Date:
20130424
Docket: IMM-7541-12
Citation: 2013 FC 421
Vancouver, British Columbia, April 24, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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LAJOS MAJOROS
LAJOSNE MAJOROS
MILAN
MAJOROS
VANESSZA MAJOROS
REBEKA MAJOROS
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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]
The applicants, a Roma family from Hungary,
challenge a decision of the Refugee Protection Division of the Immigration and
Refugee Board that found that they were neither Convention refugees nor persons
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 applicants had not
rebutted the presumption of state protection, which was the determinative
issue. In my view, the Board’s analysis is faulty and its conclusion
unreasonable. The decision must be set aside.
Background
[3]
Lajos Majoros and his spouse Lajosne Majoros
(the father and mother of the minor claimants) both testified. The Board made
no adverse credibility finding. The applicants recounted decades of harassment
and violence by skinheads in Hungary, including the murder and dismemberment of
one of the father’s close friends while camping. However, four relatively
recent incidents of persecution are of particular significance to the Board’s decision
and this judicial review application. Unless otherwise indicated, the quoted
passages are taken from the Board’s decision.
[4]
In 2007, Mr. Majoros and some of his Roma
friends attended a disco in the town of Harsány, Hungary, and fled when a group
of racists armed with “bats, kaszas, swords and other farm implements came in
looking for a fight.” He and twelve others fled in a car, “some inside, some
hanging onto the outside,” and were stopped by a police car for speeding and
having too many people in the car. Although those stopped explained they were
merely fleeing the scene at the disco, which they described to the police, the
police fined them anyway but said that they “would go to the disco and ask
around and get back to them.” Mr. Majoros did not follow up with the police
about this incident, nor did he hear back from the police.
[5]
In 2008, Mr. Majoros “attended a Roma
celebration during which the Guardists broke in and started a brawl. The
Guardists were outnumbered but during this altercation [Mr. Majoros’] godfather
was stabbed. By the time the police arrived, the assailants were gone.” Mr.
Majoros wrote in his Personal Information Form that because they were gone,
“the police said they could not act.”
[6]
In August 2009, “while enjoying time with his
parents in the back garden of their home not far from his, 8-10 skinheads drove
by yelling racial slurs, jumped out of their vehicles and threw Molotov
cocktails. [The applicants] called the police who said that they would look
for them. This was particularly frightening for [Mr. Majoros] and his family
because, earlier that year, several homes in their ghetto had been set on fire
when Molotov cocktails had been thrown and other incidents of violence were being
reported.”
[7]
In September 2009, Mr. Majoros “and his wife
were spat upon and assaulted by 5-6 large men while waiting for a bus.
Luckily, people passing by called the police however, because the police could not
find the assailants, they started a case against ‘unknown assailants’ and never
contacted the claimants afterwards.” The applicants were unable to provide a
description of the attackers or a license plate number to assist the police.
[8]
In its decision, the Board found that applicants
failed to rebut the presumption of state protection because they had failed to
provide sufficient information to the police after the various attacks to allow
them to properly investigate and apprehend the persecutors, and did not make
any complaint to any state authority that they were dissatisfied with the
police response.
Issues
[9]
The applicants raise the following issues:
1. Did the Board err by failing to reasonably assess the evidence as a
whole?
2. Did the Board err by mischaracterizing the evidence of the applicants
with respect to state protection, and making veiled or over credibility
findings not consistent with the evidence?
3. Did the Board err by misinterpreting the definition of state protection,
including by failing to assess whether the efforts being made by the Hungarian
government were operationally adequate?
However, the real
issue is whether the Board’s decision, and in particular its state protection
analysis, is reasonable.
Analysis
[10]
The Board started from the premise that “[a]
claimant must show that they have taken all reasonable steps in the
circumstances to seek protection, taking into account the context of the
country of origin, the steps taken and the claimant’s interactions with the
authorities.” However, whether a claimant has sought, or diligently
sought the state’s protection is – properly speaking – not a legal requirement
for refugee protection. Rather, it goes to whether the claimant has provided
the “clear and convincing” evidence that is needed to displace the
presumption of state protection. Because of the strong presumption of state
protection, concrete, individual attempts to seek the protection of the state
are – as evidence – perhaps usually necessary (depending on the circumstances
and other evidence) to rebut that presumption. In that sense only, seeking the
protection of the state might amount to a de facto requirement in many
cases.
[11]
However, the legal requirement in section
96 of the Act is that a claimant be “unable or, by reason of [their] fear,
unwilling to avail themself of the protection of [their country of nationality].”
Here, the agent of persecution was not the state, but rather a widespread
right-wing, skinhead movement. Thus, the legal issue was whether the
applicants were unable to avail themselves of Hungary’s protection.
[12]
I adopt Justice Mosley’s statement of the law in
this regard in Meza Varela v Canada (Minister of Citizenship &
Immigration), 2011 FC 1364
at para 16: “Any efforts must have ‘actually translated into adequate
state protection’ at the operational level.” Or, as I put it in Orgona v Canada (Minister of Citizenship and Immigration), 2012 FC 1438 at para 11: “Actions,
not good intentions prove that protection from persecution is available.” At
the same time, state protection need not rise to the level of
perfection. That a state is unable to provide adequate protection, assessed at
the operational level, can be proved with whatever evidence is sufficiently
convincing, including documentary evidence.
[13]
One can only conclude from reading the Board’s decision
as a whole that it placed decisive emphasis on the applicants’ attempts to
engage the police, and lost sight of the real question of whether state
protection in Hungary is adequate.
[14]
The difficulty with the Board’s emphasis on the
actions of these applicants is this: the evidence on the record was that the
persecution suffered by the applicants was from a right-wing movement, and that
the particular acts of violence and harassment were perpetrated
indiscriminately. As a result, one must ask: “What difference would it have
made if the applicants had more diligently reported and followed up with the
police, and the individuals responsible for the various acts of violence had been
caught?” Based on the record, one can only conclude nothing, or at the very
most very little would have changed: persecution against the Roma in Hungary is widespread and in most cases indiscriminate. As a result, the state would be
offering no more “protection” than it did prior the particular acts of
persecution.
[15]
Justice Kane offered a similar observation in Ferko
v Canada (Citizenship and Immigration), 2012 FC 1284 at para 49:
The applicant
reported every incident of violence to the police, yet he and his family
continued to be victims of violence in each community they moved to. The Board
accepted that the applicant’s reports to the police did not result in any
suspect being apprehended. Even if they had, this would not necessarily have
resulted in any future protection for the applicant’s family since nothing
suggests that they were repeatedly targeted by the same individual(s). Rather,
the applicant and his family were the victims of a broader pattern of violence
by ‘skin heads’ against the Roma. It is, therefore, not apparent what the
purpose would be for the applicant to continue to request status reports from
the police about the incidents reported. It is not apparent how that would
have increased state protection to him and his family. [emphasis added]
[16]
Where persecution is widespread and
indiscriminate, and unless a claimant is repeatedly targeted by the same
individual(s), I fail to understand how it can be said that individual attempts
to engage the authorities will have significant, persuasive evidentiary value
as to the state’s ability to protect against future, indiscriminate violence.
In those cases, documentary evidence, rather than individual attempts to seek
protection, is more relevant to the state protection analysis. As discussed
below, the Board in this case did review the documentary evidence; however, one
cannot escape the conclusion reading the decision as a whole that the
applicants’ perceived inadequate attempts to engage the police not only figured
prominently, but were decisive in the Board’s analysis. That legal error –
which is to place a legal burden of seeking state protection on a
refugee claimant – is unreasonable and itself sufficient to warrant granting
this application.
[17]
Moreover, although the Board reviewed the
documentary evidence separately, its analysis is problematic in that it fails
to recognize that the corollary of the principle that protection need not be
perfect is not the principle that there is adequate protection if it is found on
occasion. The Board repeats the following statement from the recent Response
to Information Request: “[T]he central government’s general failure to
maintain strong and effective control mechanisms over rights violations
takes its toll on Hungary’s largest minority, the Roma” [emphasis added]. Also,
as in Orgona, it points to the example where the police made arrests in
nine horrendous violent and deadly attacks against Roma, and from that it concludes
that the government’s efforts to combat racism have had “mixed results.”
[18]
In my view, having regard to the decision as a
whole, the Board paid only lip-service to the notion that state protection must
actually be sufficiently effective at the operational level and with respect to
the persecution suffered by the claimants, to be adequate for the purposes of
refugee law. Rather, it placed overwhelming reliance on the government’s
efforts and good intentions in arriving at its conclusion that state protection
was adequate based on the documentary evidence. For that reason too, the
Board’s decision is unreasonable.
[19]
Incidentally, the Board’s treatment of the
documentary evidence also reverts to a criticism of the applicants’ imperfect
interactions with the police, with no attention paid to what would have been
the practical significance of those interactions. At one point, the Board
wrote:
[31] [T]he
claimant has not demonstrated that state protection in Hungary is so
inadequate that he need not have approached the authorities at all, or that
he need not have taken all reasonable efforts to seek state protection in his
home country, such as seeking help from people higher in authority, or with
other mechanisms, such as the Minorities Ombudsman’s Office or the Independent
Police Complaints Board (IPCB), before seeking international protection in
Canada.” [emphasis added]
At also:
[35] There was
no evidence adduced that the claimants made any attempts to follow up on any
report that may have been taken by police regarding any incident of violence or
discrimination committed against them nor did they complain to anyone that the
police did not get back to them.
[20]
As I stated above, what the Board fails to
address is the question: how would state protection be more forthcoming if the
applicants had followed up with, e.g., the Minorities Ombudsman’s Office?
Would they be any safer or any more protected? Again, instead of
treating the applicants’ interactions with the police as having evidentiary
relevance to the legal issue – Is state protection available? – the
Board treated the applicants’ (in its view) inadequate efforts in relation to
the police as a disqualifier for refugee protection. To repeat: that was an
error.
[21]
In summary, the Board erred in its state
protection analysis in two ways: first, by focusing on the applicants’ alleged
inadequate reporting to the police with no regard to the practical significance
of that reporting to the real issue of state protection; and second, by
focusing almost exclusively on the efforts being made by the Hungarian
government to curb persecution against the Roma, with little or no attention
paid to the operational effectiveness of those measures. For those reasons,
the Board’s decision must be set aside.
[22]
Neither party proposed a question for
certification.
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 applicants’ refugee protection
claims are remitted back to be redetermined by a differently constituted panel,
and no question is certified.
"Russel W. Zinn"
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