Docket:
IMM-2130-13
Citation:
2014 FC 497
Ottawa, Ontario, May 26, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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ATTILANE DJUBOK
JOZSEF VARADI BY HIS LITIGATION GUARDIAN ATTILANE DJUBOK
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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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JUDGMENT AND REASONS
[1]
Attilane Djubok and her son, Jozsef Varadi, seek
judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board which rejected their claim for refugee protection
on the basis that adequate state protection was available to them in Hungary.
[2]
I agree with the applicants that the Board erred
in failing to properly address the risk faced by Ms. Djubok in Hungary as a result of her status as a female Roma victim of serious domestic violence. I
am also satisfied that the Board erred in failing to consider the risk faced by
Jozsef, as a developmentally-delayed Roma citizen of Hungary.
[3]
Consequently the application for judicial review
will be granted.
I.
Background
[4]
Ms. Djubok began her relationship with Jozsef
Varadi Sr. in 1996. The relationship quickly became abusive, and the Board
appears to have accepted that Ms. Djubok was subjected to some fifteen years of
horrific physical, sexual and emotional abuse at the hands of her ex‑partner.
[5]
Mr. Varadi’s abuse led to Ms. Djubok being hospitalized
in 1998. She reported Mr. Varadi to the police, the result of which was
that he was charged and detained for seven or eight days.
[6]
Ms. Djubok ultimately dropped the charges
against Mr. Varadi because of threats and intimidation by Mr. Varadi and his
family, who threatened to burn her house down with her children inside. After Ms.
Djubok withdrew the charges, Mr. Varadi was released from detention and he returned
to live with Ms. Djubok and her children. Ms. Djubok says that the abuse
escalated after this episode.
[7]
After Ms. Djubok withdrew the charges against Mr.
Varadi, the police charged her with obstruction of justice, which led to her
being put on probation for eighty days. Ms. Djubok says that after this
incident, she was afraid that the police would not take her claims of abuse seriously
and she did not approach the police again for assistance.
[8]
Ms. Djubok, Mr. Varadi and Jozsef came to Canada in 2011. The family then claimed refugee protection based upon the persecution that
they claimed to face in Hungary by reason of their Roma ethnicity.
[9]
Although Ms. Djubok had hoped that things would
be better once they came to Canada, Mr. Varadi continued to abuse her. He also
began to abuse Jozsef – something that evidently had not happened while the
family was living in Hungary.
[10]
In January of 2012, Mr. Varadi struck Jozsef in
the course of an argument. This was evidently the last straw for Ms. Djubok,
and she took Jozsef and left the family home. Mr. Varadi was charged with
assault, and a restraining order was taken out against him. Since then, Mr.
Varadi has contacted Ms. Djubok on at least one occasion, threatening her in an
effort to persuade her to withdraw the charges against him. It appears that the
criminal charges against Mr. Varadi are still outstanding.
[11]
After her separation, Ms. Djubok severed her and
her son’s refugee claims from that of Mr. Varadi. Before the Board, Ms. Djubok based
her claim on her fear of continued domestic violence and reprisals from Mr.
Varadi and his family.
[12]
Ms. Djubok also asserted that Jozsef was at risk
at the hands of his father and that he also faced persecution in Hungary as a result of his status as a Roma with a developmental delay. In support of this
latter aspect of the claim, evidence was led as to the marginalization to which
Jozsef had been subjected in a school for “special needs” students in Hungary,
and the bullying to which he was subjected because he was a Roma student with a
developmental delay.
II.
The Board’s Decision
[13]
The Board did not question the credibility of Ms.
Djubok’s story, and it appears to have accepted that she was indeed the victim
of longstanding and serious domestic violence at the hands of Mr. Varadi. The determinative
issue for the Board was the availability of state protection for Ms. Djubok and
Jozsef in Hungary.
[14]
After reviewing the country condition
information with respect to the situation in Hungary for Roma and for victims
of domestic violence, the Board concluded that adequate state protection would
be available to both Ms. Djubok and Jozsef in Hungary.
III.
The Assessment of Ms. Djubok’s Claim
[15]
The Board went through a lengthy analysis of
conditions within Hungary and the availability of state protection for that
country’s Roma population. That this was something of a template or
“cookie-cutter” analysis is confirmed by the Board’s repeated use of the male
pronoun in reference to Ms. Djubok.
[16]
While recognizing that conditions for Roma are
grim, and that some Roma do indeed face persecution in Hungary, the Board ultimately concluded that adequate state protection is available for the Roma
population of Hungary.
[17]
The Board also looked to the availability of
state protection within Hungary for victims of domestic violence. It observed
that Hungarian law did not specifically prohibit domestic violence, and that no
protocols were in place or training provided to Hungarian police to assist them
in dealing with cases of domestic violence. The Board further noted that the
government had recently reduced the number of state-funded shelters for victims
of domestic violence. The Board nevertheless concluded that adequate state
protection was available for victims of domestic violence in Hungary.
[18]
The difficulty with the Board’s assessment is
that it appears to have approached the various aspects of Ms. Djubok’s risk
profile as if they existed in discrete silos, never considering whether or how
her various risk factors intersected or combined in a way that could affect her
level of risk. The Board looked at her risk as a Roma and her risk as a victim
of domestic violence, but never really engaged with, or assessed the risk that
she faced in Hungary as a female Roma victim of serious domestic violence.
[19]
While the Board acknowledged and accepted
counsel’s argument that the risk factors in this case had to be considered
cumulatively, it did not actually do so. The failure to address the
intersectionality of Ms. Djubok’s risk grounds is an error: see Gorzsas v. Canada (Minister of Citizenship and Immigration), 2009 FC 458, at para. 36, 346 F.T.R.
169.
[20]
The failure of the Board to consider the
intersecting nature of the risk grounds is a real concern in this case, as the
evidence that was before the Board demonstrated that female Roma victims of
domestic violence are a particularly vulnerable group with a distinct risk
profile in Hungary.
[21]
Indeed, the Immigration and Refugee Board has
prepared a specific Request for Information Report (RIR) dealing with
the unique vulnerability of this group. This document indicates that domestic
violence is viewed as a socially acceptable practice in many Roma communities,
and that women who complain about domestic violence are likely to face scorn
and punishment from their own community.
[22]
According to the RIR, only twenty percent of
Roma women suffering domestic violence seek police assistance. This same report
indicates that police sometimes do not answer calls from Roma communities.
Moreover, when they do answer a call for assistance, the police may take a long
time to respond.
[23]
Most importantly for our purposes, the RIR notes
that Hungarian police respond effectively in only one of seven cases of
domestic violence against Roma women, a statistic that is repeated in other
country condition information that was before the Board.
[24]
It is true that the Board is not required to
refer to every piece of evidence in the record, and that it will be presumed to
have considered all of the evidence before it: see, for example, Hassan v.
Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317,
[1992] F.C.J. No. 946 (F.C.A.). That said, the more important the evidence that
is not specifically mentioned and analyzed in the Board’s reasons, the more
willing a court may be to infer that the Board made an erroneous finding of
fact without regard to the evidence: see Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, at paras.
14-17, [1998] F.C.J. No. 1425.
[25]
In this case, the evidence in question was
directly relevant to the central issue in the case and directly contradicted
the Board’s finding that adequate state protection would be available in Hungary for a woman with Ms. Djubok’s specific risk profile. In the circumstances, the
Board had an obligation to address this evidence and its failure to do so
constitutes a reviewable error.
IV.
The Assessment of Jozsef’s Refugee Claim
[26]
The Board’s error was carried forward into its
assessment of Jozsef’s claim Not only did the Board fail to consider whether
adequate state protection would be available in Hungary for a Roma victim of
child abuse, it also failed to consider the risk that Jozsef faced as a Roma citizen
of Hungary suffering from a developmental delay.
V.
Conclusion
[27]
For these reasons, the application for judicial
review is allowed. I agree with the parties that the case does not raise a
question for certification.
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