Date:
20130620
Docket:
IMM-8624-12
Citation:
2013 FC 694
Toronto, Ontario,
June 20, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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RICHARD FAZEKAS
EVA FAZEKAS
RICHARD FAZEKAS (Junior)
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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]
This
application is allowed.
[2]
The
applicant family members are citizens of Hungary and are of Roma ethnicity. In
their PIF and before the Board they recounted a life or discrimination and
persecutory acts in their home country. They fled to Canada because they fear racist skinheads.
[3]
The
Board did not make any adverse credibility findings nor did it find that the
applicants would not face persecution if returned to Hungary. The
determinative issue was state protection.
[4]
The
only reference to credibility is the following: “The Panel found the
claimant’s responses regarding the effectiveness of state protection were not
persuasive, since they were not credible and were largely unsubstantiated and
were not consistent with the documentary evidence.” In short, the Board
accepted the applicants’ evidence, other than their evidence that state
protection in Hungary was not effective.
[5]
The
Board’s finding was that “the claimant has not provided the requisite clear and
convincing evidence that, on a balance of probabilities, state protection in Hungary is inadequate.” The evidence on which the Board reached that conclusion is stated
by it as follows:
The claimant testified that they went to the police
to report one incident involving his wife which occurred on June 15, 2008.
There were no other incidents reported to police.
…
The claimant only made the one report to the police,
he made no other. He didn’t follow up if he wasn’t satisfied with the results
of the investigation, nor did he follow up with the Minorities Ombudsman’s
Office or the Independent Police complaints Board.
[6]
Despite
counsel’s admirable efforts to “thread the needle” and explain how this is
consistent with the record, it is clear to me that the Board was quite simply
in error in its characterization of the evidence.
[7]
The
evidence of the applicants was as follows. Ms. Fazekas was violently assaulted
by three skinheads on June 15, 2008. The police were called but arrived after
the thugs had left. The police called an ambulance for Ms. Fazekas and the
next day, June 16, 2008, Ms. Fazekas went to the police station to make a
formal complaint. About one week after the report, Ms. Fazekas testified that
she had tried to follow up by phone but was told that “they are not supposed to
inform us about the stage of the investigation.” She further testified that “I
asked them what if I go in person and he or she told me that he or she cannot
help me regarding this problem but I can try.” Some time in late 2009, the
applicants found a note in their mailbox that read “dirty Gypsies, all of your
family are going to die.” They took this note to the police station to report
it and at the same time they asked about the June 2008 complaint. In response
to their attempt to report the death threat, Ms. Fazekas testified that “I was
crying and Richard started to tell him what happened, he did not listen to us,
he looked at that piece of paper, he did not even take it from us, he
interrupted Richard while he was telling him about what happened and he told us
to stay calm and go back home, probably someone was trying to make a joke and
go back if something serious happens.”
[8]
In
short, they made two reports to the police, one of which was accepted and one
of which was not, and they did follow up on the first complaint without
success, although they did not go to the Minorities Ombudsman’s Office or the
Independent Police Complaints Board. The Board noted their explanation for not
doing so: “[H]e didn’t know what the Ombudsman’s office or Police Complaints
were.” Can one be faulted for not following up in such circumstances?
[9]
The
applicants’ evidence on state protection that was found by the Board not to be
credible was that as Roma there was no effective state protection from
skinheads. The Board reviews the documentary evidence and notes that it
reveals widespread discrimination against and persecution of Roma, including by
the police. It further notes that “Hungary has launched a number of new
initiatives” and that “the documentary evidence does not indicate whether or
not these measures are successful at the operational level” which is the real
test. The Board’s conclusion after reviewing the documentary evidence is it “suggests
that, although not perfect, there is adequate state protection in Hungary for Roma” [emphasis added]. The decision is replete with statements about the
“serious efforts” Hungary is taking to protect its citizens and the “measures
to implement the standards that are mandated as a member of the European Union”
but there is little reference to the effectiveness of those measures.
[10]
Frankly,
the Board’s examination of the documentary evidence cannot be said to be
“inconsistent” with the evidence of the applicants, rather it is consistent
with their evidence. The failures they experienced may be local failures, as
was submitted by the Minister, but the evidence clearly establishes that there
are such local failures. As such, their evidence is substantiated by the
documentary evidence.
[11]
Given
the Board’s errors regarding the reporting and the efforts made by these
applicants to report and follow up with the police, and its view that the
documentary evidence merely “suggests” that there is adequate state protection,
the decision is unreasonable and must be set aside.
[12]
Neither
party proposed a question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is allowed, the
decision of the Immigration and Refugee Protection Board of Canada, Refugee
Protection Division dated August 3, 2012 is set aside, and the application for
protection is to be re-determined by a differently constituted Panel.
"Russel W.
Zinn"
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