Buri v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1358

                                                                                                                                             Date: 20011211

                                                                                                                                  Docket: IMM-243-01

                                                                                                                 Neutral Citation: 2001 FCT 1358

Between:

                                                                       GYULA BURI

                                                                    GYULANE BURI

                                                                    ORSOLYA BURI

                                                                    BARBARA BURI

                                                                                                                                                      Applicants,

                                                                              - and -

                                                                     THE MINISTER

                                             OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                    Respondent.

                                               REASONS FOR ORDER AND ORDER

KELEN J.:

[1]         This is an application for judicial review of the decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board, dated November 17, 2000, wherein the Convention Refugee claims of the applicants GYULA BURI, GYULANE BURI, ORSOLYA BURI and BARBARA BURI were declared unfounded and the applicants declared not to be Convention Refugees as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c I-2.

FACTS

[2]         The applicants, a husband, wife and two children, are from Hungary. They claim to be convention refugees on the basis of "well-founded fear of persecution" in Hungary because of membership in a particular social group, specifically the "Roma". The applicants have been in Canada since August 1999 and currently reside in Brantford, Ontario.

[3]         Gyula Buri is the male claimant and main applicant. Gyulane Buri is his wife, and Orsolya and Barbara are their daughters. Gyula Buri has an elementary and trade-school education.

[4]         The alleged events in Hungary that motivated the family to claim refugee status in Canada are as follows:

·                        Gyula Buri was attacked by four men. During that incident his finger was broken. He did not report this incident to the police for fear of further harassment.

·            In January 1994, Gyulane Buri, five months pregnant at the time, was attacked by skinheads, and left lying in the street. When police arrived she was placed "in the drunk-tank to sober-up". When she appeared to be seriously hurt, the police took her to a hospital. There she had a cesarean section and the baby was still-born. She attributed this to the beating and subsequent mistreatment she received by the police.

·            The two daughters experienced abuse at school from their teachers and fellow students, to the point that the family changed school districts in 1994. One daughter had her ear torn off by a student at school.

·                        The other daughter was attacked by a pit bull dog and bitten about her mouth.

[5]         Deciding to leave Hungary in search of a safer place to live, the family came to Canada and made the refugee claim from which this application arises.

DEFINITION OF CONVENTION REFUGEE

[6]         "Convention Refugee" is defined in section 2 of the Immigration Act as follows:

"Convention refugee" means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii) not having a country of nationality, is outside the country of the person's former

habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b) has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;

CRDD DECISION

[7]         The claim was heard on September 26, 2000 by a CRDD panel. The panel decision is dated November 17, 2000, and the Notice of Decision is dated December 29, 2000. The CRDD determined the applicants not to be a Convention refugees for the following reasons:

3.                    The applicants did not show a well-founded fear of persecution. What the applicants faced in Hungary is only discrimination and does not amount to persecution, nor does the discrimination feared cumulatively amount to persecution. The incidents suffered by the applicants were not shown to be the products of persecution;

ii            The applicants had adequate opportunity and information by which to be aware of the redress options made available to them by the state, but failed to access these options;

iii           The applicants did not rebut the presumption of protection by the state with "clear and convincing evidence." The evidence provided did not show that the government of Hungary was unable or unwilling to protect the applicants, and did not show a reasonable chance that they would be subjected to serious harm upon return to Hungary.

[8]         The CRDD found that the incidents alleged by the applicants as illustrative of persecution were not, based on the evidence, clearly shown to have resulted from racial bias. On the matter of the still-birth, the panel observed that the evidence did not tie the loss of the baby directly to the beating the applicant Gyulane Buri received from the skinheads, but rather was due to abnormal placement of the fetus.

[9]         The CRDD stated that the obligation is upon the applicant to at least seek out state protection where it is available. The CRDD noted that the claimant father, faced with an alleged aborted pregnancy due to an attack on his wife, would have been suitably enraged so as to complain to the authorities. Further, the CRDD points out that the applicant father was of adequate education to have been able to become aware of agencies that could be of assistance and pursue those options, beyond the immediate redress of the police.

ISSUES

[10]       The applicants have submitted that the Panel erred in law by failing to properly assess the evidence; that the Panel erred particularly in evaluating the level of protection the State (Hungary) affords the Roma minority, and that the Panel denied the applicants procedural fairness by relying on boilerplate decisions and "lead cases" related to other Hungarian Roma cases.

STANDARD OF REVIEW

[11]       The CRDD is a specialized tribunal and has complete jurisdiction to determine the credibility and plausibility of testimony. This Court will not intervene in the findings of credibility of the CRDD unless they are patently unreasonable. Mr. Justice Blanchard succinctly summarized the law in this regard in Horvath v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 901, 2001 FCT 583 (F.C.T.D.), at paragraph 9:

It is important to note at the outset that, generally, findings of credibility by the CRDD are given much deference. It is the CRDD who have the benefit of observing witnesses directly and are in the best position to determine credibility. As the Federal Court of Appeal states in Agubor v. Canada (M.C.I.):

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position that the Regugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.

This Court should not intervene in the findings of credibility of the CRDD unless they are patently unreasonable. [emphasis added]

ANALYSIS

Credibility

[12]       In this case, the CRDD did not accept the claimant's allegation that the injury to his hand was due to an attack or that the claimant's loss of her baby was due to an attack. Basically, the CRDD found that the claimants were not credible with respect to their personal experiences of persecution. This finding will not be disturbed since the CRDD heard the evidence, and the finding is not patently unreasonable.

Legal Basis for Claim to Convention Refugee Status

[13]       Mr. Justice Gibson in Keninger v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1114, 2001 FCT 768 (F.C.T.D.), set out the established law which is the basis for a claim to convention refugee status. It is that an applicant need not show that he himself has been persecuted in the past, only that the fear of prosecution is based on reprehensible acts committed or likely to be committed against members of the group to which he belongs. Mr. Justice Gibson held at paragraph 11 in that case:

In Salibian v. Canada (Minister of Employment and Immigration) Mr. Justice Décary, for the Court wrote at page 173:

It can be said in light of earlier decisions by this Court on claims to Convention refugee status that

(1)                 the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future;

(2)                 the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged;

[14]       The legal test has been also expressed in different cases in slightly different ways:

1.                    is there a reasonable chance that persecution will take place when the applicant returns to his country of origin; Keninger, supra, at paragraph 13; and,

2.                    has the applicant demonstrated through "clear and convincing" evidence that the Hungarian State is unwilling or unable to provide protection; Horvath, supra, at paragraph 12.

[15]       Based on the Supreme Court of Canada decision in Ward v. Attorney General of Canada, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 (S.C.C.), in this case the Hungarian Government is presumed capable of protecting its citizens and the onus is on the applicant to show "clear and convincing" evidence that the Hungarian State is unwilling or unable to provide protection.

[16]       In this case, the CRDD held at page 5 of its Decision:

The Government of Hungary in its attempt to address the situation of the minorities, in particular the Roma situation, has established several agencies to deal with the problems they face every day. The Roma suffer from discrimination in police procedures; the number of complaints of this sort is still high, but the first signs of a more favourable trend can now be observed as a measure of central measures.

[17]       The CRDD decision stated that the Hungarian Government is trying, with new minority rights laws and other legislation, to protect the Roma. The CRDD found that the claimants did not report incidents to the police and did not report incidents to organizations devoted to protecting Roma rights. The applicants explained that reporting such incidents to the police are not effective in protecting them from retaliation or from police abuse.

[18]       The CRDD concluded at page 7 in its Decision:

The claimant failed to advance any evidence that the Government of Hungary was unable or unwilling to protect him and his family. The State's ability to protect the claimant is a crucial element in determining whether the fear of prosecution is well founded and as such, is not an independent element of the Definition. There is no reasonable chance that they would be subjected to serious harm should they return to their country of origin.

FAILURE TO ADDRESS RELEVANT CONTRADICTORY DOCUMENTS

[19]       I am satisfied that the CRDD did address the applicants' evidence and documents. However, the CRDD ignored, and should have addressed, relevant evidence from the U.S. Department of State, Human Rights Report for 1999 dated February 25, 2000 which categorically states:

Although the authorities addressed problems in specific cases, the police continued to use excessive force against suspects. The police also harassed and abused both Roma and foreign nationals. In practice the authorities do not always ensure due process in all cases [Application Record, page318].

Police also continued to harass and physically abuse Roma and foreign nationals. In 1998 2,296 reports of police abuse were filed ... some sources attribute the rise in numbers of reports of police abuse to a growing willingness to seek official redress in these instances. The Romani minority community and dark-skinned foreigners are the most common victims of police abuse, with Roma bearing the brunt [Application Record, pages 319 and 320].

Conditions of life for the Romani community are significantly worse than among the general population. Romas suffer from discrimination and racist attacks and are considerably less educated, with lower than average incomes and life expectancy [Application Record, page 330].

[20]       The CRDD also did not address the Human Rights Watch World Report 2000 reporting on events in Hungary between November 1998 to October 1999 which stated:

Relations between the Roma community and the police deteriorated in 1999 despite pressure from Western Government and Human Rights groups urging the Hungarian Government to curb rampant police abuse [Application Record, page 335].

[21]       Madam Justice Hansen in Polgari v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 957, 2001 FCT 626 (F.C.T.D.) held at paragraph 32:

Where there is no reference to the specific documentary evidence within the package being relied upon, there is no basis on which the applicants can challenge the currency of the documentation, the objectivity of the source, or the expertise[...]

While it may have been reasonably open to the panel to make the findings it did, the absence of any analysis of the extensive documentation contained in the Hungarian Lead Case Information Package and the materials in the RCO disclosure package or the documents submitted by the applicants coupled with the failure to adequately address the contradictory documents and explain its preference for the evidence on which it relied warrants the Court's intervention.

[22]       In this case, while it may have been reasonably open to the panel to make the findings it did, it did not analyse the credible U.S. Department of State, Human Rights Reports for 1999 or the Human Rights Watch World Report 2000. The failure to adequately address the contradictory documents, and explain why CRDD concluded that the claimant failed to advance any evidence that the Government of Hungary was unable or unwilling to protect him and his family, is an error of law. This conclusion is contradictory to the said documents.

[23]       Similarly Mr. Justice MacKay in Orgona v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 574, 2001 FCT 346 (F.C.T.D.) held at paragraph 31:

In this case, the Tribunal did refer to certain documentary evidence but did not refer to the documentary evidence which contradicted the suggestion that the Hungarian Government was effectively protecting the Roma.

Following the rationale of Mr. Justice MacKay, the CRDD did not refer to this relevant evidence.

[24]       In fairness to the CRDD in this case, it rendered its decision before either Orgona, supra, or Polgari, supra. It is important for fairness for the refugee claimants on a matter which is of utmost importance in their lives, that the CRDD address why these official documents recording police abuse of Roma in Hungary and racist hatred by skinheads against the Roma in Hungary are not considered to be, as the CRDD said in its decision at page 7:

The claimant failed to advance any evidence that the Government of Hungary was unable or unwilling to protect him and his family. The State's ability to protect the claimant is a crucial element in determining whether the fear of persecution is well founded [...]

[25]       For these reasons, the application for judicial review is allowed and the matter is remitted for reconsideration by a differently constituted panel. While it may be reasonably open to panel to make the findings it did, it is necessary that the panel address the contradictory documents and explain its preference for the evidence on which it relies.

                                                                            ORDER

[26]       THIS COURT ORDERS that this application is allowed, and the appeal is referred back for redetermination by another panel of the Convention Refugee Determination Division of the Immigration and Refugee Board.

           "Michael A. Kelen"

____________________________

                                                   Judge                  

OTTAWA, ONTARIO

DECEMBER 11, 2001