Date:
20130527
Docket:
IMM-7368-12
Citation:
2013 FC 552
Ottawa, Ontario,
May 27, 2013
PRESENT: The
Honourable Madam Justice Mactavish
BETWEEN:
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CSABA BUDAI
ILONA TURJANYI
CSABA BUDAI JR /
(CSABA BUDAI)
ALEXANDRA BUDAI
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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]
Csaba
Budai, his wife Llona Turjanyi and their children Csaba Budai Jr. and Alexandra
Budai are Roma citizens of Hungary who claim to fear persecution by ethnic
Hungarians and Neo Nazis. The Refugee Protection Division of the Immigration
and Refugee Board rejected the family’s claim for refugee protection on the
basis that they had failed to rebut the presumption that adequate state
protection would be available for the family in Hungary.
[2]
For
the reasons that follow, I have found that the Board’s decision was
unreasonable. As a consequence, the application for judicial review will be
granted.
The Applicants’
Experiences in Hungary
[3]
The
Board identified credibility and state protection as the determinative issues
in this case. However, while the Board seemed to question aspects of the
applicants’ story, its decision ultimately turned on its state protection
finding.
[4]
However,
the availability of state protection must be assessed in light of an
applicant’s personal circumstances and the particular factual context of the
refugee claim: see for example Bali v. Canada (Minister of Citizenship and
Immigration), 2013 FC 414, [2013] F.C.J. No. 456 at para. 11. As
stated in Zepeda v. Canada (Minister of Citizenship and Immigration),
2008 FC 491, [2008] F.C.J. No. 625 at para. 20, “decision-makers must engage in
a full assessment of the evidence placed before them” when analyzing state
protection. Such an assessment “should include the context of the country of
origin in general, all the steps that the applicants did in fact take, and
their interaction with the authorities”.
[5]
As
a consequence, it is necessary to examine the Board’s factual findings with
respect to the applicants’ own experiences prior to considering the
reasonableness of its finding with respect to the issue of state protection.
[6]
The
Board did express concerns with respect to the lack of corroborative evidence
produced by the applicants, but does not state what, if any, conclusions should
be drawn from this.
[7]
The
only explicit negative credibility finding made by the Board related to a
medical report for the applicants’ daughter, Alexandra, which stated that she
had a fever and blood in her stool. The applicants state that this was the
result of an attack on their daughter by the parent of one of their daughter’s
school mates. The Board rejected the applicants’ evidence in this regard on the
basis that the evidence “was contradicted” by the fact that Alexandra was
better after two weeks had passed. However, the fact that Alexandra was better two weeks later
does not ‘contradict’ the fact that she was initially ill or that she had been
attacked.
[8]
More
problematic is the Board’s finding with respect to the fire at the applicants’
apartment building. The applicants stated that their building was set on fire
because it housed Roma families, and that the police refused to investigate the
fire because the victims were “just Roma”. The Board seemingly did not place
any stock on this aspect of the applicants’ story on the basis that Mr. Budai
was not himself “personally” targeted by the arsonists. This was clearly
unreasonable.
[9]
Not only was
there no requirement that Mr. Budai show that he himself was personally
targeted by the attackers, the Board also appears to have completely ignored
the fact that the attack was clearly racially-motivated and the fact that the
police allegedly refused to investigate the crime, again for racist reasons.
[10]
The Board
also does not appear to have given any weight to the evidence that Mr. Budai
was allegedly fired from his employment because of complaints received by his
employer from co-workers who did not want to work with a Roma. After addressing
this allegation, the Board stated: “However, his employer was aware of them
when he was fired.” While it is not the task of this Court sitting in judicial
review to reweigh the evidence that was before the Board, in this case, the
Board’s finding was simply incomprehensible.
[11]
Finally, and
most importantly, the Board does not appear to have appreciated the central
role played by the police themselves as agents of persecution in this case.
[12]
The
applicants described a lengthy history of serious mistreatment that they
themselves suffered, as well as the lack of response to these attacks on the
part of the police. In addition to this, however, the applicants also described
the mistreatment that they encountered in the course of several interactions
with the police. None of this evidence was rejected by the Board in clear and
unmistakeable terms. Indeed, most of it was simply never addressed.
[13]
The
applicants described the attempted rape of Ms. Turjanyi by police officers and
the serious beating inflicted on Mr. Budai when he attempted to intervene to
stop the assault on his wife, in the course of which his teeth were kicked in.
The police then threatened Mr. Budai to ensure that he would not report the
incident.
[14]
Mr.
Budai also stated that after he was knifed in June of 2006, the police refused
to come to the hospital when they found out that he was Roma. After Ms.
Turjanyi was assaulted in a park, the police laughed at her, accused her of
being a prostitute, and refused to take a statement from her, despite her
obvious injuries.
[15]
The Board’s
reasons contain only a very brief summary of the applicants’ allegations, and
there is no reference to most of the allegations relating to police misconduct
(as opposed to police inaction). As discussed below, this raises concerns with
respect to the Board’s state protection analysis.
State Protection
[16]
I
agree with the applicants that the Board erred by failing to meaningfully
consider the applicants’ interactions with the authorities in determining
whether adequate state protection would be available to them in Hungary.
Indeed, it is apparent that the Board’s discussion of state protection is
essentially a “cookie-cutter” analysis, dealing at great length with issues
such as education reform and grant programs for disadvantaged families - issues
that bear little or no relation to the case before it.
[17]
Nowhere
in its analysis does the Board fully engage with the question of whether it was
reasonable to expect the applicants to seek the protection of the Hungarian
state in light of the country condition information and their own personal
experiences with the police, or whether it was reasonable to expect that
protection would have been forthcoming.
[18]
Nor
is it apparent from either the Board’s reasons or the documentary record how
complaints by the applicants to organizations such as the Parliamentary
Commissioner for the Rights of National and Ethnic Minorities or the
Independent Police Complaints Board would actually translate into adequate
state protection becoming available to them.
[19]
The
Board accepted that the criticisms levelled at Hungary with respect to its implementation
of laws designed to protect its Roma citizens “may be deserved”. However, it
went on to note that Hungary is part of the European Union and reports
regularly through the governance structures and that it was “taking the
measures to implement the standards that are mandated as a member of the
European Union”. However, nowhere in its reasons does the Board consider
whether these measures actually translated into adequate state protection for Hungary’s Roma citizens at the operational level: see Varela v. Canada (Minister of Citizenship
& Immigration), 2011 FC 1364, [2011] F.C.J. No. 1663 at para. 16. This
is an error that renders the Board’s decision unreasonable.
Conclusion
[20]
For these
reasons, the application for judicial review is granted. I agree with the
parties that the case does not raise a question for certification.
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.
“Anne L. Mactavish”
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