Docket: IMM-1008-17
Citation:
2017 FC 920
Toronto, Ontario, October 17, 2017
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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ANITA BOZIK
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Applicant
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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
[1]
The present Application relates to a Pre-Removal
Risk Assessment (PRRA) application in which the Applicant, a Hungarian national
of Romani ethnicity, claims protection pursuant to s. 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27, on the basis that if she is
required to return to Hungary she will face more than a mere possibility of
persecution because of her ethnicity. In a decision dated January 17, 2017, the
PRRA Officer (Officer) rejected the Applicant’s claim.
[2]
In support of the Applicant’s submissions that
she has a well-founded fear of persecution in Hungary, and that the state is
unable to provide adequate protection to its Roma citizens, the Applicant
submitted two volumes of country condition evidence. The Applicant’s evidence
was accepted as credible and her identity as a Hungarian national of Romani
ethnicity was not contested.
[3]
The issue for determination is whether the
Officer correctly evaluated the country condition evidence. The passages from
the decision under review which raise contention are as follows:
The applicant has also submitted two volumes
containing 120 and 184 pages of supporting country condition documentary
evidence that includes news reports and research articles from a variety of
sources on human rights and social justice issues vis-a-vis the plight of the
Roma in Hungary. Having given consideration to these items, I acknowledge 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.
The rise of right-wing nationalism has further fueled anti-Roma sentiment,
xenophobic rhetoric, and racially-motivated violence. While I have considered all
these documents in the context of assessing country conditions, they are
generalized in nature and do not establish a linkage directly to the applicants' [sic] personal circumstances. Evidence
of general conditions within a country is not in itself sufficient to show that
the applicant is personally at risk of harm.
The applicant fears insecurity due to
organized racist groups and the rise and influence of the right-wing Jobbik
political party.
The documentary evidence filed indicates
that Roma have faced intimidation from radical nationalist militias. Groups such
as the Hungarian Guard, have held rallies inciting violence in Roma
settlements. The applicant states the situation is made worse by the police
siding with these groups. While the applicant states she has never been
attacked, she knows that it is only a question of time before she will be
harmed. While that possibility certainly exists, it is rooted in pure
speculation. I find the applicant has produced insufficient objective
evidence to establish, on balance, she is at risk of violence at the hands of
these groups.
[Emphasis added]
(Decision, pp. 3 – 4)
[4]
Counsel for the Applicant argues that the
Officer’s approach to the country condition evidence is contrary to law because
it conflates the criteria for establishing the Applicant’s s.96 claim for
protection with what is required for establishing a s.97 claim for protection.
Counsel for the Applicant submits that these two grounds for protection are
distinct and that the relevance and probative value of country condition
documentation is treated differently by the two sections.
[5]
The following is Counsel for the Applicant’s well
supported argument on the quality, and, thus, the reasonableness of the
decision under review:
Section 96 is clearly intended to protect
people based on a well-founded fear of persecution due to their being part of a
broader group of individuals sharing the same race, religion, nationality or
political opinions, characteristics seen to be innate to the individual and
thus essentially unchangeable. Under section 96, the individual must, as a starting
point establish on a balance of probabilities that they fall within a group
intended to be protected under the Convention. Once that link has been
established, then it is submitted that general country condition documentation
reporting on the treatment of members of that group is no longer general; it is
now personal to the claimant. There are pronouncements from many sources
including in academic writings, the UNHCR handbook, jurisprudence of the Federal
Court of Canada, and Guidelines issued by the Chair of the Immigration and
Refugee Board on assessing claims of women and children that all confirm the
importance of general country condition evidence on the treatment of similarly
situated individuals in assessing claims under section 96.
Section 97, on the other hand, is
essentially intended to provide protection to individuals who do not fall
within the ambit of section 96, or who for whatever reason have not met all of
the conditions required under section 96 to be determined to be a Convention refugee.
Section 97 protection may be available to such individuals if they can establish,
among other things, that the risk they face is not a risk generally faced by
others in or from the same country, and that they personally would be subjected
to risks of cruel and unusual treatment, torture or risk to life.
It is submitted that section 96 is intended
to protect individuals who are within potentially large groups of people who
all potentially face persecutory measures due to their innate characteristics
recognized in the Convention as a basis for protection. Therefore, evidence
that relates to that specific group is not general country condition documentation,
it is evidence of the general treatment of a specific group to which a claimant
belongs. That is not to say that every member of a group that generally faces
measures or risks amounting to persecution is automatically deemed to be a
Convention refugee. However, the fact that an individual has established
that they are within that general group, have not distinguished themselves from
being susceptible to the treatment typically afforded the group, and who have
established that they have the requisite subjective fear and do not have access
to adequate state protection should be determined to be Convention refugees if
the general country condition documents support that finding. Importing
concepts of generalized risk and personalized risk from section 97 into
determining what documentary evidence is relevant to an assessment of the merit
of the claims under section 96 potentially will result in unreasonable
decisions in the context of PRRA decision making. One typically does not see
country condition documents dismissed on the basis of being generalized and not
personal to the claimants at the RPD or RAD level, as it is well known that a
fair consideration of general country condition evidence is absolutely
necessary to determining section 96 protection.
The argument being put forward by the Applicant
is that the central error resulting in an unreasonable decision was the
ignoring, in its totality, the general country condition documentary evidence
on the treatment of Roma in Hungary on the basis that it does not establish a
linkage to the applicants’ [sic] personal circumstances. It is submitted that
the general country condition documents do not have to establish a link to the
applicants' [sic] personal circumstances. Under section 96, the applicant has
to establish a link (nexus) to the group given protection under the Convention,
in this case based on her Roma ethnicity. That nexus was established. No one has
questioned her credibility or her assertion that she is Hungarian Roma. Once
that nexus to the Convention is established, the evidence on the general
conditions for Roma, similarly situated to the Applicant becomes entirely
relevant as it is personal to her. It is submitted that the PRRA officer appears
to have been looking for evidence within the general documentation referring specifically
to this Applicant, and as there was none, the linkage was found not to exist.
[Emphasis added]
(Applicant’s Further Argument, paras. 5 to
8)
[…]
It is submitted that in the Applicant's
case, the Officer has taken refuge in the position that the "'documents
... are generalized in nature and do not establish a linkage directly to the
applicant's personal circumstances" epithet which it is respectfully
submitted also "will not do". Based on all of the above, it is
submitted that the Officer erred by failing to properly assess the Applicant's
risk under section 96 with regard to all of the evidence, and most
significantly the objective country condition documentation. The explanation
for doing so would appear to lie in confusion between the concepts of general
and personal risk as the [sic] apply to section 97 [sic] as opposed to section
97. It is submitted, however, that regardless of the error made, the decision
is unreasonable.
[Emphasis added]
(Applicant’s Further Argument, para. 24)
[6]
A particularly important precedent supporting
Counsel for the Applicant’s argument is Justice Strickland’s decision in Somasundaram
v Canada (Citizenship and Immigration), 2014 FC 1166.
[7]
The correct use of country condition evidence is
a live issue in the present Application. I agree with Counsel for the Applicant
that the Officer was required to examine the country condition evidence
submitted on behalf of the Applicant to determine whether the Applicant’s
subjective fear of violence has an objective evidentiary basis. The evidence of
the experience of similarly situated persons can supply the objective basis.
[8]
As found by the Officer in the passages from the
decision quoted above, the Applicant fears insecurity due to organized racist
groups and the rise and influence of the right-wing Jobbik political party. In
the argument presented to the Officer, Counsel for the Applicant referred to
country condition evidence which goes to establish that persons similarly
situated to the Applicant have suffered the violence she fears.
[9]
I find that the Officer was required to
carefully consider this evidence and to determine its value with respect to the
Applicant’s claim. If the evidence moved the Applicant’s fear from speculation
to more than a mere possibility of suffering persecutory violence, she will
have established her claim for protection. I agree with Counsel for the
Applicant: the Officer did not correctly evaluate the Applicant’s country
condition evidence in this way. As a result, I find that the decision is
unreasonable.
[10]
Ironically, as quoted and also emphasized above,
the Officer made a finding based on the country condition evidence which can be
fairly interpreted as effectively establishing the Applicant’s claim. That is, while
it is speculative that she will suffer the violence she fears, it is possible
that she will:
While the applicant states she has never been attacked, she knows
that it is only a question of time before she will be harmed. While that
possibility certainly exists, it is rooted in pure speculation.
[11]
In my opinion, for the Officer to have made this
finding, the Applicant was entitled to have her PRRA application accepted.
Since by the decision under review it was denied, I find a second reason to
determine that the decision is unreasonable.
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