Date: 20120525
Docket: IMM-8475-11
Citation: 2012 FC 643
Toronto, Ontario, May 25,
2012
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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SZABRINA GOMAN
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Applicant
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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]
Ms.
Szabrina Goman (the “Applicant”) seeks judicial review of the decision made by
the Immigration and Refugee Board, Refugee Protection Division (the “Board”) on
October 27, 2011. The Board found that the Applicant was not a Convention
refugee nor a person in need of protection pursuant to section 96 and
subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (the “Act”).
[2]
The
Applicant is a citizen of Hungary and is of Roma
ethnicity. She claims to fear persecution at the hands of racist criminals,
specifically the neo-Nazi organization known as the Hungarian Guards.
[3]
The
Applicant testified about an incident that occurred in February 2009 where her
boyfriend, a member of the Hungarian Guards, tried to induce her to take drugs.
When she refused, he beat her senseless.
[4]
The
Applicant also testified about an incident that occurred in May 2009 when she
was kidnapped by her ex-boyfriend and his friends, and kept captive for some
weeks while they pressured her to engage in prostitution for them. On an
occasion when the group had her in a public area she managed to escape and run
to a group of men who protected her until the police arrived. Although the
police drove her home, the Applicant did not submit a report to the police
because she believed they would not help her.
[5]
The
Applicant left Hungary on July 9, 2009, arriving in Canada on the same
day. She submitted her claim for refugee protection on July 14, 2009.
[6]
The
Board made negative credibility findings and dismissed the totality of the
Applicant’s evidence. It proceeded to address the issue of state protection and
concluded that the Applicant, having failed to file a police report, had not
rebutted the presumption that state protection was available to her.
[7]
The
Board’s credibility findings are reviewable on the standard of reasonableness;
see the decision in Aguebor v Canada (Minister of
Employment and Immigration) (1993), 160 NR 315 (FCA) at para 4. The finding
as to state protection, involving a question of mixed fact and law, is also
reviewable on the standard of reasonableness; see the decision in Velez v
Canada (Minister of Citizenship and Immigration), 2010 FC 1114 at paras
9-10.
[8]
The
Applicant argues that the Board’s credibility findings are unreasonable and
demonstrate a microscopic evaluation of her evidence. She also submits that the
Board misapplied the test for state protection, as set out in Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, by requiring her to risk her life seeking
the ineffective protection of a state, in order to show that the protection is
ineffective. She also argues that the Board improperly ignored documentary
evidence that demonstrates the inability of the state to protect members of the
Roma population, in particular evidence as to the way Roma and Roma women are
treated by the police.
[9]
For
his part, the Minister of Citizenship and Immigration (the “Respondent”)
submits that the credibility findings are reasonable in light of the evidence,
and that the state protection finding is likewise reasonable and based on the
proper legal test.
[10]
It
is not necessary for me to deal with the arguments respecting the Board’s
credibility findings since I am not satisfied that the conclusion on state
protection is reasonable.
[11]
The
Board’s reasons are long but in my opinion, its treatment of the state
protection issue is largely “boilerplate”. The Board does not address the
specific circumstances of the Applicant, rather it made general statements, as
illustrated by paragraph 25 of the reasons:
I found the claimant’s responses
regarding the effectiveness of state protection were not persuasive, since they
were not credible and were largely unsubstantiated and were not consistent with
the documentary evidence. I prefer the documentary evidence over the claimant’s
testimony since they are drawn from a wide range of publically [sic] accessible
documents, from reliable nongovernment and government organizations.
[12]
In
my opinion, the Board erred in saying that the Applicant’s evidence as to the
“effectiveness” of state protection did not correspond with the documentary
evidence. The record shows documentary evidence that supports the Applicant’s
evidence; for example see United States, Department of State, "Country
Reports on Human Rights Practices, 2010 - Hungary" (April 8, 2011) at page
26. The Board gave no reasonable explanation as to why it rejected the
documentary evidence relied on by the Applicant.
[13]
It
is well-known and accepted that a decision-maker does not have to refer to all
evidence upon which it relies but at the same time, when there is relevant
contradictory evidence that is unacknowledged by the decision-maker, a
reviewing Court may conclude that the Board ignored or misapprehended key facts
and came to an erroneous decision; see the decision in Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35 at para
17.
[14]
In
the result, the Application for judicial review is allowed, the decision of the
Board is quashed and the matter remitted to a differently constituted Panel of
the Board for re-determination. There is no question for certification arising.
JUDGMENT
THIS COURT’S
JUDGMENT is that the Application for judicial
review is allowed, the decision of the Board is quashed and the matter remitted
to a differently constituted Panel of the Board for re-determination. There is
no question for certification arising.
“E. Heneghan”
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