Date: 20150302
Docket: IMM-5660-13
Citation:
2015 FC 260
Toronto, Ontario, March 2, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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NORBERT NEUBAUER
Szilvia NEUBAUERNE LAKATOS
(a.k.a. Norbertne NEUBAUER)
Milan Norbert NEUBAUER
Antal LAKATOS
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Respondents
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
brought by the Minister of Citizenship and Immigration pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA], of a decision of the Refugee Protection Division [RPD] of the
Immigration and Refugee Board [IRB], dated August 28, 2013 (and rendered orally
July 29, 2013), in which the Board determined that the Respondents were
Convention refugees.
[2]
This application for judicial review should be
allowed for the reasons set out below.
I.
Facts
[3]
The Respondents (the principal Respondent along
with his wife, son, and father-in-law) are a family from Hungary who fear that they will be discriminated against, harassed and harmed on account of
their Roma ethnicity.
[4]
The Respondents submit that they were subject to
discrimination in the workplace, in schools, in seeking employment, in housing,
in healthcare, on public transportation, in stores, and in obtaining loans. As
the residents of a predominantly Roma apartment complex, the Hungarian Guards
would consistently harass and intimidate them, yelling epithets like “dirty gypsy you will die” and assaulting them on
occasion.
[5]
In particular, Mr. Neubauer alleges three recent
incidents of physical violence. In November 2008, he was hit by a car on a
crosswalk by a big bald man with a swastika tattoo, who jumped out of his car
and started yelling at him. He claims that he called the police but no report
was made. In November 2009, the Respondents’ door was broken down in the middle
of the night while they were asleep, and they “got into
a brawl”. Again, they called the police but were told, “just shut up stinky gypsy.” The police did not press
charges. Further, in November 2010, Mr. Neubauer was surrounded by a group of
Hungarian Guards one night as he approached his apartment complex on his way
home from work. They grabbed his clothes and shoved him. Police officers were
walking by and did nothing about it, telling him that he should be lucky to be
alive (CTR, p 22).
II.
Decision
[6]
The RPD found the Respondents to be Convention
refugees.
[7]
The Board began by finding that the allegations
of the Respondents in the narrative were true, citing the presumption from Maldonado
v Canada (Minister of Employment and Immigration), [1994] FCJ No. 72
(FCTD), that a claimant’s account is to be believed unless there is a
reason to doubt their truthfulness. It then noted that it appears that the
Respondents had received at least some level of education, healthcare, and
employment, but inconsistencies regarding their claims of discrimination in
these areas were insufficient to impugn their overall credibility or the
documentary evidence.
[8]
The Board went on to assess the issue of state
protection. It acknowledged that Hungary is a democracy, and therefore the
presumption of state protection was a strong one, but ultimately concluded:
[23] […] In
this particular case the claimants showed that they were assaulted and
discriminated on numerous occasions because of their ethnicity.
[24] I find that the claimants were
discriminated to a certain degree in Hungary on the basis of the cumulative
acts of discrimination directed at them. They have also somewhat rebutted the
presumption of state protection in their personal circumstances.
III.
Issues
[9]
This judicial review raises the following
issues:
a)
Did the Board apply the proper test for state
protection?
b)
Was the decision was reasonable?
IV.
Standard of Review
[10]
Whether the Board applied the proper test for
state protection is reviewable on a standard of correctness (Buri v
(Citizenship and Immigration), 2014 FC 45 at paras 17-18; Yu v Canada (Citizenship and Immigration), 2015 FC 167 at para 8).
[11]
The application of the law to the facts is
reviewed on a standard of reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9 at para 53 [Dunsmuir]). Whether the hardship encountered by the
Respondents amounts to persecution and whether there is adequate state
protection for the Respondents in Hungary are both questions of mixed fact and
law and are reviewable on a standard of reasonableness (Horvath v
(Citizenship and Immigration), 2014 FC 313 at paras 14-16).
[12]
When reviewing a decision on the standard of
reasonableness, the Court is concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process” and “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir at para 47).
V.
Positions of the Parties
[13]
The Applicant argues that the Board: (i)
misstated the test for state protection; (ii) misapplied the standard of proof
on state protection; (iii) failed to assess all the evidence; (iv) failed to
analyze or explain why it concluded that the discrimination amounted to
persecution; and (v) failed to provide adequate reasons.
[14]
In response, the Respondents submit that the
decision of the Board is transparent, thorough, intelligible and reasonable.
[15]
First, the Respondents submit that the Board
stated the correct test for state protection and applied the correct standard
of proof.
[16]
Second, the Respondents submit that the Board
did not ignore the personal experiences of the Respondents or contrary
evidence. Given the presumption that the Board has considered all the evidence,
it is assumed that the Board had full regard to all the personal and
documentary evidence before it, and weighed it before making its findings on
state protection. In addition, the Board explicitly acknowledged the US Department
of State Report and aspects of Hungary’s make up that favour a finding of
adequate state protection. The Board followed the rule that each case is
decided on its own merits, and reached a reasonable conclusion based on the
evidence before it.
[17]
Third, the Respondents submit that the Board
analyzed the issue of persecution. The Board accepted that the Respondents were
credible, referred to the Respondents’ narrative, and reasonably held that the
cumulative events referred to therein amounted to persecution.
[18]
Finally, the Respondents submit that the Board
provided adequate reasons. The Board is required to render oral decisions where
possible (Refugee Protection Division Rules, SOR/2012-256, subrule
10(8)), and as such, the Court should not take a microscopic approach to the
assessment so long as it is clear how the Board came to its conclusion. The
reasons meet the Dunsmuir and Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 criterion
as they provide a clear basis for the reasoning behind the decision. Further,
the Board referred to key pieces of evidence on which it relied, as well as
case law and IRB documents.
VI.
Analysis
A.
Did the RPD apply the correct legal test for
state protection?
[19]
I agree with Applicant’s position that it is
unclear whether the Board applied the correct legal test for state protection.
As noted by Justice LaForest in Canada (Attorney General) v Ward, [1993]
2 SCR 689 at 724 [Ward], a claimant seeking refugee protection must provide “clear and convincing confirmation of a state's inability to
protect” (see also: Canada (Citizenship and Immigration) v Balogh,
2014 FC 932 [Balogh] at para 27; Glasgow v Canada (Citizenship and
Immigration), 2014 FC 1229 at para 35). When the proper test for state
protection has been misunderstood by the Board, it is not this Court’s role to
reweigh the evidence, as it cannot anticipate how the Board would have
concluded had it properly assessed the evidence (Kumati v Canada
(Citizenship and Immigration), 2012 FC 1519 at para 42).
[20]
The Board properly stated the standard of proof
for rebutting the presumption of state protection at some points in the
decision. For example, at paragraphs 12-13:
[12] In
assessing the issue I am guided by a number of cases in which the principles
were applied to this case. There is a presumption, except in situations where
the state is in a complete breakdown, that it is capable of protecting its
citizens. The claimant who alleges that state protection is inadequate must
persuade the Board that on a balance of probabilities the evidence establishes
that state protection is inadequate.
[13] The Refugee Protection Division is
not obliged to prove that the state can offer the claimant effective
protection. Rather, the claimant bears the legal burden of rebutting the
presumption that state protection exists, by adducing clear and convincing
evidence which satisfies the RPD on a balance of probabilities.
(CTR, p 6)
[21]
However, despite the accurate articulation of
the test noted above, the Board also communicated a version of the test which
lowered the burden of proof :
[11] I considered the issue of state
protection in Hungary and I find in this particular case that the claimants
have to some extent rebutted the presumption of state protection to
a certain level based on their personal experience.
[16] …The onus seems to have shifted
to the Board to demonstrate that adequate state protection is not available in Hungary, rather than the onus being on the claimant to rebut the presumption that
adequate state protection exists.
[Emphasis added]
[22]
This is the version of the test the Board
appears to have applied, as the error was further repeated in its conclusion:
[24] I find
that the claimants were discriminated to a certain degree in Hungary on the basis of the cumulative acts of discrimination directed towards them. They
have also somewhat rebutted the presumption of state protection in their
personal circumstances.
[23]
The correct application of the test for state
protection is of considerable importance, since the availability of state
protection is determinative of a refugee claim in circumstances when the
presumption has not been rebutted (Rosas Maldonado v Canada (Citizenship and
Immigration); 2011 FC 1183 at para 19; Goloubov v Canada (Citizenship
and Immigration), 2013 FC 1114 at para 5).
[24]
In my view, allowing a claimant to “somewhat
rebut” a presumption of state protection (or shifting the onus entirely) is to
apply a decidedly lower legal threshold than requiring them to provide “clear and convincing evidence” that proves, on a
balance of probabilities, that state protection is inadequate (Flores
Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at
para 30). Even though this Court has held that a test need not be precisely
phrased by the Board if the gist of the test is apparent, it has chosen to
remit the matter in circumstances in which the wrong test has been applied, or
it is unclear as to which test has been applied (Alam v Canada (Minister of
Citizenship and Immigration), 2005 FC 4 at para 9; Arrinaj v Canada
(Minister of Citizenship and Immigration), 2005 FC 773 at para 44
[Arrinaj]; Balogh at paras. 28-29).
[25]
While the Board in this case stated that given
Hungary’s status as a democracy, it created a strong presumption that state
protection would be forthcoming (CTR, p 8) and acknowledged that adequacy of
protection, rather than effectiveness or perfection, is what is required of the
state (CTR, p 6), it conducted no analysis of the evidence that it found rebutted
the presumption of state protection. As a consequence, it is unclear which
legal standard the Board actually applied, and the manner in which they applied
it. In finding this error, I find the words of the Justice O’Keefe in Arrinaj
instructive:
[44] In the
present case, the Board has stated two different tests in two different
portions of the decision. The first test stated at page 2 is the correct test,
while the second test is not. In carrying out its analysis, the Board used the
incorrect test. I cannot tell from the decision which test the Board actually
applied in reaching its decision. If the Board used the incorrect test to reach
its decision, then the Board committed an error of law. As I cannot tell which
test was applied, I am of the view that the decision must be set aside.
[26]
In acknowledging the reviewable error above, I
make no comment on the substantive merits of the Respondents’ case. Indeed, I
recently found in Canada (Minister of Citizenship and Immigration) v Horvath,
Federal Court Docket IMM-6775-13, that the Board’s conclusion that the
presumption of state protection in Hungary was rebutted was a reasonable one.
However, unlike the case at bar, the reasons in that case cited the objective
documentary evidence the Board relied on and set out the correct test, enabling
the Court to discern that the test had been correctly applied.
[27]
I allow the Application and remit the matter to
be decided by another member in accordance with these reasons.
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