Date:
20130702
Docket:
IMM-8488-12
Citation:
2013 FC 734
Ottawa, Ontario, July 2, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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DEZSO MOCZO, KATALIN MOCZO,
DEZSONE MOCZO, ZSOLT MOCZO (A MINOR), DEZSO MOCZO, ANDREA JUHASZ, JANOSNE
MOLNAR, JOZSEF MOLNAR
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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
I. Overview
[1]
The
applicants are an extended family from Hungary. In 2010, they sought refugee
protection in Canada based on their experiences of discrimination and
persecution as members of the Roma community. In particular, they allege that
their home was attacked by a group that pushed a concrete wall onto its roof.
Later, someone threw bricks at the house.
[2]
A
panel of the Immigration and Refugee Board dismissed the applicants’ claim
based on its conclusion that state protection is available to the Roma
community in Hungary. The applicants argue that the Board’s conclusion was
unreasonable because it neglected to recognize that the various measures taken
to improve the situation of the Roma in Hungary have failed to have any
meaningful effect. They ask me to quash the Board’s decision and order another
panel of the Board to reconsider their claim.
[3]
I
agree that the Board’s decision was unreasonable because it overlooked evidence
showing that state authorities are unable to protect the Roma in Hungary. It
also failed to acknowledge the applicants’ evidence about how the police
responded to their complaints. I must, therefore, allow this application for
judicial review and order a new hearing.
II. The Board’s Decision
[4]
The
Board discussed the evidence of the principal applicant, Mr Deszo Moczo, in
which he explained why he believed the police would not help him or his family.
He had previously experienced their negative attitude toward the Roma. For
example, the police had once asked him and his brother-in-law for
identification, insulted them, and then chased them away.
[5]
The
Board did not find this testimony persuasive because it was contradicted by
documentary evidence. Further, a claimant’s subjective reluctance to approach
the police does not establish a lack of state protection.
[6]
According
to the Board, the documentary evidence shows that, while there remain problems
with discrimination, police corruption, and use of excessive force against the
Roma, Hungary is making serious efforts to rectify the situation. For example,
the Independent Police Complaints Board receives complaints about police
conduct. Other organizations and programs also assist the Roma community.
Further, Hungary is trying to meet the human rights standards of the European
Union.
III. Was the Board’s
decision unreasonable?
[7]
The
Minister argues that the Board’s decision was reasonable given that the
applicants had not made reasonable efforts to obtain state protection. In
addition, the documentary evidence supported the Board’s finding that state
protection was available to the applicants.
[8]
I
disagree.
[9]
The
Board failed to take account of evidence showing that two of the applicants had
approached the police on separate occasions to complain about bricks being
thrown at their house. The police did not make a report; they simply said there
was nothing they could do.
[10]
With
regard to the documentary evidence, the Board concentrated on descriptions of the
state’s efforts to improve the situation in Hungary and the activities of
non-state actors to help. However, evidence of a state’s efforts does not help
answer the main question that arises in cases of state protection – that is,
looking at the evidence as a whole, including the evidence relating to the
state’s capacity to protect its citizens, has the claimant shown that he or she
likely faces a reasonable chance of persecution in the country of origin? To
answer that question, the Board had to decide whether the evidence relating to
the state resources actually available to the applicants indicated that they
would probably not encounter a reasonable chance of persecution if they
returned to Hungary (see Muvangua v Canada (Minister of Citizenship and Immigration),
2013 FC 542, at paras 7, 9).
[11]
In
my view, the Board concentrated on evidence relating to improvements not yet
realized to the exclusion of the documentary evidence showing that Hungarian
police often discriminate against and fail to investigate crimes of violence
against the Roma.
[12]
Therefore,
I must conclude, given the evidence before it, that the Board’s decision fell
outside the range of possible defensible outcomes based on the facts and the
law. It was unreasonable.
IV. Conclusion and
Disposition
[13]
The
Board overlooked evidence that supported the applicants’ reluctance to seek
state protection, as well as documentary evidence of the lack of state
protection in Hungary. Therefore, the Board’s conclusion was unreasonable and I
must allow this application for judicial review. Neither party proposed a
question of general importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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