Docket: IMM-1735-13
Citation:
2014 FC 862
Ottawa, Ontario, September 11, 2014
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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VIKTOR KAROLY BARI
AND GEZA BARI
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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
brought forth under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA or Act), seeking to set
aside a decision dated February 2, 2013 rendered by Louise Paquette-Neville
(the Officer) of the Immigration and Refugee Board of Canada (IRB or the Board),
Refugee Protection Division (RPD). She found that the Applicants are not
Convention refugees or persons in need of protection pursuant to sections 96
and 97(1) of the IRPA.
[2]
Having reviewed the evidence on file and the
parties’ submissions, I find that the application for judicial review must be
allowed.
I.
Facts
[3]
The Applicants, 37 year-old Viktor Karoly Bari
and 54 year-old Geza Bari, who are brothers, are citizens of Hungary. They came to Canada in August 2009 and November 2009 respectively. They allege
that they face risk in Hungary because of the fact that they are Roma.
[4]
The Applicants allege that they fled Hungary when a friend’s house was set on fire and men shot at the family, killing their son
as he fled the home.
[5]
In 2009, they allege that they both lived in a
home that was set ablaze by Molotov cocktails. They were able to stop the fire
and were not hurt. It was alleged that four days after this incident, Viktor
was beaten with a baseball bat by Hungarian Guards. Geza alleges that he was
attacked on the bus several times by racist men and in 2007 he was slapped by
Guardsmen in Budapest.
[6]
It was also alleged that Geza was assaulted by a
group of men, while on a train in Budapest. The conductor of the train noticed the
assault and called police who were then waiting at the next station to
investigate. When the police saw that Geza is a Roma, they failed to question
the conductor and did not search for the assailants. Geza returned to his
hometown of Sajoszentpeter and requested that the police there look into the
lack of protection from the Budapest police. However, given that he did not
have the badge numbers of the police in Budapest, he was turned away.
[7]
The refugee claim was refused. The Officer found
that the Applicants failed to rebut the presumption of state protection with
clear and convincing evidence.
II.
Decision under review
[8]
The Officer found that the Applicants have not
satisfied the burden of establishing a serious possibility of persecution for a
Convention ground, nor that they would be subjected personally, on a balance of
probabilities, to a danger of torture, or a risk of cruel or unusual treatment
or punishment upon their return to Hungary.
[9]
The Officer provided a thorough analysis of the
situation of the Roma in Hungary and concluded that Roma were discriminated
against in almost all fields of life. She indicated that Roma are significantly
less educated than other citizens and their life expectancy is well below
average. The unemployment rate among Roma is estimated to be 3 to 5 times
higher than the non-Romani population. Overall living conditions are also
significantly worse than those of the general population.
[10]
The Officer indicated that the 2011 Amnesty
International Report stated that “Roma continued to face
violent attacks and discrimination and lived in a climate of fear. In June, the
Organization for Security and Co-operation in Europe (OSCE) noted that Roma
were more susceptible to being made ‘scapegoats’, blamed for the country’s
existing socio-economic problems, as a larger percentage of them depended on
state support”.
[11]
The Officer acknowledges that there is
documentary evidence of specific incidents of persecution against the Roma. The
Officer notes as well that Amnesty International reported that at least nine
violent incidents against Romani communities are considered by the police to
have been allegedly carried out by the same perpetrators between January 2008 and
August 2009. The Officer mentions that on August 21, 2009, police officers
arrested four suspects.
[12]
Relying on the above analysis, the Officer found
that the Applicants failed to rebut the presumption of state protection in Hungary with clear and convincing evidence. She was of the view that the Applicants did not
take all reasonable steps to seek protection and that they have not provided
the requisite clear and convincing evidence that, on a balance of
probabilities, state protection in Hungary is inadequate. Based on the
Applicants’ own evidence, the fire incident was registered with police and an
investigation was started. It also appears from Viktor’s testimony that the
police in Sajoszentpeter were willing to take some action against the police in
Budapest who were called by the train conductor, but that the Applicants did
not have any way to identify them as the police badge numbers were not noted.
[13]
The Officer asserts that even though the
Applicants do not trust the police to provide protection for them, this
distrust alone does not rebut the presumption of state protection in a
functioning democracy. While she accepts that there is widespread reporting of
incidents of intolerance, discrimination and persecution of Romani individuals
in Hungary, documentary evidence shows that there is nevertheless state
protection. In the case at bar, the Officer indicated that police protection
had been sought; it was reasonable for the police to do nothing more than take
a report in the circumstances, as the perpetrators were unknown.
[14]
The Officer noted that while she accepts that
government efforts to protect the Roma and to legislate against broader forms
of discrimination and persecution is mixed, she could not find that the
Applicants were successful in demonstrating that state protection is so inadequate,
that they need not have approached the authorities or taken reasonable efforts
to seek state protection such as obtaining help from people higher in
authority, or with other mechanisms such as the Minorities Ombudsman’s Office
or the Independent Police Complaint Board, before seeking international
protection in Canada.
[15]
While accepting that Roma face hateful
discrimination in Hungary, the Officer is of the view that Hungary is making
serious efforts to address its problems, that police and government officials
are willing and able to protect victims, and that there are mechanisms in place
to deal with discrimination and violence against minorities, including the Roma.
[16]
By way of example, the Officer noted that in Hungary, Roma are entitled to elect their own minority self-governments whose president has
the right to attend and speak at local government assemblies. A Parliamentary
Commissioner for National and Ethnic Minority Rights takes complaints from any
person that feels that as a result of a government agency’s decision, a
violation has taken place to his/her national or ethnic minority rights or that
a direct threat of such a violation is imminent. In addition, there is also the
Equal Treatment Authority which provides individuals with a direct avenue of
redress for violations, or the prohibition of discrimination in a variety of
public and private law relationships. There are other similar initiatives
undertaken by the Hungarian government and the Officer stated that the
Applicants have access to all of these programs when needed.
[17]
The Officer concluded that while criticism of Hungary’s measures to combat racism against Roma is warranted, on a balance of
probabilities, as a member of the European Union, the country is taking the
measures to implement the standards that are mandated. The Officer further
concluded that having considered counsel’s submissions in the case at bar that
there continues to be criticism regarding the state’s ability to protect its
Romani population, she was not persuaded that the particular circumstances of
the Applicants were not addressed when police protection was sought. In
addition, the Officer could not find that the Applicants were unable to obtain employment
or housing, or that they were denied an education in Hungary.
III.
Issue
[18]
The only question to be addressed is whether or
not the Board’s finding that there was adequate state protection in Hungary was reasonable.
IV.
Analysis
[19]
It is well established that the standard of
review with respect to findings of state protection is reasonableness, as these
are questions of mixed facts and law: see, for example, Pacasum v Canada
(Minister of Citizenship and Immigration), 2008 FC 822 at para 18; Estrada
v Canada (Minister of Citizenship and Immigration), 2012 FC 279; Canada
(Minister of Citizenship and Immigration) v Abboud, 2012 FC 72; Hinzman
v Canada (Minister of Citizenship and Immigration), 2007 FCA 171; Buri v
Canada (Minister of Citizenship and Immigration), 2014 FC 45.
[20]
In reviewing an officer’s decision on the standard
of reasonableness, the Court should not interfere if the officer’s decision is
transparent, justifiable and falls within the range of possible, acceptable
outcomes that are defensible in respect of the facts and law. It is not up to a
reviewing court to substitute its own view of a preferable outcome, nor is it
the function of the reviewing court to reweigh the evidence that was before the
officer: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para
47; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 59.
[21]
It is well established that a state is presumed
to be able to provide protection to its citizens unless it is in complete breakdown.
The burden is on the applicant to rebut the presumption of adequate state
protection by providing clear, convincing and trustworthy evidence that satisfies
the board, on a balance of probabilities, that state protection is inadequate: Minister
of Citizenship and Immigration v Flores Carrillo, 2008 FCA 94 at para 30.
It is also clear from the jurisprudence of this Court that when assessing the
ability of a country to provide protection to its citizens, one must not only
consider the best efforts to provide such protection, but also the actual effectiveness
and real adequacy of these measures. As summarized by my colleague Justice Zinn
in Orgona v Canada (Minister of Citizenship and Immigration), 2012 FC
1438 at para 11, “[a]ctions, not good intentions, prove
that protection from persecution is available”. See also: Bors v
Canada (Minister of Citizenship and Immigration), 2010 FC 1004 at paras
59ff; Hercegi v Canada (Minister of Citizenship and Immigration), 2012
FC 250 at para 5; Kemenczei v Canada (Minister of Citizenship and
Immigration), 2012 FC 1349 at paras 55ff; Majoros v Canada (Minister of
Citizenship and Immigration), 2013 FC 421 at para 18; Burai v Canada
(Minister of Citizenship and Immigration), 2013 FC 565 at para 21; Beri
v Canada (Minister of Citizenship and Immigration), 2013 FC 854 at paras
33-36.
[22]
In the case at bar, the Board did state the
proper test with respect to state protection, and acknowledged that in
assessing whether an applicant has taken all reasonable steps to seek
protection, the context of the country of origin, the steps taken and the
applicant’s interactions with the authorities must all be taken into
consideration (at paras 12-14). The Board also accepted that the documentary
evidence relating to government efforts to protect the Roma and to legislate
against broader forms of discrimination and persecution is “mixed” (at para 22). What was determinative, in its
view, was the fact that the police were not able to do anything because the
Applicants were not able to identify the perpetrators of the acts of which they
complained.
[23]
Having carefully reviewed the record and
considered the parties’ written and oral submissions, I have come to the
conclusion that this finding is flawed. The Officer herself indicated that when
she asked Viktor if he sought police protection, he said that he tried but was
told that he was just a street person and not to bother the police again. This
clearly contradicts the Officer’s earlier assertion that the police took a
report but were unable to do more because the perpetrators were not known. As
for Geza’s testimony following the Officer’s question in regard to police
protection, he indicated as well that the police started an investigation but
that nothing happened. When asked whether or not he knew if the police checked
the cameras at the gas station to track down the black car they saw throwing
the Molotov cocktail, Geza indicated that he did not know but that police had
done so in the past when people died. He also indicated that the police ought
to have known the Hungarian Guards responsible for these acts because they live
in a small community.
[24]
Moreover, the Officer did not address all of the
Applicants’ dealings with the police. The Officer only highlighted the fact
that Geza did not have the Budapest police badge numbers and hence the police
in his home town of Sajoszentpeter could not act on the investigation. She
failed to consider, however, that the police in Budapest had the opportunity to
investigate the assault on the train but failed to do so. Geza attested that
the train conductor, as well as other eye witnesses on the train, saw the
assault and as a result, the police could have followed up with the
investigation and asked these eye witnesses for a description of the
assailants. However, by not doing so, the police effectively sabotaged any
further prospects that the Applicant could avail himself of state protection.
[25]
The steps taken by the Applicants were
reasonable in the circumstances, and the failure of the police to provide any
measure of protection is consistent with the reliable and corroborating
evidence which was before the Officer that documented police inability or
unwillingness to assist the Roma. Indeed, she found that “[a]
fair reading of the documentary evidence indicates that the central government
is motivated and willing to implement measures to protect the Roma, but these
measures are not always implemented effectively at the local or municipal
level” (para 21). The US DOS report for 2011 and the Affidavit of Aladar
Horvath, the first Roma Member of Hungarian Parliament and a leading figure in
Roma advocacy, note serious issues regarding Hungarian police authorities’
systemic discrimination against Roma.
[26]
The Officer also implied that the Applicants did
not engage the state because of their distrust of the police. She stated at
paragraph 18: “While it became clear that the claimants
did not have a great deal of trust in the police in Hungary, this distrust
alone does not rebut the presumption of state protection in a functioning
democracy by asserting only a subjective reluctance to engage the state”.
This is clearly a misreading of the evidence. It was perfectly reasonable for a
Roma to complain to the police and still think that nothing would come out of
it. What is material is the effort at availment of protection that was made,
not the spirit or attitude of the person who made it. The lack of trust cannot
be used against the Applicants to obscure the fact that they visited the police
many times and engaged the state authorities.
[27]
I find, therefore, that the Officer made two
reviewable errors. First, she focused on legislative changes that were put in
place in order to deal with the discrimination against Roma, and even listed a
litany of ameliorative redress mechanisms, without assessing the real impact of
these measures. She provides no support of her assertion that the police and
government officials are both willing and able to protect victims. In fact, the
evidence referred to and quoted by the Officer indicates that the efforts made
by the government have not proven effective. As an example, one needs only to refer
to paragraph 20 of her reasons, where she quoted from a Response to Information Request dated October 12, 2011 on police responses to complaints lodged by Roma
citizens:
Hungary has one of the
most advanced anti-discrimination laws and a system for minority protection in
the Central and Eastern European region. A number of mechanisms have been
developed to ensure that minority groups enjoy civil and political rights.
However, the central government’s general failure to maintain strong and
effective control mechanisms over rights violations takes its toll on Hungary’s largest minority, the Roma.
[28]
The second reviewable error made by the Officer was
to mischaracterize the Applicants’ efforts to engage the police, and to
conclude that charges could not be laid because the perpetrators of the racist
attacks against the Applicants were not identifiable. As mentioned above, such
a conclusion is not borne out by the facts. This is clearly not a case where
the risk has not been individualized, or where an applicant has failed to seek
the protection of the state. To the contrary, the Applicants turned to the
police on numerous occasions, despite the poor record of the state to protect
the Roma and in those particular circumstances, it was clearly not reasonable
to find that state protection was adequate.
[29]
As for the Respondent’s claim that state
protection can be available from state run or funded agencies and not only from
the police, it must be rejected. I can do no better than to quote from my
earlier decision in Katinszki v Canada (Minister of Citizenship and
Immigration), 2012 FC 1326 at paras 14-15:
14. (…) More importantly, the mandate of each
of the organizations referred to by the Board (the Independent Police Complaints
Board, the Parliamentary Commissioners’ Office, the Equal Treatment Authority,
the Roma Police Association, the Complaints Office at the National Police
Headquarters) is not to provide protection but to make recommendations and, at
best, to investigate police inaction after the fact.
15. The jurisprudence of this Court is very
clear that the police force is presumed to be the main institution mandated to
protect citizens, and that other governmental or private institutions are
presumed not to have the means nor the mandate to assume that responsibility.
As Justice Tremblay-Lamer aptly stated in Zepeda v Canada (Minister of Citizenship and Immigration), 2008 FC 491, [2009] 1 FCR 237, at
paras 24-25:
In the present case, the Board proposed
a number of alternate institutions in response to the applicants’ claim that
they were dissatisfied with police efforts and concerned with police
corruption, including National or State Human Rights Commissions, the
Secretariat of Public Administration, the Program Against Impunity, the General
Comptroller’s Assistance Directorate or through a complaints procedure at the
Office of the Attorney General (PGR).
I am of the view that these alternate
institutions do not constitute avenues of protection per se; unless
there is evidence to the contrary, the police force is the only institution
mandated with the protection of a nation’s citizens and in possession of
enforcement powers commensurate with this mandate. For example, the documentary
evidence explicitly states that the National Human Rights Commission has no
legal power of enforcement …
[30]
For all of the foregoing reasons, I am of the
view that this application for judicial review ought to be granted. The parties
were invited to submit questions for certification but none were proposed.
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