Date:
20130423
Docket:
IMM-2907-12
Citation:
2013 FC 407
Ottawa, Ontario,
April 23, 2013
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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SZILVIA VARADI, CSABA VARADI
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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 section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], of a negative
decision of an Immigration Officer [the Officer] made on March 6, 2012, with
respect to the applicants’ Pre-removal Risk Assessment [PRRA] which found that
the applicant was not a Convention refugee nor a person in need of protection
pursuant to sections 96 and 97 of the Act.
[2]
For
the reasons set out below, the application for judicial review is allowed.
Background
[3]
The
principal applicant, Szilvia Varadi, is a Roma from Hungary who is lesbian and
is in a common law union with her partner, a non-Roma. Ms Varadi first came to Canada with her husband and son, but their refugee claim was deemed abandoned due to her husband’s
failure to complete the forms and they were deported to Hungary in 2001. Ms Varadi returned to Canada in 2010 with her son and new partner to seek
protection. The PRRA process is the only means for the applicant to raise her
risk of persecution and need of protection. The first PRRA decision was set
aside on consent of the respondent and the applicant was provided the
opportunity to provide additional submissions for the PRRA application now
under review.
[4]
In
her original PRRA submissions, the applicant recounted the physical and other
abuse she suffered by her husband, the ostracization by Hungarians in general,
by other Roma and by her family, as well as the risks she faced as a divorced
Roma woman in a same-sex relationship. The applicant also recounted assaults
upon her and her partner by the police and the sexual assault of her son by
teachers at his school.
[5]
The
same incidents were recounted in the affidavit and submissions of her partner,
Georgina Boncser, which were prepared for consideration at Ms Boncser’s refugee
hearing and which were also submitted by the applicant for her PRRA.
Preliminary
issue: the missing affidavit
[6]
As
a preliminary issue, in oral submissions, counsel for the applicant advised the
Court that the affidavit of Georgina Boncser, dated November 18, 2010, was
missing from the Certified Tribunal Record [CTR] although it had been submitted
with the first PRRA application and with the submissions on November 20, 2010.
Counsel submitted that the fact that this affidavit was missing demonstrates
that the PRRA Officer failed to consider this information which further
supported the applicant’s claims.
[7]
The
respondent noted that an incomplete CTR will not necessarily result in quashing
the decision unless the missing documents are material to the decision and the
Court is unable to review and assess the documentation that was before the
tribunal: Balanos v Canada (Minister of Citizenship and Immigration),
2011 FC 388, [2011] FCJ 497; Yadav v Canada (Minister of Citizenship and
Immigration), 2010 FC 140, [2010] FCJ 353.
[8]
In
this case, I find that the submissions provided with respect to Ms Boncser,
dated November 2011, which are part of the CTR, generally recount the same
events described in the November 2010 affidavit which is missing from the CTR.
The November 2010 affidavit is, however, included in the applicant’s record.
The decision of the Officer indicates the sources consulted, including the
submissions provided in November 2010 (which should have included the
affidavit) and the November 2011 submissions. It is therefore presumed that
this information was before the Officer. The more important issue is whether
the Officer considered this information.
The
Decision
[9]
The
determinative issues are the reasonableness of the Officer’s decision with
respect to the insufficiency of evidence and whether the applicant failed to
rebut the presumption of adequate state protection.
[10]
The
decision of the PRRA Officer includes 20 pages, the majority of which describe
country conditions related to the treatment of Roma in Hungary, efforts to improve police responses and accountability, laws and other initiatives
to address discrimination, including against gays and lesbians, and efforts to
improve the educational opportunities for Roma. The extensive references to the
country conditions appear to be drawn directly from other documents without
regard to the relevance of some of the information. Some information is noted
more than once; for example, there are three references to the role of the
Independent Police Complaints Commissions in various parts of the decision,
which all say the same thing. The approach of reciting large passages from
country condition documents cast some doubt on the decision-making process and
whether the decision maker considered the country conditions recited as they
relate to the particular situation of the applicants.
[11]
The
decision also includes a summary of the applicant’s claims of persecution taken
from the applicant’s PRRA submissions, but with the omission of words,
incomplete sentences, the adoption of poorly translated phrases, and
grammatical and other errors, making some parts incomprehensible. For example,
on page 10: “However, a police officer on first day on the job as a waitress in
a pub attacked her and called in Neo Nazi’s to help with the attack”; “They
fled the city, because the racists where they lived”; “Even know they moved to
another city they were attacked on the street because they were walking hand in
hand and she looks Roma” (page 10); “The female applicant has a job to stand on
heel and walk” (page 22); “…because of the assault them in November 2009. The
medical report indicates that Georgina’s knee case was removed.” (page 23).
[12]
The
applicant’s circumstances and experience are referred to in just over three
pages of the 20-page decision and the conclusions reached by the Officer lack
the necessary analysis and lack adequate reasons.
[13]
With
all due respect to the officers who are tasked with assessing many large
documents and applying the Act, it is a challenge to find that a
decision is reasonable when it appears to be pieced together without regard to
the facts before the Officer.
[14]
While
the respondent provided helpful submissions to support the reasonableness of
the decision, the decision cannot be protected from review by the Officer’s
recitation of extensive country conditions, followed by a simple assertion that
the Officer considered other contradictory evidence provided by the applicants,
yet that evidence is not recited in the same way, or at all, nor is any
analysis of it offered.
[15]
The
principle in Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),
157 FTR 35, [1998] FCJ No 1425 at para 17, is applicable in this case, where
Justice Evans, as he then was, said:
17 However,
the more important the evidence that is not mentioned specifically and analyzed
in the agency's reasons, the more willing a court may be to infer from the
silence that the agency made an erroneous finding of fact "without regard
to the evidence": Bains v. Canada (Minister of Employment &
Immigration) (1993), 63 F.T.R. 312 (Fed. T.D.). In other words,
the agency's burden of explanation increases with the relevance of the evidence
in question to the disputed facts. Thus, a blanket statement that the agency
has considered all the evidence will not suffice when the evidence omitted from
any discussion in the reasons appears squarely to contradict the agency's
finding of fact. Moreover, when the agency refers in some detail to evidence
supporting its finding, but is silent on evidence pointing to the opposite
conclusion, it may be easier to infer that the agency overlooked the
contradictory evidence when making its finding of fact. [Emphasis added.]
[16]
In
accordance with Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 at para 16, I have considered that “[a] decision-maker
is not required to make an explicit finding on each constituent element,
however subordinate, leading to its final conclusion.”
However, in accordance with that same case, I have read the record together
with the decision in an effort to support the reasonableness of the decision
and I cannot conclude that it is reasonable.
Sufficiency
of Evidence
[17]
The
Officer considered the reports of harassment, discrimination, and abuse that
the applicant suffered in Hungary, but concluded that the evidence was
insufficient to demonstrate that she had suffered persecution. For example, the
Officer noted that there was insufficient evidence that the applicant’s
husband had harassed her for wanting to divorce him; there was no evidence that
the injuries she reported at the hospital were caused by her husband; there was
no evidence that the applicant sought medical attention for the injuries she
sustained from police officers who threatened her and demanded sex after she
attempted to report an assault; there was no evidence that the applicant and
her partner reported that assault by the police to the Independent Police Commission,
and there was insufficient evidence about the sexual assaults upon her son at
his school.
[18]
However,
the affidavits of the applicant, Ms Varadi, and her partner, Ms Boncser,
consistently recounted the same events and same assaults, including the attacks
upon them due to their same-sex relationship. Whether or not the 2010 affidavit
of Ms Boncser was considered, the submissions provided in November 2011
supported the applicant’s claims. In addition, the submissions also referred to
the fact that the applicant faced abuse and discrimination as a Roma in a
same-sex relationship with a non-Roma, a distinction which was not addressed by
the Officer.
[19]
Whether
or not there was evidence of the applicant’s husband harassing her due to the
divorce, the Officer accepted that she and Ms Boncser had been assaulted or
“menaced” by her husband and that the police would not take their report. The
fact that there was no medical report of injuries suffered from that assault
does not take away from the fact that these assaults occurred.
[20]
The
applicant also recounted that the police had participated in an attack upon her
in the bar where she worked, and had threatened and assaulted her and Ms
Boncser and demanded sex from them when they sought to report another attack
they had suffered in the streets. The Officer does not address that the police
were the agents of persecution in at least two incidents.
[21]
The
Officer did not question the credibility of the applicant and her affidavit
evidence is presumed to be true: Maldonado v Canada (Minister of Employment and Immigration), [1979] FCJ 248, [1980]
2 FC 302.
[22]
There
is a distinction between credibility and sufficiency of evidence which was
explained clearly by Justice Zinn in Ferguson v Canada (Minister
of Citizenship and Immigration), 2008 FC 1067, [2008] FCJ 1308 at
para 34, where he noted that there will be circumstances where the decision-maker
neither believes nor disbelieves the applicant but remains unconvinced.
[23]
In
this case the Officer finds that there is insufficient evidence. However, the
evidence that the Officer had considered as credible could have been supported
further by the evidence that the Officer failed to consider.
[24]
The
Officer appears to have either failed to consider or misconstrued this evidence,
including the affidavit of Ms Boncser, which recounted the same events and
provided greater detail for some, in reaching the conclusion that the applicant
had not suffered persecution, but merely discrimination.
[25]
In
addition, the Officer did not consider whether, cumulatively, all these events
amounted to persecution.
State
Protection
[26]
The
applicant had reported the abuse by her husband to the police on two occasions,
but the police refused to receive the report, referring to each incident as the
first occurrence.
[27]
The
applicant also reported the attack upon her and Ms Boncser to the police which
resulted in the police threatening them and demanding sex from them rather than
responding to the incident. Three reports to the police were made in two
different cities, and the police did not take any report or any action.
[28]
As
noted above, the applicant had also been assaulted in the bar where she worked
by a police officer.
[29]
While
the Officer referred to a range of initiatives in Hungary, including the Police
Complaints Commission and the National Police Headquarters, and noted that the
applicant had not made a complaint to the Commission, the Officer did not
assess whether it was reasonable to expect the applicant to pursue these higher
authorities given the experiences she had with the police and given that she
was a lesbian Roma in a same-sex relationship facing broad discrimination.
[30]
As
the Officer noted, Canada (Attorney General) v Ward, [1993] 2 SCR
689 at para 18, sets out the rationale underlying the international refugee
protection regime which is meant to be relied upon when the protection one
expects from the state in which the person is a national is unavailable, and
even then, only in certain situations. It is considered to be surrogate or
substitute protection in the event of a failure of national protection.
Persecuted individuals are required to first approach their home state for
protection before the responsibility of other states becomes engaged.
[31]
There
is a presumption that a state is capable of protecting its citizens. The
presumption is only rebutted by clear and convincing evidence that state
protection is inadequate or non-existent: Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 FCR 636 [Carrillo].
The evidence must be reliable and have probative value; claimants “must adduce
relevant, reliable and convincing evidence which satisfies the trier of fact on
a balance of probabilities that the state protection is inadequate”: Carrillo,
above, at para 30.
[32]
The
test is not ‘perfect’ state protection, but adequate state protection. Still,
mere willingness to protect is insufficient; state protection must be effective
to a certain degree: JB v Canada (Minister of Citizenship and Immigration),
2011 FC 210, [2011]
FCJ 358 at para 47.
[33]
As
noted by Justice Russell in Simpson v Canada
(Minister of Citizenship and Immigration),
2006 FC 970, [2006]
FCJ 1224 at para 36, an applicant need
only make reasonable efforts considering the circumstances to rebut the
presumption that she did not exhaust all avenues of state protection:
In dealing with the determinative issue of state protection, the
Board concluded that because the Applicant had not sought to speak with the
police Commissioner, the efforts undertaken by her and her mother were
insufficient to rebut the presumption of state protection. Case law is
clear that state protection need not be perfect, but it has also been held that
an Applicant need only make reasonable efforts considering the circumstances in
order to overcome the presumption he or she need not exhaust all avenues: See
e.g. L.G.S. v. Canada (Minister of Citizenship and Immigration), [2004]
F.C.J. No. 874, 2004 FC 731 at para. 22; Peralta v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1331, 2002 FCT 989 at para.
18. In the present case, it is accepted that the Applicant, or her
mother, went to the police at least three times. Furthermore, when told
that they needed to go to the CID, they did, and were still told there was
nothing that could be done. When asked why she did not seek to speak to
the Commissioner, or go to the Headquarters in Kingston, the Applicant
indicated that there was no way she would have been permitted to see the Commissioner.
It would have been a useless quest for someone in her position. The
Respondent’s counsel conceded at the hearing of this matter before me that
there was nothing in the record to suggest that the Applicant’s evidence on
this issue was wrong or doubtful in any way. The Board merely asserts for no
reason that she should have gone to the Commissioner. There was nothing to
suggest that, had she done so, this would have done any good.
[34]
Although
the applicant had reported to the police on at least three occasions, she had
not pursued a complaint with the Independent Police Complaints Commission nor
had she pursued other resources. The case law has established that such efforts
may be justified and may indeed rebut the presumption of adequate state protection
depending on the circumstances.
[35]
In Kaur v Canada (Minister of
Citizenship and Immigration), 2005
FC 1491, [2005] FCJ 1858, Justice de Montigny noted at para 32:
Finally, I think it
was perfectly legitimate for the Applicant not to complain to the police in the
circumstances, given that the police itself were the aggressors and the
perpetrators of the acts of violence. As my colleague Tremblay-Lamer stated in Chaves
v. Canada (M.C.I.), [2005] F.C.J. 232 (QL), 2005 FC 193 at para. 15,
"the very fact that the agents of the state are the alleged perpetrators
of persecution undercuts the apparent democratic nature of the state's
institutions, and correspondingly, the burden of proof".
[36]
The
Officer faulted the applicant for not approaching the Police Complaints
Commission, but failed to consider whether that would have been reasonable
given that the police were the agents of persecution and the applicant, given
her experiences, may not have had confidence that this would result in any
protection.
[37]
In
Orgona v Canada (Minister of Citizenship and Immigration), 2012 FC 1438,
[2012] FCJ 1545, Justice Zinn wrote, in relation to an RPD decision denying
refugee status to Roma 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.
[38]
In
addition, it was not reasonable for the Officer to conclude that a range of
other possible resources would provide the protection needed by the applicant.
As noted by Justice de Montigny in Katinszki v Canada (Minister of
Citizenship and Immigration), 2012 FC 1326, [2012] FCJ 1444 at paras 14 and
15:
[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 or 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 F.C.R. 237 at paras 24-25:
24 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).
25 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.
[39]
In
Zepeda, above at
para 20, Justice Tremblay-Lamer noted that in applying the presumption of state
protection, decision makers must engage in a full assessment of the evidence
before them, including the general context of the country of origin, all of the
steps taken by the applicant, and the applicant’s interaction with state
authorities.
[40]
In
this case the Officer extensively recounted the efforts and initiatives being
taken in Hungary and acknowledged that it was less than perfect, noting reports
of police corruption and the challenges of protecting Roma, as well as
discrimination faced by lesbian, gay, bisexual and transgendered people.
Despite these findings, the Officer concluded that “The applicants
have not provided clear and convincing evidence that state protection would not
be available to them if needed.”
[41]
The
Officer did not assess how the state protection described responded to the
circumstances of the applicant. The adequacy of state protection cannot be
taken for granted because a country is a democracy and is making serious
efforts when the evidence before the Officer shows that the serious efforts
have not addressed the applicant’s situation.
Conclusion
[42]
For
the reasons noted above, the decision does not fall within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47. The Officer failed
to consider evidence which supported the applicant’s claims and failed to
consider the efforts of the applicant to seek state protection in light of the
adequacy of state protection and the agents of persecution. A contextual
analysis is required to determine if state protection would be forthcoming for
this applicant in these circumstances. Moreover, the decision as a whole is
lacking in sufficient clarity and adequacy of reasons.
[43]
The
application for judicial review is allowed and the PRRA should be determined
once again by a different officer.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed and the PRRA should be determined once
again by a different officer.
"Catherine M.
Kane"
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