Docket: IMM-2814-13
Citation:
2014 FC 771
Ottawa, Ontario, August 1,
2014
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
|
ERNO CSABA BALOGH, LAURA BALOGHNE PEGE, JAZMIN BALOGH
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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
INTRODUCTION
[1]
This is an application under subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for
judicial review of the decision of the Refugee Protection Division of the
Immigration and Refugee Board [RPD or the Board], dated March 26, 2013
[Decision], which refused the Applicants application to be deemed Convention
refugees or persons in need of protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The Applicants are a husband [Mr. Balogh] and
wife [Ms. Baloghne Pege] and their five year old daughter [Jazmin]. They came
to Canada from Hungary on November 25, 2011, fearing violence and persecution
due to their Roma ethnicity, and filed claims for refugee protection upon their
arrival.
[3]
In the narrative attached to Mr. Balogh’s
Personal Information Form [PIF narrative], the Applicants described a series of
events that occurred in Hungary that caused them to flee to Canada. They say Ms. Baloghne Pege was harassed throughout her schooling, and was pressured by the
school principal to leave school. In 2004, a neighbour threatened to kill her
and some friends at her apartment building, calling them “dirty gypsies” and
pointing a gun at them. The police were called and the neighbour was charged
with assault, but was convicted of the lesser charge of mischief. When Ms.
Baloghne Pege obtained a copy of her Witness Statement in preparing for her
refugee hearing, she discovered that the police had misstated and misconstrued
her evidence about the incident.
[4]
Mr. Balogh recounted an event that happened on
St. Nicholas Day (December 6) of either 2004 or 2005. He was returning home
when he was confronted outside a nightclub by two men with shaved heads, one of
whom punched him several times, shattering his glasses. Mr. Balogh returned to
the nightclub with some friends to search for his glasses, and they were
confronted by the same two men. They fled, but two of his friends were stabbed
and badly injured. The police came and the attackers were charged, but Mr.
Balogh later found out they were acquitted. While Mr. Balogh had identified the
attackers to police immediately after the attack, when called back to the
police station months later to identify them through pictures, he was not sure.
He says he tried unsuccessfully to get a report of the incident from the
regional police headquarters and another police station.
[5]
In 2010, the man who had threatened Ms. Baloghne
Pege moved back into their apartment building. He threatened them and made
racist remarks, and frequently hosted meetings of Hungarian Guards. During this
time the Applicants received anonymous written threats under their door calling
them gypsies and threatening to kill them if they did not leave.
[6]
Finally, in May 2011, Mr. Balogh, who is a musician,
was beaten by three Hungarian Guards while walking home from work with his
violin. They punched and kicked him, smashed his violin, and stomped on his
hand. He says he suffered a broken finger and a broken nose, and received
medical treatment for these injuries. He did not report the incident to police.
He claims he was afraid of what would happen if he did, and did not think the
police would help him.
[7]
Following this incident, the Applicants decided
to leave Hungary, as they were afraid to raise their daughter there.
DECISION UNDER REVIEW
[8]
The RPD stated that the determinative issue was
state protection.
[9]
The Board observed that Hungary has a history of discriminating against Roma people, and that violent right-wing extremism
has increased there. In addition, there was a concern that new laws regarding
the judicial system, religious organizations and media freedom could undermine
the country’s democratic institutions. A UN Special Rapporteur had found in
2011 that the situation of Roma individuals had not improved in recent years,
but had worsened. The documentary evidence showed that persecutory acts were
often promoted and carried out by right-wing extremist groups such as the
disbanded Hungarian Guards, who continued their activities under different names.
The extreme right-wing Jobbik party had seen its support drop in 2011, and in
order to gain back support, had renewed its campaign against Roma with rallies
in villages across the country.
[10]
The Board found that in a functioning democracy,
a claimant has a heavy burden when attempting to show that they should not have
to exhaust all domestic recourse before claiming refugee status. The
documentary evidence showed that Hungary is a democracy with free and fair
elections and a relatively independent and impartial judiciary. The Board
observed at paragraph 12 of its reasons that:
Even though Hungary’s state protection
mechanisms related to the Roma are criticized as falling short of the EU’s
expectations, the claimant must still do more than merely show that he or she
went to see members of the police force and that those efforts were
unsuccessful. A claimant, even with respect to the above-mentioned remarks,
must show that they have taken all reasonable steps in the circumstances to
seek protection, taking into account the context of the country of origin, the
steps taken and the claimant’s interactions with the authorities.
[11]
The RPD noted that there is a presumption that a
country is capable of protecting its citizens, underscoring the principle that
international protection comes into play only when a claimant has no other
recourse available. The claimant bears the burden of rebutting this presumption
(Decision at para 21):
The onus is on the claimant to approach the
state for protection in situations where state protection might be reasonably
forthcoming. To qualify for refugee status, a claimant must satisfy the Board
that he or she sought, but was unable to obtain, protection from their home
state, or, alternatively, that their home state, on an objective basis, could
not be expected to provide protection…
[12]
The Board observed that doubting the
effectiveness of the protection offered by a state when one has not really
tested it does not rebut the presumption of state protection.
[13]
With respect to the level of state protection
that will be considered adequate, the Board stated at paragraph 28 of its
reasons that:
The Court has indicated that it is not enough
to say that steps are being taken that some day may result in adequate state
protection. It is the state protection that is actually provided at the present
time that is relevant. Regard must be given to what is actually happening and
not what the state is endeavouring to put in place. Any efforts must have
“actually translated into adequate state protection” at the operational level.
[14]
In the present case, the Board observed that the
threat to Ms. Baloghne Pege and her friends in 2004 and the attack on Mr.
Balogh and his friends in 2004 or 2005 were reported to the police, while the
alleged beating by Hungarian Guards in May 2011 was not. The Applicants’
disclosure package included only one medical report, dated July 3, 2011,
referring to a hand surgery on Mr. Balogh, reporting a weak left ring finger
and a fracture that was healing. The Board found that it was “unable to draw any conclusion or that there was a connection
between this particular medical report disclosed and the additional information
about an incident in May 2011.”
[15]
The RPD went on to find (at para 24) that:
Based on the oral and written evidence… when
the claimants sought protection, the Hungarian Police responded to their
requests… The police apprehended the suspects and they made arrests, laid
charges and the matters were placed before the courts. The claimants indicated
that they were not entirely satisfied with the outcome however the panel is
unable to go behind the decisions of a Court.
[16]
When asked, the Applicants testified that if
returned to Hungary, they would not go to the police in the future if their
safety was at risk or if they were threatened. The Board found that Mr. Balogh
did not provide a reasonable explanation for his failure to go to the police in
2011, or for why he would not go in the future if the need arose. He gave only
general answers about the police not serving justice, and referred to his
parents approaching the state for protection when he was a child and not
receiving justice. He confirmed that he had never personally sought protection
from the police. The Board found that the Applicants’ evidence regarding the
police not serving justice was not credible, largely unsubstantiated, and
inconsistent with the documentary evidence.
[17]
As such, the Board found that Mr. Balogh had not
provided the required clear and convincing evidence that he had taken all
reasonable steps in the circumstances to seek state protection in Hungary before seeking international protection.
[18]
The RPD also found that the Applicants did not
provide a reasonable explanation for not providing corroborating documents,
such as police and medical reports. It noted that the police are obligated by
law to provide copies of police reports to victims of crime, and patients are
entitled by law to obtain copies of medical reports. The Board cited Kante v
Canada (Minister of Employment and Immigration), [1994] FCJ No 525, 47
ACWS (3d) 798 for the principle that a claimant must come to a hearing with all
of the evidence that he or she is able to offer.
[19]
Referring to the country documentation, the
Board found that there is recourse available in Hungary for citizens who find their
complaints are not handled to their satisfaction. The Board referred to a
number of initiatives and mechanisms, including the Minorities Ombudsman’s
Office, the Independent Police Complaints Board (IPCB), arrests and
prosecutions in response to violent crimes against Roma, amendments to the
criminal code, disciplinary action against police officers guilty of abuse or
corruption, a 27 member Roma Coordination Council formed in 2011, and a
National Social Inclusion Strategy for 2011-2020.
[20]
The Board acknowledged that the evidence was
mixed, that there were inconsistencies among several sources, and that
criticism of Hungary’s treatment of the Roma is warranted and “it may be an understatement to say that state protection in Hungary is not perfect.” However, it found (at para 35) that the objective evidence
showed that:
… [T]here is adequate state protection in Hungary for Roma who are victims of crime, police abuse, discrimination or persecution, that Hungary is making serious efforts to address these problems and to implement these measures
at the operational or local level, and that the police and government officials
are both willing and able to protect victims.
[21]
The RPD concluded its analysis as follows (at
para 48):
… Having considered the totality of the
evidence, the panel finds that the claimant, in the circumstances of this case,
has failed to rebut the presumption of state protection with clear and
convincing evidence and that the claimant did not take all reasonable steps in
the circumstances to avail himself of that protection before making a claim for
refugee protection. The panel is not persuaded that the state of Hungary would not be reasonably forthcoming with state protection, should the claimant ask
for it.
ISSUES
[22]
The parties agree that the sole issue in this
application is whether the RPD’s state protection analysis was unreasonable.
STANDARD OF REVIEW
[23]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis
need not be conducted in every instance. Instead, where the standard of review
applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[24]
As implied by their framing of the issue as
outlined above, the parties are in agreement that a standard of reasonableness
applies to the Court’s review of the RPD’s state protection analysis in this
case. I agree. The Board stated the correct test for state protection, and the
issue is whether it reasonably applied that test to the circumstances of this
case.
[25]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para
59. Put another way, the Court should intervene only if the Decision was
unreasonable in the sense that it falls outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.”
STATUTORY PROVISIONS
[26]
The following provisions of the Act are
applicable in these proceedings:
Convention refugee
|
Définition de « réfugié »
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96. A Convention refugee is a person
who, by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
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96. A qualité de réfugié au sens de
la Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
|
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
|
a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1) A person in need of
protection is a person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
|
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
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a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant
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(i) the person is unable or, because
of that risk, unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
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(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
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(ii) elle y est exposée en tout lieu
de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
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(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
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(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
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(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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[…]
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[…]
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ARGUMENT
Applicants
[27]
The Applicants argue that the Board’s conclusion
on state protection was based on two erroneous findings. First, the Board
unreasonably found that the Applicants had not put forward clear and convincing
evidence that the police in Hungary could not or would not protect them. And
second, the Board unreasonably found, based on the country condition evidence,
that a sufficient range of recent initiatives have been undertaken by the
Hungarian government to safeguard the rights of Roma citizens.
Evidence showed that the police could not or would not
protect the Applicants
[28]
The Applicants say that the proper principles to
be applied with respect to state protection in this case were stated by Justice
Beaudry in Tatarski v Canada (Minister of Citizenship and Immigration),
2010 FC 660 as follows:
[10] In the recent decision of Mendoza
v. Canada (Minister of Citizenship and Immigration), 2010 FC 119, [2010]
F.C.J. No. 132, my colleague Justice Lemieux provides a summary of some of the
legal principles applicable to state protection (paragraph 33). From that
summary, I would highlight the following points: the claimant is expected to
have taken all reasonable steps in the circumstances to seek state protection
from his persecutors; a claimant who does not do so and alleges that the state
offers ineffective or inadequate protection bears an evidentiary and legal onus
to convince the tribunal; where the tribunal determines the applicant has
failed to take steps to seek protection this finding is only fatal to the claim
if the tribunal also finds that protection would have been reasonably
forthcoming; a determination of reasonably forthcoming requires that the
tribunal examine the unique characteristics of power and influence of the
alleged persecutor on the capability and willingness of the state to protect;
where the board relies on remedial legislation, the legislation in and of
itself is not enough, there must be evidence that the remedies have had a
practical positive effect.
[Applicants’ emphasis]
[29]
The Applicants say the Board erroneously found
that they did not make sufficient efforts to approach the police for help, and
that the authorities took appropriate action when they were approached. They
allege that these conclusions were based on several errors.
[30]
First, with respect to the assault by Hungarian
Guards in May 2011, the Applicants say the Board drew unreasonable conclusions
from the fact that the medical report did not state how Mr. Balogh’s injuries
were sustained. The Board found that it could not “draw
any conclusion” about the incident or rely on Mr. Balogh’s allegation
that he did not approach the police because he feared repercussions and did not
believe they would help him. The Applicants say that even if Mr. Balogh did not
have documentary proof of his allegations (which he did), this was not a proper
basis for finding that the events did not happen or that “no conclusion” could
be drawn about Mr. Balogh’s fear of approaching the police. Furthermore, it was
unreasonable for the Board to expect the medical report to state how the
injuries were sustained, since the doctor did not witness the attack: Talukder
v Canada (Minister of Citizenship and Immigration), 2012 FC 658 at para 12
[Talukder]; Adeoye v Canada (Minister of Citizenship and Immigration),
2012 FC 680 at paras 10-11.
[31]
Second, in finding that the Hungarian police
responded adequately when approached about the incidents in 2004 and 2005, the
Board failed to properly assess the Applicants’ allegation that the assailants
were not brought to justice. In the 2004 death threat towards Ms. Baloghne
Pege, the assailant was only convicted of a lesser mischief offence and went on
to re-victimize the Applicants. When Ms. Baloghne Pege reported the incident,
the police asked why she did not simply have her family members take care of
it, as she must have criminals in her family, and the police misstated and
misconstrued her evidence in their report. With respect to the 2004 or 2005
stabbing incident, the Board failed to consider that the assailant was
ultimately acquitted. Mr. Balogh indicated that when he went to the police
station to identify the assailants, the police tried to confuse him and
threatened to charge him with providing false testimony.
[32]
Third, the Board unreasonably found that the
Applicants failed to provide reports regarding the incidents described above;
the Board failed to consider that what is true for the majority in Hungary is often not true for the Roma minority. While they may be entitled to copies of
police reports as a matter of policy, the documentary evidence shows that they
are often unable to obtain them as a matter of practice: Responses to Information Requests (RIRs), 15 December 2010, HUN103626.E, Applicants’ Record at p. 293. The
evidence also shows that police corruption is a problem: RIRs, 22 September
2010, HUN103566.E, Applicants’ Record at p. 271. Thus, the Board failed to
consider the reality of Roma in Hungary when it comes to interaction with the
police.
[33]
With respect to the Applicants’ alleged failure
to approach the police for help, the Applicants say that the Board failed to
give any weight to Mr. Balogh’s credible explanation for not doing so: that he
had no faith in their willingness or ability to assist him, and feared he would
face negative repercussions if he went to the police. This lack of faith in the
Hungarian authorities is supported by the overwhelming evidence of police
brutality and racism toward Roma in Hungary and their unwillingness to help
Roma Citizens. The Applicants had good reason to mistrust the police, and the
Board had no reasonable basis for its bald finding that the police would have
assisted them.
[34]
The Applicants cite Justice Zinn’s analysis in Muntyan
v Canada (Minister of Citizenship and Immigration), 2013 FC 422, which
states in part:
[9] … As in Majoros the Board
placed great emphasis on the applicant's failures to engage the police in
arriving at its conclusion that he had not rebutted the presumption of state
protection without actually considering whether that would have resulted in
protection for him. To repeat my holding in Majoros, seeking the state’s
protection is not a legal requirement of either section 96 or 97(1), although
in most cases it may be practically necessary to do so in order to be able to
provide “clear and convincing evidence” that the state is unwilling or unable
to protect. However, as I noted in Majoros, where persecution is widespread
and indiscriminate, a failure to report mistreatment to the authorities is of
doubtful evidentiary significance.
[10] Further, as in Majoros, the
Board’s assessment of the documentary evidence is flawed because it equates the
measures being taken and the arrests being made by the Hungarian government,
regardless of the circumstances, with adequate state protection. There is
little or no regard to the actual consequences of these actions on a
forward-looking basis to the applicant or other Roma.
[35]
Finally, the Board’s finding that the Applicants
would have recourse to the IPCB if they experienced problems with the police
was wholly unreasonable, given the evidence showing that the IPCB does not have
the authority to initiate inquiries and has insufficient investigative rights,
and the police ignore most of its decisions and recommendations: RIRs, 22
September 2010, HUN103566.E, Applicants’ Record at pp. 272-73; RIRs, 12 October
2011, HUN103826.E, Applicants’ Record at p. 307. In any event, it is unclear
how going to the IPCB could help the Applicants if they were to once again
experience racially-motivated crime, given that the IPCB’s authority is limited
to making recommendations to the police and reporting its findings to
Parliament: Katinkszki v Canada (Minister of Citizenship and Immigration),
2012 FC 1326 at paras 14-15 [Katinkszki]; Orgonav Canada (Minister of
Citizenship and Immigration), 2012 FC 1438 at para 14.
Board erred in relying on the “efforts” of the Hungarian
government to protect the Roma, as opposed to the effectiveness of such efforts
[36]
The Applicants argue that the Board misconstrued
the documentary evidence by 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. Recent judgments of this Court have emphasized that it is
not enough to say that steps are being taken that may someday result in
adequate protection. The Board has to consider what is actually happening at
the present time, not what the state is attempting to put in place: Hercegi
v Canada (Minister of Citizenship and Immigration), 2012 FC 250; Rezmuves
v Canada (Minister of Citizenship and Immigration), 2012 FC 334 [Rezmuves];
Bors v Canada (Minister of Citizenship and Immigration), 2010 FC 1004 [Bors];
Kanto v Canada (Minister of Citizenship and Immigration), 2012 FC 1049
at paras 39-44; Biro v Canada (Minister of Citizenship and Immigration),
2012 FC 1120.
[37]
In the present case, the Applicants argue, the
Board concluded that Hungary’s efforts to help the Roma, in and of
themselves, amount to adequate state protection. This allowed the Board to
acknowledge that so many of these efforts have failed, and yet still find that
state protection is available to the Hungarian Roma. The Applicants point to
paragraph 22 of the Decision, where the Board states that “the fact that a state is not always successful in protecting
its citizens is not enough to justify a claim, especially where a state is in
effective control of its territory, has military, police and civil authorities
in place and is making serious efforts to protect its citizens.” The
documents show that “measures,” “efforts” and “initiatives” have been
undertaken, but have failed to improve the lives of Hungarian Roma in any
meaningful way.
[38]
The Board also relied at length on the fact that
Hungary is a democracy with free and fair elections, and there was thus a heavy
burden of proof on the Applicants to rebut the presumption of state protection,
but the documentary evidence shows that the level of democracy in Hungary is at
an all-time low: see Buri v Canada (Minister of Citizenship and Immigration),
2012 FC 1538 at paras 3-5; Katinszki, above.
[39]
The Applicants say the Board also relied on
irrelevant evidence, devoting considerable analysis to the structure of the
Hungarian government, police forces and initiatives aimed at social
integration, none of which is relevant to the question of whether state
protection is available to Roma who are victims of racist crime: see Rezmuves,
above, at para 11.
Respondent
[40]
The Respondent argues that the Board reasonably
found that the Applicants did not take all reasonable steps in the
circumstances to seek state protection in Hungary before seeking international
protection, and thus had not provided clear and convincing evidence that state
protection in Hungary is inadequate.
[41]
The Applicants reported the 2004 incidents to
the police, and the police responded by recording their complaints, commencing
an investigation, apprehending the suspects and laying charges. By contrast,
the Applicants did not report the 2011 beating to police and provided no
persuasive evidence to explain why they chose not to seek police help. Thus,
they did not take all reasonable steps to seek protection for the alleged
incidents on which they base their refugee claim.
[42]
While the Board did say it could not draw a
conclusion from the 2011 event, it did not say the incident did not happen as
the Applicants allege. The Board added that it could not draw a connection
between the medical report disclosed and the 2011 incident. It is evident from
the reasons that the RPD did in fact consider this alleged incident throughout
the Decision and was concerned with the fact that Mr. Balogh failed to
reasonably explain his failure to go to the police in 2011.
[43]
Nor did the Board reject the medical evidence or
find it unreliable as in Talukder, above. Rather, the Board’s concern
was that there was no information in the report regarding the specifics of the
injury or the date and circumstances of how it was caused. As such, the Board
was unable to make a connection between the medical report and the 2011
incident.
[44]
While the Applicants take issue with the RPD’s
finding that adequate state protection was provided to them in 2004, the Board
provided detailed reasons for its conclusion on this point. It noted that the
Applicants were not entirely satisfied with the outcome, but found it could not
go behind the decisions of a Court. The Board discussed these issues with the
Applicants at the hearing (see transcript, Certified Tribunal Record [CTR] at
pp. 602-603 and 606), and carefully considered their testimony. The Applicants
simply disagree with the RPD’s analysis of the evidence.
[45]
The Board reasonably observed that the
Applicants failed to provide police reports or a reasonable explanation for not
providing them, but this was but one factor among many in the Board’s
conclusion that the Applicants had not rebutted the presumption of state
protection.
[46]
The primary reason for this conclusion was that
Mr. Balogh failed to reasonably explain his failure to go to the police in
2011, or why he would not ask for help in the future. It was entirely open to
the Board to find that this was unreasonable in light of the evidence of police
responses on previous occasions. Moreover, the Applicants’ evidence regarding
the police not serving justice was inconsistent with the documentary evidence.
The Board preferred the documentary evidence, which was drawn from a wide range
of reliable sources.
[47]
The Respondent says the Board’s assessment of
the absence of efforts to seek state protection was in accordance with the
jurisprudence of this Court, including the principle that a subjective
reluctance to seek state protection is generally insufficient to rebut the
presumption of state protection: Cueto v Canada (Minister of Citizenship and
Immigration), 2009 FC 805 at paras 26-27.
[48]
The assessment of state protection is largely a
factual assessment made on a case by case basis, the Respondent notes, and it
is presumed that the RPD weighed all of the evidence: Suarez Flores v Canada (Minister of Citizenship and Immigration), 2008 FC 723 at para 15. The Board
stated that it rejected the Applicants’ claim “having
considered the totality of the evidence.”
[49]
The Board was conscious of the Court’s
instruction that efforts concerning state protection must have actually
translated into adequate protection, and reviewed the documentary evidence
accordingly in a thorough and detailed manner. It addressed the proper question
– being the “adequacy” of state protection – and found that the police and
government officials were both willing and able to protect Roma victims
(Decision at para 20). The Applicants are re-pleading the merits of some of the
evidence before the RPD.
[50]
The Respondent says that the circumstances of Bors,
above, were different from the present case. In Bors, the pre-removal
risk assessment officer failed to adequately assess the individual
circumstances of the applicants, including the burning of a house with a
Molotov cocktail, the use of firearms and hospitalization due to serious
injury. In the present case, the Applicants have not demonstrated that the
Board ignored evidence or made any egregious findings based on the evidence,
and thus there is no basis for judicial intervention: Magid Sefeen v Canada
(Minister of Citizenship and Immigration), 2005 FC 380 at para 11 [Sefeen].
[51]
The Respondent notes that the assessment of
state protection is to be made on a case by case basis: Varga v Canada (Minister of Citizenship and Immigration), 2014 FC 510 at para 20. The present
case is similar to the situation described in Merucza v Canada (Minister of Citizenship and Immigration), 2014 FC 480 at paras 17-18. The Board’s
conclusion that the Applicants had failed to rebut the presumption of state protection
was reasonable.
ANALYSIS
[52]
The essence of the Decision in this case is that
the Applicants – who failed to seek state protection following the May 2011
incident involving Hungarian Guards, and who claimed that they would not go to
the police in future if their safety were to be threatened in Hungary – were
unable to discharge the onus upon them to establish that, if they sought state
protection, it would not be reasonably forthcoming.
[53]
The Applicants attack the Decision in various
ways but, in my view, much of what they say in their written submissions simply
mischaracterizes what the Decision says.
[54]
For example, a reading of the Decision reveals
that the Board did not find that the 2011 events did not happen; it merely
pointed out that the medical report did not establish a connection between the
injuries dealt with and “the additional information about
an incident in May 2011 where the claimant was allegedly punched in the face by
three Hungarian guards and he did not go to the police, out of fear he would be
treated in an ‘inhumane’ way or as a ‘culprit’.” This is simply a
comment about what a particular piece of evidence revealed and did not reveal
and, as such, it is reasonable. Nor did the Board speculate about what a
medical document should contain and draw unreasonable conclusions.
[55]
Nor is it unclear, as the Applicants allege, “why the alleged lack of information in the Applicants’
medical document prevented the Board from ‘drawing any conclusion’ about the
Applicants’ fear of approaching the police.” The medical document simply
did not contain sufficient information to connect the injuries to the alleged
attack, and the Board went on to draw very clear conclusions about the
Applicants’ fear of approaching the police based upon other factors.
[56]
As regards the events of 2004 and 2005,
the Decision once again reveals that the Board did not fail “to properly assess the Applicants’ allegations that the
assailants were not brought to justice.” The Board acknowledged that the
Applicants “were not entirely satisfied with the
outcome,” but found that “the panel is unable to
go behind the decisions of a Court”:
At the hearing, the claimant gave oral
testimony that confirmed when the police were called or approached by the
claimants they responded, took the claimants’ statements and those of their
Roma friends and the matters were investigated. The panel was advised that the
2004 conviction is currently being appealed and the suspect in the December
2004 or 2005 stabbing incident was acquitted for lack of eye witness
identification by the claimant. Based on the oral and written evidence the
panel concludes that when the claimants sought protection, the Hungarian police
responded to their requests, the officer recorded their complaints and took
their statements, the claimants were called to the police station, and an
investigation was commenced. The police apprehended suspects and they made
arrests, laid charges and the matters were place before the courts. The
claimants indicated that they were not entirely satisfied with the outcome
however the panel is unable to go behind the decisions of a Court. The panel
was not provided with any court documents relating to the trial attended to by
the female claimant or the stabbing of the male claimant’s friends. A Record of
the Witness Interrogation dated April 7, 2004, involving the female was
disclosed.
[57]
There is nothing unreasonable about these conclusions.
[58]
At the hearing of this matter before me on June
25, 2014, the Applicants focused upon the one issue that, in my view, does give
rise to concerns: whether the Board selectively analysed the principal
documentation it says it relied upon for its conclusion that protection exists
for Roma people in Hungary at the operational level, so that it was
unreasonable for the Applicants in this case not to seek state protection
before claiming refugee status in Canada.
[59]
It is, of course, not appropriate for the Court
to second guess the Board when it comes to the weighing of the country
documentation. See Sefeen, above, at paras 10-11; Garavito Olaya v Canada (Minister of Citizenship and Immigration), 2012 FC 913 at para 68; Zrig v Canada (Minister of Citizenship and Immigration), 2003 FCA 178 at para 42. In this
case, however, the Applicants say that the Board selected evidence on adequate
state protection in Hungary from documents that, in fact, make it clear that
state protection is not operationally adequate for Roma people in Hungary.
[60]
Having reviewed the documentation in question, I
think I have to agree with the Applicants.
[61]
The operational adequacy issue is dealt with in
paragraphs 30-35 of the Decision:
[30] In regard to the court’s instruction
that efforts concerning state protection must have actually translated into
adequate state protection, the panel has reviewed a March 2011 report by the
European Roma Rights Centre (ERRC) which provides information on the progress
of 22 cases in Hungary in which Roma were victims of violent attacks between
2008 and 2009, with the following results being observed:
•
In six cases the police investigation was
suspended because no suspect was identified;
•
In one case the police investigation was
suspended for lack of crime;
•
an investigation against the alleged victims for
false testimony was opened;
•
In 12 cases prosecution was pending;
•
In one case the perpetrator was convicted,
resulting in 11-years imprisonment;
•
In two cases no information was available.
[31] Based on this information from the
ERRC, there is evidence to indicate that the police investigated the
above-mentioned incidents ad made specific findings resulting from those
investigations, which is a demonstration of state protection at the operational
level. According to Amnesty International: [T]here were nine attacks against
Romani communities in 2008 and 2009 which bore similar characteristics. The
perpetrators used Molotov cocktails and firearms; there were usually two people
shooting from very close range using shotguns. Although the victims of the
attacks lived in various places across the country, their houses were mostly
located on the peripheries of settlements close to motorways. The attacks
caused fear among the Romani community throughout the country. The police
reacted by taking several measures within a programme that was supposed to
enhance community safety. Initially, the measures were taken in counties where
the attacks were carried out. In April 2009 they were extended to “vulnerable
settlements” where police believed similar attacks could be expected. There
areas were patrolled at night and in early morning hours.
[32] On August 21, 2009, police officers
arrester four suspects and charged three of the individuals “on the grounds of multiple coordinated homicide, robbery and
abuse of weapons as well as vandalism. Of the four, three were charged on the
basis of DNA and weapons analysis; the fourth individual is being treated as an
accomplice.” The series of crimes carried out between January 2008 and August
2009 targeting Roma, and their property has created an atmosphere of fear in
the Romani community. In this particular circumstance, the police responded
adequately by providing greater protection to affected Roma communities and by
arresting and charging four suspects.
[33] A fair reading
of the Board’s documentary evidence demonstrates that it is recognized that the
outlawed “right-wing extremist groups” continue to incite violence against Roma
and have held marches around the country aimed at intimidating local Romani
communities. It is also noted however, that the criminal code has been amended
to criminalize “unauthorized activities to maintain public order or public
security, which induced fear in others”, as well as “blatantly abusive
behaviour against a community that might threaten members – real or perceived-
of an ethnic, racial or other group. The Minister of the Interior has been
quoted as saying that “these kinds of militia patrols would no longer be
tolerated”. To support this effort, “Article 174/B of the criminal code
criminalizes violent acts committed against a person for belonging to a
national, ethnic, racial or religious group.” The victim, in reporting the
incident however, must state that the attack was due to the victim’s ethnicity.
It is recognized that the complaint, if it is supported by a Nongovernmental
Organization (NGO) that applies pressure based on the “bias motivation”, is
more likely to be recognized. It is evidence that there is a level of mistrust
on both sides o the Roma issue in Hungary. It is apparent however, that both
the government and numerous human rights NGOs are cognizant and watching closely
to ensure that the rights of all ethnic, racial or religious minorities are
being monitored and failure by officials to respond is being exposed as
misconduct or abuse and being reported.
[34] The European
Commission Against Racism and Intolerance (ECRI) has strongly recommended that
the Hungarian authorities keep the adequacy of the criminal law provisions
against racist expression under review. It is strongly recommended that they
take into account international standards in this respect to combat racism and
racial discrimination, according to which the law should penalise racist acts
including public incitement to violence, hatred or discrimination as well as
public insults, defamation or threats against a person or a grouping of persons
on the grounds of their “race”, colour, language, religion, nationality, or
national or ethnic origin. ECRI notes with interest that since its report, some
amendments have been introduced into Hungary’s Criminal Code that may help to
strengthen the fight against racism. Hungary’s Parliament has amended the
Criminal Code so that it prohibits assault against a person not only because he
or she is (or the offender presumes he or she is) a member of a national,
ethnic, racial or religious group, but also if he or she is (or the offender
presumes he or she is) part of “certain groups of the population”. Holocaust
denial is also now a criminal offence in Hungary and a new offence of
participating in the activity of a disbanded civil organisation has been
introduced. In its full report, the ECRI states that generally, Hungary has begun to implement its recommendations, but that Hungary is still not on par with
European Union standards.
[35] The Board
recognizes that there are some inconsistencies among several sources within the
documentary evidence; however, the objective evidence regarding current country
conditions suggests that, although not perfect, there is adequate state
protection in Hungary for Roma who are victims of crime, police abuse,
discrimination or persecution, that Hungary is making serious efforts to
address these problems and to implement these measures at the operational or
local level, and that the police and government officials are both willing and
able to protect victims.
[62]
The information cited in paragraph 30 of the
Decision is the July 16, 2012 Response to Information Request at p. 583-66 of
the CTR. The 22 cases are discussed but the general message, which the Board
omits to quote or refer to, says that:
The ERRC notes that state authorities are not effective
in responding to violence against Roma (15 Feb. 2012). The Irish Times
reports in a 2005 February 2009 article that the Minister of Justice admitted
that the police force in Hungary is “failing to find
those responsible for a growing number of fatal attacks” on Roma.
[63]
By selecting information from this source that
the Board believes supports its overall conclusion and ignoring the general
information on ineffectiveness, the Board commits a reviewable error that
Justice Campbell specifically dealt with in Hanko v Canada (Minister of
Citizenship and Immigration), 2014 FC 474:
[12] As a specific example of the present
availability of state protection for Roma in Hungary, the RPD resorts to the
following citation:
[22] In regard to the court's instruction
that efforts concerning state protection must have actually translated into
adequate state protection, the panel has reviewed a March 2011 report by the
European Roma Rights Centre (ERRC) which provides information on the progress
of 22 cases in Hungary in which Roma were victims of violent attacks between
2008 and 2009, with the following results being observed:
* In six cases the police investigation
was suspended because no suspect was identified;
* In one case the police investigation
was suspended for lack of crime;
* an investigation against the alleged
victim for false testimony was opened;
* In 12 cases prosecution was pending;
* In one case the perpetrator was
convicted, resulting in 11-years imprisonment;
* In two cases no information was available.
Based on this information from the ERRC,
there is evidence to indicate that the police investigated the above-mentioned
incidents and made specific findings resulting from those investigations, which
is a demonstration of state protection at the operational level.
[Footnotes omitted]
[13] With respect to this example,
Counsel for the Applicant makes the following compelling argument with respect
to the misuse of evidence the RPD found to be critical as just quoted above:
20. First, I submit that it is simply
wrong to state that one conviction out of 22 cases is conclusive evidence of
adequate state protection. Similarly, this evidence only speaks to police
protection for well-publicized serial killings and does not deal with police
protection from common criminals or racist people who the Applicants fear in
this case.
21. More importantly, however, is that
this quote is taken entirely out of context from the original report.
Specifically, the paragraph directly above the case breakdown states:
The ERRC notes that state authorities are
not effective in responding to vio1nce against Roma (15 Feb. 2012). The Irish
Times reports in a 25 February 2009 article that the Minister of Justice
admitted that the police force in Hungary is "failing to find those responsible
for a growing number of fatal attacks" on Roma.
Certified Tribunal Record, p. 332.
22. Moreover, in the very ERRC report
that examines the 22 cases referred to, the ERRC concludes the following about
Roma in Czech Republic, Slovakia and Hungary:
The failure of law enforcement
authorities to identify the perpetrators of crimes against Roma in a
considerable number of investigations creates a climate of impunity and may
encourage further acts of violence against Roma. The issuance by courts of only
suspended prison sentences to persons found guilty of serious crimes against
Roma reinforces this. Recognition of racial motivation in such a small number
of cases may indicate a low level of importance placed on aggravating
circumstances of the crimes committed and may fail to account for the full
nature of the attacks committed against Roma.
Certified Tribunal Record, p. 471.
23. Even more compelling, [Justice
Strickland of] this Court recently found that it is an error for the Board to
cite the above passage from the ERRC in finding that there is adequate state
protection for the Roma in Hungary. Specifically, this Court found that:
[7] [...] The Board isolates one
portion of a Match, 2011 [sic] report by the European Roma Rights Centre (ERRC
Report) in the National Documentation Package (NDP) from the Response to Information Request, Number HUN 104110.E, July 16, 2012, "Hungary: Treatment of Roma and
state protection efforts" (Hungary: Treatment of Roma and state protection
efforts), which describes twenty two cases of "the most violent anti-Roma
attacks reported to the police" between 2008-2010 which resulted in seven
deaths, serious injuries and damage to homes and which did lead to the crimes
being investigated and some charges being laid, However, evidence of police
action for notorious well- publicized serial killings is of little persuasive
value in showing how the police deal with more common criminals as found by
Justice Zinn in (Orgona v. Canada (Minister of Citizenship and Immigration)
2012 FC 1438 at para 13.
[8] Further, the ERRC Report also
concludes that a limited number of perpetrators of violent attacks against Roma
are successfully identified, investigated and prosecuted. Even fewer are
eventually imprisoned. Of the twenty two cases under review, one conviction was
reported. While this may, to a certain extent, demonstrate state protection at
the operational level, the situation of the Applicants in the present case, who
face discrimination on a daily basis as do many Roma, is not that of the victims
of the attacks described by the Board. In addition, the Hungary: Treatment of
Roma and state protection efforts document also refers to a 2012 ERRC report
which notes that "state authorities are not effective in responding to
violence against Roma" and further that the Irish Times reported in a
February 25, 2009 article that the "Minister of Justice admitted that the
police force in Hungary is 'failing to find those responsible for a growing
number of fatal attacks' on Roma."
[Emphasis in the original]
Marosi v. Canada (MCI) (November 26, 2013) Toronto, IMM-167543 (FC);
24.Thus, the information that the Board
Member used to support his finding that there is adequate state protection
actually shows the opposite. That is, the police have not appropriately
responded to abuse towards the Roma which has led to a climate of impunity.
[14] In every respect, I agree with
Counsel for the Applicant's argument.
[64]
A similar problem arises in the present case
with respect to the Amnesty International report relied upon in paragraph 31 of
the Decision. The words cited and relied upon by the Board ignore the report’s
general advice that state protection for Roma is inadequate in Hungary, and the authorities hide this fact by failing to keep proper statistics on hate
crimes.
[65]
Paragraph 32 of the Decision refers to the
November 2010 Amnesty International report on Violent Attacks Against Roma
in Hungary at p. 583-97 of the CTR which concludes with the words (see CTR
at p. 583-134):
Amnesty International is concerned that Hungarian
authorities are failing to take necessary steps to prevent and respond to
violence against Roma effectively due to shortcomings and gaps in the
criminal justice system.
[66]
In the case of the 2008-2009 attacks
targeting Roma, the Board concludes that “[i]n this
particular circumstance, the police responded adequately by providing greater
protection to the affected Roma communities and arresting and charging four
suspects.”
[67]
The Board itself seems to
be aware that it is dealing with a “particular circumstance” here, and is
neglecting to consider the general picture and why the police might have acted
in this “particular circumstance.” The Board appears to ignore the 12 October
2011 Response to Information Request at pp. 583-84 and 583-85 of the CTR which tells us that:
Human Rights First notes in its 2010 report on
anti-Roma violence in Hungary that authorities such as the police showed
efforts in bringing perpetrators of “high-profile” crimes to justice,
especially crimes reported in the media (Oct. 2010, 6, 7). In one example, two
policemen were held accountable for their “misconduct” in their initial
response to the investigation of a hate-motivated double murder committed in
2009 (Human Rights First Oct. 2010, 6). However, the organization further indicates
that the “authorities” have a “poor record” of justice when working on the
“other serious cases of violence” that have been documented by human rights
groups (ibid.). It points out that the police try to avoid pursuing a “bias
motivation” in their investigations when the evidence suggests that it be
considered (ibid., 7).
[68]
It has to be acknowledged that the Board has to
weigh a complex “mixed bag” of evidence when assessing the adequacy of state
protection in Hungary. In this case, however, the Board appears to be selecting
particular instances when the police have acted, while ignoring the general
message that there is no adequate state protection. The Board itself
acknowledges the very difficult situation that Roma people face in Hungary but then decides that a few selective examples of police action translate into
adequate state protection. When read in its entirety, much of the evidence
relied upon by the Board to find that the Applicants have not rebutted the
presumption of adequate protection supports the Applicants’ contention that
adequate state protection for Roma people does not exist in Hungary. In my view, the Board’s selective approach to assessing the available evidence is extremely
troubling. This approach is also entirely unreasonable and this matter must be
returned for reconsideration.
[69]
Counsel agree there is no question for
certification and the Court concurs.