Date:
20130529
Docket:
IMM-7585-12
Citation:
2013 FC 565
Ottawa, Ontario,
May 29, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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GABOR BURAI, SAROLTA FORGACS
and TAMAS BURAI
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated July 6, 2012, wherein the applicants were determined to be
neither Convention refugees within the meaning of section 96 of the Act nor
persons in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicants request that the Board’s
decision be set aside and the application be referred back to the Board for
redetermination by a different panel.
Background
[3]
The
principal applicant, Gabor Burai and his family are citizens of Hungary. The principal applicant is of Roma ethnicity and his spouse, Sarolta Forgacs is an
ethnic Hungarian born in Romania. They allege that they are persecuted on the
basis of their ethnicity.
[4]
The
applicants’ older son, who was not a claimant before the Board but intends to
join his family in Canada, was attacked in August 2008 in Budapest by attackers
yelling racial slurs. The son was stabbed in the shoulder and required medical
treatment in a hospital. The police investigated but were not successful in
identifying the perpetrators.
[5]
The
principal applicant’s wife also alleges persecution based on her Romanian
background.
[6]
The
principal applicant alleges he was persecuted by the Hungarian Guard, a
nationalist militia with headquarters located very close to his home. In
November 2007, several young men threatened him and used racial slurs. In May
2008, he was attacked by four members of the Guard. In July 2008, his car was
vandalized after he was again the subject of racial slurs.
[7]
In
January 2011, the principal applicant’s younger son was attacked by three men
in black uniforms. His friend was stabbed but the son managed to escape. The
friend’s mother asked the principal applicant not to complain to the police
because the attackers had threatened further violence if it were reported.
[8]
The
family fled Hungary and arrived in Canada on March 16, 2011. They claimed
protection on March 21, 2011.
Board’s Decision
[9]
The
Board heard the applicants’ claim on May 16, 2012 and rendered its decision on
July 6, 2012. The Board accepted the identities of the family. The Board
described the applicants’ allegations and the supporting documentary evidence
and appears to have accepted their allegations.
[10]
The
Board rejected their claim based on state protection. The Board described the
principles of state protection and concluded that since Hungary is a democracy, the presumption of state protection was a strong one. The Board
indicated it had considered the affidavit of a Roma politician who described
proposed constitutional changes to limit the rights of Roma, but noted no such
changes had been implemented. The affidavit described other discriminatory
measures against Roma, including the desire of the Jobbik political party to
establish public security camps. The Board gave little weight to these claims
given the lack of corroborating evidence.
[11]
The
Board went on to canvass several other country conditions documents indicating
that discrimination against Roma existed in Hungary and the measures taken by
the government to combat this phenomenon.
[12]
The
Board noted that the police had closed the investigation into the beating of
the principal applicant’s eldest son as he could not identify the perpetrators.
The applicants could have appealed this decision but did not. The oldest son
had withdrawn his claim for protection in Canada and returned to Hungary. The Board also noted that the principal applicant and his youngest son had never
gone to the police regarding the attacks on them. The Board concluded on a
balance of probabilities, the applicants had not rebutted the presumption of
state protection on the basis of their personal experience.
[13]
The
Board noted country conditions, listing the legislation introduced by the
government to combat discrimination and other policies relating to housing and
employment. Based on the applicants’ testimony, the Board concluded the
principal applicant had no basic employment difficulties.
[14]
The
Board concluded the applicants had not rebutted the presumption of state protection
personally or the risk to Roma in general and dismissed the claim.
Issues
[15]
The
applicants submit the following point at issue:
Did the Board commit
reviewable errors by failing to consider the totality of the evidence in
relation to state protection; and by engaging in an erroneous legal analysis in
determining whether there was state protection?
[16]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in rejecting the applicants’ claim?
Applicants’ Written Submissions
[17]
The
applicants emphasize that the Board made no negative credibility findings and
rejected the claim solely based on state protection. The applicants argue the Board
failed to consider the totality of the evidence in relation to state protection
and engaged in erroneous legal analysis in finding that there was state
protection for the applicants.
[18]
The
applicants submit the Board overlooked evidence that state legislation and
police institutions in Hungary are inadequate, especially in relation to the
protection of the Roma. The applicants submitted evidence that violence against
Roma has increased since 2008, that the Hungarian legal system and police are imbued
with racism against Roma and that the Hungarian state is now taking Roma rights
and protections away.
[19]
The
increase in racially motivated violence since 2008 was in the Board’s own
National Documentation Package. The Board did address the increase in violence.
The Board did not consider recent anti-Roma political developments such as the
election of the Jobbik Party to the Hungarian Parliament in 2009 and its
becoming the third party in 2010. The head of that party established the
Hungarian Guard, the organization whose members persecuted the applicants. The
National Documentation Package indicated the government had abolished the position
of Minority Ombudsman. The Board clearly disregarded this evidence, since its
reasons specifically mention the Minority Ombudsman as evidence of state
protection for Roma. It was unreasonable for the Board to dismiss the expert
affidavits.
[20]
The
applicants dispute the Board’s finding that Hungary is a democracy, as they
submitted an article challenging this point. The Board also disregarded
evidence from a response to information request (RIR) indicating law
enforcement authorities systemically failed to provide effective protection to
Roma. One of the expert affidavits indicated that a union representing a
quarter of police officers has an official alliance with the Jobbik Party. All
of this evidence shows it was reasonable for the applicants to mistrust the
police. The Hungarian state has clearly failed to stop police violence against
Roma. When there is evidence that directly contradicts the Board’s findings, it
must acknowledge such evidence in its decision.
[21]
The
applicants’ second argument is that the Board used erroneous analysis in
assessing state protection. The “serious efforts” standard has been rejected by
this Court. State protection must be adequate. A legislative framework on its
own is insufficient evidence of adequate state protection. This case law was
presented to the Board, but the Board conflated serious efforts with adequate
state protection. Had the Board performed a reasonable analysis, the conclusion
would have been that there is not adequate state protection for Roma in Hungary.
Respondent’s Written Submissions
[22]
The
respondent submits that the applicable standard of review is reasonableness and
that the Board’s state protection finding is reasonable.
[23]
The
respondent argues that where state protection is reasonably forthcoming, a
claimant’s failure to approach the state for protection will defeat their
claim. The applicants were unable to adduce sufficient, reliable and convincing
evidence that state protection was inadequate. The Board considered the
totality of the evidence but found that the government is making serious
efforts to protect the Roma. Tribunals are presumed to have considered all
evidence and are not required to mention every piece of evidence. The applicants
merely disagree with the Board’s assessment of the evidence.
[24]
Both
parties provided further submissions reiterating their arguments.
Analysis and Decision
[25]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[26]
Issues
of state protection and of the weighing, interpretation and assessment of
evidence are reviewable on a reasonableness standard (see Ipina v Canada
(Minister of Citizenship and Immigration), 2011 FC 733, [2011] FCJ No 924
at paragraph 5; and Oluwafemi v Canada (Minister of Citizenship and
Immigration), 2009 FC 1045, [2009] FCJ No 1286 at paragraph 38).
[27]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Canada (Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the Supreme Court held in Khosa
above, it is not up to a reviewing court to substitute its own view of a
preferable outcome, nor is it the function of the reviewing court to reweigh
the evidence (at paragraph 59).
[28]
Issue
2
Did the Board
err in rejecting the applicants’ claim?
The Board, in
its reasons, properly described the test for state protection as one of
adequacy. This is in line with this Court’s repeated instruction that the
existence of “serious efforts” at state protection are not determinative of the
adequacy of state protection. As I said in Harinarain v Canada (Minister of Citizenship and Immigration), 2012 FC 1519, [2012] FCJ No 1637 at
paragraphs 27 to 29:
27 The
use of the phrase “in other words” in the passage is incorrect: “adequate
protection” and “serious efforts at protection” are not the same thing. The
former is concerned with whether the actual outcome of protection exists in a
given country, while the latter merely indicates whether the state has taken
steps to provide that protection.
28 It
is of little comfort to a person fearing persecution that a state has made an
effort to provide protection if that effort has little effect. For that reason,
the Board is tasked with evaluating the empirical reality of the adequacy of
state protection.
29 This
Court has affirmed this interpretation of state protection repeatedly. …
[29]
Therefore,
the Board set out the law correctly. The Board’s consideration of the country
conditions evidence, however, strays from this focus on adequacy instead of
effort:
However,
the documentary evidence currently before the Board states that Hungary is attempting to correct its historical discrimination against the Roma
people.
[…]
…a
number of initiatives that the Hungarian government has made in its attempt
to eradicate discrimination and racism in the country.
[…]
…the
government is taking active steps to change the attitude and treatment
of members of the police force toward minorities…
[…]
The
above report also outlines the efforts that the Hungarian government is
making to eradicate discrimination….
[…]
The
Hungarian government has taken measures to reduce Romani segregation in
education…
[…]
…there
is evidence that the government is making concrete efforts to provide
scholarship and non-segregation of Romani pupils to help them obtain a better
education.
[emphasis
added]
[30]
Most
importantly, in concluding its analysis, the Board mentions the proper test and
the wrong test in the same sentence:
This
suggests that although not perfect, there is adequate state protection in Hungary and that Hungary is making serious and genuine efforts to erase the problem of racism
against Roma.
[emphasis
added]
[31]
While
the Board invokes adequacy in its conclusion, the sentence above does little to
make a reviewing court confident that the Board’s focus was on the proper legal
test and not the commonly misused test mentioned immediately after. This
ambiguity puts the Board’s decision at odds with Dunsmuir values of
transparency and justifiability, given that it is not clear whether the
decision was justified in reference to the proper test.
[32]
Similarly,
attempting to extrapolate to what the Board’s conclusion would have been had it
properly stated the test is fruitless, given that it analyzed the majority of
the evidence in the frame of serious efforts and attempts, as shown by the
excerpts above.
[33]
This
Court must defer to the Board’s expertise in refugee determination, but such
deference does not extend to permitting the Board to rely, even in part, on a
legal misconception which has been corrected by this Court a number of times.
[34]
The
Board’s decision is outside the range of possible acceptable outcomes due to
being rooted in analysis of state protection evidence based on the incorrect
“serious efforts” test. It is therefore unreasonable and must be set aside.
[35]
The
application for judicial review is therefore granted and the matter is referred
to a different panel of the Board for redetermination.
[36]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the Board is set aside and the matter is returned to a
different panel of the Board for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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