Date:
20130607
Docket:
IMM-9156-12
Citation:
2013 FC 620
Ottawa, Ontario,
June 7, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
PETER KALOCSAI
KATALIN KALOCSAINE
HORVATH PETER KALOCSAI (JR)
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated August 13, 2012, wherein the applicants were determined to be
neither Convention refugees within the meaning of section 96 of the Act nor
persons in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicants request that the Board’s
decision be set aside and the application be referred back to the Board for
redetermination by a different panel.
Background
[3]
The
applicants are Hungarian citizens of Roma ethnicity. They allege persecution on
the basis of this ethnicity.
[4]
On
May 20, 2010, Katalin Horvath Kalocsai, wife of the principal applicant, Peter
Kalocsai, narrowly avoided becoming a victim of rape at the hands of men using
racist insults.
[5]
On
April 22, 2011, the principal applicant was badly beaten in an attack by skin
heads.
[6]
On
another occasion, the family was chased by racists and escaped unharmed.
[7]
The
principal applicant arrived in Canada on October 4, 2011 and sought protection
with his father, mother, sister, brother, wife and son. His parents and
siblings were separated from the claim of his immediate family.
Board’s Decision
[8]
The
Board made its decision on August 13, 2012. The Board briefly listed the
applicants’ allegations, accepted their nationality and turned to the decisive
issue of state protection.
[9]
The
Board accepted that the Roma community in Hungary faced violent attacks,
racially motivated crimes and were discriminated against in almost all fields
of life. He noted the high unemployment rate and a recent law reducing
unemployment benefits. The Board recited the principles of state protection,
including the presumption that states are capable of protecting their citizens
and the applicants’ burden to rebut that presumption.
[10]
The
Board considered what steps the applicants had taken to access state
protection. After an assault on the principal applicant’s wife on June 20,
2010, they waited two weeks to report the incident to police. She had testified
that the police did unsuccessfully try to find the attackers and that she had
not pursued the issue with the police afterwards as she wanted to move on.
[11]
After
another assault on April 22, 2011, the principal applicant had testified he did
not call the police because nothing had been done by the police after the 2010
assault. The principal applicant did not report an incident in January 2010
when he was chased by armed men for the same reason. The Board concluded the
applicants failed to vigorously pursue all opportunities for state protection.
There was insufficient information suggesting the police did not make a genuine
and earnest effort; no police report was provided.
[12]
The
remainder of the Board’s decision is concerned with country conditions
evidence. The Board considered the applicants’ claim that the new Hungarian
constitution was not favourable to minority rights, but concluded this was only
in the area of rights for sexual minorities and did not concern Hungary’s protection of Roma. The Board preferred a US Department of State (DOS) report
indicating that Hungary is a democracy, to the applicants’ newspaper articles
indicating Hungary was not a western-style democracy.
[13]
The
Board’s general conclusion on the country conditions evidence was that while
there was widespread reporting of incidents of intolerance against Roma
individuals, there is adequate state protection for Roma who are victims of
crime and that Hungary is making serious efforts to address those problems.
[14]
The
Board catalogued minority protection legislation and noted that the Hungarian
Guards had been banned for inciting resentment against Roma. The Board
discussed the complaints mechanism for victims of police abuse and government
bodies charged with preventing discrimination. The Board acknowledged the
central government’s efforts were not always implemented at the local level.
The Board identified relevant European institutions that Hungary was a member of.
[15]
The
Board concluded that the applicants had not rebutted the presumption of state
protection and therefore their claim did not fall under sections 96 or 97 of
the Act.
Issues
[16]
The
applicants submit the following points at issue:
1. Did the Board err
by failing to reasonably assess the evidence as a whole and not having regard
for the totality of evidence?
2. Did the Board err
by failing to assess the issue of persecution and the availability of state
protection?
3. Did the Board err
by selectively relying on the testimony of the applicants?
4. Did the Board err
by not assessing all major events that the applicants mention in their personal
information forms and oral testimony?
[17]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in rejecting the applicants’ claim?
3. Did the Board
violate procedural fairness?
Applicants’ Written Submissions
[18]
The
applicants argue that the Board erred by not giving sufficient reasons for
preferring the Board’s evidence over that of the applicants and also erred by
requiring corroboration in the form of police reports. The evidence of lack of
state protection was not considered by the Board and the Board did not consider
the ineffectiveness of the measures described as serious efforts.
[19]
Concerning
the principal applicant’s wife’s failure to pursue her police complaint, the
Board did not consider that she was 15 years old at the time. She never stated
that the police tried to find the attacker; she stated she hoped the police
would do so. The principal applicant had testified in relating an attack on his
parents in August 2010, that the police had allegedly started an investigation,
but never testified they had actually done so. There was an interpretation
error concerning the word “allegedly”. The principal applicant testified that
concerning the assault against him on April 22, 2011, he did not call the
police because nothing had been done following the attacks on his wife and his
parents. He testified the police themselves were racists.
[20]
The
applicants argue the Board completely ignored the testimony of the principal
applicant concerning the 2007 attack on his father by the police. He was
seriously beaten and a gun was pushed against his head. This was reported to
the police authority and to the prosecutor’s office but there was no
investigation. The police laughed at the principal applicant’s father. This
shows state protection was inadequate. The Board cannot ignore this evidence.
The Board also failed to mention evidence of the 2008 attack on the principal
applicant’s parents by the Hungarian Guard with a taser, which resulted in his
father being hospitalized. Another omitted incident was the 2009 police
intimidation of the principal applicant on the basis of his ethnicity.
[21]
The
applicants rely on statements from various country conditions documents
concerning the treatment of Roma in Hungary to argue state protection is
inadequate. They argue this evidence was ignored. The applicants also cite decisions
of this Court quashing Immigration and Refugee Board findings that state
protection for Roma in Hungary is adequate.
[22]
Finally,
the applicants argue their claim being separated from their extended family is
a breach of procedural fairness as it deprived them of the testimony of the
principal applicant’s father.
Respondent’s Written Submissions
[23]
The
respondent argues the applicable standard of review is reasonableness and that
the Board’s assessment of state protection was reasonable.
[24]
The
respondent argues the Board did not mischaracterize the level of democracy in Hungary, as the DOS report only articulated “concerns”, not a demonstration that democracy
was low.
[25]
On
state protection, the respondent notes the Board is presumed to have considered
all evidence before it. The Board acknowledged incidents of intolerance,
discrimination and persecution of Roma. The Board assessed how the Hungarian
state was able to protect the applicants, which is more pertinent than Hungary’s general ability to protect victims of crimes.
[26]
The
respondent argues the Board reasonably concluded the applicants had failed to
seek state protection. On the sole occasion that they approached the police,
when the principal applicant’s wife was attacked, the police were willing and
able to provide assistance. Even if the alleged police response to the attack
on the principal applicant’s father was true, it occurred three years before
the police showed their willingness to assist in the attempted rape.
[27]
The
respondent argues the Board correctly applied the test for state protection.
Finally, the applicants never raised an objection before the Board to their
claim being separated from the rest of their family’s claim. They therefore
cannot rely on such a position now.
Analysis and Decision
[28]
Issue
1
What is the appropriate
standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[29]
It
is established jurisprudence that credibility findings, described as the
“heartland of the Board’s jurisdiction”, are essentially pure findings of fact
that are reviewable on a reasonableness standard (see Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at paragraph 7,
[2003] FCJ No 162; Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraph 46, [2009] 1 S.C.R. 339; Demirtas v Canada (Minister of
Citizenship and Immigration), 2011 FC 584 at paragraph 23, [2011] FCJ No
786). Similarly, the weighing of evidence and the interpretation and assessment
of evidence are reviewable on a standard of reasonableness (see Oluwafemi v Canada (Minister of Citizenship and Immigration), 2009 FC 1045 at paragraph 38, [2009]
FCJ No 1286).
[30]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Khosa above, at paragraph 59). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[31]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Khosa above, at paragraph 43). No deference
is owed to decision makers on these issues (see Dunsmuir above, at
paragraph 50).
[32]
Issue
2
Did the
Board err in rejecting the applicants’ claim?
The Board is
presumed to have considered all of the evidence before it (see Oprysk v Canada (Minister of Citizenship and Immigration), 2008 FC 326 at paragraph 33, [2008]
FCJ No 411). However, the more important the evidence that is not mentioned,
the more willing a court may be to infer from silence that the tribunal made a
finding of fact without regard to the evidence (see Pinto Ponce v Canada
(Minister of Citizenship and Immigration), 2012 FC 181 at paragraph 35,
[2012] FCJ No 189).
[33]
Before
the Board, the applicants argued that part of the reason they did not have
faith in the police’s willingness to investigate the crimes against them was
because the principal applicant’s father had been attacked by the police themselves.
As summarized by their counsel in his submissions to the Board:
In
particular the male claimant has testified to some of the previous attacks that
has [sic] took place, or that has [sic] happened to his parents
and family. And their particular experience with the police. In particular, the
male claimant submitted that in 2007 May his father was actually attacked by
two police officers and his actual attack for reasons of ethnic background and
after attack his father tried to go to the police station to report the
incidents and the police were laughing at him and dismiss his claim. And his
father also tried to go to a higher authority for help and they did not believe
him as well.
[34]
This
evidence is highly relevant to the question of state protection. The
respondent’s counsel argues that since the police were more helpful three years
later in responding to the attempted rape, the applicants should have had more
faith in the police. This was not, however, the reasoning of the Board. The
Board’s reasons completely omit any mention of the persecution of the principal
applicant’s parents on this and other occasions or the police’s failure to
protect them.
[35]
The
Board concluded that the applicants had not taken all steps to access state
protection in Hungary. Coming to this conclusion without analyzing the evidence
concerning the parents’ experience with the police is an omission that rises to
the level described in Pinto Ponce above. It therefore renders the
Board’s decision unreasonable.
[36]
Given
my conclusion on this point, I need not consider the matter of procedural
fairness.
[37]
The
application for judicial review is therefore granted and the matter is referred
to a different panel of the Board for redetermination.
[38]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed and the matter is referred to a different panel of the Board for
redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
|
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
|
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
Email this Content