Date:
20140304
Docket:
IMM-597-13
Citation:
2014 FC 210
Ottawa, Ontario,
March 4, 2014
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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KALMAN LASZLO FARKAS
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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] This is an application
for judicial review of the decision of Ken Atkinson, a member of the Refugee
Protection Division of the Immigration and Refugee Protection Board [the
Board], pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act]. The Board dismissed the
Applicant’s claim for refugee protection, concluding that he was not a
convention refugee or person in need of protection under sections 96 and 97 of
the Act.
I. Issue
[2]
The
issue raised in the present application is as follows:
a. Were the
Board’s decisions with respect to credibility and state protection
unreasonable?
II. Background
[3]
The
Applicant is a 54-year-old Hungarian citizen of Roma ethnicity. He is divorced
and has two adult daughters.
[4]
The
Applicant alleges that he was the victim of verbal and physical abuse on
several occasions when he lived in Hungary. In October, 2000, he was attacked
and verbally abused by four of his coworkers. His supervisor and the police
would not assist him. In the summer of 2003, he was verbally and physically
abused by a group of six skinheads while waiting for a bus. After a wait of
several hours the police took his complaint, but later closed it on the grounds
that there was insufficient evidence. In December, 2005, he and his wife were
verbally abused while at a restaurant. In November, 2008, he required surgery
after being left unconscious with a broken leg as a result of being attacked by
a group of people. On December 24, 2010, he was chased by a group of about
seven people. They uttered racial slurs and slapped him before he escaped.
[5]
On
January 23, 2011, the Applicant arrived in Canada and made a claim for refugee
protection. The Applicant’s daughter’s husband was shot and killed a week
later.
[6]
The
Board found that the Applicant would not have a well-founded fear of
persecution should he be returned to Hungary. The Board found state protection
to be adequate and identified concerns regarding the credibility of the Applicant.
[7]
With
regard to credibility, the Board notes several areas of concern. First, the
Applicant testified that when he reported the October, 2000, incident to the
police, they told him they could not assist him because the incident occurred
at his workplace. However, in his Personal Information Form [PIF] narrative,
the Applicant stated that the police refused to take his complaint. When
confronted with this inconsistency, the Applicant stated that he worded the
issue differently. The Board was not convinced by this explanation.
[8]
With
regard to the incident which occurred in the summer of 2003, the Applicant was
unable to obtain a copy of the complaint because he did not retain the letter
after moving residences in 2006. Likewise, the Applicant testified that the
police refused his request for a report regarding the 2008 incident and the
hospital department where he was treated had been terminated. Consequently, he
was unable to obtain either a police or medical report documenting this attack.
The Board rejected this explanation, as documentary evidence indicates that all
Hungarians have a legal right to medical and police reports.
[9]
The
Board also notes that in his PIF narrative, the Applicant stated that his
completed Port of Entry notes were never read back to him before he signed
them, but that he later testified before the Board that they were. When asked
to explain this inconsistency, he stated that he misunderstood the question and
had not slept well at the time and as a consequence, did not correct this error.
The Board rejected this explanation.
[10]
The
Board also makes note of other incidences, but does not indicate how they
relate to any assessment of credibility.
[11]
With
regard to state protection, the Board relies on documentary evidence which
shows that a democratic Hungary is attempting to protect Roma people from
persecution.
[12]
The
Board notes that while the Applicant approached the police on three occasions, the
police fulfilled their duty with respect to the Applicant’s complaints each
time.
[13]
The
Board also notes that the Applicant complained of difficulty finding employment
from September, 2009, until January, 2011. However, the Board did not find that
the Applicant faced employment discrimination, as the economic situation in Hungary has been poor in recent years, and the Applicant was employed continuously between 1980
and 2009. Likewise, the Board found that there was no persuasive evidence that
the Applicant had inadequate housing or medical care because of his ethnicity.
III. Standard of Review
[14]
The
standard of review is that of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9, at para 62; Hippolyte v Canada (Minister of Citizenship and
Immigration), 2011 FC 82, at paras 22-24).
IV. Analysis
[15]
I
find that the Board was unreasonable in its approach to the issues of both
credibility and state protection.
[16]
Notwithstanding
the lack of corroborative evidence concerning the 2008 incident reported by the
Applicant, and the inconsistency between the Applicant’s PIF narrative and Port
of Entry notes, the Board’s overall findings on credibility lack intelligibility
and are not justified.
[17]
With
respect to the 2008 incident, the Board states at paragraph 19 that “It is
therefore difficult to determine exactly how these events occurred.” This
suggests that the Board does accept that the incidents described by the
Applicant occurred, or at least that the 2008 incident occurred, but is uncertain
as to the details. At paragraph 23, the Board states “As a result of these
contradictions, I find it is not credible that the claimant had a subjective
fear when he arrived in Canada.” This suggests that the Board does not believe
any or some of the incidents as described by the Applicant. However, at
paragraph 34, during the state protection analysis, the Board discusses at
length, and implicitly accepts, the incidences as described by the Applicant,
which only a few paragraphs earlier may have been rejected on credibility
grounds.
[18]
The
decision of Justice Robert Mainville in Flores v Canada (Minister of
Citizenship and Immigration), 2010 FC 503, at para 31 is apt:
In other words, save in exceptional cases, the
analysis of the availability of state protection should not be carried out
without first establishing the existence of a subjective fear of persecution.
The panel responsible for questions of fact should therefore analyze the issue
of the subjective fear of persecution, or, in other words, should make a
finding as to the refugee claimant's credibility and the plausibility of his or
her account, before addressing the objective fear component which includes an
analysis of the availability of state protection.
[19]
I
find the Board did not make a clear finding with respect to the Applicant’s
credibility.
[20]
While
the Board had some basis to find as it did with respect to the 2003 and 2008
incidents, I do not understand how the Board could have concluded that the
Applicant was assisted by the police with respect to the 2000 incident. It is
unreasonable for the Board to conclude that state protection is adequate when
the police told the Applicant that being beaten at work is a workplace issue. The
Board’s unreasonable analysis of this incident is compounded by the Board’s
failure to clearly articulate its credibility findings.
[21]
Further,
the Board’s analysis of the objective country condition information regarding
the adequacy of state protection is insufficient. As the Applicant rightly
describes, the Board either mis-cites or does not read substantial evidence in
one case, cites out-dated evidence in another, and cites a large number of
generic, large-scale initiatives of the Hungarian government that are
wholly-unrelated to the problem of racialized violence faced by the Applicant. Indeed,
one key body relied upon by the Board, at paragraph 35 of the Decision, the
Parliamentary Commissioner for the Rights of National and Ethnic Minorities,
ceased to exist in 2012.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application is allowed and the matter is referred back to a differently
constituted Board for reconsideration;
2.
No
question is to be certified.
"Michael D.
Manson"
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