Docket: IMM-4933-15
Citation:
2016 FC 653
Ottawa, Ontario, June 13, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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LASILO CSOKA,
ANNA CSOKA,
LASZLO CSOKA, MARTIN CSOKA
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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
I.
Introduction
[1]
Lasilo Csoka, his wife Anna and their minor
children [collectively the Applicants] are citizens of Hungary. They are all
Romani. They have brought an application for judicial review of an adverse
pre-removal risk assessment [PRRA] by a senior immigration officer [the
Officer]. The Officer found that they are not at risk of persecution, danger of
torture, risk to life, or risk of cruel and unusual treatment or punishment if
they return to Hungary.
[2]
For the Reasons that follow, I have concluded
that the Officer’s very brief reasons do not permit this Court to assess
whether the Officer disbelieved the Applicants’ narrative, or accepted their
testimony as truthful but found that it was insufficient to satisfy the burden
of proof. The inadequacy of the Officer’s reasons also undermines the analysis
of state protection. The application for judicial review is therefore allowed.
II.
Background
[3]
The Applicants entered Canada on January 15,
2011, and immediately made a claim for refugee protection.
[4]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board heard their claim on November 6, 2012. Before the
RPD, Mr. Csoka recounted only one story involving his interaction with the
police. He testified that he had witnessed an unspecified incident involving
two Roma boys, was prevented from reporting the incident to the police, and was
subsequently assaulted by the police. He filed a complaint, and was thereafter
harassed by the police and wrongly made to pay a fine. He could not name the
officer against whom he made the complaint. It does not appear that separate
claims of persecution were advanced on behalf of Mrs. Csoka or the children.
[5]
The RPD rejected the Applicants’ claim in a
decision dated December 7, 2012, on the ground that they had failed to rebut
the presumption of adequate state protection. On April 29, 2013, this Court
denied the Applicants’ application for judicial review of the RPD’s decision.
[6]
Before the RPD, the Applicants were represented
by a lawyer, Viktor Hohots, who has since been found by the Law Society of
Upper Canada to have provided inadequate representation to thousands of Roma
refugee claimants (Law Society of Upper Canada v Hohots, 2015 ONLSTH
72).
[7]
The Officer acknowledged that the Applicants had
been represented by a lawyer who later admitted professional misconduct. The
Officer therefore undertook to consider all of the evidence provided, and waived
the usual rule that prohibits the submission of new evidence in a PRRA
application if it was reasonably available at the time of the RPD hearing.
[8]
The Applicants were represented by new counsel
in relation to their PRRA. In their supporting narrative, they stated that
throughout their lives they had faced persecution in Hungary due to their Roma
ethnicity. They recounted many incidents of discrimination and harassment,
including the following:
a)
Mr. and Mrs. Csoka worked for the same company
in Hungary. Prior to 2002, Mrs. Csoka’s supervisor made repeated sexual
advances towards her. He also subjected her to physical and verbal abuse. He
threatened Mrs. Csoka with dismissal if she said anything. This did not prevent
Mr. Csoka from making a complaint to his superiors, but they took no action,
citing insufficient proof.
b)
Mr. Csoka’s former boss, Erik Fulop,
discriminated against him at work. He cut his salary in half for no reason and
demoted him without justification. Mr. Csoka was eventually let go. He
suspected that he was being targeted because of the sexual harassment
complaint.
c)
In 2010, Mr. Csoka’s former boss was elected
Mayor of Mr. Csoka’s home town. Mr. Fulop is currently an influential
member of the Hungarian Guard. He is also a member of the far right Jobbik
party, which has formed a “gendarmerie” in the
Applicants’ home town to combat “gypsy crime”.
d)
In 2007, Mr. Csoka was subjected to harassment
by a police officer named Csaba Kadar, who threatened to kill him on two
occasions, once while pointing a gun at him. Mr. Csoka made several
attempts to inform the police, but was told there would be “consequences” for filing a complaint. He eventually
received a letter informing him that his complaint had been closed for lack of
evidence. Mr. Csoka fled to Canada with his family because he feared that Mr.
Kadar would be able to find him anywhere in Hungary. In 2015, Mr. Kadar visited
Mr. Csoka’s home and told his mother that they would kill the Applicants if
they returned to Hungary.
e)
In 2010, one of the Applicants’ children was
labelled as mentally ill at school, solely due to his Roma ethnicity. He began
to suffer from asthmatic seizures as a result of the stress. Child Services
threatened to remove all of the children from their parents’ care.
III.
Decision under Review
[9]
The Officer’s decision is 22 pages in length. It
comprises a brief statement of the background to the case, an overview of the
risks allegedly faced by the Applicants, and a list of the documentary evidence
submitted on their behalf. The next 14 pages are devoted to lengthy excerpts
from the United States Department of State’s Country Report on Human Rights
Practices in Hungary for the year 2014.
[10]
The Officer’s findings and decision are recorded
on pages 19 and 20. The Officer renders an adverse PRRA on three grounds:
a)
The Applicants have adduced insufficient
corroborative evidence to demonstrate, on a balance of probabilities, that they
face a personalized, forward-looking risk upon their return to Hungary. There
is insufficient evidence to indicate the Applicants are of ongoing interest to
Mr. Kadar or Mr. Fulop, or to anyone else who might intend to harm them.
b)
There is no nexus to any of the five grounds for
refugee status enumerated in the Immigration and Refugee Protection Act,
SC 2001, c 27.
c)
The Applicants have not adduced sufficient
evidence to rebut the presumption of state protection. Despite the
disadvantages and discrimination faced by the Roma in Hungary, a number of
initiatives have been implemented to address these concerns: life sentences
have been imposed on individuals who commit racially-motivated crimes; a Roma
Affairs Council has been established to monitor the implementation of
government programs; and scholarship funds are available to socially-disadvantaged
children.
IV.
Issue
[11]
The sole issue raised in this application for
judicial review is whether the Officer’s decision is reasonable.
V.
Analysis
[12]
The Officer’s decision is reviewable by this
Court against the standard of reasonableness (Moreno Corona v Canada
(Minister of Citizenship and Immigration), 2012 FC 759 at para 10; Mbaraga
v Canada (Minister of Citizenship and Immigration), 2015 FC 580 at para
22). This requires “respectful attention to the reasons
offered or which could be offered in support of a decision” (Dunsmuir
v New Brunswick, 2008 SCC 9 at paras 47-48). Reasons are adequate if they
permit a reviewing court to understand why the decision-maker made its
decision, and to determine whether the conclusions fall within the range of
acceptable outcomes in light of the evidence before the decision-maker and the
nature of the statutory task (Newfoundland and Labrador Nurses Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 16-18 [Newfoundland
Nurses]).
[13]
Questions of procedural fairness are reviewable
by this Court against the standard of correctness (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Mission
Institution v Khela, 2014 SCC 24 at para 79).
[14]
In this case, the Applicants requested that they
be summoned for an interview if the Officer had any concerns regarding their
credibility. This request is not addressed in the Officer’s decision. An
officer is not obliged to explain why an oral hearing was not provided if
credibility is not in issue (Ghavidel v Canada (Minister of Citizenship and
Immigration), 2007 FC 939 at para 25). However, where credibility is a
determinative factor, a failure to convene a hearing without adequate reasons
may amount to a reviewable error.
[15]
In Zokai v Canada (Minister of Citizenship
and Immigration), 2005 FC 1103 at paras 11-12 [Zokai], Justice Kelen
said the following:
In refusing to accord weight to the
applicant’s story without corroborating evidence, the PRRA Officer, in effect,
concluded that the applicant was not credible. In my view, given these
credibility concerns, it was incumbent on the Officer to consider the request
for an oral hearing and to provide reasons for refusing to grant the request.
The Officer's failure to do so in this case constitutes a breach of procedural
fairness.
[16]
In Herman v Canada (Minister of Citizenship
and Immigration), 2010 FC 629 at para 17, Justice Crampton, as he then was,
cited Ferguson v Canada (Minister of Citizenship and Immigration), 2008
FC 1067 at para 26 for the following proposition:
It is open to the trier of fact, in
considering the evidence, to move immediately to an assessment of weight or probative
value without considering whether it is credible. Invariably this occurs when
the trier of fact is of the view that the answer to … [the question as to
whether the evidence is credible] is irrelevant because the evidence is to be
given little or no weight, even if it is found to be reliable evidence.
[17]
If a PRRA officer concludes that an applicant’s
testimony, even if believed, does not satisfy the burden of proof, then he is
not judging credibility but is making a finding on the sufficiency of the evidence
(Zokai at para 12). If an applicant offers testimony that is potentially
sufficient to satisfy the burden of proof, but this is rejected for lack of
corroboration, then the officer is making an adverse credibility finding.
[18]
According to the Applicants’ narrative, as
recently as 2015, state agents visited their Hungarian home and threatened to
kill them. Mr. Csoka’s former boss is now the local mayor of their hometown, an
influential member of the Hungarian Guard, and a member of the far right Jobbik
party. He has formed a “gendarmerie” to combat “gypsy crime”. The Csokas’ children have experienced
discrimination in school, and one has been wrongly labelled as suffering from
mental illness. The Applicants report that he is functioning well in his Canadian
school.
[19]
The Officer states that he has considered all
the evidence and concludes: “I place low probative
value and little weight upon these submissions as they do not sufficiently
demonstrate personalized, forward-looking risks to the applicants upon returning
to Hungary.” He also finds that there is “insufficient
corroborative evidence” to show personalized risk and notes,
inexplicably, that there is no nexus to a Convention ground. The Minister of
Citizenship and Immigration [Minister] acknowledges that this latter finding is
erroneous.
[20]
The Minister argues that the Applicants’
evidence of forward-facing persecution is weak, and corroborative evidence that
one might expect to find is absent from the record. For example, the Applicants
say they received a letter from the police notifying them that the file against
Mr. Kadar was closed, but no such the letter was provided. Nor did Mr.
Csoka’s mother provide an affidavit attesting to the threats made against the
family by state authorities in 2015.
[21]
It is possible that these considerations
informed the Officer’s conclusions. However, it is far from clear. The Officer
does not explain why the Applicants’ evidence falls short. Instead, the Officer
makes conclusory statements that the Applicants’ submissions and evidence are
to be given little weight, and there is insufficient corroborative evidence to
justify their claims. Even applying Newfoundland Nurses, I am unable to “connect the dots” and determine, based on the very
brief analysis provided, whether the Officer disbelieved the Applicants’
narrative, or accepted their testimony as truthful but found that it was
insufficient to satisfy the burden of proof. In this respect, the Officer’s
reasons are unintelligible.
[22]
Particularly in circumstances where the Officer
acknowledged that the Applicants may not have received a fair hearing before
the RPD, it was important to address their request for an oral hearing, to
state clearly whether credibility was in issue, and if not, why the evidence
was insufficiently probative.
[23]
The inadequacy of the Officer’s reasons also
undermines the analysis of state protection. The application of the legal test
for the adequacy of state protection is subject to review against the standard
of correctness, while the application of the test to the facts is subject to
review against the standard of reasonableness (Kina v Canada (Minister of
Citizenship and Immigration), 2014 FC 284 at para 24).
[24]
It appears that the Officer applied the correct
test for state protection. The focus is on the adequacy of state protection,
rather than the willingness of the state to offer protection or the efforts it
has made (Carillo v Canada (Minister of Citizenship and Immigration),
2008 FCA 94 at paras 8-11). The Officer’s analysis touches on both the efforts
made by the Hungarian state to assist the Roma community, and the laws,
services and programs that have been implemented.
[25]
The Officer also applied the correct test to
assess whether the Applicants had rebutted the presumption of adequate state
protection. The Applicants were required to provide relevant, reliable and
convincing evidence to satisfy the Officer, on a balance of probabilities, that
state protection was inadequate (Ruiz Martinez v Canada (Minister of
Citizenship and Immigration), 2009 FC 1163). The Officer notes that the
Applicants did not rebut the presumption with “clear
and convincing evidence”.
[26]
I agree with the Minister that the Officer’s
reasons do not have to be perfect or comprehensive, or identify all facts that
formed the basis for the conclusion regarding the adequacy of state protection.
However, this Court has previously found a decision to be unreasonable where
the decision-maker failed to link general evidence to the point-specific
problems faced by claimants (Gjoka v Canada (Minister of Citizenship and
Immigration), 2010 FC 426 at para 25). In my view, this is what occurred
here.
[27]
The Officer does not address the Applicants’
evidence that their former boss is now an influential member of the far right
Jobbik party and mayor of their hometown, and that he has formed a private
militia to deal with Roma. Furthermore, the Officer does not address any of the
Applicants’ concerns regarding the unavailability of state protection on the
basis that the police are an agent of persecution, or that they sought state
protection by filing police reports that were not acted upon. This Court has
found 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” (Graff v Canada (Minister of Citizenship
and Immigration), 2015 FC 437 at para 24). None of the Applicants’ concerns
regarding the unavailability of state protection are mentioned in the Officer’s
reasons, nor are the separate claims of Mrs. Csoka and the children addressed.
Instead, the Officer relies heavily on general programs that have been
implemented in Hungary without relating them to the Applicants’ specific
circumstances.
VI.
Conclusion
[28]
For the foregoing reasons, the application for
judicial review is allowed and the matter is remitted to a different PRRA
officer for re-determination. Neither party proposed that a question be
certified for appeal.
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