Docket: IMM-3230-13
Citation:
2014 FC 628
Ottawa, Ontario, June 27, 2014
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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GYULA KANTO, GYULANE KANTO AND GYULA KANTO
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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]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act) of a March 27, 2013 pre-removal risk assessment (PRRA)
by a Senior Immigration Officer (the Officer) finding the applicants to not be
subject to a risk of persecution or in need of protection.
I.
FACTS
[2]
The applicants are Roma citizens of Hungary. The principal applicant was a Roma activist and professional musician in Hungary. He entered Canada along with his wife and son on September 15, 2009, and filed
refugee claims on the same day.
[3]
The applicants’ refugee claims were rejected on
September 2, 2011. The Refugee Protection Division (the RPD) determined that the
applicants lacked credibility and that there is adequate state protection in Hungary.
[4]
The applicants filed an application for judicial
review on September 20, 2011 and this was denied on September 5, 2012. The
Court upheld the RPD’s decision on credibility, though found its state
protection analysis erroneous.
[5]
The applicants submitted their PRRA applications
on November 19, 2012 along with new evidence indicating that their lives are
still at risk in Hungary and that the situation for Hungarian Roma has become
increasingly precarious and dangerous since their claim for refugee protection
was denied.
II. THE DECISION UNDER REVIEW
[6]
The Officer rejected the applicants’ PRRA
application, concluding that the applicants had not demonstrated that they
would be subject to a risk of persecution, danger of torture, or a risk to life
if returned to Hungary. She found that the applicants had provided insufficient
evidence to demonstrate that the alleged persecutory incidents took place. She
noted that the applicant did not indicate that the incidents were reported to
Hungarian authorities and did not provide a copy of a police report. The
Officer also gave little weight to the threatening notes and the
sister-in-law’s letter because the evidence came from a source close to the
applicant, and the notes were not signed, dated, or specifically addressed to
the applicant or his family members.
[7]
The Officer also assigned little weight to the
applicant’s statement that his daughter, who is not included in the PRRA
application, was physically assaulted by a Guardsman in mid-November 2012 due
to the fact that she is homosexual and of Roma descent. Although the applicant
had submitted a medical report dated 13 November 2012 indicating that his
daughter had suffered from injuries due to an assault, he had provided little
evidence to demonstrate that the attack was racially motivated.
[8]
While it was accepted that the applicant was a
Roma activist and professional musician, he had provided insufficient evidence
to demonstrate that he and his family members were and will be personally
targeted for these reasons.
[9]
The Officer recognized that racial violence is
an existing problem in Hungary and that right-wing extremist groups exist,
however the authorities in Hungary have taken serious action to combat the
problem. Country condition evidence indicated that the authorities in Hungary have the ability to prosecute perpetrators and that although state protection is
not perfect, the Hungarian government has made serious efforts and demonstrated
its ability to confront the problem. She also assigned little weight to the
documentary evidence submitted detailing the discrimination and violence
against the Romani population in Hungary, finding that the applicants had
provided insufficient corroborative evidence to demonstrate that they will be
personally targeted upon their return.
III. ISSUES
1.
Did the Officer reject credible documentary
evidence?
2.
Did the Officer err in her state protection
analysis?
3.
Did the Officer fail to conduct a hearing?
IV. STANDARD OF REVIEW
[10]
It is well recognized that the first two issues
relating to the Officer’s evaluation of evidence and the availability of state
protection are to be assessed on a standard of reasonableness (Radi v Canada
(Minister of Citizenship and Immigration), 2014 FC 306 at para 9; Shaikh
v Canada (Minister of Citizenship and Immigration), 2012 FC 1318 at para
16).
[11]
The jurisprudence on the standard of review
applicable to an Officer’s failure to conduct an oral hearing in the context of
a PRRA decision is mixed, as reviewed by Justice de Montigny in Ponniah v
Canada (Minister of Citizenship and Immigration), 2013 FC 386 at para 24 as
follows:
The jurisprudence of this Court is divided on
the standard of review for oral hearings under paragraph 113(b). I recently
reviewed this question in Adetunji v Canada (Citizenship and Immigration),
2012 FC 708, and I can do no better than repeat what I wrote there (at para
24):
That being said, there is a controversy
in this Court as to the standard of review to be applied when reviewing an
officer’s decision not to convoke an oral hearing, particularly in the context
of a PRRA decision. In some cases, the Court applied a correctness standard
because the matter was viewed essentially as a matter of procedural fairness (see,
for example, Hurtado Prieto v Canada (Minister of Citizenship and
Immigration), 2010 FC 253 (available on CanLII); Sen v Canada (Minister of Citizenship and Immigration), 2006 FC 1435 (available on CanLII)). On the
other hand, the reasonableness [standard] was applied in other cases on the
basis that the appropriateness of holding a hearing in light of a particular
context of a file calls for discretion and commands deference (see, for
example, Puerta v Canada (Citizenship and Immigration), 2010 FC 464 (available
on CanLII); Marte v Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 930, 374 FTR 160 [Marte]; Mosavat v Canada
(Minister of Citizenship and Immigration), 2011 FC 647 (available on
CanLII) [Mosavat]). I agree with that second position, at least when the
Court is reviewing a PRRA decision.
See also: Rajagopal v. Canada (Citizenship and Immigration), 2011 FC 1277; Silva v. Canada (Citizenship and Immigration), 2012 FC 1294; Brown v. Canada (Citizenship and
Immigration), 2012 FC 1305.
[12]
I find Justice de Montigny’s reasoning
persuasive and find that the standard of review applicable to the third
question is also that of reasonableness.
V. ARGUMENTS AND ANALYSIS
A. Did the
Officer reject credible documentary evidence?
[13]
The applicants allege that the Officer’s
treatment of the evidence submitted including threatening notes, the
applicant’s sister-in-law’s letter as well as the medical report was
unreasonable and perverse.
[14]
I agree. While it is well recognized that it is
up to the Officer to weigh the evidence, I find that the Officer here
erroneously discounted the probative value of the evidence submitted by the
applicants for reasons that do not withstand scrutiny.
[15]
The Officer assigned little weight to the
threatening notes since they were not signed, dated, or specifically addressed
to the applicants, since they “provide little
information”, and since the applicant did not indicate that the
incidents were reported to Hungarian authorities and did not submit a police
report. It is not realistic to expect that authors of death threats would sign
and date them. These considerations were not relevant to the probative value of
the notes. The Officer’s statement that the notes do not specifically address
the applicants is not supported by the record where one of the letters directly
references the sexual orientation of the applicant’s daughter. Further, the
fact that the notes were not reported to police is irrelevant to an evaluation
of their probative value, particularly considering that this Court has found
before in the context of Roma in Hungary that “where
persecution is widespread and indiscriminate, a failure to report mistreatment
to the authorities is of doubtful evidentiary significance” (Muntyan
v Canada (Minister of Citizenship and Immigration), 2013 FC 422 at para 9).
[16]
As for the Officer’s rejection of the
sister-in-law’s letter, this Court has recognized on several occasions that it
is unreasonable to assign a low probative value to evidence simply because it
comes from an applicant’s family members (Ugalde v Canada (Minister of
Citizenship and Immigration), 2011 FC 458 at paras 26-28; Ahmed v Canada
(Minister of Citizenship and Immigration), 2004 FC 226 at para 31). In R. v
Laboucan, [2010] 1 S.C.R. 397 cited by the respondent, the Supreme Court
of Canada specifically warns, “A trier of fact, however,
should not place undue weight on the status of a person in the proceedings as a
factor going to credibility”. The Officer here found that there was no
credible evidence of the incidents alleged by the applicants, stating, “as the evidence comes from a source close to the applicant, it
does not have a high probative value and I have, therefore, assigned little
weight to it”. I find the Officer’s reasoning flawed. It is logical that
the sister-in-law would be best placed to detail the instances of persecution
that she observed or that had happened to her and it was unreasonable for the
Officer to reject this evidence simply because of her relation to the
applicant.
[17]
Lastly, I find that the Officer’s treatment of
the medical report submitted was similarly flawed. The Officer assigns little
weight to the applicant’s statement that his daughter had been attacked since
he had provided little evidence to demonstrate that the attack was racially
motivated. It is unreasonable and unrealistic to expect that a medical report
would give evidence of the motivation for an attack. In Adeoye v Canada (Minister of Citizenship and Immigration), 2012 FC 680 at para 10 Justice Mosley
found unreasonable similarly flawed discounting of medical evidence:
Some of the officer’s conclusions appear to be
wrong on the face of the record. The letter from the medical centre, for
example, does corroborate the applicant’s narrative to the extent that he
claims to have suffered mistreatment, contrary to the officer’s finding. And it
is unreasonable to expect that a medical report would go further to identify
the aggressor.
[18]
The Officer again made an unreasonable finding
when she stated that the applicants had presented insufficient evidence to
demonstrate that they will face discrimination that will amount to persecution.
The Officer accepted that the applicant was a Roma activist and professional
musician, and that this may make them more recognizable and may place them at a
“high risk of racial discrimination”. Given the
large quantity of documentary evidence before her detailing the extent of the
discrimination faced by Roma in Hungary and the fact that a PRRA application
deals with forward-looking risk, it was incumbent upon the Officer to conduct
an analysis and provide reasons for her finding that in the case of the
applicants, what the Officer herself described as a high risk of discrimination
wouldn’t amount to persecution. As Justice Marceau of the Federal Court of Appeal
explained in Sagharichi v Canada (Minister of Employment and Immigration),
[1993] FCJ No 796 (FCA) at para 3:
…the dividing line between persecution and
discrimination or harassment is difficult to establish…It remains, however,
that, in all cases, it is for the Board to draw the conclusion in a particular
factual context by proceeding with a careful analysis of the evidence adduced
and a proper balancing of the various elements contained therein.
The Officer was
required to weigh the situation experienced by the Roma as supported in the
documentary evidence with the evidence of the applicants’ personal situation (Kovacs
v Canada (Minister of Citizenship and Immigration), 2010 FC 1003 at para
83). She unreasonably failed to do so.
B. Did the Officer err in her
state protection analysis?
[19]
The applicants submit that the Officer erred in
relying on the “efforts” of
the Hungarian state to enact laws and policies in the face of evidence that
such laws and policies have not been effective. She also misconstrued the
objective documentary evidence and relied on Hungary’s highly functioning
democracy, the fact that Hungary is in “effective control of its territory”,
and that it has a “functioning judiciary”, despite overwhelming evidence to the contrary.
[20]
Again, I agree. I find that the Officer’s state
protection analysis does not withstand scrutiny. The Officer was tasked with
evaluating what state protection currently exists for Roma in Hungary. As I have previously stated and as has since been well recognized in the
jurisprudence of this Court, it is the actual operational level of state
protection which must be considered and not merely efforts taken by the state
to provide protection (Lopez v Canada (Minister of Citizenship and
Immigration), 2007 FC 1341 at paras 19-20; Molnar v Canada (Minister of
Citizenship and Immigration), [2003] 2 FC 339 at para 33; Hercegi v
Canada (Minister of Citizenship and Immigration), 2012 FC 250 at para 5).
This is particularly important when, as is the case here, the documentary evidence
shows that the level of democracy is at an all time low (Katinski v Canada (Minister of Citizenship and Immigration), 2012 FC 1326 at para 17).
[21]
In the present case the Officer erroneously
focused on the efforts of the Hungarian government in protecting its Roma
citizens rather than the result of these efforts. She noted specifically that “the authorities in Hungary have taken serious action to combat
the problem” and that “the government has made
serious efforts and demonstrated its ability to counter the problem”.
This Court has repeatedly found an Officer’s reliance on efforts or good
intentions on the part of the Hungarian government to be an unreasonable
approach to evaluating state protection for Romani people (Katinszki v
Canada (Minister of Citizenship and Immigration), 2012 FC 1326 at paras 14
to 18; Kemenczei v Canada (Minister of Citizenship and Immigration),
2012 FC 1349 at paras 57 – 60; Orgona v Canada (Minister of Citizenship and
Immigration), 2012 FC 1438 at paras 5-16).
[22]
The Officer grounds her conclusion of the
availability of state protection on a series of selectively chosen passages
that clearly misconstrue the objective documentary evidence. For example, the
Officer refers to the US Department of State 2011 Human Rights Report detailing
the intimidation of the Roma community in the town of Gyongyospata by far-right
extremists over a period of two months. She noted that the Interior Minister
visited the town and ordered increased police presence, though failed to
include the information contained in the next sentences of the reports
detailing that of the eight extremists ultimately arrested and charged with
disorderly conduct, five were acquitted.
[23]
The Officer also cites the 2012 Amnesty
International Annual Report and the IRD Research Directorate Document
HUN104110.E to show that the Hungarian government has adopted legislation
targeting violence based on ethnic or racial discrimination. However, this
again is not an accurate reflection of the evidence. The US Department of State
2011 Human Rights Report details the complaints of NGOs that courts have
increasingly used the provision of the criminal code on racism to convict Roma
rather than protect them. The HUN104110.E Report points to the problem that
lawmakers did not include bias motivation for crimes against property and
harassment in the Penal Code amendments, thus rendering the modifications
insufficient. The Officer fails to mention this contradictory evidence and the
excerpts included do not represent a fair or balanced reading of the evidence.
[24]
Further, the Officer cited from this same
HUN104110.E Report the words of the Hungarian Minister of state for government
communications who stated that “[e]vents on the ground
show [that the] policies are working” and the “last
two or three years have shown a decline in violence”. However, she
failed to include the very next sentence in the report which directly
contradicts this observation: “However, in a report on
his mission to Hungary in May 2011, the UN Special Rapporteur on contemporary
forms of racism, racial discrimination, xenophobia and related intolerance
noted that according to several interlocutors, racism against Roma is prevalent
within public institutions, notably the police and judicial system.” The
Officer then again cited to this same report to find that since in one out of
twenty-two cases involving Roma victims of violence the perpetrator was
convicted and in twelve prosecution was pending, “this
demonstrates that the authorities in Hungary have the ability to prosecute
perpetrators and provide protection to the Romani population.” This is
an unfair reading of the documentary evidence, as the report in fact provides
these statistics to support the conclusion that “state
authorities are not effective in responding to violence against Roma”.
The Officer’s treatment of the objective documentary evidence cannot be said to
be reasonable, as she has selectively chosen passages that misconstrue the
information before her. As such, the decision cannot be said to be justified or
transparent, and it does not fall within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[25]
In light of my findings on the first two issues,
I find it unnecessary to deal with the third.
[26]
For these reasons, this application is allowed
and the matter is remitted to be determined by a differently constituted panel.
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