Date: 20121207
Docket: IMM-2267-12
Citation: 2012 FC 1438
Ottawa,
Ontario, December 7, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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TIBORNE ORGONA
NIKOLETT ORGONA
VANESSZA ORGONA
TIBOR ORGONA
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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 [the RPD] rendered an unreasonable decision on the
applicants’ claim for Convention refugee status as a result of its reliance on isolated
selections from the documentary evidence that had little direct relevance to
the claims under consideration, and its failure to seriously examine why these
applicants had not sought state protection.
Background
[2]
Ms. Orgona
and her three children Nikolett, Vanessza, and Tibor are all Hungarian citizens
of Roma ethnicity. Their husband and father, Tibor Orgona, is making a
separate application for protection. The applicants allege that they suffered
discrimination, harassment and assault in their native Hungary as a consequence
of their ethnicity.
[3]
They claim
that while living in the village of Hunya, they were threatened and harassed by
their neighbours and the children were discriminated against at school. They
left Hunya for Budapest after the father was stabbed with a pocket knife while
being attacked by two men who had been chasing him on bicycles. They fled
Budapest for Canada when they were physically attacked by right-wing
extremists. They never went to the police to complain about any of these
incidents.
[4]
The RPD
dismissed their claim. While the RPD noted a number of internal
inconsistencies with the account of the last attack, it held that the
determinative issue was the applicants’ failure to rebut the presumption of
state protection.
[5]
The RPD found
that by never approaching the police or other organizations with a complaint,
they had failed to take all reasonable steps to seek state protection. It was
said that the objective evidence indicated that there were “many sources of
recourse had the [applicants] decided to report any problems to the police and
been dissatisfied with their action.” The Minorities Ombudsman’s Office, the
Independent Police Complaints Board [the IPCB] and the Roma Police Officers’
Association are cited as some of the sources of recourse to which they could
have availed themselves.
[6]
The RPD noted
that the IPCB is independent of the police, reviews complaints of police
actions and makes recommendations to the head of the National Police.
Furthermore, if those “recommendations are not accepted, the matter can be
referred to a court.”
[7]
Second, the
RPD described the various reports of attacks against Roma in recent years and
noted that “the police reacted by taking several measures within a program that
was supposed to enhance community safety.” For example, areas where the police
believed similar attacks might occur were patrolled at night and in the early
mornings. It was found that objective evidence indicated that the police made
several arrests in relation to the attacks.
[8]
In its
examination of the allegation of discrimination, the RPD noted that “it is
stated in the Board package that Hungary has one of the most advanced
anti-discrimination laws and system for minority protection in the Central and
Eastern European region.” However, it also found that the failure of local
authorities to implement this legislation explains much of the
discrimination experienced by Roma. Despite this telling finding, the Board
noted that Roma have a number of organizations with whom they may seek redress
if they suffer discrimination.
[9]
The Board
also noted that the Hungarian government has taken a number of measures that
are aimed to reduce inequities suffered by the Roma in the areas of housing,
employment, education, health, and political representation.
[10]
On the basis
of its examination of the documentary record, the RPD “confirms that, although
not perfect, there is adequate state protection in Hungary for Roma who are
victims of crime, police abuse, discrimination, or persecution.”
[11]
Actions, not
good intentions, prove that protection from persecution is available. See the
following on this point among the many, many decisions of this Court involving
state protection in Hungary: Balogh v Canada (Minister of Citizenship and
Immigration), 2002 FCT 809, at para 37; Kovacs v Canada (Minister of
Citizenship and Immigration), 2010 FC 1003, at para 70; Bors v Canada
(Minister of Citizenship and Immigration), 2010 FC 1004, at para 63; Hercegi
v Canada (Minister of Citizenship and Immigration), 2012 FC 250, at para 5;
Kanto v Canada (Minister of Citizenship and Immigration), 2012 FC 1049,
at para 40; Sebok v Canada (Minister of Citizenship and Immigration),
2012 FC 1107, at para 22; Katinszki v Canada (Minister of Citizenship and Immigration),
2012 FC 1326, at para 17; Kemenczei v Canada (Minister of Citizenship and
Immigration), 2012 FC 1349, at paras 57 – 60.
[12]
The decision
under review is replete with statements and quotations of the government’s good
intentions; there is scant reference or statements as to the effectiveness of
these efforts. The RPD points to one document that describes a series of nine
particularly horrendous attacks against members of the Romani community between
January 2008 and August 2009. They were similar in that the perpetrators used
Molotov cocktails and firearms. The victims were killed, burned, and seriously
injured.
[13]
These crimes
were investigated and eventually four persons were charged. But that evidence
shows nothing of the results or the efforts made to investigate and prosecute
those involved in the more numerous “other” attacks on Roma in Hungary.
Evidence of the actions taken by police to address notorious, well-publicized,
serial killings is of little persuasive value in showing how the police deal
with more common criminals. However, on the basis of that particular response
to these few horrific organized crimes, the RPD concluded that “there is solid
objective evidence of active police investigation and arrest.” The situation
of these applicants, and most Roma, is not that of the victims in these nine
attacks. Therefore, the RPD erred in relying, selectively, on evidence that
had little relevance to these applicants and their situation in Hungary.
[14]
The RPD also
makes reference to the IPCB as an avenue of redress if the police do not act
properly. It writes that it is an independent body reviewing complaints of
police actions which makes recommendations to the head of the National Police
and if the recommendations are not accepted, the matter can be referred to a
court. On its face, that appears to be an effective tool to ensure that
complaints about the police are dealt with; however, another document states
that “in practice” the head of the National Police “‘neglect[s]’ 90 percent of
the Complaints Body’s decisions.” Thus, there appears to be no real avenue for
redress for the vast majority of the complainants. The RPD’s determination
that this process provides a reasonable opportunity for Roma to seek
redress is unreasonable.
[15]
Without any
analysis as to how its conclusion that there is adequate state protection in
Hungary for Roma who are victims of crime, police abuse, discrimination, or
persecution was reached, it cannot be said to be reasonable in light of the
evidence to the contrary in the national document package, including, as an
example, the following from Amnesty International’s Violent Attacks Against
Roma in Hungary: Time to Investigate Racial Motivation:
Amnesty
International’s research into some of the nine attacks and other reported
incidents indicates that the Hungarian authorities failed to identify
and respond effectively to violence against Roma in Hungary, including by not
investigating possible racial motivation. This report details the shortcomings
in the responses of Hungarian criminal justice system in relation to hate
crimes. Although there are existing provisions to combat hate crimes they are
not being properly implemented, including because the police lack capacity
to recognize and investigate hate crimes and lack training to enhance such
capacity. There are no guidelines for police offices on how to investigate hate
crimes and how to treat alleged victims – and neither are there guidelines for
prosecutors on how to oversee these investigations. The assistance and support
provided by the state for victims of hate crimes are also inadequate. In terms
of prevention the authorities lack effective measures to map the nature and
scale of the issue, including because they do not collect disaggregated data on
hate crimes, thereby hampering their ability to identify trends and craft
relevant policy responses.
…
Despite
the existing legal provisions on hate crime, Hungary has been criticized for
failing to implement the provisions. The low levels of prosecutions of racially-motivated
crimes have been attributed to the reluctance of the police, prosecutors and
courts to investigate and acknowledge racial motivation in violent and
nonviolent crimes against Roma.
…
Amnesty
International is concerned that Hungarian authorities are failing to take
necessary steps to prevent and respond to violence against Roma effectively
due to shortcomings and gaps in the criminal justice system. [emphasis added]
[16]
Lastly, the
RPD concluded that these applicants had failed to rebut the presumption of
state protection, in part, because they had not sought it. However, because
the RPD was of the view (on the basis of this selective evidence) that adequate
state protection was available, it failed to seriously examine and test the
evidence and submissions of the applicants that they did not seek it because it
would not have been “reasonably forthcoming.” Based upon the evidentiary
record, that may well have been a reasonable supported belief and, where
protection is not likely to be forthcoming, there is no requirement to seek
it: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[17]
For these
reasons this decision must be set aside. No question was proposed for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that the application is allowed, the
decision is set aside, the claims for protection are remitted to a differently
constituted panel for determination, and no question is certified.
"Russel W. Zinn"
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