Date:
20130423
Docket:
IMM-5087-12
Citation:
2013 FC 414
Toronto, Ontario,
April 23, 2013
PRESENT: The
Honourable Madam Justice Simpson
BETWEEN:
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MIHALY BALI, BEATRIX BALINE
KANALAS, MIHALY BALI, ISTVAN BALI, and PETER BALI by his litigation guardian
MIHALY BALI
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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
ORDER AND ORDER
[1]
The
applicant Beatrix Baline Kanalas [the Principal Applicant], her spouse Mihaly
Bali, and their children Peter, Mihaly Jr. and Istvan [collectively, the
Applicants] seek judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of the
Refugee Protection Division of the Immigration and Refugee Board [the Board]
dated April 30, 2012, wherein the Board determined that the Applicants are
neither Convention refugees nor persons in need of protection [the Decision].
[2]
For
the following reasons, the application will be allowed.
Background
[3]
The
Applicants are citizens of Hungary who claim persecution in that country
because of the Principal Applicant’s Roma ethnicity. Specifically, they say
that their lives were threatened by members of the Hungarian Guard, a
right-wing organization known for targeting Roma communities in Hungary. The Principal Applicant testified that although there had been earlier violent
episodes involving relatives and friends, the threat level faced by the
Applicants elevated significantly in 2009. In the summer of that year, the Principal
Applicant and her husband received threatening phone calls and the oldest son
was assaulted and threatened by the Hungarian Guard. Then, uniformed members of
the village chapter of the Hungarian Guard entered her home and physically
assaulted her and her oldest son. The Applicants did not report these events to
the police. The adult Applicants explained at the hearing that prior encounters
with the police had led them to believe that the police would not act to
protect them because they are Roma. They also explained that their assailants
warned them that there would be reprisals if they reported the incidents to the
authorities.
[4]
In
addition to the violence experienced by the family, the evidence before the
Board also described the discrimination suffered by the Principal Applicant due
to her ethnicity, including segregation and abuse at school, difficulty finding
work, and intolerance on the part of Hungarian neighbours and others in her
community. She testified that her children experienced similar segregation and
abuse at school and in the community.
The Decision
[5]
The
Board dismissed the Applicants’ claim on the basis of the availability of state
protection. The Board determined that the Principal Applicant had failed to
take all reasonable steps to avail herself of state protection which the Board
concluded would likely be forthcoming in Hungary. This conclusion about the
availability of state protection was based on a lengthy review of state
institutions which dealt with discrimination and public safety. The Board
addressed the recent history of discrimination against the country’s Roma
population, including the rise of right-wing and anti-Roma organizations, and
then described the government and police response. The analysis also canvassed
avenues of redress for those affected by police corruption and misconduct.
[6]
The
Board acknowledged that despite substantial efforts made by the
Hungarian government to improve the socio-economic status of its Roma
population, there continues to be significant and widespread discrimination
against the Roma in the areas of education, employment, housing, social
services and health care. Nonetheless, the Board decided that there was no
persuasive evidence to establish that the discrimination which Roma face, either
individually or cumulatively, rises to a “level of serious harm amounting to
persecution or a risk to life, a risk of torture, or a risk of cruel and
unusual treatment or punishment.” The Board also said that it was not satisfied
on the basis of the objective country documentation that members of the Roma
community are being subjected to widespread and systemic acts of racially
motivated violence across the country.
The Issues
[7]
The
Applicants identify the “cumulative effects” analysis as the Decision’s most
egregious error. They argue that this analysis, which is meant to address the
cumulative effects of the discrimination alleged by the Applicants, is flawed
because it
fails to address the question of whether the discrimination faced by these
Applicants amounts to persecution, either on individual or cumulative
grounds. Instead, the Board is said to have addressed discrimination on a macro
level and come to a conclusion with respect to Hungary’s Roma population as a
whole. The Applicants argue that this is an error in law. The Respondent
refutes this allegation and submits that the Board carried out its cumulative
effects analysis in relation to the Applicants. The Respondent also submits
that whether or not the Board erred in its cumulative effects analysis is
irrelevant because the determinative issue in this case is state protection.
[8]
However,
the Applicants also take issue with the Board’s analysis of state protection.
They argue that because the Board failed to address the discrimination suffered
by the Applicants, it consequently failed to address the availability of state
protection for the forms of discrimination they suffered. They also argue that
the evidence before the Board establishes that the Hungarian government’s
efforts to address the problems of the Roma people have been ineffective.
Finally, the Applicants argue that when they sought state protection they were
rebuffed. They submit that it was unreasonable for the Board to have expected
the Applicants to have complained about the police in the hope that at some
future point in time the police would be found to have been in dereliction of
duty. Such an expectation is characterized by the Applicants as unreasonable
and well beyond the burden placed on claimants by the Supreme Court of Canada in
Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 (SCC).
[9]
The
Respondent argues that it is well established that claimants bear the onus of
approaching the state for protection where it might be forthcoming and
particularly so in a democratic state such as Hungary. The Board is said to
have provided a very detailed and well-reasoned analysis of both the
Applicants’ specific evidence relating to state protection and the objective
country documentation. Counsel for the Respondent reviewed the various state
mechanisms referenced by the Board as avenues of redress for individuals faced
with discrimination or abuse of police authority. Counsel also submitted that
the failure of local police to provide state protection is insufficient to
establish inadequate state protection at the state-wide level. Thus, it was
reasonably open to the Board to conclude that the Applicants did not make
diligent efforts to seek state protection.
Discussion
[10]
I
accept the argument that the Board’s cumulative effects analysis does not
address the Applicants. Although it appears that the Board accepted the
evidence of discrimination faced by the Applicants as credible, it did not
address its cumulative impact. In Bledy v Canada (Minister of Citizenship
and Immigration), 2011 FC 210, Mr. Justice Scott carried out a review of
relevant precedents and confirmed that the Board is required to provide an
analysis of the cumulative effects of the discriminatory incidents faced by
claimants and explain why, in the aggregate, they do not amount to persecution.
In this case, the Board focused on the violence faced by the Applicants and
clearly treated these as persecutory events but it erred when it made its
cumulative effects finding only in relation to the general Roma population.
[11]
The
Board also made a fundamental error on the issue of state protection. State
protection must be considered with regard for an applicant's personal
circumstances or the particular factual context of the refugee claim (Flores
c Canada (Ministre de la Citoyenneté & de l'Immigration) 2010 FC 503; Torres
v Canada (Minister of Citizenship & Immigration), 2010 FC 234). In this
case the Board relied on materials related to the rest of the county and
concluded that state protection was available to the Principal Applicant with
no regard for the fact that the Applicant lived in a small village which was
home to a uniformed group of the Hungarian Guard whose members appeared to act
with impunity.
[12]
The
documentary evidence before the Board showed that homes on the periphery of
settlements and in small towns and villages, such as the Applicants’, are
targeted by skinheads and groups like the Hungarian Guard. Organizations like
the European Roma Rights Centre, Amnesty International and the Organization for
Security and Cooperation in Europe have described violent attacks against Roma
in Hungary from 2008 to 2011 and their reports indicate that many of the
violent acts were carried out against Roma families at their homes, in their
small communities. This evidence was directly relevant to the Applicants’
circumstances in Hungary. This documentary evidence suggests that it may be
possible to identify a systemic failure to provide adequate state protection
for Roma people at the village or small community level in Hungary. However, because the Board did not focus on the Applicants’ circumstances, it
failed to see the relevance of this country documentation. This was
unreasonable.
[13]
No
question was posed for certification pursuant to section 74(d) of the Act.
ORDER
THIS
COURT ORDERS that
The Decision is
hereby set aside and this matter is referred back for redetermination by a
differently constituted panel of the Board.
“Sandra J. Simpson”
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