Date:
20130424
Docket: IMM-5049-12
Citation: 2013 FC 422
Vancouver, British Columbia, April 24, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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TIBOR TIVADAR
MUNTYAN
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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]
The applicant Roma is from Hungary. He challenges a decision of the Refugee Protection Division of the Immigration and Refugee
Board that found that he was neither a Convention refugee nor a person in need
of protection pursuant to section 96 and subsection 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27.
[2]
The Board found that the applicant had not
rebutted the presumption of state protection, which was the determinative issue.
In my view, the Board made the same error as was found in my decision in Majoros v Canada (Minister of Citizenship and
Immigration), 2013 FC 421 [Majoros] and for the reasons given there,
this application must be allowed.
Background
[3]
Since it only made the finding that the
applicant had not rebutted the presumption of state protection, the Board did
not go to great lengths to summarize or even to decide whether the “various
forms of mistreatment” suffered by the applicant, amounted to persecution.
[4]
In any event, the Board proceeded on the basis
of the allegations set out in the applicant’s Personal Information Form [PIF],
because the Board concluded, based on his answers to questions asked, that he
did not appreciate the nature of the proceeding. Although a designated
representative was appointed and provided testimony, her testimony was not
considered due to inconsistencies in it.
[5]
In the PIF the applicant asserted that, aside
from his lifelong experience being discriminated against, he had been personally
attacked several times in 2007 and 2008 and his neighbourhood was regularly
raided by Hungarian Guard skinheads, who would throw Molotov cocktails, bricks,
and stones into Roma homes. The alleged incident precipitating the applicant’s
departure from Hungary occurred on March 15, 2009:
On this day, a national Independence day
for Hungary, I was in a parking garage, in the evening, when 6 – 7
Hungarian Guard members surrounded me, calling me various racial slurs,
screaming at me. I had to kneel down and they shoved a gun in my mouth and
told me that I deserve to die. They wore black uniforms adorned with WWII Nazi
Hungarian cross (Nylas cross). They said that this was a warning and that
eventually all Roma will be exterminated. They said that next time they would
pull the trigger. They kicked me a few times and left.
I did not go to the
police to report this attack, because 30-40% of the Hungarian Guard
members are or were policemen. This was in the news and politicians spoke
about this. I did not trust the police and feared I could be even beaten
up by the policeman if I complain about being attacked by Hungarian Guard
members.
[6]
The applicant departed Hungary for Canada on April 2, 2009, and claimed refugee protection upon his arrival at the airport
in Toronto.
[7]
As noted, the Board did not expressly decide
whether the applicant had suffered persecution, or would suffer persecution if
returned to Hungary. Instead, after summarizing the above allegations, its
analysis was limited to its finding that the applicant had not rebutted the
presumption of state protection. That finding was made for two, broad reasons:
1. The
applicant did not report his mistreatment by skinheads to the police; and
2. The documentary evidence is that Hungary intends, and actually
(in some cases) “act[s] to investigate and prosecute cases of crime against
Roma.”
[8]
Both of the Board’s reasons for rejecting the
applicant’s claim – the applicant’s inaction vis-à-vis the police and the
documentary evidence – suffer from the same flaw as in Majoros: they
both fail to consider whether police involvement increases protection to the
Roma on a forward-looking basis and to the necessary point of protection.
[9]
Regarding Mr. Muntyan’s failure to report his
mistreatment to the police, it is not clear what, if any difference such
reporting would have made with respect to his own protection or the protection
of others similarly situated given that his evidence was that these attackers
randomly attacked him. As in Majoros the Board placed
great emphasis on the applicant’s failures to engage the police in arriving at
its conclusion that he had not rebutted the presumption of state protection
without actually considering whether that would have resulted in protection for
him. To repeat my holding in Majoros, seeking the state’s protection is
not a legal requirement of either section 96 or 97(1), although in most cases
it may be practically necessary to do so in order to be able to provide “clear
and convincing evidence” that the state is unwilling or unable to protect.
However, as I noted in Majoros, where persecution is widespread and
indiscriminate, a failure to report mistreatment to the authorities is of
doubtful evidentiary significance.
[10]
Further, as in Majoros, the Board’s assessment of the documentary evidence is flawed because it
equates the measures being taken and the arrests being made by the Hungarian
government, regardless of the circumstances, with adequate state protection.
There is little or no regard to the actual consequences of these actions on a
forward-looking basis to the applicant or other Roma.
[11]
Even if I had found the Board’s state protection
analysis to have been reasonable, I would have granted this application because
of the failure of the Board to provide any explanation for its finding that the
applicant’s current mental condition would not impact his ability to seek state
protection.
While he would be
more challenged, I do not believe he would be prevented from accessing the
protection of the state nor would he be denied that protection.
[12]
Keeping in mind that the Board found that the
applicant’s current condition prevented him from appreciating the nature of the
RPD proceedings, its finding that “he could access that [state] protection when
needed” is unreasonable and entirely speculative without more evidentiary
support than the Member’s belief.
[13]
Lastly, I cannot let pass, without commenting on
its inappropriateness and callousness, the Board’s concluding statement when
discussing the applicant’s ability to access medical, employment, and other
necessary life supports that “there was no reliable evidence that Hungary
simply allows people with disabilities to parish [sic] in the streets.”
[14]
The applicant offered a question for
certification, opposed by the respondent, asking whether health care
availability is assessed on the same test as state protection, i.e. on an
operational level. In light of the findings above, the answer to that question
would not be dispositive of an appeal and it will not be certified.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application is allowed, the decision of the Refugee Protection Division of the
Immigration and Refugee Board is set aside, the applicant’s refugee protection
claim is remitted back to be redetermined by a differently constituted panel,
and no question is certified.
“Russel W. Zinn”
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