Docket: IMM-4326-10
Citation: 2011 FC 1350
Ottawa, Ontario, November 23,
2011
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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LASZLO HORVATH
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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]
Mr.
Laszlo Horvath applies for judicial review of the decision made by the
Immigration and Refugee Board’s Refugee Protection Division (RPD) refusing his
claim for refugee protection on the grounds that he would suffer persecution as
a person of Roma ethnicity if returned to Hungary.
[2]
The
RPD found that Mr. Horvath was not a Convention refugee or a person in need of
protection, as the treatment he faced constituted discrimination but not
persecution. The RPD also found that one of the attacks he described did not
happen, as the Applicant was inconsistent in remembering when this incident
occurred. The RPD did not accept the submissions that he had memory problems,
as no medical evidence had been submitted. Finally, the RPD also found that
state protection would be available from the Hungarian state.
[3]
Mr
Horvath submits the RPD erred in finding the story of his assault to be not
credible. He also submits that the RPD erred in finding that the treatment he
faced amounted to discrimination but not persecution. Lastly, he submits the
RPD erred in finding adequate state protection would be available.
[4]
I
have concluded that the RPD’s decision is unreasonable with respect to the
finding there was no persecution and with respect to finding adequate state
protection. My reasons follow.
[5]
The
judicial review is granted.
Background
[6]
The
Applicant, Laszlo Horvath, is of Roma ethnicity and is a citizen of Hungary. He claims
he has been subjected to various acts of violence and harassment due to his
Roma ethnicity.
[7]
Mr.
Horvath stated he was attacked by a group of four or five individuals in 2005
and suffered injury. He was treated at the hospital and reported the assault to
the police, who merely recorded the incident as being committed by “unknown
assailants”. He described a second attack again on May 1, 2007 by drunken
individuals, but sustained no injuries. He did not report this to the police
because from his past experience, he did not believe the police would do anything.
He reported a third attack in 2008 by another group, one with a knife, but he
used a belt to defend himself and did not receive any injuries. He did not
report this incident to the police. He also described being attacked where
bottles were thrown at him. He tried to hail a police car after this happened,
but the police car drove away.
[8]
Mr.
Horvath stated he was often subjected to verbal abuse and racial slurs.
[9]
Mr.
Horvath also provided evidence about restrictions on his capacity to earn a
livelihood. He had obtained a skilled worker diploma in 1989 and managed to secure
employment commensurate with his training working in a restaurant except for
the period 2001 to 2003. Although employed as a cook, he was subsequently
demoted to dishwasher because restaurant patrons complained about having a Roma
cooking. The Applicant testified that he could not find work elsewhere in his
chosen vocation as a cook. In 2008 he was laid off when the restaurant was
sold.
[10]
He
came to Canada on October
20, 2008 and filed a claim for refugee protection on November 6, 2008.
Decision Under Review
[11]
The
RPD refused the Applicant’s claim for refugee protection on June 16, 2010.
[12]
The
RPD noted that the Applicant gave inconsistent answers about what time of year the
2005 attack occurred. Although the Applicant’s counsel attempted to establish
that the Applicant had memory problems, the RPD noted that no medical
certificate had been filed in support. The RPD found on a balance of
probabilities that the 2005 incident did not take place. The RPD did not make
findings of fact with respect to the other attacks reported by the Applicant.
[13]
The
RPD found that although the Applicant claimed Roma are not given any
opportunity to work in their trades and are forced into menial labour, the
Applicant had completed his education, received a skilled worker Diploma in
1989, and worked as a cook until 2008, with the exception of the period in 2001
to 2003. The RPD acknowledged that for the last two years, the Applicant was
not allowed to cook at the restaurant because customers complained about having
a Roma cook, and instead he was compelled to work as a dishwasher.
[14]
The
RPD examined the issue of whether the discrimination suffered by the Applicant
amounted to persecution. It reviewed how persecution has been defined in the case
law, and concluded that the legal question to be determined is “does the
persecution alleged by the claimant threaten his or her basic human rights in a
fundamental way?” The RPD found that the Applicant experienced discrimination
and harassment which did not amount to persecution. The RPD found there was no
persuasive evidence of sustained or systemic violation of basic human rights
demonstrative of a failure of state protection.
[15]
The
RPD found in the alternative, that there is state protection available to Mr.
Horvath were he to return to Hungary.
[16]
The
RPD noted the Applicant had not filed a police report in the other attacks
other than one attempt to stop a police car which drove away. The RPD concluded
the Applicant had not established that state protection was unavailable for him
in Hungary.
[17]
The
RPD observed that Hungary is a democracy with free and fair elections and
a relatively independent and impartial judiciary. The RPD acknowledged the Applicant’s
counsel’s submissions that state protection in Hungary for Roma is
ineffective. The RPD also acknowledged that Hungary has a
history of discrimination against Roma people. However, the RPD noted that the
Hungarian government is attempting to correct this historical discrimination
and has made a number of initiatives to eradicate discrimination and racism,
including enacting legislation and making efforts in social fields.
[18]
The
RPD noted that Hungarian criminal law has provisions which may be used in hate
motivated crimes, and that steps have been taken to improve the treatment of
the police force towards minorities. The RPD found the preponderance of the
objective evidence on country conditions suggest there is adequate state
protection in Hungary and that the
Hungarian government is making serious and genuine efforts to address the
problem of racism.
[19]
The
RPD concluded that the Applicant was neither a Convention refugee nor a person
in need of protection.
Legislation
[20]
The
Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) provides:
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96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country…
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la nationalité
ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
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Issues
[21]
The
Applicant submits the RPD erred:
a) by failing to reasonably
assess the evidence as a whole,
b) by failing to consider the
evidence as credible in the absence of corroboration,
c) by failing to consider the
extensive country documents filed,
d) by making erroneous findings
of fact, and
e) by basing its
decision on erroneous findings of fact made in perverse or capricious manner.
[22]
The
Applicant’s many submissions are issues relating to the assessment of facts and
amount to a question of whether the RPD’s decision is unreasonable.
[23]
The
Respondent submits the issue is “Has the Applicant demonstrated a reviewable
error in the RPD decision?”
[24]
I
would simply state the issues as:
a) Is the RPD’s
finding that the Applicant’s treatment in Hungary was discrimination and harassment rather
than persecution reasonable?
b) Is the RPD’s alternative
finding that state protection was available for the Applicant reasonable?
Standard of Review
[25]
The
appropriate standard of review of an RPD decision on findings of mixed law and fact
is reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 53. To be reasonable, an RPD decision must fall within
a range of possible and acceptable outcomes defensible in respect of the facts
and the law: Canada (Minister of Citizenship and Immigration)
v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 59.
[26]
Questions
of the adequacy of state protection are “questions of mixed fact and law
ordinarily reviewable against a standard of reasonableness”. Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171 at para 38.
Analysis
Credibility
[27]
The
Applicant takes issue with the RPD’s decision to reject his explanation of
memory problems for his inconsistencies in recalling the date of the 2005
assault for which the Applicant reported he was injured and had informed the
police. The Applicant submits that the RPD should have assessed the Applicant’s
credibility in the context of his limited education and cognitive problems due
to the physical injuries he sustained, and that his memory problems should have
been clear from the transcript of the proceedings.
[28]
The
Applicant points out that when an applicant swears to the truth of certain
facts, there is a presumption that these allegations are true unless there is a
reason to doubt their truthfulness: Maldonado v Canada, [1980] 2 FC
302, 31 NR 34 (FCA) at para 5.
[29]
The
jurisprudence has established that if the applicant’s account appears credible,
he or she should be given the benefit of the doubt, unless there are good
reasons to the contrary: Chan v Canada (Minister of Employment and
Immigration), [1995] 3 S.C.R. 593, 128 DLR (4th) 213 at para 47.
The Applicant submits that the RPD failed to give reasons for casting doubt on
the Applicant’s credibility in clear and unmistakable terms: Hilo v Canada
(Minister of Employment and Immigration) (1991), 130 NR 236, 15
Imm LR (2d) 199 (CA); Almasy v Canada, 2001 FCT
701 at para 7. In the cases cited by the Applicant, the Court had been unable
to find reasons for the RPD doubting the truth of the Applicant’s allegations. Nevertheless,
the Court emphasized the RPD’s duty to give clear reasons for casting doubt
upon the Applicant’s account.
[30]
In
the case at hand, the RPD made its finding after noting inconsistencies in
dates given for the 2005 incident in the Applicant’s Personal Information Form
(PIF) and the oral hearing. The RPD did not accept the Applicant’s claim of a
poor memory because it was not supported by objective medical evidence. While a
claim of poor memory may be supported by non-medical evidence, such a claim is
not, without more, sufficient evidence of poor memory due to a medical
condition. The RPD did not dispute the Applicant’s account of other assaults
and as such is to be taken as accepting that the other incidents did occur.
[31]
Since
the RPD gave reasons based on evidence before it for finding that the 2005
assault did not occur, I find the RPD’s finding with respect to the 2005
assault falls within a range of acceptable outcomes.
Discrimination or
Persecution
[32]
The
Applicant, in addition to recounting his fear of physical attacks, also stated
on his arrival to Canada on November 6, 2008:
I am suffering from discrimination for
being a Roma. I was hired to be a cook but in reality I was only washing dishes
and washing the floor. The restaurant patrons would not eat in a restaurant
with a Roma cook so the restaurant owner would not let me cook. I could not
find any other job as a cook in the city.
He repeated this statement in his PIF and again in his testimony
at the hearing.
[33]
The
Applicant submits that the RPD erred by concluding that only the “chronically
unemployed”, the “systematically discriminated”, uneducated, and the
unsophisticated, could qualify to be persecuted in Hungary. The
Applicant submits that the RPD misinterpreted the issue of persecution as was
defined by the Federal Court of Appeal in Rajudeen v Canada (Minister of
Employment and Immigration) (1984), 55 NR 129 (CA) at para 14:
The first question to be answered is
whether the applicant had a fear of persecution. The definition of Convention
Refugee in the Immigration Act does not include a definition of
"persecution". Accordingly, ordinary dictionary definitions may be
considered. The Living Webster Encyclopedia Dictionary defines
"persecute" as:
"To harass or afflict with repeated
acts of cruelty or annoyance; to afflict persistently, to afflict or punish
because of particular opinions or adherence to a particular creed or mode of
worship."
The Shorter Oxford English Dictionary
contains, inter alia, the following definitions of "persecution”:
A particular course or period of
systematic infliction of punishment directed against those holding a particular
(religious belief); persistent injury or annoyance from any source.
[34]
The
Applicant submits this test is to be determined on the standard of proof of
“reasonable chance”: Adjei v Canada (Minister of
Employment and Immigration), [1989] 2 FC 680, 7 Imm LR (2d) 169 (FCA).
[35]
The
Applicant submits that the RPD applied an erroneous standard of systematic
persecution that had been rejected by Justice Nadon in Saad v Canada (Minister of
Citizenship and Immigration) (2000), 187 FTR 262 (TD). Justice Nadon found
that the RPD erred in concluding that if an agent tortures an individual but
does not intend to systematically persecute him, this does not constitute
persecution.
[36]
The
RPD found the Applicant had completed his education, received a skilled worker
diploma, and had been employed as a cook. The RPD also noted that the Applicant
had been attacked on a number of occasions but did not report the incidents.
Based on the evidence before it, the RPD concluded that this treatment amounted
to harassment and discrimination rather than persecution, and the Respondent
submits that this falls within a range of possible and acceptable outcomes and
is therefore reasonable.
[37]
Given
the above finding, the Applicant is left with his account of the remaining
attacks. Jurisprudence on claims by Roma would suggest that in cases where an
applicant has complained of physical attacks, the Court may be willing to
accept the RPD’s finding that such treatment constitutes discrimination and not
persecution: Orban v Canada (Minister of Citizenship and Immigration),
2004 FC 559; Balla v Canada (Minister of Citizenship and Immigration),
2003 FC 1436; Szucs v Canada (Minister of Citizenship and Immigration)
(2000), 100 ACWS (3d) 650. In these cases the Federal Court has found that the
applicants only faced discrimination and not persecution, despite their history
of violent physical attacks. Here the attacks on the Applicant were of a lesser
degree and the Applicant did not make any serious effort to report the attacks
to the police. Such conduct is consistent with the RPD’s finding that the attacks
were in the nature of harassment rather than persecution.
[38]
The
Applicant’s claim of persecution is broader than just the attacks he
experienced. He also claims Roma are persecuted because of their race and he
experienced such treatment, notably when he was demoted from cook to dishwasher
because he was Roma. He also stated he could not find employment elsewhere as a
cook.
[39]
In
my view, the RPD did not satisfactorily address this important aspect of the
Applicant’s claim. The RPD did acknowledge the Applicant was not allowed work
in his trade as a cook despite having been trained in that vocation. Taking
note is not enough. The RPD must consider both the restriction of the
Applicant’s employment and his prospects for future employment in answering the
question it posed for itself: “does the persecution alleged by the claimant
threaten his … basic human rights in fundamental way?”
[40]
When
considering the distinction between cases involving discrimination and
persecution, the Federal Court found it useful the refer to the UNHCR Handbook
on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and 1967 Protocol relating to the Status of Refugees (Re-edited,
Geneva, January 1992): Gorzsas v Canada (Minister of Employment and
Immigration), 2009 FC 458. The Handbook states at paragraph 54:
Differences in the treatment of various
groups do indeed exist to a greater or lesser extent in many societies. Persons
who receive less favourable treatment as a result of such differences are not
necessarily victims of persecution. It is only in certain circumstances that
discrimination would amount to persecution. This would be so if measures of
discrimination lead to consequences of a substantially prejudicial nature for
the person concerned, e.g. serious restrictions on his right to earn his
livelihood, his right to practise his religion, or his access to normally
available educational facilities.
[Emphasis added]
[41]
The
Applicant said he was demoted to a dishwasher because he was Roma and stated
that he could not work elsewhere as a cook. In addition, there is documentary
evidence about Roma unemployment in Hungary consistent with his
experience.
[42]
The
RPD is to have regard to the documentary evidence in addition to the
Applicant’s personal situation in determining whether the facts established he
was persecuted because of his Roma ethnicity: Bors v Canada (Minister of
Citizenship and Immigration), 2010 FC 1004, 94 Imm LR (3d) 112 at para 80. In
this case, the US DOS 2009 Human Rights Report on Hungary notes that
Human Rights NGOs reported Roma were discriminated against in almost all fields
including employment, and the unemployment among the Roma in Hungary was
estimated at 40 percent overall and exceeding 90 percent in underdeveloped
regions.
[43]
The
RPD’s reasons refer to but do not analyze the restriction on the Applicant’s ability
to pursue a livelihood. Nor has the RPD addressed documentary evidence which
supports the Applicant’s claim in this regard. Given the importance of being
able to pursue a livelihood, such restrictions are not to be merely noted in
analysis. The RPD’s failure to do so constitutes a reviewable error.
State Protection
[44]
The
Applicant submits that the RPD erred in ignoring the ineffective measures by the
Hungarian state to overcome the problems of the Roma. The Applicant emphasizes
that efforts on the part of the Hungarian state are not necessarily tantamount
to adequate protection. The mere fact that the Hungarian government is taking
measures is not enough.
[45]
The
RPD did acknowledge that the documentary evidence indicated many problems with
how the Hungarian society treats the Roma. However, the RPD found the
documentary evidence was that the government of Hungary was making
serious efforts to address the problem. The Respondent submits that this was
sufficient, because state protection does not need to always be perfect or even
always effective: Kovacs v Canada (Minister of
Citizenship and Immigration), 2010 FC 1003.
[46]
There
is a presumption that a State is able to protect its citizens; the Applicant
has the onus of providing clear and convincing confirmation of the state’s
inability to protect: Ward v Canada (Minister of
Employment & Immigration), [1993] 2 S.C.R. 689, 103 DLR (4th)
1 at paras 50 and 51. Furthermore, the burden of proof that rests on the
Applicant with respect to the availability of state protection is directly
proportional to the level of democracy of the state: Kadenko v Canada (Minister of
Citizenship and Immigration) (1996), 143 DLR (4th) 532, 124 FTR 160
(FCA) at para 5.
[47]
The RPD is presumed to consider all of the
evidence: Florea v Canada (Minister of Employment and Immigration), [1993] FCJ no
598 (FCA); Ramirez Chagoya v Canada (Minister of Citizenship and
Immigration), 2008 FC 721.
However, the RPD has the obligation to address contrary
evidence submitted by an applicant and to explain why it chose not to accept that
evidence: Cedepa-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ no
1425, 157 FTR 35.
[48]
A general statement by the RPD is not sufficient.
The Board should refer to contrary evidence and explain why it does not give it
weight: Sanchez v Canada (Minister of Citizenship and Immigration), 2008 FC 1336,
[2008] FCJ no
1673; Aguirre v Canada (Minister of Citizenship and Immigration),
2010 FC 916,
[2010] FCJ no
1116.
[49]
Sorting
through the Applicant’s evidence, the Applicant makes three principal
submissions about persecution. First, he was subjected to physical attacks much
as other Roma have been. Second, he avers the general treatment of Roma in Hungary as
worsening, in particular with the presence of right wing xenophobic groups
engaged in demonstrations and confrontations against Roma. Finally, he submits
he experienced other forms of persecution such as racial slurs, hostility and
restrictions to his ability to earn a livelihood.
Physical
Attacks
[50]
The
Applicant failed to provide clear and convincing evidence with respect to the
availability of state protection from physical attacks given the fact that his
only attempt to seek protection was to once approach a police car. This failure
by the Applicant is not unusual. The 2009 European Union Minorities and
Discrimination Survey on The Roma found 85 % of Hungarian Roma respondents did
not report crimes committed against them in the previous 12 months. Nevertheless,
I conclude the Applicant’s evidence falls short of demonstrating why he has a
fear of the police so as to explain his failure to report the assaults. Dissatisfaction
with or distrust of the police is by itself insufficient.
General
Conditions
[51]
The
Applicant submits the RPD did not consider the documentary evidence of racist
attacks, murders of Roma and burnings since 2008. In particular the Applicant
submits the RPD ignored all contrary evidence, citing for example the US DOS
2010 Report on Human Rights in Hungary which states:
“Human rights problems included
police use of excessive force against suspects, particularly Roma;
government corruption, societal violence against women and children; sexual
harassment of women; and trafficking in persons. Other problems worsened
such as extremist and hash rhetoric against ethnic and religious minority
groups. Extremists increasingly targeted Roma, resulting in the deaths or four
Roma and multiple injuries to others. Discrimination against Roma in education,
housing, employment, and access to social services continued.”
[Emphasis in Applicant’s submission]
[52]
The
Applicant asserts the RPD ignored all of the Applicant’s submitted documents as
well as the RPD’s own sources, including the US DOS Report which confirmed that
the police continue to discriminate against the Roma. The Applicant submits
that this is a fatal error. The Applicant emphasizes the violence directed
against Roma and refers to the rise of xenophobic right wing activity.
[53]
Contrary
to this submission, the RPD did refer to documentation submitted by the Applicant,
for example the US Department of State Country Reports on Human Rights
Practices for 2009 which indicates Hungary has had a
history of discrimination against Roma people, as well as other documentation
describing negative treatment of Roma.
[54]
The
RPD made particular note of the European Commission against Racism and
Intolerance adopted on June 20, 2008. The RPD stated:
The report lists a number of initiatives
that the Hungarian government has made in its attempt to eradicate
discrimination and racism in the country. Although the existence of right
wing political organizations that adopt a xenophobic agenda is part of the
Democratic process, the Hungarian government has taken several steps to limit
and ban the activities of these groups.
[Emphasis added]
[55]
A
review of the more recent post 2008 country documentation shows that while a
xenophobic right wing political organization has gained some ground, they are
not part of the Hungarian government.
[56]
I
find the RPD did not ignore the general situation in Hungary as it considered
contrary evidence and come to its own conclusions on the whole of the
documentary evidence.
Livelihood
[57]
The
RPD is required to conduct an individualized analysis taking into account the Applicant’s
circumstances in assessing whether the Applicant has proven state protection is
available.
The RPD’s finding on
state protection must be tied to the individual claimant in the claim under
consideration: Raja v Canada (Minister of Citizenship and Immigration),
2005 FC 1335; Khilji v
Canada (The Minister of Citizenship and Immigration), [2004] FCJ
no 811, 2004 FC
667 (TD).
[58]
The
RPD addressed the general situation of Roma in Hungary and government
measures to address Roma circumstances. It referred to the Hungarian
Parliament’s resolution on the Decade of Roma Inclusion Programme Strategic
Plan for 2007 – 2015. The RPD noted the resolution set out a series of
tasks to be accomplished in a number of social fields including employment. The
RPD makes this statement in the course of a generalized analysis. Such an
analysis may suffice where the Applicant argues the general situation but more
is required when the Applicant has provided evidence that directly relates to
his own individualized circumstances.
[59]
The
RPD has not assessed the documentary evidence while having regard to the
restrictions placed upon the Applicant’s opportunities to earn a livelihood in
an area for which he was trained.
[60]
I
find the RPD’s assessment of whether state protection is available fails to
have regard to the Applicant’s individual circumstances. In result, I conclude the
RPD’s analysis finding state protection is available for the Applicant is
unreasonable.
Conclusion
[61]
The
application for judicial review will be granted and remitted back for
redetermination by a differently constituted panel.
[62]
The
Parties have not submitted a question of general importance for certification
and I do not pose any question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is granted and is remitted back for
redetermination by a differently constituted panel.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
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