Date:
20130530
Docket:
IMM-6773-12
Citation:
2013 FC 582
Ottawa, Ontario,
May 30, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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GYORGYNE SALAMON
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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 brings this application pursuant to section 18.1 of the Federal
Courts Act (RSC, 1985, c F-7) to review and set aside a decision by the
Refugee Protection Division of the Immigration and Refugee Board of Canada (the
Board) that the applicant is not a Convention refugee or person in need of
protection.
[2]
Applying
the standard of reasonableness this application for judicial review is granted.
[3]
The
Board erred in concluding that state protection was adequate by reason of
“serious efforts” being undertaken by Hungary to stop persecution of the Roma.
The adequacy of the protection available was largely unexplored, and to the
extent that it was, the conclusion that it was adequate is unsupported by the
evidence.
[4]
The
applicant is a Roma citizen of Hungary. Her experience with discrimination and
violence as a result of her ethnicity was accepted by the Board. She was raped
by four men who she believed to be members of the paramilitary Hungarian
Guard. She was assaulted after a car accident and the police took no action.
Her home was broken into and vandalized with threatening, racist language.
Each instance was reported to the police by either the applicant or her mother.
All of this evidence was accepted by the Board.
[5]
There
is a presumption that states are willing and able to protect their citizens.
This presumption can only be rebutted with clear and convincing evidence.
Claimants must exhaust all courses of action reasonably available to them
before seeking refugee protection.
[6]
The
applicant reported the sexual assault to the police. Her evidence that they
did not collect any evidence, such as her torn clothing, or bring her to the
hospital was accepted. However, the Board concluded that “just because the
police did not collect further evidence, it does not in itself establish that
the police did not initiate an investigation.”
[7]
This
conclusion is unreasonable. While it is possible that the police conducted an
investigation unknown to the applicant, this is speculation and has no basis in
the record. Moreover, any sexual assault investigation conducted without the
victim’s participation would be deficient, and the failure to take the most
elementary of investigative measures to collect and preserve evidence is
indicative of incompetence, the unwillingness or indifference of a state to
protect a minority, or both.
[8]
Further,
the Board found that even if the police discriminated against the applicant she
had other avenues to seek redress, such as the Independent Police Complaints
Board (IPCB). The IPCB is an independent body, comprised of legal experts,
appointed for six-year terms. A review of the evidence with respect to this
agency does not support the conclusion that the redress mechanisms are
adequate. The evidence cited points in the opposite direction. For example,
of 157 violations of fundamental human rights found by the IPCB, the National
Chief of Police accepted 1 case, and partially accepted 27 other cases.
[9]
The
Board also relied on Hungary’s four Ombudsmen who accept complaints of racism
or discrimination. The Ombudsmen cannot issue binding decisions, only
encourage consensus and advocate for policy changes. While the Ombudsmen may
play a valuable role, they, like the IPCB and Hungarian Helsinki Committee,
have no mandate or capacity to provide protection.
[10]
The
Board considered it reasonable to expect the applicant to approach additional
agencies and community organizations and activists. In the case of sexual
assault and other serious crimes of physical violence, state protection is
measured by the response of the police, not by secondary agencies such as
complaints bodies or organizations which help victims cope with the
consequences of the crime. The two are not to be conflated. Nor does the
existence of a review mechanism per se mean state protection is
adequate. It is an indicia of state protection, but no more. Further,
there is no direct connection between recourse for a past instance of police
inaction and the provision of protection on a forward looking basis.
[11]
With
regards to the three instances of vandalism and property damage, the Board
found that the police took reports and that the applicant’s mother could not
provide information to identify the perpetrators. Even assuming no misconduct
or neglect on the part of the police, the fact that the police are apparently
unable to prevent the reoccurrence of these incidents was not considered by the
Board in assessing the adequacy of state protection.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial
review is granted. There is no question for certification.
"Donald J.
Rennie"
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