Date:
20130715
Docket:
IMM-8700-12
Citation:
2013 FC 788
Ottawa, Ontario,
July 15, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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HORVATH, GABOR
RACZ, GABRIELLA ROZA
HORVATH, DZSENIFER
GABRIELLA
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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]
This
is an application for judicial review under subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] of a
decision of the Refugee Protection Division [RPD], dated August
13, 2012 denying the Applicants refugee protection.
I. Facts
[2]
The
Applicants are a family of Roma ethnicity from Budapest. The female Applicant has
experienced racism since she was born and by the sixth grade, she was
discriminated by her classmates. They called her names and made threatening
remarks and one even pushed ice cream onto her head. Her parents took her out
of school and moved to an area where there were more Roma. In 1999, she was
attacked by skinheads who ripped her sweater and took her purse and she was
helped by the male Applicant, who is also a Roma. He has been attacked by
skinheads numerous times.
[3]
By
the time their daughter turned six, she did not want to go to daycare anymore
because the other children were calling her racist names. When the Applicant’s daughter
started school in 2009, she endured racist taunts.
[4]
One
week end, the Applicants were attempting to sell some seeds and skinheads
started beating them and other people yelled racist remarks. While the Applicants
did go to the police, they ignored them. The Applicants were treated with
suspicion in stores. There were acts of violence committed by the Hungarian Guard.
They were away one night and when they came home, they found their door kicked
open, their windows broken and their possessions destroyed. They came to Canada on October 6, 2009 and made a refugee claim a few days later.
II. Decision
under review
[5]
The
RPD determined that the Applicants have not established a serious possibility
of persecution on a Convention ground or that they would personally be
subjected, on a balance of probabilities, to a danger of torture or a risk to
life or a risk of cruel and unusual treatment or punishment upon return to
their country.
[6]
The
RPD first determined that there were a number of discrepancies in the Applicants’
evidence when their oral testimony is compared to their Personal Information Forms [PIF]. The female Applicant stated that her parents complained to the
principal about the incident involving other children and that the principal
did nothing. However, the fact that the Applicant’s parents complained to
school authorities but were rebuffed was not mentioned in her PIF. The RPD was
not satisfied with the explanation that the Applicant did not know why it was
not included as it is clear in the PIF that claimants need to include any
attempts to obtain protection.
[7]
Moreover,
the female Applicant did not report the 1999 incident involving the skinheads
to the police and stated that relatives had gone to the police on other
occasions and did not receive assistance. The RPD found that the Applicant
lacked credibility as she did not state this last fact in her PIF and again,
the explanation to the effect that she does not understand why it was not
included was not found to be satisfactory.
[8]
The
RPD determined that the Immigration documents prepared by the Applicant only
make reference to generalized violence but not to violence she personally
experienced. The RPD therefore determined that it undermines her credibility.
[9]
The
RPD drew a negative inference from the fact that the male Applicant was not
able to submit any reports resulting from his medical treatments following incidents
when he was beaten because he would have to make a request in person, as in
other cases, claimants from Hungary have been able to provide such
documentation.
[10]
The
male Applicant stated orally that he reported five to eight of the beatings to
the police and that he received unsatisfactory response each time, however, no
mention of this fact is made in his PIF. The RPD did not accept his explanation
that he did not include this information because he had no proof that they
occurred.
[11]
The
RPD then determined that the Applicants did not rebut the presumption of state
protection. It considered that Hungary is a democratic country and that
although discrimination does exist, the Hungarian government is making efforts
to combat it which have resulted in some progress. The RPD acknowledged that
the police do use excessive force against the Roma and that discrimination
against the Roma in education, housing and access to social services continues.
However, the RPD determined that in Hungary, there are government agencies
tasked with addressing complaints against officials using excessive force and that
those crimes are investigated. It also reviewed a number of cases, where
officials were condemned.
III. Applicants’
submissions
[12]
The
Applicants submit that the RPD failed to observe a principle of natural justice
as it made a credibility finding based on discrepancies between their PIFs
narrative and their testimony at the hearing although the narratives were not
before the RPD. The absence of the PIFs is an insurmountable obstacle making
the Court unable to review the credibility findings as it has been established
by case law that a Court must determine whether the record before it allows it
to properly dispose of the application for judicial review.
[13]
The
Applicants also submit that the RPD’s state protection finding is unreasonable.
First, the RPD found that the efforts of Hungary to protect the Roma have
achieved mixed results and that extremist violence against the Roma was
increasing. Considering this evidence, it was unreasonable to conclude that
there is adequate state protection for the Roma in Hungary. While the state’s
efforts are indeed relevant to an assessment of state protection, they are
neither determinative nor sufficient as efforts need to have translated into
adequate state protection at the operational level. The RPD’s acknowledgment of
the fact that violence has worsened shows that the Hungarian State is not willing or able to protect Roma people.
IV. Respondent’s
submissions
[14]
The
Respondent submits that the record does not support a breach of natural
justice. The Applicants have relied on evidence that the RPD had misplaced
their file to suggest that the decision was made without regard to the evidence
although there is no evidence to suggest that the Applicants’ PIFs were not
before the RPD in the course of making its decision. The fact that the RPD
refers with precision to what information did and did not appear in the
narrative shows that the RPD had in fact the PIFs when deciding the Applicants’
claim and drawing inferences on their credibility.
[15]
Moreover,
at the hearing, the RPD Member indicated that he had read the Applicants’ PIFs.
Each of the inconsistencies noted by the RPD between the Applicants’ PIFs and
their oral testimony were canvassed in detail at the hearing allowing both the
Applicants and the Court to adequately understand the basis of the RPD’s
findings regarding the inconsistencies in the Applicants’ evidence.
[16]
The
Respondent further submits that the question is whether a meaningful, as
opposed to perfect, review of the RPD’s decision can take place.
[17]
The
IRPA and Rules of the Court specifically contemplate consideration of leave
without a complete record before the Court and a certified tribunal record [CTR]
is produced only after leave is granted. The responsibility was on the
Applicants to put forward a PIF narrative on leave if they consider this
evidence to be important to their case and the fact that they do not have a
copy of this document does not render the RPD’s reliance on those documents
unfair. The Applicants bore the onus of putting forward this evidence or at
least affidavit evidence demonstrating the errors they believe the RPD made
with respect to the contents of their PIFs as if it were otherwise, the Applicants
could obtain leave simply by withholding evidence.
[18]
The
Respondent further submits that the Applicants bear the onus of rebutting the
presumption of state protection through clear and convincing evidence that
their state would provide them with inadequate protection. The Applicants have
attempted to impugn the RPD’s analysis as unreasonable by referring to evidence
that racism and violence against the Roma persist in Hungary. However, this
evidence is directed at the wrong question as what the RPD needs to determine
is not whether Hungary has been able to address the problem of racism on a
broad scale. The test is not perfect protection. It is impossible for any state
to guarantee the safety of individuals at all times and the test is therefore
adequacy and not effectiveness.
[19]
Morever,
evidence of an on-going situation of violence or criminality is not sufficient
to rebut the presumption of state protection as this evidence does not tell
about what the state can and/or will do if approached by a claimant for
protection. In this case, the evidence reasonably supported the conclusion that
the state actively intervenes to provide protection to the Roma.
[20]
In
this case, the RPD provided a detailed analysis of the operational adequacy of
efforts undertaken by the government of Hungary to provide adequate state
protection to the Roma, although it continues to face significant challenges in
protecting the Roma.
[21]
The
Applicants have advanced evidence to suggest that the Roma are subject to
racist attacks, police abuses and discrimination and the RPD did acknowledge
this evidence. However, it remains open to the RPD to weight this evidence
against the extensive evidence of the efforts that have been undertaken by the
Hungarian government to provide protection.
[22]
Finally,
the evidence indicates numerous avenues by which the Roma can exercise and
vindicate their rights although the Applicants did not access these recourses
and the RPD determined that there is no evidence in the Applicants’ case
suggesting that protection would not be reasonably forthcoming.
[23]
During
the hearing, the Respondent suggested that as documentary evidence shows that
the Hungarian government provides adequate state protection, it is not
necessary for the Court to assess the reasonability of the credibility
findings. Therefore, regardless of the RPD’s findings related to the
Applicants’ fear of persecution, they could not be granted refugee protection
on the sole basis that documentary evidence establishes clearly that their home
state is able to offer adequate protection.
V. Applicant’s
reply
[24]
The
fact that the RPD twice requested a copy of the file from counsel for the
Applicants shows that it did not have it. Moreover, to the Respondent’s
position that by not citing the missing PIFs, the Applicants have not presented
an adequate case, the Applicant replies that they cannot cite something that no
one appears to have. The application for judicial review is founded on the fact
that the narratives are missing. The RPD could not find its copies and the
office of the counsel for the Applicants could not find its copy and the
principal Applicant stated in an affidavit that he and his family had never
received copies of their PIFs.
[25]
With
regards to state protection, the Applicants submit that if anti-Roma violence
is increasing, then the RPD needed to explain how the government’s dedication
to the protection of the Roma people translated into operational adequacy of
protection and it failed to do so.
[26]
The
Applicant disagrees with the Respondent’s submission that they argued that the
applicable test is perfect state protection. The Applicant’s position is that
the test is operational adequacy and that it is not met in the circumstances as
there is a lack of protection from discrimination and violence against the Roma
in practice.
VI. Issues
1.
Does the absence of the PIFs from the CTR make the Court unable to properly
dispose of the present application for judicial review?
2.
Are
the RPD’s findings on state protection reasonable?
VII. Standard
of Review
[27]
The
standard of correctness applies to the first issue as it raises a question of procedural
fairness (C.U.P.E. v Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539). The standard
of reasonableness applies to the state protection determination (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
VIII. Analysis
A. Does the absence of
the PIFs from the CTR make the Court unable to properly
dispose of the present
application for judicial review?
[28]
The
CTR does not contain the PIFs of the Applicants nor does it make any reference
to phone calls made by the case officer and the coordinating member when
inquiring about obtaining the PIFs because the RPD had lost them. It is also noteworthy
to mention that the RPD in its decision did not inform that prior to releasing
the decision, fifteen (15) months after the hearing, it did not have a copy of
the Applicants’ PIFs. The transcript shows that they were available at the time
of the hearing.
[29]
In
the present case, the absence of the PIFs from the CTR justifies allowing the
application for judicial review.
[30]
The
Court is unable to assess the reasonability of the RPD’s credibility findings
due to the absence of the PIFs from the CTR. Credibility findings are
determinative in most cases. For a reviewing court, it is important that the
documentary evidence used to arrive at these findings be available. During the
hearing, the RPD did indicate some of the differences between the PIFs and the
oral testimonies. The Court does not have the essential documents to assess
properly the credibility findings made. The transcript, in such a situation,
cannot be a substitute for such important evidence.
[31]
In
Canadian Union of Public Employees, Local 301 v Montreal (City), [1997] 1 S.C.R. 793 at para 80, 144 DLR (4th) 577
[Canadian Union of Public Employees], the
Supreme Court of Canada stated the following:
80 In my view, the decisions in Kandiah and Hayes, supra,
provide an excellent statement of the principles of natural justice as they
apply to the record made of an administrative tribunal’s hearing. In cases
where the record is incomplete, the denial of justice allegedly arises from the
inadequacy of the information upon which a reviewing court bases its decision.
As a consequence, an appellant may be denied his or her grounds of appeal or
review. The rules enunciated in these decisions prevent this unfortunate
result. They also avoid the unnecessary encumbrance of administrative
proceedings and needless repetition of a fact-finding inquiry long after the
events in question have passed.
This is the exact situation that this reviewing
Court faces. It may be that the Applicants will be denied a ground of review
without these essential documents being available.
[32]
Similarly, in Gokpinar
v Canada (Minister of Citizenship and Immigration), 2004 FC 1065 at para 10, 44 Imm LR (3d) 80, the Court
determined that where a decision is based on the Applicant’s lack of
credibility, the absence of a transcript of the Applicant’s testimony consisted
in “an insurmountable obstacle making the Court
unable to properly dispose of the application for judicial review.” Here, a
transcript exists but the evidence that forms the basis of the credibility
findings is missing. This reviewing Court cannot assume its judicial
obligations in such circumstances.
[33]
Therefore,
when the record of the Tribunal is incomplete and that as a result of this
situation, the reviewing Court is not in a position to properly dispose of the
application for judicial review of the impugned decision, there is a breach of
natural justice. Moreover, as stated in Canadian
Union of Public Employees, Local 301, above and
subsequently in Likele v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1693 at paras 5-6, 175 FTR 281 and as explained above, a
breach of natural justice also results from the impossibility of a claimant to
show that the RPD’s credibility findings are unreasonable. Indeed, the
Applicants are not in a position to properly challenge the RPD’s credibility
findings as they are not able to rely on the relevant passages of their PIFs.
[34]
In
the case at bar, a breach of natural justice clearly occurred and therefore,
this application for judicial review should be granted and the matter sent back
for redetermination.
[35]
Considering
that the credibility findings made are crucial to the issues raised and that the
Court cannot review them for the reasons mentioned above, I will not deal with
the second issue. Although the Respondent suggests that state protection should
be considered in itself, as sufficient to establish that the Applicants cannot
be granted refugee protection, regardless of the RPD’s assessment of their
credibility, the case law is to the effect that state protection cannot be
“determined in a vacuum.” Indeed, “[t]he willingness and ability of states to protect their
citizens may be linked to the nature of the persecution in question. In short,
context matters.” (See Avila Ortega v Canada (Minister of Citizenship and Immigration), 2009 FC 1057 at para 24.)
[36]
It
has been recognized that when undertaking a contextual approach to determine
whether a refugee claimant has rebutted the presumption of state protection, a
number of factors need to be taken into consideration including the following ones
(see Gonzalez Torres v Canada (Minister of Citizenship
and Immigration), 2010 FC 234 at
para 37):
1. The nature of the human rights violation.
2. The profile of the alleged human right abuser.
3. The efforts that the victim took to seek protection
from authorities.
4. The response of the authorities to requests for their
assistance.
5. The available documentary evidence.
[37]
In
the present case, the credibility findings that the Court is not in a position
to review are of great importance and they are related to all of the
above-mentioned factors, except for the last one. Therefore, the Court is not
in a position to assess the reasonability of the state protection analysis as
it is closely linked to the credibility findings made by the RPD. In
conclusion, as the state protection determination is intertwined with the
credibility findings related to the Applicants’ fear of persecution and efforts
to seek protection, the Court is not in a position to draw a conclusion as to
the reasonability of the state protection analysis.
[38]
This
matter will be returned to a different RPD panel and it is expected most
probably that the Applicants will submit amended PIFs so that a proper
determination be made.
[39]
The parties were invited to submit a question for
certification but none were proposed.
ORDER
THIS
COURT ORDERS THAT:
1.
This
application for judicial review is granted.
2.
The
RPD’s decision is set aside and the matter is referred back to the RPD
for
a new determination by a new panel.
3.
No
question is certified.
“Simon Noël”
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