In 2008, an independent board of five
legal experts was created by the Hungarian Parliament to provide recommendations
to improve the work of the police.
[53]
Similarly,
the Hungarian government has taken a number of legal and institutional measures
to improve the situation of the Roma. However, a May 2008 document
published by the State Audit Office of Hungary indicated that resources “routinely
failed to reach the groups with the greatest needs.” It is in this climate
that the incidents involving the Roma occurred, which were revealed in the
evidence given to the PRRA officer.
Standard of state
protection
[54]
In
her decision, the PRRA officer found that even in the event that the applicant
had been persecuted, [translation]
“he could have obtained state protection, although this protection may be
imperfect” (PRRA officer’s decision, p. 5). The officer pointed out that there
are a number of measures in the Hungarian system to specifically protect the
Romani community. The measures outlined by the officer include the arrest of
four suspects following murders committed in the Romani community, the state of
Hungary’s general awareness
of the climate of violence, the increasing number of police investigations, and
police involvement in relation to the violence toward the Roma.
[55]
As
set out in Ward, above, the burden is on the applicant to rebut the
presumption of the state’s protection of its nationals by demonstrating that the
applicant could not have obtained state protection. In Carrillo v. Canada
(Minister of Citizenship and Immigration), 2008 FCA 94, 165 A.C.W.S.
(3d) 146, the Federal Court of Appeal explained that evidence of an allegation
that the state’s protection of one of its citizens is inadequate or
non-existent requires that the refugee:
[38] … bears the evidentiary burden
of adducing evidence to that effect and the legal burden of persuading the
trier of fact that his or her claim in this respect is founded. The standard of
proof applicable is the balance of probabilities and there is no requirement of
a higher degree of probability than what that standard usually requires. As for
the quality of the evidence required to rebut the presumption of state
protection, the presumption is rebutted by clear and convincing evidence that
the state protection is inadequate or non-existent.
[56]
In
support of her allegation that the state protection is inadequate, the PRRA
officer had considerable documentary evidence filed, including a letter
signed by Dezsö Nömös, Vice Chair of the Roma minority council of Szigetvár,
dated October 27, 2009, which attests to the violent incidents that the
Roma were victims of at that time.
[57]
The
PRRA officer has no obligation to mention or rebut each piece of evidence in her
decision. It is within the PRRA officer’s jurisdiction to give more
weight to one part of the documentary evidence than to another. The decision
must nevertheless reflect that this evidence was considered. In Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J.
No. 1425 (QL), 157 F.T.R. 35, the Federal Court states that:
[15] The Court may infer that the
administrative agency under review made the erroneous finding of fact “without
regard to the evidence” from the agency’s failure to mention in its reasons
some evidence before it that was relevant to the finding, and pointed to a
different conclusion from that reached by the agency. …
…
[17] However, the more important the
evidence that is not mentioned specifically and analyzed in the agency’s reasons,
the more willing a court may be to infer from the silence that the agency made
an erroneous finding of fact “without regard to the evidence”: Bains v.
Canada (Minister of Employment and Immigration) (1993), 63 F.T.R.
312 (F.C.T.D.). In other words, the agency’s burden of explanation increases
with the relevance of the evidence in question to the disputed facts. Thus, a
blanket statement that the agency has considered all the evidence will not
suffice when the evidence omitted from any discussion in the reasons appears
squarely to contradict the agency’s finding of fact. Moreover, when the agency
refers in some detail to evidence supporting its finding, but is silent on
evidence pointing to the opposite conclusion; it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of
fact.
[58]
In
her review of the documentary evidence in relation to the actions taken by the
authorities to protect the Roma, the PRRA officer selectively cited the
following evidence only: an article from Macleans magazine, a short excerpt
from a 2009 Amnesty International report, along with an article that appeared
in Time magazine, and a BBC News article. The PRRA officer relied
only on this evidence, comprising selective excerpts, to find on two occasions that
after the arrest of suspects in August 2009, [translation] “the attacks have apparently stopped” (PRRA
officer’s decision, p. 5) and that [translation]
“since these arrests in August 2009, the documentary evidence does not mention
that such attacks took place” (PRRA officer’s decision, p. 6).
[59]
This
finding, reiterated twice by the PRRA officer, shows an error in her review of
the contradictory documentary evidence in the record.
[60]
In
light of the scope of the evidence as a whole, the PRRA officer could not have
reasonably found that no other attack was committed against the Roma in Hungary
after the period of January 2008 to August 2009. Nor does she explain
why she rejected or failed to consider the contents of the letter from Mr. Nömös,
dated October 2009, which states that [translation] “… the Gypsies live in terror, they are afraid
of attacks and murder. They no longer dare to go out” (Letter, translated from
Hungarian, p. 2). On the date of the decision, it seemed premature, on the
basis of the documentary evidence, to find that the incidents from January 2008
to August 2009 were a momentary and temporary increase in violence against
the Roma.
[61]
The
PRRA officer must at least assess the meaningful evidence concerning the
deterioration of living conditions for the Romani people. It was unreasonable
for the PRRA officer to find that the attacks against the Roma have stopped in
Hungary
without explaining how she reached that finding. This finding is pivotal to
making the decision, because a PRRA decision is used to determine whether there
is a risk in removing an individual to his or her country of nationality and
not whether there was a risk at the time he or she left for Canada.
Change in circumstances
[62]
The
PRRA officer stated that the applicant could have obtained state protection,
even if this protection is imperfect. In listing the desired changes in the
state of Hungary during the past few years, the PRRA officer seems to find that
the circumstances in Hungary had changed. In his book, The Law of Refugee
Status, Professor James Hathaway sets out the three conditions for there to
be a finding of change in circumstances in a given country: the change in
circumstances must be substantial, effective and durable, as specified by the
applicant in his memorandum (James Hathaway, The Law of Refugee Status,
Butterworths, Toronto, 1991, pp. 199 and following).
[63]
In
Streanga v. Canada (Minister of Citizenship and Immigration),
2007 FC 792, 2007 CarswellNat 2342, this Court dealt with state protection in
the context of a PRRA application and the standard to meet for there to be
effective protection in a given state:
[15] The Applicant submits that the
PRRA Officer has erred in viewing the legal test as one of “serious measures”.
The Federal Court in Elcock v. Canada (MCI), [1999] F.C.J. No.
1438 (T.D.) (QL), at paragraph 15, established, that for adequate state
protection to exist, a government must have both the will and the capacity to
effectively implement its legislation and programs:
… Ability of a state to protect must be
seen to comprehend not only the existence of an effective legislative and
procedural framework but the capacity and the will to effectively implement
that framework.
[Emphasis added.]
[64]
In
a context similar to the situation facing the Roma in Hungary, Justice Yvon
Pinard, in Balogh v. Canada (Minister of Citizenship and Immigration),
2002 FCT 809, 221 F.T.R. 203, pointed out that the evidence of improvement
and progress made by the state is not proof that the current measures amount to
effective protection:
[37] … I am of the view the
tribunal erred when it suggested a willingness to address the situation of the
Roma minority in Hungary can be equated to adequate
state protection. ...
[65]
In
Avila v. Canada (Minister of Citizenship and Immigration), 2006
FC 359, 295 F.T.R. 35, Justice Luc Martineau also addressed the issue of state
protection:
[27] In order to determine whether a
refugee protection claimant has discharged his burden of proof, the Board must
undertake a proper analysis of the situation in the country and the particular
reasons why the protection claimant submits that he is “unable or, because of
that risk, unwilling to avail [himself] of the protection” of his country of
nationality or habitual residence (paragraphs 96(a) and (b)
and subparagraph 97(1)(b)(i) of the Act). The Board must
consider not only whether the state is actually capable of providing protection
but also whether it is willing to act. In this regard, the legislation and
procedures which the applicant may use to obtain state protection may reflect
the will of the state. However, they do not suffice in themselves to establish
the reality of protection unless they are given effect in practice: see Molnar
v. Canada (Minister of Citizenship and Immigration), 2002
FCTD 1081, [2003] 2 F.C. 339 (F.C.T.D.); Mohacsi
v. Canada (Minister of Citizenship and Immigration), 2003 FCTD 429,
[2003] 4 F.C. 771 (F.C.T.D.). [Emphasis added.]
[66]
Thus,
it cannot be sufficient to show the changes and improvements in the Hungarian
state, including a number of options for recourse and the possibility to obtain
state protection. It still remains to be proven that the changes have been
effectively implemented in practice. Proof of the state’s willingness to
improve and its progress should not be, for the decision-maker, a decisive
indication that the potential measures amount to effective protection in the
country under consideration. As the case law above shows, willingness, as sincere
as it may be, does not amount to action.
[67]
In
Babai v. Canada (Minister of Citizenship and Immigration), 2004 FC
1341, 2004 CarswellNat 3439, the decision-maker was required to assess the
contradictory documentary evidence that indicated a risk for the applicant:
[22] The applicant submits that it
is open to the PRRA Officer to make her own assessment of state protection.
However, the PRRA Officer erred by ignoring voluminous documentary evidence
that is highly corroborative of the applicant’s claim that he will face
persecution without hope of state protection should he be forced to return to
Hungary. …
[68]
In
this case, the documentary evidence shows that the finding that Hungary’s state
protection of the Roma is effective is not unanimous among international
organizations. For example, in 2009, the article “Racist Crime Wave –
Hungary’s Roma Bear Brunt of Downturn,” above, quoted the director of the
European Roma Rights Center (ERRC):
ERRC director Kushen says that while the
Hungarian government has made some efforts to address the issues of the social
marginalization suffered by the Roma, not enough has been done and whatever
programs are in place are not sufficiently funded. “It is a failure of
political will to introduce programs that require a higher level of investment,”
he says, adding that officials are often unwilling to take the heat for
supporting unpopular measures.
[69]
In
Ward, above, Justice Gerard V. La Forest stated that “it would seem to
defeat the purpose of international protection if a claimant would be required
to risk his or her life seeking ineffective protection from a state, merely to
demonstrate that ineffectiveness.” (para. 55)
[70]
The
fact that the Hungarian state is making efforts to head toward improving the
situation of the Roma is clear from the evidence. Nevertheless, in this case, the
seriousness of the danger and the incidents of violence that the applicant and
his family have had to face, the extremes to which the family has had to reduce
itself by hiding, in addition to the frequency or continuation of the incidents
and the span of time over which the incidents had to have taken place show that
the state does not seem to have shown that it can effectively protect them.
[71]
The
Court understands that, according to the evidence, the applicant or his family
did not directly request police protection. Following uncontradicted incidents,
including a house burned down by a Molotov cocktail, the use of firearms and
the hospitalization of two people with serious injuries, the applicant and his
family could have considered that the police, or at least the state authorities
in question, would have been aware of his family’s distress and their crisis
situation. In addition, as discussed above, the documentary evidence shows how precarious
the relationship of trust is between the police authorities and the Romani
communities. As explained in the Handbook, fear of authorities may cause a lack
of faith in the state apparatus as a result of past experiences that affected
the individuals concerned (see para. 198 of the Handbook: “198. A person
who, because of his experiences, was in fear of the authorities in his own
country may still feel apprehensive vis-à-vis any authority. He may therefore
be afraid to speak freely and give a full and accurate account of his case.”).
(2) Did the PRRA officer
err in ignoring the evidence or failing to properly assess it?
[72]
The
PRRA officer deplored the lack of evidence in the record establishing the facts
underlying the risk of returning the applicant to Hungary. In the PRRA
decision, the only passage that deals with insufficient evidence is the
following:
[translation]
As far as the alleged risks are
concerned, the absence of evidence in the record establishing the facts
underlying the risk of return is noted. Thus, the applicant, who claims to have
lived in hiding with his family in Hungary, has not submitted any evidence
establishing his personal circumstances in Hungary after his return in 2004. This
absence of personal evidence is also noted in the facts submitted by his
grandmother, Karolyne Bors (4385-5515), and to which the applicant refers in
support of this application. There is also an absence of evidence in the record,
police reports or other documents, indicating that the applicant, his
grandmother or other members of his family tried to obtain protection from the
Hungarian authorities after the alleged attacks.
(PRRA
officer’s decision, p. 4)
[73]
The
Court is mindful of the fact that cases of police brutality toward the Roma
have been so significant that the Hungarian authorities themselves have noted
the seriousness of the situation. Therefore, in this particular case of the son
and his family, was it likely that they would have reported their difficulties
to the authorities rather than to deal with the entire family’s fear
exclusively within the family?
[74]
The
applicant submitted testimony on the incidents of violence against him and his
family in Hungary. He bases his application on his statement contained in his Personal
Information Form (PIF) and on the statement by his grandmother, Karolyne Bors,
whose testimony corroborates the incidents of violence his family has been a
victim of.
[75]
The
subjective evidence in the applicant’s testimony is consistent with the
objective documentary evidence as a whole, filed in the record, pertaining to
the protection provided by Hungary. In this regard, the
documentary evidence could corroborate the applicant’s narrative if the facts
of this narrative had been considered as a whole by the decision-maker. The
PRRA officer erred by not at least considering the facts in the applicant’s
testimony or in Karolyne Bors’s testimony, which was given before the same PRRA
officer.
[76]
The
applicant’s deposition describing the abuse suffered by him and his family when
they were in Hungary should have at least been considered by the PRRA officer. The
PRRA officer does not provide any justification for ignoring the testimony
other than to say that the applicant could have sought state protection,
without having satisfactorily shown her assessment of the evidence in its
entirety.
(3) In the circumstances, does
the discrimination against the applicant amount to persecution?
[77]
Given
that the PRRA officer’s decision deals mainly with the issue of the state’s
ability to protect the applicant, the PRRA officer’s analysis in relation to
persecution appears to be non-existent considering the burned-down house and
the serious physical attacks and hospitalization of the family; even following
these uncontradicted events, there was no mention of action demonstrated by the
authorities following the serious events. The documentary evidence
gives an in-depth account of the background of the treatment of the Romani
people and the circumstances they have experienced; the PRRA officer herself
did not doubt [translation] “the significance
of the discrimination against the ‘Roma’” (PRRA decision, p. 5).
[78]
As
for what constitutes persecution within the meaning of section 96 of the
IRPA, the Handbook provides that adverse circumstances added to various
measures, such as discrimination, can result in an applicant having a “fear of
persecution on ‘cumulative grounds’” (para. 53 of the Handbook). Discrimination
amounts to persecution when “measures of discrimination lead to consequences of
a substantially prejudicial nature for the person concerned” (para. 54
of the Handbook), which, cumulatively, become persecution.
[79]
The
evidence as a whole highlights all the circumstances of the case, such as the geographical,
historical and ethnological context; the allegations of fear of persecution
expressed by the applicant must be assessed by ensuring that the decision-maker
has considered the documentary evidence. For that, the in-depth review of the
documentary evidence, in itself, would have to demonstrate whether a
possibility of persecution exists in this case.
[80]
The
triers of fact are required to conduct an individual analysis, since state
protection depends on the possibility for the state to provide effective
protection to the person claiming protection in the case under review,
according to the evidence, the legislation and the case law, on a case-by-case
basis.
[81]
In
Mohacsi v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 429, [2003] 4 F.C. 771 (F.C.T.D.), the
application for judicial review of the Roma in question was allowed by the Court:
[56] It is also wrong in law for the
Board to adopt a “systemic” approach which may have the net effect of denying
individual refugee claims on the sole ground that the documentary evidence
generally shows the Hungarian government is making some efforts to protect
Romas from persecution or discrimination by police authorities, housing
authorities and other groups that have historically persecuted them. The
existence of anti-discrimination provisions in itself is not proof that state
protection is available in practice. … Therefore, a “reality check” with the
claimants’ own experiences appears necessary in all cases. [Emphasis added.]
[82]
As
with state protection, which had to be analyzed based on the existing facts,
the risks to the applicant must also be assessed based on the evidence as a
whole submitted to the decision-maker. In this case, the uncontradicted
evidence shows that the recurring acts reportedly targeted the applicant’s
family with extreme violence, to the point where two individuals were put in
the hospital and the privacy of their home had been seriously breached. The
applicant’s testimony reflects that these are repeated incidents that put the
lives of Jànos Bors and Karolyne Bors in danger.
[83]
The
officer should have analyzed and assessed the concept of persecution in the
reasons for her decision. The situation experienced by the Roma as supported in
documentary evidence must be weighed with the evidence of the applicant’s
personal situation. In this case, the PRRA officer did not assess the applicant’s
evidence in conjunction with the documentary evidence to determine whether the
facts established that he was persecuted because of his race and whether the
Hungarian state was able to protect him.
X. Conclusion
[84]
In
light of these facts, the applicant seems to have shown that, in his situation,
he is not protected and, therefore, the PRRA decision cannot be reasonable
without a more in-depth analysis of the evidence as a whole. This case requires
completely new consideration with a more carefully thought-out analysis to reach
a conclusion in which the subjective evidence accorded with the objective
evidence.
JUDGMENT
THE COURT ALLOWS the
application for judicial review and refers the matter to another immigration
officer for reconsideration. No question is certified.
Obiter
The history of the Romani
people’s past, even their recent past, is rife with ostracism, exclusion,
marginalization, discrimination and, in some cases, persecution because of
their race. The situation of the Roma requires that the decision-maker assess
protection for each individual who claims protection based on the evidence of
treatment suffered by nationals who claim state protection.
“Michel
M.J. Shore”
Certified
true translation
Susan
Deichert,
Reviser
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