Date:
20120925
Docket:
IMM-9273-11
Citation:
2012 FC 1120
Toronto, Ontario,
September 25, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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ATTILLA BIRO (A.K.A ATTILA
BIRO)
and ANDREA HOFFER
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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
Refugee Protection Division of the Immigration and Refugee Board determined
that the applicants are not Convention refugees or persons in need of
protection. For the reasons that follow, this application is granted and the
decision set aside.
Background
[2]
The
applicants are Hungarian citizens of Roma ethnicity and common law spouses.
They allege harassment and discrimination throughout their lives, as well as
physical assaults by White Hungarians. They fled Hungary for Canada on April 6, 2010, and claimed refugee protection the next day. Their claim was refused on
November 10, 2011.
[3]
The
Board determined, following an unusually brief examination, that the discrimination
experienced by the applicants did not rise to the level of persecution; that Attilla Biro, the principal applicant, was not
credible; and that the applicants had failed to rebut the presumption of state
protection.
Issues
[4]
The
issues raised in this application are as follows:
a.
Was
the Board’s credibility finding unreasonable;
b.
Was
the Board’s finding that the treatment the applicants suffered amounted to discrimination
but not persecution unreasonable;
c.
Were
the Board’s state protection analysis and finding unreasonable?
Analysis
1. Credibility
[5]
The
Board’s credibility finding is as follows: “Given the problems with respect to
major issues, the panel finds that the claimants were generally lacking in
credibility.” The Board did not base its decision on a general credibility
finding. Nonetheless, and although I agree with the respondent that the Board
is entitled to considerable deference on such a matter, I find that its
decision on credibility is unreasonable and may have tainted much of its
consideration of the other issues in dispute.
[6]
The
Board based its credibility assessment on Mr. Biro’s evidence relating to two
incidents that occurred on February 5, 2009, and March 21, 2009, respectively.
February 5, 2009
Incident
[7]
The
details of this incident were not summarized in the decision, nor was Mr. Biro
asked much about it by the Member during the oral hearing. The Personal
Information Form (PIF) recites the details:
On Thursday, February 5, 2009, around six or seven
in the evening, my spouse and I went to do some shopping. As we did so, we
were attacked by four men. One of them hit me on my face and the other pushed
my spouse to the ground where he kicked her in the mid-section. Before the
beating, they called us worthless cockroach gypsies and attacked us, as we
wanted to walk around them. After the attack, they laughed and mocked us;
finally, they told us to get the hell out of there.
[8]
At
the hearing the Member asked Mr. Biro if he was satisfied with that response
and the exchange that followed formed the basis for the credibility finding.
MEMBER: Were you satisfied with the police response?
CLAIMANT: No.
MEMBER: Did you approach any other authority?
CLAIMANT: No.
MEMBER: Why not?
CLAIMANT: I am afraid of the police.
MEMBER: But you went to them to make a report and
then you were not satisfied with their response.
CLAIMANT: No, I was not satisfied.
MEMBER: But you are telling me now that you are
afraid of the police but you went to them to make a report.
CLAIMANT: Yes. This is the only authority which can
protect us. That is why we went over there. There is no other place to turn
to. They are the ones who are supposed to give us protection.
[9]
On
the basis of this exchange the Member finds that Mr. Biro’s response to why he
would go to the police when he was afraid of them was “unreasonable.” He
writes:
The panel finds his explanation unreasonable, for
example, the panel notes that it was after he was not able to answer the
question, “why he
would approach the police if he was afraid of them”, that he decided to ignore the question and return
to the previous question “if he had approached any other authority” and tried to re-answer the
question. In other words, he realized his answer made no sense, so he gave a
different answer to what he had previously given. The panel therefore finds
his lack of straightforwardness to undermine his credibility. As such, the
panel also finds that, on a balance of probabilities, he was not attacked on
February 5, 2009 and therefore was not told by the police to come back when
they were bleeding.
[10]
With
due respect, the Member’s characterization that Mr. Biro returned to answer the
previous question – whether he approached another authority – is, on my reading
of the record, mistaken. Mr. Biro was responding to the question posed – why
go to the police if you are afraid of them? His answer that there is no one
other than the police to go to is, in my view, a perfectly acceptable and
reasonable response. Further, the purported conflict between the two statements
– fearing the police and reporting to them – is only a conflict if the fear is
a fear of personal harm. By way of illustration: one may fear bats, but still
deal with them when trying to remove them from one’s house. On the other hand,
if the fear is that they will bite and infect one with rabies, then it is a
conflict to say that notwithstanding that fear one deals with them rather than
calling an exterminator. Here, the Member never asked why the applicant feared
the police and therefore his conclusion that it was unreasonable for him to
seek protection from the police is merely an assumption and an unwarranted one
that improperly lead to his credibility finding.
March 21, 2010
[11]
The
second incident relates to the filing of a police report on March 21, 2010.
Again, the description of the incident is taken from Mr. Biro’s PIF:
The final push for us to leave Hungary happened on Sunday, March 21, 2010. At around nine in the evening, I was attacked and
beaten on the street again. My spouse’s relative Jozsef Varga walked me to the
bus stop when three men from behind walked in front of us. One of them called
us gypsies, the other kicked Jozsef. The third one then pushed me to the
ground and kicked me several times. We feared for our lives, as one of them
yelled very loud that we were going to die right there. We were able to run
away, while yelling for help.
We reported this incident to the police. We were
told there would be no investigation. However we were first scolded by the
police who did not want to even take a report at first. It was only when I
became angry that the police decided to take a report. However, afterwards, we
never heard from the police again.
[12]
The
Board gives the following rationale for its adverse credibility finding:
The claimant was asked if he gave the police
descriptions; he replied that he saw one of the attackers and gave a
description. The panel rejects his allegation that he gave the police any
description and finds that it undermines his credibility. For example, noting
that it was three individuals who attacked them, he was asked if he had given a
description of the others; he replied that it was a dark area and the attack
happened very, very fast. … The panel therefore finds, on a balance of
probabilities, that he could not have given any description of any of the
attackers if the area was dark and the incident happened very quickly
[emphasis added].
[13]
One
might think, reading this passage that the description Mr. Biro gave to the
police was quite detailed, for that would surely strain credulity when it was
dark and the event fast happening. However, the testimony of Mr. Biro is quite
different. He stated:
We saw one person who was 180 cm, bald and he had
blue jeans on him. … I do not know the person’s name, but the one thing I know
is that he was about 180 cm. They asked us to tell them what we remembered.
That was what we remembered.
[14]
I
agree with the applicants who submit that the Member was conducting a
microscopic examination of the evidence in order to support his credibility
determination. It was unreasonable to base an adverse credibility finding on
this meagre evidence.
[15]
Lastly,
although not specifically referenced as a credibility finding, the Board
suggests in the following phrase that his claim that he feared the police is
not believed: “The claimant testified that he is afraid of the police … there
is no persuasive evidence before it that the claimant had any need to fear the
police …”
[16]
There
was evidence in the record that supports that a Roma has good reason to fear
the police in Hungary. Support for that conclusion may be found in the findings
of fact made by this Member in his decision, including the following: “[T]he
preponderance of the objective evidence regarding current country conditions
suggests that, although not perfect, there is adequate state protection in
Hungary for Roma who are victims of crime, police abuse, [and]
discrimination or persecution [emphasis added].” In my view, the Member’s
acknowledgment of the existence of police abuse is not consistent with the Member’s
earlier conclusion that Mr. Biro did not have “any need to fear the police.”
2. Discrimination Versus
Persecution
[17]
The
Member found that the incidents suffered by the applicants amounted to
discrimination but not persecution. They submit that criminal violence is
persecution. Their submission, as written in the memorandum of argument is as
follows: “The notion that the acts of criminal violence, can
ever be anything but persecution, as opposed to “discrimination”
(which involves a deprivation of goods and services on an equal footing as
other citizens) defiles the very definition and would read out the very word
“persecution” out of the definition [emphasis in original].”
[18]
This
Court has examined decisions of the Board involving criminal assaults where it
was found that they did not amount to persecution, and found them to be
reasonable: See, for example, Ozvald v Canada (Minister of Citizenship and
Immigration), 2004 FC 1250, Horvath v Canada (Minister of
Citizenship and Immigration), 2011 FC 1350, Orban v. Canada (Minister of
Citizenship and Immigration), 2004 FC 559, Balla v Canada (Minister of
Citizenship and Immigration), 2003 FC 1436, and Zsuzsanna v Canada
(Minister of Citizenship and Immigration), 2002 FCT 1206.
[19]
I
accept that criminal acts may amount to persecution, but I do not accept that
every criminal action amounts to persecution because persecution requires
evidence that the conduct is sustained or systemic. In order to constitute
persecution, the criminal acts, discriminatory conduct, or harassment must be
“so constant and unrelenting that the victims feel deprived of all hope of
recourse, short of flight:” Gladys Maribel Hernandez, Immigration Appeal
Board Decision, M81-1212, January 6, 1983.
3. State Protection
[20]
The
Member, at the commencement of his analysis of state protection, makes the
following statement: “One accepted measure of assessment is whether the state
is making “serious efforts” to protect its citizens” and cites as support Canada (Minister of Citizenship and Immigration) v Villafranca, [1992] FCJ No
1189 (FCA). As the Member puts it, this is not the test of whether there is
state protection.
[21]
Justice
Hugessen in Villafranca said this:
On
the other hand, where a state is in effective control of its territory, has
military, police and civil authority in place, and makes serious efforts to
protect its citizens from terrorist activities, the mere fact that it is not
always successful at doing so will not be enough to justify a claim that the
victims of terrorism are unable to avail themselves of such protection. [emphasis
added]
[22]
What
is clear from that decision, and ignored by the Member in the statement above,
is that it is not just efforts to protect that matter, but also the success
of those efforts. However, despite this error, I am satisfied that the
Member applied the proper test. He found that “the police and government
officials are both willing and able to protect victims [emphasis
added].”
[23]
Nonetheless,
I agree with the applicants that the Member’s analysis of state protection is
unreasonable because he does not address significant evidence that points to a
contrary conclusion.
[24]
The
applicants pointed to and relied upon the Amnesty International Report entitled
“Violent Attacks Against Roma in Hungary: Time to Investigate Racial
Motivation:” It summarizes its findings as follows:
Violent
attacks against Roma, commonly believed to be racially motivated, are on the
rise and have not been adequately investigated by the authorities.
Over
a period of 18 months in Hungary, between January 2008 and August 2009, six
Romani men, women and children were killed in a series of similar attacks in
different parts of Hungary. Four men were arrested soon after the last killing.
However, in the same period, local NGOs recorded over 40 separate attacks on
members of the Romani community in Hungary.
At
the same time, discriminatory attitudes towards Roma have been increasingly
accepted in public discourse in Hungary since 2006. Abusive terms, initially
used by far-right political groups, are now accepted in the mainstream media.
The
report presents first-hand accounts from victims of these violent attacks that
many in the community believe are motivated by racial prejudice. It highlights
the Hungarian authorities’ shortcomings in the investigation and prosecution
of attacks against Roma and calls on them to ensure that members of the
Romani community, as well as members of other groups, are protected from
violence. It also recommends that the authorities improve the investigation and
reporting of racially motivated crimes and ensure that their victims receive
adequate support.
[emphasis
added]
[25]
Whether
or not the report is sufficient to find that there is not adequate state protection
remains for the Board; however, it is most certainly strong evidence that is
arguably contrary to the Board’s finding and ought to have been addressed by
the Member.
[26]
I
further find that the Member was unreasonably dismissive of the applicants’
concern that the police did nothing when the assaults were reported. He
writes: “[I]t is not reasonable for the claimants to expect the police to seek
out and arrest the claimants’ persecutors when they did not provide their
identities or any leads for the police.” Aside from the fact that they did
provide what information they had of one of the attackers, they also provided
information as to where and when the attack occurred. The evidence was that
the police did nothing at all. When Mr. Biro called two weeks later to see
what was happening, they told him they were about to start an
investigation.
[27]
The
applicants suggested, with considerable force, that if Canadian police reacted
in this manner our citizens would be outraged. The Member’s reaction: “[I]t would
be unreasonable to expect in any society that all violent acts reported to
police would result in immediate prosecution or conviction.” I
agree, but we are not speaking of prosecution or conviction, we are speaking of
investigation. I do not agree that it is unreasonable to expect that the
police, at a minimum, will take the report seriously and canvass the area for
possible witnesses to the attack before two weeks have passed and the freshness
of memories have faded.
[28]
I
find it perverse in the particular circumstances of this case for the Member to
state that “there is no information to suggest that police were not making
genuine and earnest efforts to investigate the claimant’s allegation and
apprehend the claimant’s perpetrator” when the evidence was that they had done
nothing at all. I further find it perverse for the Member to admonish Mr. Biro
for saying that he “did not wait for the police investigation to be complete
before he left his country” when there was evidence that no investigation had
been undertaken and one could reasonably view their statement two weeks later
that they were about to investigate, to be insincere given the evidence in the
record as to the number of attacks against Roma that are not investigated at
all.
[29]
The
Court, for these reasons, finds the decision unreasonable and sets it aside.
[30]
The
applicants proposed the following for certification:
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”?
[31]
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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