Docket:
IMM-6111-12
Citation: 2013 FC 829
Ottawa, Ontario, July 29,
2013
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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NIKOLETT STARK
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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 JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This judicial review concerns a young Hungarian
Roma whose refugee protection claim was rejected by a member [Member] of the
Immigration and Refugee Board [Board] on grounds of lack of persecution and the
existence of state protection.
II. BACKGROUND
[2]
The Applicant is a 20 year old Hungarian Roma
(or Roma Hungarian). She was beaten up in 2009 and 2010. In 2011 she awoke to
find a swastika painted on the outside of her family home with the words
“Gypsy, you are going to die”.
[3]
She left with six other relatives. Her refugee
protection claim was separated from those of her relatives.
[4]
The Member held that the determinative issues
were (1) discrimination versus persecution and (2) the availability of
state protection.
[5]
On the matter of discrimination/persecution, the
Member relies on the fact that in 2008 a report claimed that there were only 12
violent attacks against members of national, ethnic, racial or religious
groups. Therefore, the Member finds this is not suggestive of racial violence
that is sustained or systemic, and the only issue was the availability of state
protection.
[6]
On the issue of state protection, the Member
notes that the Applicant’s failure to report the incidents to police was
explained by the fact that she was a minor and followed the advice of her
brother (a Roma police officer) that reporting to police would be useless. The
Member recognizes that as a minor, the Applicant was not in a position to rebut
the presumption of state protection.
[7]
The Member concludes that the Applicant was
never denied such human rights as housing, education, health care or social
services. The Member then reviews other political and administrative structures
of Hungary, the structure of the police organization and other governmental
organizations. As a result, the Member concludes that there is state protection
for Romas.
III. ANALYSIS
[8]
The standard of review for this type of decision
is reasonableness (Salinas v Canada (Minister of Citizenship and
Immigration), 2013 FC 558, 2013 CarswellNat 1692).
[9]
There are a number of problems with the state
protection analysis including the inconsistency of recognizing that as a minor,
the Applicant was not required to go to the police as evidence of the absence
of state protection and then retracting that finding (at paragraph 61 of the
Member’s decision).
[10]
The more fundamental problem with the decision
is the failure to consider the adequacy or effectiveness of state protection.
This was particularly important where there was substantial evidence that Hungary was having considerable problems with implementing the protections to be afforded
to Romas. Neither the problems of implementation of protection nor the backlash
against Romas was discussed.
[11]
As held by Justice Hughes in Hercegi c Canada (Minister of Citizenship and Immigration), 2012 FC 250, 211 ACWS (3d) 946, the
central issue is what state protection is actually provided rather than whether
there are serious and genuine efforts to address the problem of protection for
Romas.
[12]
In Olah v Canada (Minister of Citizenship and
Immigration), 2013 FC 106, 2013 CarswellNat 146, I expressed the view that
effectiveness was a critical element of the state protection analysis.
[13]
The Member’s analysis did not go beyond the
consideration of the structures put in place by the Hungarian government. Further,
the Member did not personalize the analysis to that of the Applicant and
whether effective state protection would be available for her.
[14]
There have been a number of decisions where this
Court has expressed its concern that the Board’s state protection analysis is
incomplete. The matter is well-summarized by the decision in Rezmuves v Canada (Minister of Citizenship and Immigration), 2012 FC 334 at para 11, 9 Imm LR
(4th) 329:
The Board’s state
protection analysis is also problematic. The Board reviews evidence related to
arbitrary detention in Hungary, the structure of the Hungarian police forces,
police corruption, the Roma Police Association and its protection of Roma members
of the police and military, other related police associations in Hungary and
Europe for Roma military and police officers, the Independent Expert, and the
body responsible for the monitoring of the implementation of legislation
dealing with anti-discrimination. However, the Board fails to focus on the
relevant question: Is there adequate state protection available for Roma in Hungary?
[15]
Therefore, the decision is not reasonable.
IV. CONCLUSION
[16]
This judicial review will be granted, the
Board’s decision will be quashed and the matter remitted back for a new
determination by a different Board member.
[17]
There is no question for certification.
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