Date:
20121115
Docket:
IMM-2520-12
Citation:
2012 FC 1326
Ottawa, Ontario,
November 15, 2012
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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PIROSKA KATINSZKI
JANOS BARI
VIRGINIA KATINSZKI
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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 pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, RSC 2001, c 27 [IRPA or the Act], of a decision
made by the Refugee Protection Division of the Immigration and Refugee Board
(the “Board”), dated February 16, 2012, wherein the Board determined that the
Applicants were neither Convention refugees under section 96 of the Act, nor
persons in need of protection under section 97 of the Act.
[2]
There
are three Applicants in this case: Piroska Katinszki (the principal Applicant),
her daughter Virginia Katinszki and her common-law partner Janos Bari (the male
Applicant). All three are Hungarian citizens. The principal Applicant is not
Roma, but her daughter is half Roma (the principal Applicant’s former
common-law partner, Virginia’s father, was Roma) and her current common-law
partner is Roma. All three Applicants have been persecuted in Hungary because of their Roma ethnicity.
[3]
The
principal Applicant detailed several physical assaults the Applicants were
subjected to in her Personal Information Form (PIF). In 2000, Virginia (who
was three at the time) was pushed off a playground structure by the mother of
another child who did not want a Roma to play with her kids. Virginia suffered
a concussion. The principal Applicant went to the police station to make a
report, but was told to go home and no complaint was filed. The police officer
apparently said to her: “Why do [we not] realize that people hate the Roma,
because they are dirty, stinky folk, living like animals”.
[4]
In
2003, Virginia was again attacked by a woman in the kindergarten she attended,
fell to the ground, bled and had contusions. The school nurse witnessed the
event and did not intervene, while the head mistress suggested that Virginia should be taken out of the school because she disturbed “white” mothers.
[5]
The
male Applicant also testified that he had been assaulted while he was in Budapest, where he lived before meeting the principal Applicant in 2006. He said he was
stabbed by neo-Nazis who were waiting for him outside of his workplace in Budapest, but did not go to the police because it would have made matters worse given that
the Roma people face discrimination from law enforcement authorities.
[6]
In
2006, the Applicants were attacked on three occasions by neo-Nazis, suffering
injuries each time. After one of these attacks they went to the police station
but the police refused to record their claim and instead threatened to arrest
them if they did not leave. In June 2007, the principal Applicant was attacked
once again by a group of neo-Nazis, receiving bruises and contusions. In
January 2008, the male Applicant was also attacked and his skull was cracked;
he gave a description of his attackers to the police, but no steps were taken.
In February 2008, the principal Applicant and her daughter were attacked on
their way to school, and they were denied treatment at the hospital.
[7]
Attacks
continued on the Roma community in 2009-2010 and serial murders were
committed. The Applicants asked human rights and minority rights organizations
for help, but were apparently told that they should leave Hungary. Fearful for their lives, they left Hungary and arrived in Canada on February 2, 2011, where they filed their claims for refugee protection upon
arrival at the airport.
[8]
The
Board came to the conclusion that the Applicants were neither Convention
refugees, nor persons in need of protection because they had a viable Internal
Flight Alternative (IFA) in Budapest. The Board notes that the Applicants
lived in a small village and that Budapest is a large city, host to a variety
of organizations and government services for Roma people who are persecuted.
The Board determined that these organizations/services would assist the
Applicants in obtaining state protection. The Board also notes that the male
Applicant had not sought police protection following his attack in Budapest.
[9]
The
Board notes that Hungary’s government has taken steps to reduce racial
persecution and improve the Roma minority’s situation and that it does not
condone discriminatory behaviour by police. The Board also concludes that Hungary has taken steps to improve the situation of Roma youths in schools. Finally, the
Board acknowledges the problem of police corruption and the use of excessive
force against Roma people, but notes that evidence shows that the state takes
action when complaints are made and that Roma people have access to protection
and redress if they are denied security services because of their Roma
ethnicity.
[10]
Upon
careful review of the record and consideration of the parties’ written and oral
representations, I am of the view that the decision of the Board must be quashed.
In coming to that conclusion, I have applied the standard of reasonableness, as
the issue to be determined is essentially whether the Board erred in
determining that the Applicants have an IFA in Budapest.
[11]
It
is well established that the notion of an IFA is inherent in the definition of
a Convention refugee. In Rasaratnam v Canada (Minister of Employment and
Immigration), [1991] 1 FC 706, [1991] FCJ no 1256, (FCA), Justice Mahoney
explains that the IFA analysis consists of a two-pronged test: the Board must
be satisfied, on a balance of probabilities, that there is no serious
possibility of the claimant being persecuted in the part of the country in
which it finds an IFA exists, and the conditions in that part of the country
must be such that it would not be unreasonable for the claimant to seek refuge
there. See also: Thirunavukkarasu v Canada (Minister of Employment and
Immigration), [1994] 1 FC 589, [1993] FCJ no 1172
(FCA).
[12]
Counsel
for the Applicants submits that the Board erred in stating that the key issue
is IFA and then digressing into a state protection analysis. It is true that
in pure logic, a finding on state protection normally precedes an analysis with
respect to an IFA. If the state is able and willing to protect a refugee
claimant, there is no need to consider whether there is a particular area in
that state where he or she would be safe. That being said, a claimant must be
able to demonstrate that the state is unable to protect him or her in the
proposed IFA in order to satisfy the first prong of the test and, to that
extent, there is some overlap between the two analyses. As my colleague
Justice O’Reilly stated in Velasquez v Canada (Minister of Citizenship and
Immigration), 2010 FC 1201, [2010] FCJ no 1496 at para 16:
There may, however, be an overlap between the
Board’s consideration of an IFA and its analysis of state protection. The
first branch of the IFA test is met where there is no serious possibility of
persecution in the particular location. That finding may flow either from a
low risk of persecution there or the presence of state resources to protect the
claimant, or a combination of both. But, in either case, the analysis can only
be carried out properly after the particular risk facing the claimant has been
identified.
[13]
That
being said, I agree with the Applicants that the analysis of the Board with
respect to state protection and, implicitly, the first prong of the test for an
IFA is flawed in many respects. First of all, the Board seems to be of the
view that police protection is better in Budapest than in the rest of the
country, yet points to no evidence supporting that assumption. The evidence
was that the male Applicant was verbally abused and attacked on multiple
occasions in Budapest by neo-Nazis who waited for him outside of his workplace.
He was stabbed during one of these attacks. The Board did not make an adverse
finding on the male Applicant’s credibility, but took issue with the fact that
he did not seek police protection following the attacks in Budapest. This
cannot, in and of itself, lead to a conclusion that there is adequate police
protection in Budapest.
[14]
The
Board also points to various organizations that can provide protection to the
Applicants and again seems to assume that these organizations would be in a
better position to provide protection in Budapest since their head offices are
located there. The problem with this assertion is that there is no evidence on
the record that these organizations would be better able to “protect” the
Applicants in Budapest than in the rest of the country. More importantly, the
mandate of each of the organizations referred to by the Board (the Independent
Police Complaints Board, the Parliamentary Commissioners’ Office, the Equal
Treatment Authority, the Roma Police Association, the Complaints Office at the
National Police Headquarters) is not to provide protection but to make
recommendations and, at best, to investigate police inaction after the fact.
[15]
The
jurisprudence of this Court is very clear that the police force is presumed to
be the main institution mandated to protect citizens, and that other
governmental or private institutions are presumed not to have the means nor the
mandate to assume that responsibility. As Justice Tremblay-Lamer aptly
stated in Zepeda v Canada (Minister of Citizenship and Immigration),
2008 FC 491, [2009] 1 FCR 237 at paras 24-25:
In the present case, the Board proposed a number of
alternate institutions in response to the applicants’ claim that they were
dissatisfied with police efforts and concerned with police corruption,
including National or State Human Rights Commissions, the Secretariat of Public
Administration, the Program Against Impunity, the General Comptroller’s
Assistance Directorate or through a complaints procedure at the Office of the
Attorney General (PGR).
I am of the view that these alternate institutions
do not constitute avenues of protection per se; unless there is evidence
to the contrary, the police force is the only institution mandated with the
protection of a nation’s citizens and in possession of enforcement powers
commensurate with this mandate. For example, the documentary evidence
explicitly states that the National Human Rights Commission has no legal power
of enforcement (“Mexico: Situation of Witness to Crime and Corruption, Women
Victims of Violence and Victims of Discrimination Based on Sexual
Orientation”).
See also: Risak v Canada (Minister of Employment
and Immigration), [1994] FCJ no 1581, 25 Imm LR (2d) 267, at para 11.
[16]
Accordingly,
I find that it was not open to the Board to decide on a balance of
probabilities that there is no serious possibility of the Applicants being
persecuted in Budapest. The male Applicant has been attacked in Budapest because of his Roma ethnicity. There is nothing in the Board’s IFA analysis or
in the evidence that suggests that Budapest is safer than any other parts of
the country, other than the fact that “Budapest is a large city” and “host to a
number of organizations and government services for …Roma who are discriminated
against.” Neither the size of the city nor the organizations listed offer
effective protection against persecution in Budapest.
[17]
The
Board also erred in relying on the efforts deployed by the state to deal with
the difficulties faced by the Roma people. At paragraph 15 of its reasons, the
Board member wrote: “The panel acknowledges that violent crimes against the
Roma continue to exist; however, it is reasonable to expect authorities to take
action when reports are made.” It is at the operational level that protection
must be evaluated. This is all the more so in a state where the level of
democracy is at an all time low, according to the documentary evidence found in
the record. Furthermore, the 2010 Human Rights Report: Hungary (US DOS, April 8, 2011) upon which the Board purports to rely for its finding
that Roma can expect state authorities to protect them, explicitly contradicts
such a finding. It states in its overview portion, at page 1:
Human rights problems included police use of excessive
force against suspects, particularly Roma; new restrictions on due process; new
laws that expanded restrictions on speech and the types of media subject to
government regulation; government corruption; societal violence against women
and children; sexual harassment of women; and trafficking in persons. Other
problems continued, including extremist violence and harsh rhetoric against
ethnic and religious minority groups and discrimination against Roma in
education, housing, employment, and access to social services.
[18]
Nothing
in that report suggests that it is reasonable to expect that authorities will
take action if a complaint is filed. In fact, the US DOS Report implies the
opposite.
[19]
I
therefore find that the state protection analysis made by the Board is flawed.
In any event, the Applicants have rebutted the presumption of state protection:
they have sought police protection more than once, to no avail. And there is
no evidence that their attempts would have been met with a more effective response
had they been living in Budapest.
[20]
For
all of the foregoing reasons, this application for judicial review ought to be
granted. No question is certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application
for judicial review is granted. No question is certified.
"Yves de
Montigny"
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