Docket: IMM-6661-13
Citation:
2015 FC 89
Ottawa, Ontario, January 23,
2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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PETER VARGA
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Defendant
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JUDGMENT AND REASONS
[1]
Mr. Varga’s claim for protection as a Convention
refugee pursuant to section 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 was accepted by the Refugee Protection Division of the
Immigration and Refugee Board on September 11, 2013. The Minister is asking
that the decision be set aside because (1) the Board failed to correctly assess
the availability of state protection, and (2) the Board failed to conduct an
adequate analysis of how it found that the discrimination Mr. Varga had and
would experience in Hungary amounted to persecution.
[2]
Mr. Varga was found to be credible and the Board
accepted that he was a gay Roma male from Hungary. Although he knew his sexual
orientation when he was in Hungary, he did not come out until he was in Canada. As a result, he has now been disowned by his family in Hungary.
[3]
At the conclusion of the oral hearing, the Board
member stated: “I have had an opportunity to consider
all of the evidence and when I consider the country conditions in Hungary I’m of the opinion that if you are a gay Roma you’re a refugee, you need
protection.” The member then asked for further evidence to be submitted
in order to be persuaded that Mr. Varga was a homosexual. Following receipt of
that evidence it was held that he is a gay Roma Hungarian.
[4]
The Minister submits that the Board failed to
acknowledge in its written decision that Hungary is a democracy and that it is
presumed to be able to protect its citizens. It is submitted that the panel “shifted the presumption regarding state protection to
Hungary being unable to protect its citizens” by not requiring
Mr. Varga to establish on a balance of probabilities that the Hungarian
government is unable or unwilling to protect him, despite the fact that he bore
that onus: See Canada (Minister of Citizenship and Immigration) v Flores
Carillo, 2008 FCA 94 at paras 17-19, [2008] 4 FCR 636).
[5]
The Minister noted that the Board did not
mention whether Mr. Varga had attempted to seek protection from the Hungarian
authorities and submits that, where state protection might reasonably be
forthcoming, it is incumbent upon all refugee claimants to seek protection from
their state.
[6]
There is no obligation on a person to seek
protection from the authorities where the evidence establishes that such protection
would not be forthcoming.
[7]
In this case, the Board does not truly engage in
an analysis of state protection for gay Roma in Hungary. Mention is made of
some of the documentary evidence, and it is mixed in terms of the availability
and adequacy of protection. It is likely that the analysis is cursory because
the Board member had already decided that all gay Roma in Hungary are in need of refugee protection. However, an uncompromising finding of that
magnitude does not meet the requirement set out in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 that decisions have transparency, intelligibility,
and justifiability. When there is no analysis or explanation given as to how a
conclusion was reached, that standard has not been met. It may well be that
all gay Roma in Hungary meet the criteria for Convention refugee protection;
however, absent an explanation as to how such a conclusion is reached, the
decision is unreasonable and cannot stand.
[8]
Neither party proposed a question for
certification.
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