Date: 20071023
Docket: IMM-5538-06
Citation: 2007 FC 2000
Ottawa, Ontario, October 23, 2007
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ZSOLT HERCZEG
ZSOLTNE
HERCZEG
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application by Zsolt Herczeg and Zsoltne Herczeg (“the Applicants”) pursuant
to section 72(1) of the Immigration and Refugee Protection Act, R.S.C.
2001, c.27 (“IRPA”) for judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”), dated
September 27, 2006, wherein the Board determined that the Applicants, who are
husband and wife, were not Convention Refugees nor persons in need of
protection pursuant to sections 96 and 97 of the IRPA.
[2]
The
Applicants seek an order setting aside the above decision and referring the
matter back for re-determination by a differently constituted panel.
Background Facts
[3]
Tamas
Herczeg left Hungary and arrived
in Canada on January 9,
2001. The Applicants also left Hungary and arrived in Canada on November
17, 2001. All three claimed refugee protection on December 14, 2001.
[4]
On
April 25, 2005, the Board decided that Tamas Herczeg (Zsolt Herczeg’s brother),
Zsolt Herczeg, and Zolstne Herczeg (Zolt Herczeg’s wife) were not Convention
Refugees or persons in need of protection under sections 96 and 97 of the IRPA.
[5]
This
decision was judicially reviewed and sent back for re-determination. Upon
re-determination, dated September 27, 2006, Tamas Herczeg was granted Refugee
status whereas the Applicants were not. This judicial review relates to the
September 27, 2006 decision of the Board insofar as it concerns the Applicants.
[6]
Tamas
Herczeg was found to be a credible witness by the Board. He said that that he
was having lunch with his brother in the restaurant of a Roma friend, Tamas
Szabo, in Budapest on October
20, 1995 when four men entered the restaurant and had an argument with Szabo.
The men assaulted Szabo and his wife. Tamas Herczeg and Zsolt Herczeg as well
as other customers tried to intervene but desisted when the assailants displayed
their police identification. The police then took away Szabo and his wife. After
his release Szabo told Tamas Herczeg that the police were demanding 500,000
forints from him.
[7]
Szabo
took the officers to court for unlawful activities. Tamas Herczeg appeared in
Court twice in 1999 despite being threatened by the police officers not to
testify. Szabo and his family were the subject of continued police pressure
and fled Hungary in 1998
before the case was decided. The Szabo family, after an initial rejection by
the Board and a successful judicial review application, were accepted as
Convention Refugees in Canada.
[8]
In
March or April 2000, police officers started visiting Tamas Herczeg at the business
which he jointly owned with his brother, Zsolt Herczeg. The police officers
demanded Tamas Herczeg pay the 500,000 forints because the Szabos had fled the
country. Tamas Herczeg refused. The police officers began visiting the place
of business two to three times per week. They would search the store and also
search the two brothers. Customers stopped coming to the store as a result of
the police presence. The police officers would also stop the two brothers for
minor ‘traffic violations’ and gave them tickets.
[9]
Tamas
Herczeg left for Canada in January 2001. Zsolt Herczeg said he remained
behind in order to wind-up the business. The police officers continued to
visit the business and pressure Zsolt Herczeg for payment of the 500,000
forints. The traffic ticketing also continued. Zsolt Herczeg and his wife
left for Canada later that
year in November 2001.
[10]
The
female Applicant bases her claim on that of her husband Zsolt Herczeg.
Decision Under Review
[11]
The
Board accepted that the Szabo incident happened. It found Tamas Herczeg to be
a credible witness. The Board placed emphasis on the fact that Tamas Herczeg
had testified at the Hungarian court proceeding on behalf of Szabo. The Board
found that there was more than a mere possibility of his facing danger of
persecution on account of his imputed political opinion as a backer and ally of
Roma.
[12]
The
Board noted that Zsolt Herczeg said his problems began in March or April 2000
when the police first began to visit the business, five years after the initial
Szabo incident. The Board accepted that the police went to the clothing shop
Zsolt Herczeg and his brother owned because his brother testified on behalf of
a Roma friend against the police officers. The Board noted that Zsolt Herczeg
was not arrested by the police, or beaten, or threatened with harm.
[13]
The
Board found that even if the claims made by Zsolt Herczeg were true, that the
police officers continued to demand the money from Zsolt Herczeg because he was
the brother of Tamas Herczeg after the latter’s departure, the treatment by the
police officers would amount to harassment and fall short of persecution
[14]
The
Board discussed the problem of police demands of bribes from citizens and decided
the state government was taking measures to address problems of police
misconduct and bribe-taking.
[15]
The
Board found that Zsolt Herczeg suffered harassment rather than persecution. Further,
the behaviour of the police officers did not amount to cruel and unusual
treatment or punishment. It concluded that the Applicants were first required
to seek protection from their own government rather than look internationally
and that the Applicants did not rebut the presumption of state protection. The
Board concluded that Zsolt Herczeg had not demonstrated he was personally in
danger or at risk if removed back to Hungary. The Board found that
there is no more than a mere possibility that the Applicants would face
persecution in Hungary on a Convention ground and that the Applicants
are neither Convention Refugees nor persons in need of protection.
Issue
[16]
Did
the Board make a reviewable error in the process of determining that Zolt
Herczeg suffered harassment rather than persecution?
Standard of Review
[17]
The
Federal Court of Appeal in Sagharichi v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 796 held that the
determination of whether the harassment that an applicant fears is sufficiently
serious to constitute persecution is a question of mixed fact and law. The
process which a Tribunal must undertake is to first assess the evidence and
make a finding of fact. Upon judicial review this Court will only intervene if
it finds that the finding of fact is patently unreasonable. Once the Tribunal
has made the finding of fact, the Tribunal will then be required to determine
whether or not, based on the facts as found, the person has a well-founded fear
of persecution. In making its assessment, the Tribunal will be making a mixed
finding of fact and law and the standard of review will be reasonableness simpliciter.
Analysis.
[18]
At
page 9 of the Tribunal Record, the Board states:
He [Zsolt Herczeg] stated that these
problems continued after his brother’s departure for Canada in January 2001. The officers kept
coming to the store to ask for money and to search the store, and also that he
was given traffic tickets. Even if this were true, this treatment would amount
to harassment, even cumulatively, and fall short of persecution which has been defined
as much more severe and systemic, and a violation of basic human rights. It
also does not amount to cruel and unusual treatment or punishment.
He has never been arrested by the police,
or beaten, or threatened with harm. They went to the shop he and his brother
owned because his brother had testified on behalf of a Roma friend two times
against the cops.
[19]
Firstly,
the emphasis placed by the Board on the fact that Zsolt Herczeg was not subject
to physical violence nor arrested and thus not able to avail himself of
Convention protection while granting this same protection to Tamas Herczeg, who
also was not beaten nor arrested, on the same set of facts, is inherently
contradictory. Physical mistreatment is not an essential element in
determination of whether or not an applicant has suffered persecution in the
past.
[20]
In
Luis Rene Amayo (Encina) v. Minister of Employment and Immigration,
[1982] 1 F.C. 520 at paras. 2-3, Justice John Urie for the Federal Court of
Appeal in setting aside the decision of the Board and determining that it had
erred in law stated:
In our view it is implicit from a careful
reading of the whole of the reasons for judgment of the Board that it
considered that physical mistreatment is an essential element in a
determination of whether or not a person has, in the past, suffered from
persecution. If that is not a correct reading of its reasons, then its finding
that the applicant was not persecuted for his political beliefs is against both
the evidence and the weight of evidence. There is, in our view, ample evidence
in the transcript of the examination under oath before the Senior Immigration
Officer and in the applicant's declaration filed pursuant to subsection 70(2)
of the Immigration Act, 1976, S.C. 1976-77, c. 52, to demonstrate that
the applicant over a period of years suffered persecution from various sources
at his place of work and, after his discharge therefrom, during his period of
unemployment prior to coming to Canada, all as a result of his former political
activities and beliefs.
Secondly, the Federal Court of Appeal has
also held that a Board will err if, in its reasons, it implies that “arrest” is
an essential element in persecution (Alfredo Manuel Oyarzo Marchant v.
Minister of Employment and Immigration, [1982] 2 F.C. 779 at para. 11). It
is clear that physical violence and deprivation of liberty are not components
of persecution as the Board, in this case, implies in its reasons.
[21]
After
Tamas Herczeg had fled to Canada, Zsolt Herczeg said the police officers visited
his place of business and demanded the money “owing”. Zsolt Herczeg described
the incident in the following manner:
I told them my brother, Tamas, had left
the country because he didn’t want any problem with them. They replied I would
have to pay the 500,000 forints. I told them I would not pay the money. The
one officer said, ‘OK, your problem starts now’. (Applicants Record, Vol. 1,
Tab 3 at para. 36)
[22]
Zsolt
Herczeg is the brother of Tamas Herczeg. Justice Simon Noël in Velasquez
v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. No. 1982 at paras. 4-5,
held that family relations can fit within Convention grounds. It is to be
remembered that Zsolt Herczeg acted in concert with his brother and intervened
against the police assailants on behalf of the Szabos during the original
restaurant incident. While the Board recognizes Zsolt Herczeg is the brother
of Tamas Herczeg, it does not consider if that familial relationship is a
factor to be weighed in its assessment.
[23]
In
Szabo v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J.
No. 104, the judicial review of a split decision of the Board where one panellist
found that Mr. and Mrs. Szabo were eligible for refugee status whereas the nine
remaining members of the family were not and where the other panellist
concluded that none of the 11 applicants were eligible for refugee status,
Justice John O’Keefe held that the Board’s decision was unreasonable. It is
important to note that the Szabo family, in this issue, is the same Roma family
on behalf of whom Tamas Herczeg testified and that Zolt Herczeg was a witness
of the initial police mistreatment of the Szabos.
[24]
Justice
O’Keefe held at paragraph 12:
The board member who found that the
principal applicants were Convention refugees in the course of her decision
found that the principal applicants did not have an IFA within Hungary, but found that the other
applicants did have an IFA within Hungary.
The board member also noted that there was widespread discrimination against
Roma in Hungary, including the access to
police by Roma. There is no doubt that the applicants can rely on the
persecution of similarly situated people in order to make their claim for
Convention refugee status (see Salibian v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 165
(F.C.A.)). It would appear to me the fact that the principal applicants and
the applicants ran a family business together and this business was targeted,
that this should be considered in the assessment of whether or not the
applicants are Convention refugees. From a review of the decision, I cannot
find that this factor was considered by the board members in coming to their
actual decisions. Therefore, this is an unreasonable decision and it must be
set aside (emphasis added).
[25]
In
this case, the Board made the same error as made in the initial Szabo application
for refugee protection referred to by Justice O’Keefe. The fact that Tamas
Herczeg and Zsolt Herczeg ran a business together and that this business was
targeted should be considered as a factor in the assessment of whether or not
the Applicants are Convention refugees. Discussion of this factor is absent in
the Board’s reasoning.
[26]
Tamas
Herczeg’s description of the police demands was more in the nature of police
extortion based as it was on an unfounded debt supposedly owed by Szabo and
made against Tamas Herczeg because of his involvement rather than police
demands for bribery, that is, a demand for money as a reward for an action by
the police, usually illegal or dishonest, in favour of the giver. However, it
may be that usage of the term ‘bribery’ in Hungary includes
extortion.
[27]
The
Board tended to describe the financial aspect of the harassment of Tamas
Herczeg as a form of extortion, that is, a demand to obtain money by force or
threats.
In addition, he testified twice against
them. The harassment of Tamas Herczeg could be seen from the evidence as
motivated by a desire for revenge, frustration at not being able to extort
bribes from the claimant and also the police viewing the claimant as a
supporter and friend of a Roma family (emphasis added).
[28]
The
Board’s language describing police conduct differs with respect to Zsolt
Herczeg as may be shown by the following passage:
The claimant alleges that the police
started harassing him in March-April 2001 by coming to the shop and searching
it, scaring away customers, and by giving him highway tickets because he and
his brother refused to give them bribes. After the claimant’s brother left
for Canada in January 2001, the claimant
started winding down their business and left the country in November 2001. He
had never been arrested, detained or beaten by the police (emphasis added).
[29]
The
Board concluded that Zsolt Herczeg was not personally in danger or at risk
having regard to his own circumstances. The Board did so after a general
review of the state government’s efforts to deal with police misconduct and
bribe-taking.
[30]
The
facts disclose a chain of linked events. The police attempted to extort 500,000
forints from the Szabos in 1995. After the Szabos fled in 1998, the police
demanded 500,000 forints from Tamas Herczeg at the brothers’ place of business,
subjecting both Tamas Herczeg and Zsolt Herczeg to searches and ticketing.
The Board provisionally accepted Zsolt Herczeg’s evidence that after Tamas
Herczeg left for Canada in January 2000, the police continued to demand
payment of 500,000 forints from Zsolt Herczeg and continued with searches and
ticketing. The Board’s conclusion that Zsolt Herczeg was not personally at
risk is irrational in the face of these facts.
[31]
Finally,
from the wording of section 96 of the IRPA it is clear that the cause of
the well-founded fear of the Applicants must be for reasons of race, religion,
nationality, membership in particular social or political opinion. The Board
found that Tamas Herczeg to be a Convention Refugee because of his political
opinion as a backer and ally of the Roma. However, the Board does not consider
the question why Zsolt Herczeg was being pressured by the police to pay the
supposed Roma debt of 500,000 forints.
Conclusion
[32]
The
Board failed to assess whether the familial ties and the jointly owned business
were factors to consider in assessing whether Zsolt Herczeg and accordingly his
wife, Zsoltine Herczeg, were Convention Refugees or persons in need of
protection pursuant to sections 96 and 97 of the IRPA. The Board’s
failure to do so is patently unreasonable
[33]
Further,
the Board assessment that Zsolt Herczeg was not personally at risk or in danger
having regard to the police singling him out and demanding that he pay the
alleged Szabo debt was similarly patently unreasonable.
[34]
This
matter should be referred to a differently constituted Board for
re-determination
Certification
[35]
Neither
party has suggested a question for certification, and I find none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This
application for judicial review is allowed, and the matter is remitted to a
differently constituted panel for re-determination.
2.
No
serious question of general importance is certified
“Leonard S. Mandamin”
Email this Content