Docket: IMM-785-17
Citation: 2017 FC 824
Ottawa,
Ontario, September 12, 2017
PRESENT: The
Honourable Mr. Justice Russell
|
BETWEEN:
|
|
ROBERT RACZ,
ZSUZSANNA RUSZO, VIKTORIA RACZ
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
|
|
Respondent
|
JUDGMENT
AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act] for
judicial review of the decision of a Senior Immigration Officer [Officer],
dated January 13, 2017 [Decision], which rejected the Applicants’ Pre-Removal
Risk Assessment [PRRA] application on the grounds that the Applicants failed to
rebut the presumption of state protection.
II.
BACKGROUND
[2]
The Applicants are citizens of Hungary of Roma
ethnicity. Robert Racz and Zsuzsanna Ruszo are spouses. Viktoria Racz is Robert
and Zsuzsanna’s minor daughter.
[3]
Fearing persecution because of their Roma ethnicity,
the Applicants initially fled Hungary in 2011. Shortly after arriving in
Canada, the Applicants initiated claims for refugee status. On June 27, 2012,
the Refugee Protection Division of the Immigration and Refugee Board of Canada [IRB]
denied the Applicants’ claims, finding the Applicants to be neither Convention
refugees nor persons in need of protection. The Applicants subsequently left
Canada on October 31, 2012.
[4]
The Applicants recount a series of attacks on
themselves and other family members after returning to Hungary.
A.
Attacks on the Applicants
[5]
In June 2014, Neo-Nazis attacked Zsuzsanna. At
the time, Zsuzsanna was pregnant. She returned to the hospital the day after
the attack because she still felt sick. Doctors at the hospital performed an
abortion as Zsuzsanna’s baby had died.
[6]
In May 2016, Neo-Nazis attacked Robert and
Zsuzsanna. Both required hospitalization as a result. Zsuzsanna was released
from hospital two days after Robert. Zsuzsanna understood that hospital staff
called the police on her behalf, but the police never arrived. Zsuzsanna called
the police herself from the hospital. Police told Zsuzsanna that she could report
the attack in-person at a station once discharged. Because of previous
experiences of family members’ reports to police being ignored, Zsuzsanna did
not go to the police station after she was discharged from the hospital.
[7]
The Applicants also allege that they were
forcibly evicted from their home in Miskolc, Hungary by local authorities and
forced to relocate to Budapest in August 2015.
B.
Attacks on the Applicants’ Family
[8]
In December 2013, Zsuzsanna’s adult son, Roland
Mata, was attacked while entering his apartment building. The attackers yelled
ethnic slurs at Mr. Mata during the attack. Zsuzsanna called the police. After
the police did not arrive, Zsuzsanna called the police again to ask why they
had not arrived. The police told Zsuzsanna that they were busy but would come
when they had time. The police never arrived.
[9]
In December 2015, Mr. Mata’s partner, Alexandra
Reka Szucs, was attacked by a neighbour from their apartment building. Ms.
Szucs was pregnant at the time and the attacker told Ms. Szucs that “he [didn’t] want [her] to give birth to a gypsy”:
Affidavit of Alexandra Reka Szucs at para 14. Like Zsuzsanna, Ms. Szucs had to
abort the baby as it had died. Since she was able to identify her attacker, Ms.
Szucs called the police on two occasions from the hospital. The police told Ms.
Szucs that she should report the attack at the police station after being
discharged. Ms. Szucs went to the police station and described the attack, but
the police did not take notes. Nothing happened to Ms. Szucs’ neighbour.
[10]
In March 2016, Mr. Mata and Ms. Szucs were
attacked on their way home from work because of their ethnicity. Mr. Mata
suffered a concussion and went to the hospital. Police arrived at the hospital
but took no notes while inquiring about the attack.
[11]
Finally, in August 2016, people shouting ethnic
slurs attacked Zsuzsanna’s daughter’s partner, David, in the family’s apartment
and beat him unconscious. Zsuzsanna and Mr. Mata took David to the hospital.
Hospital staff cleaned the blood from David’s face but did not examine him
despite Zsuzsanna’s insistence. David was eventually transferred to a different
hospital. There is no evidence that the Applicants or other members of their
family attempted to contact the police about the attack on David.
III.
DECISION UNDER REVIEW
[12]
The Decision under review is a rejection of the
Applicants’ PRRA application. The Decision resulted from the Applicants’ return
to Canada on September 15, 2016. They again made claims for refugee status but
were determined to be ineligible because of the IRB’s rejection of their
previous claim. The Applicants are subject to deportation orders because they
returned to Canada without the required authorization. Consequently, they
submitted PRRA applications to Immigration, Refugees and Citizenship Canada on
October 11, 2016. In a Decision dated January 13, 2017, the Officer rejected
the Applicants’ PRRA applications on the grounds that the Applicants failed to
rebut the presumption of state protection.
[13]
The Officer begins the Decision by outlining the
Applicants’ first claim for refugee protection in Canada, their departure in
2012, and return in 2016.
[14]
The Officer then assesses some of the evidence
that was before him. The Officer found insufficient documentary evidence to
establish that the Applicants’ eviction from their home in August 2015 was
caused by their Roma ethnicity. The Officer then references the June 2014
attack on Zsuzsanna which required her to abort her baby, and the May 2016
attack on Robert and Zsuzsanna that resulted in their hospitalizations. The
Decision notes that Zsuzsanna did call the police but points out that she chose
not go to the police station to report the attack after being discharged. The
Decision then references Zsuzsanna’s perception of the inadequacy of police
response without elaborating on the basis for that belief. None of the attacks
on the Applicants’ family members or the attempts to report some of those
attacks to the police, including Zsuzsanna’s own attempt to report the December
2013 attack on Mr. Mata, are mentioned in the Decision.
[15]
The Decision then goes on to deal with the
Officer’s state protection analysis. Citing Konya v Canada (Citizenship and
Immigration), 2013 FC 975, the Officer begins by stating that “the test for state protection is not a test of
effectiveness, but rather one of adequacy.” The Officer notes that
Hungary is a functioning democracy with effective control over its territory.
Thus, the Applicants bore a heavier onus than simply showing that they had been
unsuccessful when attempting to engage members of the local police.
Furthermore, as the Applicants did not allege that the agent of persecution was
the state, assessment of state protection was a matter of state capacity to
provide protection. Local refusal to provide protection could only amount to
state refusal if there was evidence of a broader state policy: Zhuravlvev v
Canada (Minister of Citizenship and Immigration), [2000] 4 FCR 3 at para 31
(TD) [Zhuravlvev].
[16]
Evaluating the evidence in light these factors,
the Officer concludes that the Applicants failed to clearly and convincingly
establish that the Hungarian police cannot provide adequate protection. The
Officer again emphasizes Zsuzsanna’s failure to go to the police station after
the May 2016 attack. The Officer describes Zsuzsanna’s behaviour as “doubting the effectiveness of state protection without
reasonably testing it, or simply asserting a subjective reluctance to engage
the state” that failed to rebut the presumption of state protection: citing
Ruszo v Canada (Citizenship and Immigration), 2013 FC 1004 at para 33.
The Decision states that an unsatisfactory local response places an onus on
those alleging a failure of state protection to pursue the matter with other
law enforcement officials. However, there is no analysis or explanation of how
alternative avenues of redress could provide the Applicants with the protection
they seek. The Officer acknowledges evidence that Roma victims often face
discriminatory police treatment in Hungary, but decides that complaint
mechanisms do exist.
[17]
The Decision concludes by addressing two
remaining evidentiary issues. First, the Officer gives reasons for discounting
a letter presented by the Applicants to support their contention that Viktoria
suffered from an eating disorder caused by the Applicants’ 2015 eviction. The
Officer then references supporting country documentation describing the
situation of Roma in Hungary. The Officer accepts that Roma often face
discrimination and violence but finds that the generalized nature of the
material fails to establish an adequate connection to the Applicants’ personal
circumstances.
IV.
ISSUES
[18]
The Applicants submit that the following is at
issue in this application:
- Is the Officer’s finding that the Applicants
failed to rebut the presumption of state protection unreasonable?
V.
STANDARD OF REVIEW
[19]
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.
[20]
Both parties agree that the standard of review
is reasonableness and the Court concurs. See Ogbonna v Canada (Citizenship
and Immigration), 2017 FC 93 at para 5; Kulanayagam v Canada
(Citizenship and Immigration), 2015 FC 101 at para 21; Alvarez v Canada
(Citizenship and Immigration), 2014 FC 564 at paras 19-20.
[21]
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.”
VI.
ARGUMENT
A.
Applicants
[22]
The Applicants submit that the Officer’s finding
that the Applicants failed to rebut the presumption of state protection was
unreasonable for two principal reasons:
1. The Officer focused on Zsuzsanna’s failure to go to the police
following her discharge from hospital after she was attacked in May 2016, but
ignored Zsuzsanna’s attempt to engage state protection in Hungary after the
attack on Mr. Mata in December 2013; and
2. The Officer ignored evidence that individuals similarly situated to
the Applicants have tried to access state protection unsuccessfully.
(1)
Zsuzsanna’s Failure to Go to the Police
[23]
The Applicants submit that the Decision was
unreasonable because the Officer ignored evidence that Zsuzsanna attempted to
access state protection in 2013, after Neo-Nazis attacked her son, Mr. Mata.
The Officer made no reference to the attack on Mr. Mata, Zsuzsanna’s two calls
to the police, and the failure of the police to arrive on that occasion.
[24]
Instead, the Officer concentrated on Zsuzsanna’s
response to being attacked and hospitalized in May 2016. The Decision does not
mention Zsuzsanna’s call to the police from the hospital or her previous
experience attempting to engage the Hungarian state. The Officer describes Zsuzsanna’s
failure to go to the police station as a “subjective
reluctance to engage the state” without assessing the context of that
reluctance.
(2)
Evidence of Similarly Situated Individuals Before
the Officer
[25]
The Applicants further submit that the Decision
is unreasonable because it ignores evidence that individuals similarly situated
to the Applicants have attempted to engage state protection with little success.
Relying on the Federal Court of Appeal’s decision in Salibian v Canada
(Minister of Employment and Immigration), [1990] 3 FCR 250 at 259 (CA), the
Applicants argue that, as in cases evaluating the risk of persecution, the
treatment afforded to similarly situated individuals is the best evidence
available of the adequacy of state protection. The Applicants point to the attack
on Ms. Szucs in 2015, and the second attack on Mr. Mata in 2016, as two
instances where police were called and attempts at filing reports were made,
yet state protection was inadequate.
[26]
The Applicants argue that the country
documentation before the Officer objectively establishes the inadequacy of
state protection. They cite Canada (Attorney General) v Ward, [1993] 2
SCR 689 at 724-25 [Ward], for the principle that evidence of “similarly situated individuals let down by the state
protection arrangement” can objectively establish that a failure to
engage the state was not unreasonable in the circumstances. In addition to the
attacks on the Applicants’ family members, the Applicants point to the
conclusions of a report issued by the Harvard School of Public Health that they
say establishes the inadequacy of the Hungarian government’s response to the
discrimination and persecution faced by Roma in Hungary. The Applicants argue
that the adequacy of state protection must be evaluated at the operational
level, Meza Varela v Canada (Citizenship and Immigration), 2011 FC 1364
at para 16, quoting Beharry v Canada (Citizenship and Immigration), 2011
FC 111 at para 9, and that when persecution is widespread, individual attempts
to engage the state have little persuasive value: Majoros v Canada
(Citizenship and Immigration), 2013 FC 421 at para 16 [Majoros].
[27]
Finally, the Applicants submit that the evidence
of the attacks on Mr. Mata and Ms. Szucs, which was not commented on by
the Officer, has led to those individuals being found to be persons in need of
protection in a separate proceeding. They argue that this establishes the
significance of this evidence to the Decision and reinforces the Decision’s
unreasonableness.
[28]
The Applicants request that this Court quash the
Decision and return the matter for redetermination by a different officer.
B.
Respondent
[29]
The Respondent argues the Officer properly
discussed and applied the principles of state protection, and that the Decision
is therefore reasonable.
[30]
The Respondent notes that absent a complete
breakdown of the state apparatus, state protection is presumed. To rebut the
presumption, an applicant must present clear and convincing evidence of the
state’s inability to provide adequate protection: Flores Carrillo v Canada
(Minister of Citizenship and Immigration), 2008 FCA 94 at para 38; Ward,
above, at 726. The Respondent argues that while the test for state protection
is adequacy, this is measured by “serious efforts to
protect”: Canada (Minister of Employment and Immigration) v
Villafranca (1992), 99 DLR (4th) 334 at 337 (FCA).
[31]
The Respondent further argues that the
Applicants provided insufficient evidence of their efforts to engage the
Hungarian state. The Respondent notes that the Federal Court of Appeal has
stated that the more democratic the state, the more the Applicant must do to
exhaust reasonable remedies before seeking international protection: Kadenko
v Canada (Solicitor General) (1996), 143 DLR (4th) 532 at 534 (FCA). The
Respondent points to the Officer’s finding that Hungary is a democratic state,
is in effective control of its territory, has a functioning security apparatus,
and has independent mechanisms to ensure that police are providing protection.
Thus, the Respondent argues that the Decision was reasonable, as it was the Applicants’
burden to exhaust all avenues of redress open to them: Hinzman v Canada (Minister
of Citizenship and Immigration), 2007 FCA 171 at para 57.
[32]
Regarding the question of material before the
Officer that could objectively establish the inadequacy of state protection,
the Respondent points out that the Officer accepted that documentary evidence
on the adequacy of state protection in Hungary is mixed, that shortcomings
exist, and that Roma victims experience discriminatory treatment from police
when reporting crimes. But the Respondent argues that the Officer appropriately
considered jurisprudence establishing that local refusals by some officers do
not obviate the need to seek protection or amount to state refusal. See Zhuravlvev,
above. The Respondent argues that the Applicants’ failure to refer all
incidents to the authorities renders the Officer’s finding that the Applicants
failed to rebut the presumption of state protection reasonable. The Applicants
dispute the Respondent’s characterization of these facts and, as explained
above, points to evidence before the Officer of instances where reports were
made to the police after attacks on the Applicants’ family.
[33]
The Respondent submits that the Applicants’
argument that the documentary evidence objectively established the inadequacy
of state protection is merely an invitation to this Court to reweigh the
evidence and reach a different conclusion. The Respondent argues that it is not
the role of this Court to engage in such reweighing and that to do so would
merely substitute the Court’s opinion under the “guise
of reasonableness.” Furthermore, the Decision summarizes all of the
evidence before the Officer and demonstrates that the Decision was not unreasonable.
The Respondent argues that a state protection analysis is a complex exercise
within the Officer’s core area of expertise. Therefore, the existence of
contrary evidence does not demonstrate a perverse finding of fact or a breakdown
in the logic of the analysis rendering the Decision rationally unsupported.
[34]
The Respondent therefore requests that this
Court dismiss the application for judicial review.
VII.
ANALYSIS
[35]
I agree with the Respondent that PRRA decisions
are discretionary and must be decided on a case by case basis. I also agree
that a decision is not unreasonable simply because it could reasonably have
been decided otherwise. I further acknowledge that Roma applications refused on
a state protection basis have been decided both ways upon review in the Federal
Court. However, in the present case, I think that unreasonable mistakes have
been made that require the matter to be returned for reconsideration.
[36]
The Officer raises no credibility concerns and
clearly accepts the specific incidents of violence and discrimination suffered
by the Applicants and other family members, as well as the failure of the
police to respond adequately. But the Officer declines to accept the personal
experiences of the Applicants and their family as evidence of inadequate
statement protection on the following grounds:
(a) Zsuzsanna’s failure to report to the police after she was discharged
from Peterfy Sandor Hospital following the May 2016 attack;
(b) The failures of the police to respond to the violence suffered by
the Applicants, and other family members were no more than “local failures,” and “[l]ocal
failures to provide effective policing do not amount to lack of state
protection… in the absence of evidence of a broader state policy to not extend
state protection to the target group”;
(c) The “actions of some police officers [do]
not preclude the need to seek protection from the authorities…. If the [A]pplicants
believed that the actions of some police officers were unsatisfactory and less
than desirable, the onus falls on them to approach other members of law
enforcement or other authorities for assistance”;
(d) The documentary evidence is “mixed”
with respect to state protection efforts in Hungary, but the Officer accepts
that “Roma victims often experience discriminatory
treatment such as indifference and hesitation from police when they want to
report a crime” (emphasis added). However, “complaint
mechanisms and avenues of redress do exist for those alleging mistreatment at
the hands of police”;
(e) The Officer acknowledges that the country evidence shows that the “Roma population in Hungary do face societal attitudes that
are inhospitable and intolerant. Namely, discrimination against Roma in
education, housing, employment and access to public places have been identified
areas of concern.” In addition, the “rise of
right-wing nationalism has further fuelled anti-Roma sentiment and violence.”
Notwithstanding this acknowledgement, the Officer decides that the country
evidence is “generalized in nature and [does] not
establish a linkage directly to applicants’ personal circumstances”
(emphasis added).
[37]
Having accepted the Applicants’ personal
evidence on the serious violence, discrimination, harassment and other indignities
they have suffered, it is obvious that the Officer fails to appreciate that the
general country documentation is not “general”
in nature in this instance. It directly supports and confirms the Applicants’
own experience. This is a Roma family that has suffered the violence, and state
indifference to that violence, that the Officer agrees is “often” suffered by Roma people in Hungary.
[38]
Further, the so-called “complaint
mechanisms and avenues of redress” that the Officer relies upon are not
specifically identified but appear to be alternatives that the Court has consistently
found do not render state protection in Hungary adequate. See Katinszki v
Canada (Citizenship and Immigration), 2012 FC 1326 at paras 14-16; Orgona
v Canada (Citizenship and Immigration), 2012 FC 1438 at para 14; Balogh
v Canada (Citizenship and Immigration), 2015 FC 76 at paras 30-32; Beri
v Canada (Citizenship and Immigration), 2013 FC 854 at paras 57-59; Bari
v Canada (Citizenship and Immigration), 2014 FC 862 at paras 16, 29.
[39]
The Officer’s conclusion that the “[d]ocumentary evidence is mixed with respect to state
protection efforts in Hungary” also fails to address the clear contradictions
to this position found in that evidence. For example, a report titled
“Accelerating Patterns of Anti-Roma Violence in Hungary,” from the
François-Xavier Bagnoud Center for Health and Human Rights and Harvard School
of Public Health (Boston: February 2014), has the following to say on
point:
119. Hate speech and actions by
extremists groups as well as by leaders, hate-motivated killings,
stigmatization of Romani people, discriminatory practices (both individual and
structural), and social and economic exclusion were on the rise in Hungary
between 2008 and 2012. Neo-Nazis’ groups organize secret military trainings and
camps where members learned about theoretical military education and performed
formation and shooting exercises.
120. Although the incidents provided
very clear signals for taking action, the Government response was inadequate to
stem the rise in racial crimes and extremist action.
[emphasis added]
There is nothing to suggest that this
situation has improved.
[40]
The July 2015 Response to Information Request
also makes it clear that the police in Hungary lack the resources to deal with
violence against Roma, and do not adequately respond to hate crimes:
2. Complaints
Mechanisms
According to a report on discrimination in
Hungary, produced by the European Union’s (EU) Agency for Fundamental Rights
(FRA), an independent body of the EU that provides information to member states
on issues of fundamental rights and Community law (UN n.d.),
[t]here is no specific complaints
mechanism dealing with racist and related abuse by police officers… the options
for victims to seek redress are limited.
[…]
[41]
This kind of evidence suggests to me that the
problems faced by Roma in Hungary, including indiscriminate violence, are ongoing
and are, in fact, getting worse. The lack of an adequate government response
encourages impunity for those members of Hungarian society who wish to harm
Roma people and, as the evidence makes clear, racist bigotry and violence aimed
at the Roma of Hungary is widespread. The Officer fails to deal with this
evidence and takes refuge in the all-too-easy “mixed”
epithet. This will not do. See Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), 1998 CanLII 8667 at para 17 (FC).
[42]
This case has many parallels with the situation
that Justice Zinn had to deal with in Majoros, above:
[16] Where persecution is widespread
and indiscriminate, and unless a claimant is repeatedly targeted by the same
individual(s), I fail to understand how it can be said that individual attempts
to engage the authorities will have significant, persuasive evidentiary value
as to the state’s ability to protect against future, indiscriminate violence.
In those cases, documentary evidence, rather than individual attempts to seek
protection, is more relevant to the state protection analysis. As discussed
below, the Board in this case did review the documentary evidence; however, one
cannot escape the conclusion reading the decision as a whole that the
applicants’ perceived inadequate attempts to engage the police not only figured
prominently, but were decisive in the Board’s analysis. That legal error –
which is to place a legal burden of seeking state protection on a
refugee claimant – is unreasonable and itself sufficient to warrant granting
this application.
[emphasis in original]
[43]
The Officer’s general lack of care over the
facts of this case is also reflected in the refugee claim of Roland Mata (whose
situation is cited and relied upon in this case to show the violence this
family has had to face, see Affidavit of Alexandra Reka Szucs at paras 8, 14-15)
who was accepted as a genuine refugee in Canada on the same facts a little more
than two weeks later. Mr. Mata was attacked by people yelling ethnic slurs
outside his apartment building in 2013. His partner, Alexandra Reka Szucs, was
attacked by a neighbour in 2015. Mr. Mata and Ms. Szucs were attacked on their
way home in 2016. In each case, the Applicants or their family attempted to
access state protection, but their appeals were met with indifference. In Mr.
Mata’s refugee claim, the PRRA officer, relying on the same evidence,
specifically notes that the family “called and
approached the police on multiple occasions due to physical and violent attacks”
but that “they were not given any assistance”:
Exhibit “C” to the Affidavit of Stefanie Tantalo at 5.
[44]
All in all, I have to conclude that this is a
very unsatisfactory and unreasonable Decision that should be reconsidered by
another officer, keeping my comments in mind.
[45]
Counsel agree there is no question for
certification and I concur.
JUDGMENT IN IMM-785-17
THIS COURT’S JUDGMENT is that
1.
The application is allowed. The Decision is
quashed and this matter is returned for reconsideration by a different officer.
2.
There is no question for certification.
“James Russell”
Email this Content