Docket: IMM-4785-11
Citation: 2012 FC 1119
Toronto, Ontario, September 25, 2012
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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TIBOR PINTER
(A.K.A. GYULA
TIBOR PINTER) and
REBEKA PINTER
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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]
The decision of the Refugee Protection Division of
the Immigration and Refugee Board, rejecting the claims for protection filed by
Tibor Pinter and his minor daughter Rebeka Pinter, is set aside. The decision
does not demonstrate the justification, transparency, and
intelligibility that is required for the Court to find that it is reasonable.
[2]
The applicants launched a full-out attack on the
decision, focusing principally on the Board’s analysis of state protection. It
is not necessary to address their submissions on the lack of state protection
for Roma in Hungary in this case, as there are other, more obvious reasons why
the decision must be overturned.
[3]
The basic facts necessary to understand the
Court’s decision are these.
[4]
Tibor Pinter, his wife Eva and his daughter
Rebeka are Roma and citizens of Hungary. Tibor arrived in Canada on March 13, 2010, and made a refugee claim the same day. His wife and daughter arrived on
April 4, 2010, and made their claims a few days later. Eva was found to be
ineligible to file a refugee claim as she and her parents were deemed to have
abandoned previous refugee claims on March 19, 1998.
[5]
While Tibor and Rebeka’s refugee claims proceeded,
Eva filed an application for a Pre-Removal Risk Assessment (PRRA). The refugee
claims and the PRRA application were based largely on a shared history of
abuse, harassment, and discrimination. These include the following:
a.
Tibor and Eva were discriminated and humiliated
by teachers in school and both were refused entry to high school along with all
of the other Roma children in their area.
b.
Tibor and Eva had extreme difficulty securing
and retaining employment because of the discrimination they faced. They relied
on social assistance, but the amount of assistance was not enough to live on.
c.
Eva was attacked on January 24, 2004, while she
worked distributing leaflets. Three men yelled discriminating remarks (“Go back
to your stinky, whore gypsy mother” and “Don’t contaminate the air around
here”), grabbed her hair and pushed her to the ground. She was fired from that
job for leaving the job site to escape the attackers. She made a police report
but they would not investigate as she could not identify the attackers by more
than a physical description.
d.
Rebeka was attacked repeatedly at her school and
on December 8, 2008, was pushed down a flight of stairs by other students, for
which she received medical attention. Her parents complained to the school administrators,
who refused to intervene, so Rebeka was forced to enrol in another school where
she was again shunned by the students.
e.
On March 4, 2010, Tibor and Eva were physically
attacked and required medical attention. On the following day they made a police
report, after overcoming the reluctance of the police to take one. No
investigation was made by the police as they could not identity their
attackers.
[6]
The Board rejected the applicants’ claim for protection. The
Board recognized that Roma face discrimination in Hungary but held that the
treatment they suffered did not amount to persecution and that state protection
was available to protect them.
[7]
On the other hand, the PRRA officer, on almost the same evidence,
found that Eva would face more than a mere possibility of persecution if she
were to return to Hungary. The officer’s finding was as follows:
With respect to the
particular circumstances of this case, the applicant has provided sufficient
subjective evidence to show that she has been a victim of continuous
discrimination with respect to employment and has also suffered from beatings
resulting in persecution. Moreover, the evidence shows that the applicants
[sic] have suffered from persecution throughout the country,
wherever she has relocated. Taking into consideration the subjective evidence
coupled with the objective evidence which shows that conditions for Roma are
worsening and avenues for state protection are not met positively often
throughout the country, I am satisfied that the applicant would face more
than a mere possibility of persecution. In addition, I am satisfied that
sufficient evidence has been presented to show that she is likely to face a
danger of torture, or a risk to life, or a risk of cruel and unusual treatment
or punishment. [emphasis added]
[8]
The two significant discrepancies in these
decisions are that the Board found discrimination but no persecution, while the
officer found persecution; and the Board found state protection was available
while the officer found that adequate state protection was not available.
[9]
Reasonable people may reach different
conclusions and the Board was not bound to follow the officer’s decision or
reach the same conclusion. However, the PRRA decision was part of the record
before the Board and it was required, in my view, to reference the PRRA
decision and state in some detail why it reached a different conclusion on the
same facts. The Board made no mention of the PRRA decision in its reasons. As
has been stated many times by this Court and others, a decision-maker is
presumed to have considered everything that was before him or her and is not
required to refer to every item and explain how it was dealt with; however, a
failure to specifically address something that is relevant and contradictory
may lead to an inference that the decision-maker ignored or misapprehended the
evidence and reached an erroneous conclusion. In this case, given the
similarity of the events relied upon, the same country reports and other
documentation regarding the treatment of Roma in Hungary and the adequacy or
lack thereof of police protection, the PRRA decision had to be addressed by the
Board. Its failure to do so constitutes a reviewable error.
[10]
Aside from that serious flaw, there are other
aspects of the decision that are problematic and independently warrant it being
set aside. There are statements and observations made by the Board in the
course of its decision which appear contradictory and inconsistent. A
decision-maker must provide reasons that make it clear to a reader why the
decision reached, was reached. A failure to do so results in a lack of
transparency and intelligibility that may result in the decision being set
aside.
[11]
In the decision under review, the Board found
that the treatment of Roma in Hungary does not constitute persecution.
However, it also stated the following, which strongly suggests the opposite:
Cumulatively, the
effect has been to marginalize Roma people, including the claimant. Roma are
generally under-employed, under-educated, frequently live in subsistence
housing, and are subject to violence from racially motivated radical groups.
…
…[S]ome problems have
worsened, such as extremist violence and public rhetoric against ethnic and
religious minorities. Extremists increasingly have targeted Roma, resulting in
injuries and even death, and the police sometimes use excessive force,
particularly against the Roma. There has bee a sharp rise in racism in public
discourse and anti-Roma extremists have become increasingly virulent and wide
spread.
Nowhere in the
decision does the Board come to grips with the fundamental question it ought to
have addressed: What constitutes persecution?
[12]
Also problematic is the Board’s conclusion that
the applicants did not face persecution in education as they “were able to
attend school, although they faced incidents of discrimination.” I am reminded
of recent Canadian reports of students who are bullied at school by taunts and
assaults. Would anyone reasonably say that they are not being persecuted
because they are able to attend school? Persecution in education is not just a
systemic prohibition on attending school. It may also be found when to attend
school one must face harassment, vulgar and racially offensive comments, and
physical abuse. Evidence of all this sort of conduct was before the Board in
this case for both applicants. Furthermore, there was evidence that at some
level authorities had effectively prohibited attendance by Roma at high school
and that would appear to meet even this Board’s restrictive definition of
persecution in education.
[13]
Similarly, the Board appears to find that there
was no persecution in employment, despite the evidence that the male applicant
could only rarely find work and that it was not meaningful or long-lasting,
because he was able to access state financial support when unemployed or
underemployed. The fact that a social support system is in place does not
address the question of whether there is persecution in employment; social
support merely ameliorates the effect of such persecution.
[14]
Lastly, the Board’s analysis of the response of
the police to the reports filed is troubling. The Board correctly notes that
it is unreasonable to expect that “all violent acts reported to the police
would result in immediate prosecutions or convictions.” The male applicant
testified that although the police took their reports they did not investigate
their complaints. The Board Member states “I do not accept the police did not
even try to investigate as testified by the claimant” but provides absolutely
no explanation as to why this evidence is rejected. There is nothing in the
record that points to there having been any police investigation. Further, I
note that accepting a report of criminal conduct does not establish adequate
police protection when no steps are taken to investigate the complaint. If
police had no obligation to investigate a complaint where the assailant was
unknown, their job would be remarkably easier.
[15]
The applicants proposed the following questions
for certification in this case:
1.
Are criminal acts of violence, directed at
person(s), based on race or ethnicity always “persecution” and subject to a
state protection analysis?
2.
Or, put another way, can criminal acts of violence,
based upon race or ethnicity ever constitute mere “discrimination”?
[16]
It was submitted that these questions ought to
be certified if the Court decided the application on the basis of the Board’s
classification of criminal acts of violence suffered by the applicants, because
they are Roma, as discrimination rather than persecution. The application was
not decided on that basis and accordingly, the questions posed are not properly
certified questions in this application.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application is allowed, the applicants’ claims for protection are remitted to
be determined by a differently constituted panel, and no question is certified.
"Russel W. Zinn"
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