Date:
20121220
Docket:
IMM-3036-12
Citation:
2012 FC 1538
Toronto, Ontario, December 20, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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GEZA ISTVAN BURI
MONIKA BURI
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
The
present Application for judicial review challenges a decision of the Refugee
Protection Division (RPD) dated March 2, 2012, in which the Applicants, a 77
year old father and his 40 year old daughter, claim refugee protection under s.
96 and s. 97 of the Immigration and Refugee Protection Act, SC 2001, c
27 on the basis of their ethnicity as Romany in Hungary.
[2]
As
a central finding in the rejection decision under review the RPD found that
“there is adequate state protection in Hungary and the claimants failed to
rebut the presumption of state protection, with clear and convincing evidence”
(Decision, para. 19). The evidence relied upon to make the finding that
adequate state protection exists in Hungary largely places a focus on the fact
that governmental and private sector efforts are being made in Hungary to
combat entrenched discrimination and racism against Romani citizens. Counsel
for the Applicants argues that this focus neglects to accurately describe the
reality of the problem against which the efforts are being made. I agree with
this argument.
[3]
In
the decision the RPD cites the US Department of State, Country Reports on
Human Rights Practices for 2010, April 8, 2011, footnoted at paragraph 24 to
establish that Hungary is a democracy and that there are free and fair
elections. Counsel for the Applicants relies upon this same report as quoted in
Justice de Montigny’s decision in Katinski v Canada (2012 FC 1326) at
paragraph 17 to establish that the RPD in the present case did not accurately
describe the reality of the state protection problem under consideration. The
following is Justice de Montigny’s analysis of the evidence in the case before
him:
The Board also erred in relying on the efforts deployed by the
state to deal with the difficulties faced by the Roma people. At
paragraph 15 of its reasons, the Board member wrote: “The panel acknowledges
that violent crimes against the Roma continue to exist; however, it is
reasonable to expect authorities to take action when reports are made.”
It is at the operational level that protection must be evaluated. This is
all the more so in a state where the level of democracy is at an all time low,
according to the documentary evidence found in the record. Furthermore,
the 2010 Human Rights Report: Hungary (US DOS, April 8, 2011) upon which
the Board purports to rely for its finding that Roma can expect state
authorities to protect them, explicitly contradicts such a finding. It
states in its overview portion, at page 1:
Human rights problems
included police use of excessive force against suspects, particularly Roma; new
restrictions on due process; new laws that expanded restrictions on speech and
the types of media subject to government regulation; government corruption;
societal violence against women and children; sexual harassment of women; and
trafficking in persons. Other problems continued, including extremist
violence and harsh rhetoric against ethnic and religious minority groups and discrimination
against Roma in education, housing, employment, and access to social services.
[4]
With
respect to the evidence quoted, at paragraph 18 Justice de Montigny found as
follows:
Nothing in that report suggests that it is reasonable
to expect that authorities will take action if a complaint is filed. In fact,
the US DOS Report implies the opposite.
[5]
In
my opinion, in a forward looking analysis of a claim under s. 96 and s. 97 it
is first necessary to accurately describe who it is and what it is against which
protection is to be provided, and then to determine whether the protection that
is provided is, in fact, adequate. In the present case, in reaching the
conclusion that “there is adequate state protection in Hungary”, I find that the RPD’s cursory analysis of the issue certainly fails to meet this
reasonable expectation.
[6]
I
have one other important comment to make. The RPD made no negative credibility
finding with respect to the history of violence that the Applicants have
suffered as Romani citizens of Hungary, with one striking exception. In her
PIF the Applicant daughter described that she had been attacked by skinheads on
April 24, 2000 and had suffered broken bones in her foot. When questioned about
the incident in the course of the hearing before the RPD she said that she did
not want to talk about it “because it upsets me”. In response to this
statement, the RPD found as follows:
She provided no hospital report or police report
concerning this alleged incident. If the incident did occur the SC should have
no problems in testifying about it at the hearing. I conclude that the incident
did not occur.
(Decision, para. 17)
In my opinion this is a very unfair
finding. As a victim of violence there are many reasons why she might not want
to talk about such a horrible experience. For example, one reason might be that
it would cause her to relive the violence and she wanted to avoid this painful
experience. I find that the RPD’s off-hand dismissal of her answer, and the
negative finding of credibility made based on it, are perverse.
[7]
As
a result, I find that the decision under review was rendered in reviewable
error and is unreasonable.
ORDER
THIS
COURT ORDERS that
The decision
under review is set aside and the matter is referred back for redetermination
by a differently constituted panel.
There is no question to
certify.
“Douglas R. Campbell”
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