Date:
20130423
Docket:
IMM-6258-12
Citation:
2013 FC 412
Ottawa, Ontario,
April 23, 2013
PRESENT: The
Honourable Madam Justice Simpson
BETWEEN:
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JOZSEF KOTAI
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Applicant
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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
ORDER AND ORDER
[1]
Jozsef
Kotai [the Applicant] seeks judicial review pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of
the Refugee Protection Division of the Immigration and Refugee Board [the
Board], dated June 5, 2012, wherein the Board determined that the Applicant is
not a Convention refugee or a person in need of protection [the Decision].
[2]
For
the following reasons, the application will be allowed.
Background
[3]
The
Applicant is a 31 year-old male, a citizen of Hungary and of Roma ethnicity.
His refugee claim is based on years of discrimination, harassment and threats
from skinheads in his hometown of Miskolc. A number of threats, intimidating
encounters and an assault are detailed in his Personal Information Form [PIF].
The Applicant also claims that he was constantly harassed by the local police
with frequent stops and requests for identification. Although the Applicant
held a job when he left Hungary, he testified that finding work in Hungary as a Roma was extremely difficult. He also explained that in 2009, while at work,
he experienced intimidation and threats from his co-workers which caused him to
fear for his safety. Those threats were triggered by the widely-publicised
stabbing of a Hungarian man by a group of Roma. For his safety, the Applicant’s
employer transferred him to another section of the company.
[4]
When
those threats were made, the Applicant began to consider leaving Hungary and made a plan to save money and come to Canada. He arrived in Canada on February 23, 2010
and made his refugee claim a few days later. He states that he is afraid of
returning to Hungary because he will continue to be harassed by the police. He
also fears being attacked and claims that he will live in constant fear of
violence from skinheads and nationalists.
The Decision
[5]
The
Board’s decision included a negative assessment of the Applicant’s credibility
and a finding that he failed to rebut the presumption of adequate state protection
in Hungary.
Discussion
[6]
The
Applicant’s PIF stated that he was stopped and questioned by the police on a
regular basis. He explained that the harassment became worse as he grew older.
The transcript shows that when asked at the hearing why he did not report an
assault which occurred in 2003 (“the Assault”), the Applicant stated that
“during these years” the police often harassed him when he was out in public.
He then described one incident in which he was stopped by police officers three
times within thirty minutes. The Applicant was asked about the timing of this
event and he stated that it occurred in 2006. However, he reiterated that his
interactions with the police went beyond this single occasion. At a later point
in the hearing, in response to questions from his counsel, the Applicant added
that police first started harassing him in his late teens, starting in 1998.
When asked how often he would be stopped by the police, he replied that it was
“almost on a daily basis”.
[7]
The
Board appears to have overlooked the Applicant’s evidence of constant police
harassment. It appears to have decided that there was only one such incident
and that it took place in 2006. The Board understood the testimony to be that
the Applicant was using a single incident of harassment in 2006 to explain his
failure to report the Assault to police in 2003 and this caused it to doubt his
credibility. However, the Board, as outlined above, failed to appreciate the
evidence. Accordingly, this adverse credibility finding cannot stand.
[8]
The
Board’s misunderstanding of the Applicant’s evidence also tainted its analysis
of state protection. The Board could not properly assess the Applicant’s
failure to approach the police for assistance when it failed to appreciate the
overwhelming evidence of regular police harassment. The failure to come to
terms with the Applicant’s evidence also caused the Board to overlook
documentary evidence which corroborated the Applicant’s experience with the
police in Hungary. These errors render the Board’s conclusion regarding state
protection unreasonable.
[9]
No
question was posed for certification pursuant to section 74(d) of the Act.
ORDER
THIS
COURT ORDERS that:
The Decision is
hereby set aside and sent back for reconsideration by a differently constituted
panel of the Board.
“Sandra J. Simpson”
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