Date:
20130605
Docket:
IMM-8783-12
Citation:
2013 FC 606
Ottawa, Ontario,
June 5, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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TIBOR OLAH
KATALIN LAJHO
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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
I. INTRODUCTION
[1]
This
is a judicial review of a decision by a Member of the Immigration and Refugee
Board [Member] to deny the refugee claim of a Hungarian Roma husband and wife.
The central issue is state protection in Hungary and the reasonableness of the
Member’s conclusion.
II. BACKGROUND
[2]
The
facts of this case are not in dispute. The Applicants suffered multiple
incidents of discrimination based on their Roma ethnicity, in their living
conditions, schooling, work environment and general social interaction with
other non-Roma Hungarians.
[3]
The
violent incidents involved skinheads on one occasion and the Hungarian guard (a
right wing group) on the other. The male Applicant reported the first violent incident
to the police who laughed at him and to the Roma Association who expressed an
inability to do anything. The second incident went unreported. Both Applicants
confirmed a general feeling of helplessness due to the state’s unwillingness to
provide real assistance.
[4]
The
Member accepted the Applicants’ story, found them to be generally credible and
as having established a nexus to the race/ethnicity Convention ground. The
refugee claim was dismissed solely on the grounds that Hungary would provide state protection to the Applicants – or better put, the Applicants
had not refuted the presumption of state protection.
[5]
The
Member discounted the Applicants’ distrust of Hungarian authorities as their
interaction with police had been minimal.
[6]
The
Member then did a review of the steps that Hungary has taken to address various
problems suffered by the Roma. This analysis included the state of criminal
law, the ban on membership in the Hungarian Guard, the enactment of various
laws to protect ethnic minorities, efforts at Roma integration, the creation of
the European Roma Rights Centre, the role of the police and their training and
compliance/enforcement mechanisms.
[7]
The
Member acknowledges that things are not perfect, but places considerable
attention on efforts to address discrimination and to improve Roma education
and housing. The Member’s ultimate conclusion is “… if they returned to Hungary, I find on a balance of probabilities that, while they may continue to face
discrimination or even an assault, there are state protection mechanisms
available to them”.
III. ANALYSIS
[8]
The
standard of review for this type of decision is reasonableness (see Alvarez
v Canada (Minister of Citizenship and Immigration), 2010 FC 197, 185 ACWS
(3d) 726).
[9]
In
my view, a fair read of the decision discloses a fulsome exploration of the
various institutions in place in Hungary and a dearth of consideration of
effectiveness of those institutions. The Member did not ask whether state
protection was adequate in real terms.
[10]
Justice
Mosley in Meza Varela v Canada (Minister of Citizenship and Immigration),
2011 FC 1364, 209 ACWS (3d) 648, summarized what must be done after a
consideration of the institutional structures for state protection and efforts
made by government – “[a]ny efforts must have ‘actually translated into
adequate state protection’ at the operational level …” (at para 16).
[11]
The
evidence of improvements and progress by a state may take one partway through
the analysis of state protection but, in and of itself, this is not sufficient
to establish that the improvements and progress amount to effective state
protection.
[12]
The
Member did not consider the effectiveness of the state protection mechanism.
The conclusion referred to in paragraph 7 of these Reasons is but one example
of a focus on mechanisms and not on effectiveness. Further, the Member did not
address the contradictory evidence from reputable third parties that called
into question the effectiveness of many of the mechanisms available for
addressing the problems facing Romas.
[13]
There
were, in the documentary record including the Immigration and Refugee Board’s
own reports, numerous reports and comments on the inadequacy of state
protection for Romas, evidence of systemic failures to protect and of the gap
between laws and their implementation.
[14]
To
the extent that some of these inadequacies were mentioned, there is little or
no indication of how the Member reconciled this contrary evidence with the
conclusion that there was state protection. The Member was obliged to explain
how this evidence was assessed given the ultimate conclusion reached against
the Applicants.
[15]
Therefore,
this decision must be quashed. However, there are two further points deserving
of comment; neither of which would necessarily have been determinative.
[16]
The
Member noted the minimal contact the Applicants had with the Hungarian
authorities. It was not determinative of the Member’s decision. The Member did
not have the benefit of Justice Zinn’s decision in Majoros v Canada
(Minister of Citizenship and Immigration), 2013 FC 421, 2013 CarswellNat
1112, which very usefully addresses issues of Romas seeking state protection in
situations where there is widespread and indiscriminate persecution in the
relevant country. Seeking state protection is an element in the state
protection analysis as it may be establishing fear of persecution, but it is
not necessarily determinative.
[17]
Finally,
the Court has concerns regarding the documentary record relied upon by the
Member. The Member relied on a reference to an internal police disciplinary
proceeding as evidence that police take their responsibility to protect Romas
seriously. No such reference is contained in the United States, Department of
State, 2010 Human Rights Report: Hungary (April 8, 2011) referenced by
the Member. That reference can be found in an earlier Department of State
Report on Hungary which was not part of the record in this case.
IV. CONCLUSION
[18]
For
the reasons given, this judicial review will be granted, the decision quashed
and the matter remitted back to the Immigration and Refugee Board to be
determined by a different member.
[19]
There
is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted, the decision is quashed and the matter is to be remitted back to the
Immigration and Refugee Board to be determined by a different member.
“Michael L. Phelan”
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