Docket: IMM-4225-11
Citation: 2012 FC 250
Toronto, Ontario, February 22, 2012
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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JOZSEF HERCEGI
(A.K.A. HERCEGI, JOZSEF)
JOZSEFNE HERCEGI
JOZSEF BALOGH
ROLAND BALOGH
PIROSKA SZTOJKA
SZABOLCS FEKETE
ANIKO CSORE
MATE SZABOLICS FEKETE
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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 JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review seeking to set aside a decision of a
Board Member of the Refugee Protection Division of the Immigration and Refugee
Board of Canada dated May 16, 2011, wherein the Applicants’ claim for refugee
protection was rejected. I will set that decision aside and require a new
determination by a different Member of the Board. I expressed to Counsel at the
hearing some of the reasons for my decision which do not require discussion in
these Reasons. I will, however, address some of the reasons for my decision.
[2]
The
Board entertained the claims of two family groups: the Hercegi family and the
Fekete family. Both families are Hungarian Roma, both families fled Hungary, came to Canada and made
refugee claims here. There is a relationship between some members of each
family, which caused the Board to hear the claimants together at the same
series of hearings. Herein lies one of the difficulties. The transcript of the
hearings indicates that there were a number of distractions, that the Member had
difficulty in following the evidence and, at times, that the translator was
overwhelmed. The reasons of the Board Member reflect confusion as to the
evidence in the mind of the member. Given what I have seen in the transcript,
this is to some extent excusable; however, this has led to a number of
findings, particularly those as to credibility, that are unreasonable. Many of
these findings were reviewed at the hearing before me and need not be repeated
here.
[3]
I
will mention the insistence of the Board Member to have further, and yet
further, documentation to back up some of the evidence given by the claimants.
They claim they were beaten on several occasions by “skinheads”. Photographs
attest to large bruising on the body of some of the applicants. There are
scars and missing teeth. Two babies died - one while still in the womb when the
mother was struck by several blows, the other in a melee during an attack.
Death certificates were produced. The Applicants gave evidence as to complaints
that they made to police authorities and the refusal of the police to investigate
or even document the complaints. There is evidence that the Hungarian police
will not document complaints by Roma. The insistence by the Board Member for
yet further documentation was unreasonable.
[4]
The
issue of state protection is completely unsatisfactorily dealt with by the
Board Member. It appears from the structure of the reasons that state
protection was addressed only in respect of the Hercegi family and not the
Fekete family; although there can be found paragraphs elsewhere in the reasons that
may well be addressing that issue in respect of the Fekete family. I repeat
paragraphs 56 to 60 of the reasons which reflect the Board Member’s findings,
presumably with respect to both families:
[56] The claimants were not satisfied
with the lack of police action, but did not take any steps to register their
displeasures with any higher authorities. They simply went to one police
“wicket” and in some cases did not go at all as they did not believe that the
police would investigate fairly and impartially.
[57] As indicated earlier, the
important issue is that protection would be available to citizens today. The
Independent Police Complaints Board (ICPB) established by the National Assembly
in 2008, investigates violations and omissions by the police and substantively
concerned fundamental rights. The five-member body functions independently of
police authorities. The parliamentary Commissioner’s office, an ombudsman who
reports directly to parliament, is mandated to assist Hungarian citizens who
feel that their constitutions rights have been violated by a state agency.22
[58] It is acknowledged that some
agencies describe Hungarian government’s efforts to combat corruption as
largely unsuccessful,23 Transparency International regional Director
Miklos Marschall stated that Hungary’s anti-corruption institutional framework was “adequate”.
[59] The evidence is that the
claimants did not make any attempts to register their dissatisfaction with the
police response with any government or higher authority within the police
hierarchy.
[60] I do acknowledge counsel’s
submissions that state protection is not perfect and there are many areas that
require improvement, but I find that state protection is adequate and there is
no evidence of a complete breakdown of state apparatus. I do not accept that
the lack of investigation on the part of the police, in the absence of
identification of any of the perpetrators, translates into lack of adequate
state protection.
[5]
The
reasons do not address the issue of state protection properly. They do not show
whether, and if so, what, the Member considered as to provisions made by Hungary to provide
adequate state protection now to its citizens. It is not enough to say
that steps are being taken that some day may result in adequate state
protection. It is what state protection is actually provided at the present
time that is relevant. In the present case, the evidence is overwhelming
that Hungary is unable
presently to provide adequate protection to its Roma citizens. I repeat what I
wrote in Lopez v Canada (Minister of
Citizenship and Immigration), 2010 FC 1176 at paragraphs 8 to 11:
8 Another error of law is with
respect to what is the nature of state protection that is to be considered.
Here the Member found that Mexico "is making serious and genuine efforts" to
address the problem. That is not the test. What must be considered is the
actual effectiveness of the protection. I repeat what I said in Villa v. Canada (Minister of Citizenship and
Immigration) 2008 FC 1229 at paragraph 14:
14. The Applicants lawyer was given an
opportunity to make further submissions as to IFA and did so in writing. In
doing so reference was made to a number of reports such as those emanating from
the United Nations and the United States and to decisions of this Court
including Diaz de Leon v. Canada (MCI), [2007] F.C.J. No. 1684, 2007 FC 1307 at
para. 28; Peralta Raza v. Canada (MCI), [2007] F.C.J. No. 1610, 2007 FC 1265 at
para.10; and Davila v. Canada (MCI), [2006] F.C.J. No. 1857, 2006 FC 1475 at
para. 25. Those and other decisions of this Court point to the fact that Mexico
is an emerging, not a full fledged, democracy and that regard must be given to
what is actually happening and not what the state is proposing or endeavouring
to put in place.
9 As to the reasonableness of the
findings, the evidence is overwhelming in the present case that Mexico has failed to provide
adequate protection. The evidence shows ineptitude, ineffectiveness and
corruption in the state agencies that the Member suggested could offer
protection.
10 As to the Report of Professor
Hellman, far from making "sweeping statements" supported by
"little empirical data" as the Member suggests at paragraph 21 of the
Reasons, the Report is carefully written and supported by reference to a vast
member of authoritative sources. Justice Russell of the Court in his decision
in Villicana v. Canada (Minister of Citizenship and Immigration) 2009 FC 1205,
especially at paragraphs 70 to 78 considered this Report and found it to be
"authoritative" and the conclusion "startling".
11 The decision at issue here is
deserving of the kind of comments Justice Beaudry made in his decision
respecting state protection in Mexico in Bautista v. Canada (Minister of
Citizenship and Immigration), 2010 FC 126 at paragraphs 10 and 11.
10. I believe that the Board erred on two
grounds in coming to its finding. First of all, it weighed the evidence of
criticisms of the effectiveness of the legislation against evidence on the
efforts made to address the problems of domestic violence. This is not enough
to ground a finding of state protection; regard must be given to what is
actually happening and not what the state is endeavoring to put in place
(A.T.V. v. Canada (Minister of Citizenship and Immigration), 2008 FC 1229, 75
Imm. L.R. (3d) 215 at paragraph 14).
11. Secondly, although the Board does
acknowledge the contradictory evidence, it does not truly address the reasons
why it considers it to be irrelevant (Zepeda v. Canada (Minister of Citizenship and
Immigration), 2008 FC 491, [2009] 1 F.C.R. 237 at paragraph 28). The Board does
not say how this evidence was weighed against that of the Applicant that she
had sought help at the Public Ministry only to be turned away for various
reasons. Furthermore, many of the documents relied on by the Board also contain
portions which would bring one to reach a different conclusion, are never truly
addressed.
[6]
To
this I add what Justice Mosley wrote recently in E. Y. M. V. v Canada (Minister of
Citizenship and Immigration), 2011 FC 1364, at paragraphs 14 to 16:
14 Here the Board appears to have
adopted a lesser standard of adequacy by reference on two occasions in its
reasons to what it termed "a measure" of state protection available
in Honduras. It is unclear what the Board
meant by "a measure" since it did not define this term. The
respondent contends that this was merely a standard employed by the Board to
assess the evidence and that the reasons, as a whole, disclose that the Board
applied the correct test. I agree that the Board cited the correct legal
principles, as set out in Ward, and Carillo, above. However, I am not satisfied
that they were properly applied in this case.
15 The Board was required to justify
its finding that Ms. E.Y.M.V. had not rebutted the presumption, in a
transparent and intelligible way (Hazime v. Canada (Minister of Citizenship and
Immigration), 2011 FC 793, [2011] F.C.J. No. 996 at para 17). The Board did not
meet this standard of reasonableness.
16 The Board did not provide any
analysis of the operational adequacy of the efforts undertaken by the
government of Honduras and international actors to improve state protection in Honduras. While the state's efforts
are indeed relevant to an assessment of state protection, they are neither
determinative nor sufficient (Jaroslav v. Canada (Minister of Citizenship and
Immigration), 2011 FC 634, [2011] F.C.J. No. 816 at para 75). Any efforts must
have "actually translated into adequate state protection" at the
operational level (Beharry v. Canada (Minister of Citizenship and Immigration), 2011 FC 111 at
para 9.
[7]
In
the present case, the Board’s reasoning as to state protection is inadequate
and does not address the real issue as to adequacy of state protection for Roma
in Hungary at the
present time.
[8]
This
matter is sent back for redetermination by a different Board Member. The Board
should deal separately with the claims of each of the Hercegi and Fekete
family. There is no question to be certified. No costs will be ordered.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1.
The
application is allowed;
2.
The
matter is returned for redetermination by a different Board Member. The claims
of each of the Hercegi family and the Fekete family should be dealt with separately;
3.
There
is no certified question; and
4.
There
is no Order as to costs.
“Roger
T. Hughes”
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