Date: 20100623
Docket: IMM-4934-09
Citation: 2010 FC 686
Toronto, Ontario, June 23,
2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
TAMAS
BANYA
TAMASNE BANYA
AND KLAUDIA NATASA BANYA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicants in the present Application are a mother, father and daughter who, in
applying for a Pre-Removal Risk Assessment (PRRA), provided extensive evidence
that, as Roma from Hungary, should they be required to return to Hungary, there
is more than a mere possibility that they would be persecuted pursuant to s. 96
and would suffer the probability of risk pursuant to s.97 of the IRPA.
Because the Applicants had made a prior claim for protection before the Refugee
Protection Division but had it declared abandoned with no opportunity to
reopen, the PRRA application required a full consideration of the s. 96 and s.
97 claims by the PRRA Officer concerned.
[2]
In
the submissions which went to the PRRA Officer the Applicants recounted their
past experiences in Hungary of persecution as Roma, and supplied copious
current documentary evidence of the in-country conditions in Hungary to prove
that, should they be required to return to Hungary, there is a probability they
would suffer persecution and risk to life. In rejecting the Applicants’ claim
for PRRA relief, the PRRA Officer made the following critical findings:
Counsel, in her written submission,
contends that the applicants are at risk in Hungary because they are Roma and that the
government of Hungary cannot provide adequate
protection for Romas. Counsel argues that Romas in Hungary continue to be an extremely marginalized
minority and have recently been subjected to violent and deadly attacks which
the state seems unable or unwilling to prevent. Counsel also asserts that the
Hungarian state has shown that they are unable or unwilling to take any steps
to help improve the conditions of the Roma. Counsel adduced several media articles
in support of this argument. I have carefully reviewed and considered all of
the evidence before me. I find that Counsel’s submissions do not provide
sufficient objective evidence of risk that is personal to the applicants.
Furthermore, Counsel’s submissions do not satisfy me that the applicants, upon
their return to Hungary, would be persons of interest or that they would be
targeted by the authorities or any other groups or individuals because they are
Roma.
[…]
I have also assessed Counsel’s evidence
in the context of section 97 of the IRPA. Other than the applicants’
statement that they are Roma, the applicants have provided no additional
evidence that they are Roma or that they will be perceived as Roma by the
authorities or any other groups or individuals should they return to Hungary. As such, I find the applicants and their
Counsel have provided insufficient objective evidence and that the applicants
are more likely than not to face a danger or torture, or a risk to life, or a
risk of cruel and unusual treatment or punishment upon their return to Hungary because they are Roma.
[Emphasis added]
(Decision, p.5-6, and p.7)
I find that the errors exposed in the
quoted paragraphs are fundamental and constitute reviewable errors. First, the
whole of the evidence placed before the PRRA Officer was that as Roma, on the
basis of the current in-country conditions, the Applicants are entitled to a
positive PRRA decision. The critical factor in the Applicants’ claim is that
the immutable personal characteristic upon which their application is based is
their ethnicity. There is absolutely no evidence on the Record upon which a
doubt can be raised with respect to this fact. Nevertheless, as quoted above,
the PRRA Officer held a belief that the very underpinning of their applications
for risk relief, being their ethnicity, is in doubt. I find that this
unsubstantiated and unwarranted suspicion which effectively constitutes an
unsupported negative credibility finding explains how the negative PRRA
decision could be rendered without a full contextual analysis of the evidence
of the horrific suffering that the Applicants would probably experience should
they be required to return to Hungary. The evidence is found in
24 articles in the Tribunal Record of in-country conditions in Hungary, a
primary representative source of which is the U.S. Department of State Country
Reports on Human Rights Practices – 2008, dated February 25, 2009, the
introduction of which reads as follows:
The
government generally respected the human rights of its citizens; however,
problems remained and worsened, including in the following areas: reports that
police used excessive force against suspects, particularly Roma; progovernment
bias in state-owned media; extremist violence and propaganda against ethnic and
religious minority groups; and government and societal corruption. Other human
rights problems included societal violence against women and children, sexual
harassment of women, and trafficking in persons. Extremists increasingly
targeted Roma and other dark-skinned persons. A series of violent attacks
against Roma led to four deaths and multiple injuries. Discrimination against
Roma in education, housing, employment, and access to social services
continued. Violence and abuse directed at gays continued to be a problem.
[3]
As
a result, I find that the decision under review is unreasonable.
ORDER
THIS COURT
ORDERS that the decision under review is set aside, and the matter is
referred back to a differently constituted panel for re-determination.
There is no
question to certify.
“Douglas R. Campbell”
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