Docket: IMM-1961-11
Citation: 2012 FC 334
Ottawa, Ontario,
March 21, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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JANOSNE
REZMUVES
JANOS RESMUVES
HELENA KOVACS
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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
FOR JUDGMENT AND JUDGMENT
[1]
The applicants, a mother and her two minor children, are
Roma and all citizens of Hungary. They ask the Court to set aside the decision of the Refugee
Protection Division of the Immigration and Refugee Board that found that they
were neither Convention refugees nor persons in need of protection under the Immigration
and Refugee Protection Act, SC 2001, c 27.
[2]
The Board found that the determinative issues were
credibility, discrimination versus persecution, and state protection. I
find that there are a number of errors in the Board’s analysis of each of these
issues which lead to the conclusion that the decision is unreliable and thus
unreasonable. The applicants’ claims for protection must be re-examined.
[3]
In its analysis of credibility, the applicants submit that the Board
erroneously stated that the minor incidents occurring between 2001 and 2008 to
which Ms. Rezmuves testified were not in her Personal
Information Form (PIF), when, in fact, she did mention “small incidents”
occurring in this period in her PIF. They are correct.
[4]
It is impossible to determine whether the Board, in part, based its
credibility finding on this discrepancy, or whether the Board accepted the
evidence as credible but merely found that it did not amount to persecution.
The Board’s analysis of this testimony, as set out below, is not intelligible:
The Board
concludes that the incidents described by the [applicant] between 2001 and 2008
were an attempt to embellish her claim. These incidents are not described in
the PIF and we believe that such a glaring space of time in which no specific
harm is indicated, is indicative of the fact that for the most part the
[applicant] living in Budapest was suffering harm which would not be considered
persecution…
[5]
The Board’s credibility determination was partly based on its finding
that Ms. Rezmuves’ PIF omitted mention of a complaint
being made to the Roma Foundation concerning the attack on her grandmother’s
house in 1999 which she testified to at the hearing. In fact, the PIF does
reference contacting the Roma Foundation.
[6]
Another basis for the credibility finding was the discrepancy noted by
the Board between the testimony of Ms. Rezmuves at the hearing
and a statement contained in her Claim for Refugee Protection in Canada form completed one day after her
arrival in Canada. At the
hearing the Board asked Ms. Rezmuves if she had ever been beaten by the police
and she responded that she had in 1996. She had previously testified to this
incident in which her mother was seriously injured and said that she did not
suffer major injuries, the police “just hit me on the head a few times.” The
Board then challenged her evidence as follows:
MEMBER: Why does it say in your CIC notes that you were beaten in
front of your children when in 96 your children were not born?
CLAIMANT: I cannot remember that I said anything like that.
MEMBER: I will read it to you.
“I’m afraid for my life due to my ethnicity as a Roma. Because of
my ethnicity I was beaten by the police at home, in public, and in front of my
children”.
CLAIMANT: Well, I am assuming that was the interpretation mistake,
or error, because in front of my children, never, I do not remember saying it.
[7]
The Board describes this as an “important” discrepancy and says: “We
find the claimant’s explanation of poor translation to be lacking in
credibility.” As a consequence, the Board concludes that “it” - by which I
presume is meant the statement in her application for protection - was an
attempt by Ms. Rezmuves to embellish her claim.
[8]
The Board provides no explanation or reason why it finds the allegation
of poor translation not credible. This is the only reference to her having
been assaulted by the police in the presence of her children. It is not
referenced in her PIF or her testimony and she quite adamantly denies it ever
having occurred when challenged at the hearing. She was beaten by persons who
were not police officers in the presence of her children. On these facts, it
is unreasonable for the Board to identify the inconsistency and reject her
explanation without providing any reason for so doing. Further, the attempt to
“embellish her claim,” if there was one was not made in her sworn evidence
before the Board which was consistent with her testimony that the statement in
the claim was made in error.
[9]
The principal applicant submits that the Board failed to properly assess
whether the years of discrimination experienced by the applicants amounted to
persecution. I agree that the Board’s reasoning on this issue is not
intelligible and its conclusion not reasonable. The Board reviewed the facts
of the three incidents alleged to have occurred since 2001. While the Board
stated that the incident on the trolley in January 2008 was not tantamount to
persecution, the Board’s comments regarding the other two incidents only
related to the failure of the applicants to go to the police. This is not the
same as finding that the incidents did not amount to persecution.
[10]
Furthermore, two of the three incidents listed by the Board in this
section, if believed, arguably amount to persecution and not mere
discrimination: namely the beating of Ms. Rezmuves’s
brother and other family members at the outdoor celebration in August 2008, and
the brutal beating of her husband by police in December 2008.
[11]
The Board’s state protection analysis is also problematic. The Board
reviews evidence related to arbitrary detention in Hungary, the structure of
the Hungarian police forces, police corruption, the Roma Police Association and
its protection of Roma members of the police and military, other related police
associations in Hungary and Europe for Roma military and police officers, the
Independent Expert, and the body responsible for the monitoring of the
implementation of legislation dealing with anti-discrimination. However, the
Board fails to focus on the relevant question: Is there adequate state
protection available for Roma in Hungary?
[12]
Further, I agree with the applicants that the Board failed to review or
acknowledge the recent evidence which the applicants describe in their
memorandum as follows: “there has been a severe upswing of extremism directed
against Roma and further that there is extensive evidence of the government’s
shortcomings in actually preventing violence against Roma (for example the
European Roma Rights Centre report and a recent Amnesty International report,
both lengthy and detailed on this very point).”
[13]
The failure to address the real issue and examine current evidence on
that point must lead to the conclusion that the decision on state protection is
unreasonable. It may be that a differently constituted Board, after reviewing
all of the relevant evidence, will reach the same result as this Board Member;
however, that is the role of the Board and not of this Court.
[14]
Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application is allowed;
the decision of the Refugee Protection Division of the Immigration and Refugee
Board that found that the applicants were neither Convention refugees nor
persons in need of protection is set aside; the applicants’ claims for
protection are referred to a differently constituted Board for determination;
and no question is certified.
"Russel W. Zinn"
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