Docket:
IMM-1806-13
Citation:
2014 FC 449
Ottawa, Ontario, May 9, 2014
PRESENT: The
Honourable Mr. Justice Mosley
|
BETWEEN:
|
|
LASZLO BALOG, BEATA KOTAI,
SZABOLCS BALOG, GYULA BALOG,
GERGO BALOG and SZILVIA BALOG
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Refugee Protection Division [RPD] issued a
decision in this matter with a state protection analysis that the respondent
describes as “multifaceted, transparent and
individualized”. In doing so, however, the RPD failed to address a sur
place claim arising from a tragic event in Canada and the response to it by
extremists in Hungary. That failure, in the particular circumstances of this
matter, requires that the decision be overturned and the applicants’ claim
returned to the Immigration and Refugee Board for reconsideration.
I.
BACKGROUND:
[2]
Mr. Laszlo Balog, the principal claimant before the RPD, and his
common-law wife Mrs. Beata Kotai are 32 year-old Hungarian citizens of Roma
ethnicity. They have four minor children: Szabolcs, Gyula, Gergo, and Szilvia.
A fifth child, Laszlo Balog Jr, was killed on July 17, 2012 as a result of a
motor vehicle accident enroute to Niagara Falls, Ontario. The family had come
to Canada on April 12, 2011 and claimed refugee protection asserting
persecution by reason of their Roma ethnicity in Hungary.
[3]
The accident, which involved the applicants and other members of their
extended family who were also in Canada seeking protection, attracted the
attention of the media. A report in the Toronto press identified the family and
described their status as refugee claimants. The article discussed the family’s
dilemma as to where to bury the child, as they awaited results of their asylum
claim. They did not want to bury the child’s body in Canada if they were to be sent
back to Hungary.
[4]
The Toronto newspaper article was picked up by
the Hungarian media and widely disseminated. As reported by the Athena
Institute, a non-governmental human rights organization based in Budapest, all
major Hungarian news outlets, both print and electronic, covered the incident.
This generated some reactions on the Internet, characterized by the Institute
as racist, and led to publication of the story, including the family’s names,
on the website of the kuruc.info group.
[5]
According to a report prepared by the Athena
Institute, kuruc.info is one of the most active extremist groups operating in
Hungary. Its main activity is the production of an online “news portal” that publishes content against the
Hungarian Roma, Jewish and LGBT communities. The group hosts its website in the
United States in order to avoid closure and/or prosecution in Hungary for
inciting hatred and violence. The group has published the names and addresses
of judges and prosecutors involved in efforts to address extremist violence in
Hungary. The group has published articles on its website portraying Hungarian
Roma seeking asylum in Canada as “criminals” and “traitors”. As a result of its publishing information
relating to the situation of the Balog family, a number of comments of a
threatening nature were posted online accompanied by the insignias of other extremist
groups. This was the only occasion known to the Institute where a specific
person or family seeking asylum in Canada had been identified on this website.
[6]
At the hearing of the applicants’ claim on
December 4, 2012, the presiding Board Member took care to avoid adding to the
family’s grief and limited his questions to incidents that occurred in Hungary
related to state protection. However, the Member’s attention was drawn to the
publication of the online threats and a translation of some of the comments was
submitted in evidence. Mr. Balog testified about his fear that as a result of
this publicity, the family would be at an increased risk of harm if returned to
Hungary. The Member questioned why this would result in a higher profile for
the family and Mr. Balog referred to the fact that they had been identified as
refugee claimants and threatened with harm as a result.
[7]
Following the hearing, the applicants submitted
extensive written submissions and evidence including the above-mentioned report
from the Athena Institute, within the time-line fixed by the Board. The
decision was issued on February 1, 2013.
II.
DECISION UNDER REVIEW:
[8]
The Board determined that the applicants had not
provided clear and convincing evidence that, on a balance of probabilities,
state protection was not available in Hungary since their evidence indicated
that they had made little to no effort to seek state protection. Further, the
Board preferred the documentary evidence on the effectiveness of state
protection to the applicants’ evidence, which was “largely
unsubstantiated” and inconsistent with the documentary evidence. The
Board acknowledged that the documentary evidence was “mixed”
with “widespread reporting of incidents of intolerance,
discrimination and persecution” of Roma individuals in Hungary. After an extensive review of the services available to the Roma community, the Board found
that in the circumstances of the case, state protection in Hungary is not so
inadequate that the applicants need not have approached the authorities at all,
or that they need not have taken all reasonable efforts to seek state
protection. The Board therefore concluded that while imperfect, adequate state
protection is available for Roma individuals in Hungary.
[9]
The Board did not discuss the sur place claim.
III.
ISSUES:
[10]
The respondent submits that there is no arguable
issue. I agree with the applicants that the issues are whether the Board erred
in failing to assess the applicants’ sur place claim and, as a result,
erred in its assessment of state protection.
IV.
ANALYSIS:
[11]
The standard of review for state protection
findings has been determined by the jurisprudence to be reasonableness: Carillo
v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at para 36.
Recent cases dealing with sur place claims arising from the arrival of
the Sun Sea and Ocean Lady vessels have also determined that reasonableness
is applicable to the Board’s assessment of such claims: Sivaraththinam v
Canada (Minister of Citizenship and Immigration), 2014 FC 162 at para 33; S.A.
v Canada (Minister of Citizenship and Immigration), 2014 FC 146 at para 21.
[12]
In Hannoon v Canada (Minister of Citizenship
and Immigration), 2012 FC 448 at para 42, Justice O’Keefe concluded that a
Board’s omission to deal with part of an applicant’s claim, such as a sur
place matter, involves an error of law that is reviewable on a standard of
correctness. Justice Rennie, in Varga v Canada (Minister of Citizenship and
Immigration), 2013 FC 494 at para 6 considered that the failure to address
a ground of persecution raised on the face of the record was a breach of
procedural fairness, reviewable on a correctness standard.
[13]
In my view, the issues involves question of
mixed fact and law and are therefore properly reviewable on the reasonableness
standard: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at
paras 51-53. On the facts of this matter, I would have found a reviewable error
on either standard.
[14]
The respondent concedes that there is nothing in
the Board’s decision which acknowledges the disclosures about the applicants in
the Hungarian media or refers in any way to the resulting extremist comments
and threats published online. The Board’s discussion of the applicants’
personal circumstances is limited to the events which preceded their departure
for Canada. The respondent contends that this is immaterial as the basis of the
applicants’ claim remained the same – fear of persecution by reason of their
ethnicity – and the state protection analysis was reasonable.
[15]
The respondent argues that the applicants have
not established that the publication of their situation in Canada has given rise
to new circumstances, constituted a dramatic intensification of pre-existing
conditions or jeopardized the possibility of a safe return to Hungary. To the
extent that they have faced any backlash as a result of these new developments,
it emanates from the same agents of persecution and for the same reason for
which they initially sought asylum. The applicants have failed to show how the
death of their son in Canada or the publicized nature of their situation
affects the Board’s finding that Hungary is willing and able to provide
protection.
[16]
The applicants submit that the evidence before
the Board established that their situation has changed dramatically since the
death of their son and the resultant targeting of the family. The Board ignored
evidence that individuals or groups had publicly promised to kill the family if
they returned to Hungary. This ground for seeking asylum is distinct, they
argue, from that which led the applicants to flee Hungary.
[17]
A sur place claim normally arises where an
individual expresses views or engages in activities that jeopardize the
possibility of safe return to their state. The key issue is usually whether the
activities abroad are likely to have come to the attention of the authorities
in the claimant's country of origin where the state is the agent of
persecution: The Law of Refugee Status, James Hathaway, Butterworths,
1991; Ghazizadeh v Canada
(Minister of Employment and Immigration), [1993] FCJ no 465 (FCA),
154 NR 236; Manzilla v Canada
(Minister of Citizenship and Immigration) (1998), 165 FTR 313
(FCTD).
[18]
The Court has recognized sur place claims
where the agent of persecution is not the state but a third party: A.D. v Canada (Minister of Citizenship and Immigration), 2011 FC 584; Moreira v Canada (Minister of Citizenship and Immigration), 2003 FCT 608 (FCTD); Caicedo v Canada (Minister of Citizenship and Immigration), 2011 FC 749. I note that in Darcy
v Canada (Minister of Citizenship and Immigration) 2011 FC 1414 at paras
8-10, the Court declined to recognize a sur place claim relating to the
risk presented by an individual. In that case, the basis for the claim arose
prior to the departure of the applicant from her home country. See also Aleziri
v Canada (Minister of Citizenship and Immigration), 2009 FC 38 at para 17.
[19]
This Court has also held that credible evidence
of an applicant’s activities in Canada that are likely to substantiate harm
upon return must be expressly considered by the Board even if the motivation
behind the activities is not genuine. See for example Chen v Canada (Minister of Citizenship and Immigration), 2009 FC 677. The question of suspect
motive was discussed in Ejtehadian v Canada (Minister of Citizenship and
Immigration), 2007 FC 158 at para 11:
11
The IRB's articulation
of the test in a sur-place
claim is incorrect. In a refugee sur-place claim, credible evidence of a claimant's
activities while in Canada that are likely to substantiate any potential harm
upon return must be expressly considered by the IRB even if the motivation
behind the activities is non-genuine: Mbokoso v. Canada
(Minister of Citizenship and Immigration, [1999] F.C.J. No. 1806 (QL). The
IRB's negative decision is based on a finding that the Applicant's conversion
is not genuine, and "nothing more than an alternative means to remain in
Canada and claim refugee status." The IRB accepted that the Applicant had
converted and that he was even ordained as a priest in the Mormon faith. The
IRB also accepted the documentary evidence to the effect that apostates are
persecuted in Iran. In assessing the Applicant's risks of return, in the
context of a sur-place
claim, it is necessary to consider the credible evidence of his activities
while in Canada, independently from his motives for conversion. Even if the
Applicant's motives for conversion are not genuine, as found by the IRB here,
the consequential imputation of apostasy to the Applicant by the authorities in
Iran may nonetheless be sufficient to bring him within the scope of the
convention definition. See Ghasemian v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1591, 2003 FC 1266, at
paragraphs 21-23, and Ngongo c. Canada (M.C.I.), [1999] A.C.F. No
1627 (C.F.) (QL).
[20]
There is no suggestion in the present matter
that the applicants are responsible for the publicity and resulting threats
that the death of their child in Canada engendered in Hungary. They were not seeking
attention in an effort to provoke an adverse reaction in their country of
origin. Rather, the situation evolved from the decision of a Canadian press
outlet to publish the story of their tragic loss and efforts to obtain
protection from this country. Credible evidence submitted to the Board was to
the effect that this family alone, out of all of the Hungarian Roma who have
sought protection in Canada, had been publicly identified and vilified by
extremist elements in that country. This presented a personalized risk to the
applicants distinct from the type of generalized discrimination and street
violence that they had previously experienced. Here they faced direct threats
from members of a broad network of racist extremists linked to authoritarian
political parties. The question of whether the protection of the state would be
adequate in those circumstances had to be squarely addressed by the Board.
[21]
The Board was required to consider this evidence
to determine whether the presumption of state protection remained valid. Its
failure to do so rendered the decision unreasonable.
[22]
No serious questions of general importance were
proposed and none will be certified.
Email this Content