Docket: IMM-497-16
Citation:
2016 FC 1025
Ottawa, Ontario, September 12, 2016
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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GYULA MEZEI,
GYULANE MEZEI,
EDINA MEZEI
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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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REASONS AND JUDGMENT
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the IRPA] of the decision by a Senior Immigration Officer [the
Officer] to reject a Pre-Removal Risk Assessment [PRRA] application.
I.
Facts
[2]
The applicants are a family of three from
Hungary. The principal applicant is of Roma ethnicity. The family came to
Canada in September 2011 and claimed refugee protection on the basis of the Roma
ethnicity of the principal applicant and his daughter.
[3]
The applicants’ refugee claims were refused by
the Refugee Protection Division [RPD] of the Immigration and Refugee Board of
Canada on October 26, 2012 because it found they had not rebutted the
presumption of state protection. The applicants were not granted leave to apply
for judicial review of the RPD decision.
[4]
The applicants subsequently applied for a PRRA
which was denied because they had again rebutted the presumption of state
protection.
[5]
The Officer acknowledged that Hungarian Roma
face discrimination, abuse, intimidation and violence, and that they “require state intervention and strong measures to be taken
by the state to provide protection to minority groups, especially the Roma, in
Hungary”. However, the Officer held that the objective documentary
evidence demonstrated that the government was making efforts to protect the
Roma which although not perfect, are in practice.
II.
Standard of Review
[6]
The standard of review for the findings of fact
with respect to state protection is reasonableness (The Minister of
Citizenship and Immigration v Flores Carillo, 2008 FCA 94 at para 36 [Carillo];
Ruszo v Canada (Citizenship and Immigration), 2013 FC 1004 at para 22).
III.
Analysis
[7]
The only issue raised by the applicants is that
of state protection. There have been several cases involving Roma from Hungary
in this Court in recent years. Justice Russell summed up the jurisprudence
briefly in Tar v Canada (Citizenship and Immigration), 2014 FC 797 [Tar]
at paras 75-76:
[75] As decisions of the RPD and the
case law of this Court demonstrate, the issue of whether Hungary can or will
provide adequate protection for its Roma citizens is controversial and highly
problematic. We have decisions going both ways. Everyone appears to agree that,
notwithstanding efforts by the central government in Hungary to improve the
lives of Roma people, they continue to suffer widespread discrimination and
racist violence at the hands of at least some bigoted and disreputable
Hungarians. The cases often focus upon whether government efforts to alleviate
this problem have translated into adequate protection at the operation level.
See, for example, Hercegi v Canada (Minister of Citizenship and
Immigration), 2012 FC 250 and Orgona, above; cf. Matte and Banya,
both above.
[76] In assessing this issue, a lot
seems to depend upon the evidence and submissions that come before the RPD and,
upon review before the Court, the issues of concern that applicants and their
counsel choose to raise.
[8]
I do not accept the respondent’s suggestion that
the PRRA decision is reasonable because the Court has found state protection to
be available in Hungary in the past. There are indeed cases both ways. The respondent
does however accurately canvass the law with respect to state protection: clear
and convincing evidence is required to rebut the presumption of state
protection (Ward at 724-725), and it requires more than showing state
protection is not perfect or always effective (Canada (Minister of
Employment and Immigration) v Villafranca, [1992] FCJ No 1189, 150 NR 232
(FCA)).
[9]
That being said, I agree with the applicants
that the state protection analysis must consider operational adequacy
and not just governmental aspirations. In Kanto v Canada (Citizenship and
Immigration), 2014 FC 628, I found that the Officer had unreasonably failed
to examine the operational level of state protection available. (See also Tar;
Molnar v Canada (Citizenship and Immigration), 2015 FC 273; and Bakos
v Canada (Citizenship and Immigration), 2016 FC 191.
[10]
While it is not up to this Court to reweigh the
evidence, the evidence cited by the Officer did not support finding that state
protection was available. The Officer specifically relied on three reports, yet
in my opinion, these do not support the Officer’s findings.
[11]
The portion of the 2014 Response to Information
Request, which was cited as evidence of Hungary’s initiatives to better its
police force, does not state that the improved police training was yielding
results for the Roma community. This is particularly unreasonable in light of
the contradictory evidence. For instance, the paragraph of the US DOS Report
[Report] which immediately precedes the part cited by the Officer suggests the
contrary:
The [Hungarian
Helsinki Committee] continued to report that the sanctioning of practice of the
police especially in cases of petty offenses committed in the poorest regions
of the country indicated extensive ethnic disproportionality that could not be
reasonably justified and was often based on ethnic profiling, a form of racial
discrimination. On July 15, six human rights NGOs initiated the establishment
of a working group against ethnic profiling, with the participation of police
authorities. On August 15, the national police chief rejected the proposal and
rejected allegations of ethnic profiling.
[12]
The 2015 Response to Information Request was
cited as evidence of police effectiveness, yet the Report does not document any
such effectiveness. The first part which was cited indicates that corruption in
the police force is being addressed; I fail to see how this is germane to the applicants’
claims. The second part deals with the IPCB [Independent Police Complaints
Board]. It does support the Officer’s conclusion that the applicants could
address a higher authority, but it is does not show that state protection is
available in practice.
[13]
Finally, the US DOS Report deals solely with the
economic situation of the Roma community. The effectiveness of public works
programs has no bearing on the finding that there is adequate state protection
against racially motivated violence.
[14]
Upon reviewing the record and the Officer’s
reasons, I do not find that the Officer’s findings were justified or supported
by the evidence. On the one hand, the Officer found that strong measures needed
to be taken in light of the evidence of discrimination, violence and abuse
faced by Romani people in Hungary. On the other hand, the Officer makes
findings based on reports about police training programs and economic
development programs, which have no bearing on the adequacy of state protection
and are not strong measures to curtail violence.
[15]
For the reasons stated above, this application
for judicial review is allowed. The matter is returned for redetermination.
Neither party proposed a question of general importance for certification and
none arises.
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