Date: 20110315
Docket: IMM-4630-10
Citation: 2011
FC 313
Toronto, Ontario, March 15, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
|
|
TAMAS ARON BANYA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR ORDER AND
ORDER
[1]
Young
Tamas Banya is five years old. He fears, or more accurately his parents fear,
that were he to return to Hungary he would be persecuted because he is of Roma
descent and that his life would be at risk. His refugee claim was dismissed.
This is the judicial review of that decision.
[2]
Tamas’
parents and older sister came to Canada
in 2001 and claimed refugee status. They returned to Hungary before a decision was made. They returned
with Tamas and unsuccessfully attempted to reopen their refugee claim.
Nevertheless they were entitled to a pre-removal risk assessment. The first
assessment was negative. However a judicial review was granted by Mr. Justice
Campbell. His decision is reported at Banya v Canada (Minister of Citizenship and
Immigration) 2010
FC 686, 2010 FCJ No. 827. Currently they are undergoing a second PRRA.
[3]
Thus the
family has two active claims. If either one succeeds they will remain here. If
Tamas succeeds and his family doesn’t, he cannot be very well left here on his
own. On the other hand, if his family succeeds and he doesn’t, he can hardly be
separated from his parents at such a tender age.
[4]
Counsel
relies very strongly on the Banya decision of Mr. Justice Campbell.
However it must be borne in mind that judges are not to make their own
assessment of country conditions. There are three variables: 1) the record
before the Refugee Protection Division, both as to personal circumstances and
country conditions; 2) the adequacy of and reasonableness of the decision
reached; and 3) the reviewing judge’s appreciation of that decision. What may
be a palpable and overriding error to one judge, may simply be an invitation to
re-weigh evidence to another.
[5]
I find the
decision of the Member of the Refugee Protection Division to be extremely
thoughtful and well reasoned. I dismiss the judicial review.
[6]
The basis
of the claim is that as a Roma in Hungary Tamas will be discriminated against,
harassed and harmed because of his race, as his parents have been. This
discrimination is on many levels including in employment, education, housing
and in the attitude of and physical attacks by right-wing extremists and even
the public at large.
[7]
Counsel
points out that even if individual acts of discrimination taken in isolation do
not amount to persecution, cumulatively they may. My attention was drawn to the
interpretation of the Convention Refugee definition in the Case Law, published
by the legal services of the Immigration and Refugee Board, as updated to
December 2005. To reach the level of persecution, as opposed to discrimination
or harassment, the mistreatment suffered or anticipated must be serious,
occurring with repetition or persistence, or in a systematic way and linked to
a United Nations convention ground. Persecution is distinguished from common
crime.
[8]
Based
on the jurisprudence, the legal services comment is that if there is more than
one incident of mistreatment, the member may fall in error if he or she only
looks at each incident separately. It is insufficient to simply state that the
cumulative nature of the discriminatory acts have been considered without any
further analysis.
[9]
It is
submitted that that is exactly what happened in this case. I cannot agree.
[10]
There
has to be an analysis of the incidents complained of in order to ascertain a
thread. It was certainly open to the member to find that the complaint with
respect to housing arose because the landlord was a con artist who took large
deposits from many tenants and then tried to get rid of them without returning
the deposits. There was no evidence of racial discrimination. Indeed, the
police were called in and sided with the Banya family.
[11]
The
member accepted that Tamas’ parents and sister suffered discrimination in
school, that Roma are segregated, and that their employment expectations are
less than the average citizen. However, it was noted that the parents had been
employed, and when they lost their jobs they found new ones. The member was of
the view that the evidence did not indicate a serious, sustained or systematic
denial of the parents’ right to earn a reasonable livelihood.
[12]
There
has been a recent rise in anti-Roma sentiment and the rise in power of groups
like the Hungarian Guard. However the Guard was dissolved by ministerial edict,
which was upheld by the courts. Looking forward, the parents’ evidence was
taken together with and viewed in the context of objective documentary
evidence. The Hungarian authorities have undertaken serious efforts to positively
affect the lives of Roma in Hungary, and they are achieving
results, certainly not perfect, but in the member’s opinion adequate. It must
be kept in mind that the burden of showing that state protection would be
inadequate rests with the claimant.
[13]
It was
noted that extremists have increasingly targeted Roma resulting in injuries and
some deaths, including deaths of children.
[14]
Following
the banning of the Hungarian Guard, police initiated legal proceedings against
176 people for participating in a banned organization. The number of detectives
has been increased, and the Ministry of Justice and Law Enforcement operates
the Roma Anti-discrimination Customer Service Network. Since 2005 the Equal
Treatment Authority provides individuals with a direct avenue of redress for
violations of the prohibition of discrimination. There is also a Roma Police
Officers Association.
[15]
The
documentary evidence indicated that a number of programs have been developed to
assist Roma and other minorities to find work, to obtain education and with
housing. In 2006 a department for Roma integration was established within the
Ministry of Social Affairs and Labour.
[16]
The
member considered like evidence with respect to employment, education and
housing. It certainly cannot be said that the overall situation of Roma in Hungary was inadequately considered.
An example of improvement the Member noted was that in 2007 the United Nations
reported the Hungarian government was financing housing renovations in nine
Romani localities, dramatically improving living conditions.
[17]
According
to the European Roma Rights Centre, desegregation efforts by the Hungarian
government have been among the strongest in Central Europe, particularly in the field of education.
A scholarship program has been established for young Roma. Over 11,000
scholarships were awarded in 2007-2008.
[18]
In my
opinion, the member’s decision falls within the reasonableness structure of Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
ORDER
FOR REASONS GIVEN:
1. The judicial review is dismissed;
2. There is no serious question of general
importance to certify.
“Sean Harrington”
Email this Content