Docket: IMM-6208-13
Citation:
2015 FC 488
Ottawa, Ontario, April 17, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
|
BETWEEN:
|
|
RICHARD REZMUVES
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
initially brought by Karoly Rezmuves (the principal applicant) under subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the
Act] of a decision by the Immigration and Refugee Board of Canada, Refugee
Protection Division [the Board], dated September 5, 2013, wherein the Board
determined that the applicants were not Convention refugees nor persons in need
of protection.
[2]
The applicants seek a declaration that the
applicants are Convention refugees or person in need of protection, or both,
and in the alternative, an order setting aside the negative decision and
returning the matter to a different member of the Board for redetermination.
[3]
On November 1, 2013, the applicants filed a
notice of discontinuance except for the principal applicant’s son, Richard
Rezmuves (the remaining applicant or the applicant), who continued with the
application for leave challenging the Board’s decision.
I.
Background
[4]
The principal applicant is a Roma citizen of Hungary. The other applicants are also Roma citizens of Hungary and were all born in Hungary. They are the principal applicant’s son, Richard Rezmuves, his wife, Erzsebet
Rezmuves, and his three daughters, Melissza Rezmuves, Dorina Rezmuves and Diana
Rezmuves.
[5]
On October 9, 2010, the principal applicant fled
Hungary with his son. They arrived in Canada on the same day and claimed
refugee protection upon arrival.
[6]
The principal applicant’s wife and the rest of
their children arrived in Canada on December 9, 2012 and claimed refugee
protection on December 13, 2012.
[7]
The principal applicant’s parents arrived on
November 16, 2010 and claimed refugee protection on November 27, 2010.
[8]
On March 15, 2012, the principal applicant’s
refugee claim was heard together with his parents’ refugee claim.
[9]
On June 15, 2012, the principal applicant’s
parents withdrew their refugee protection claim. On September 5, 2013, the
Board rejected the applicants’ refugee protection claims.
[10]
The applicants filed an application for leave
and judicial review in this Court on September 27, 2013.
[11]
On November 1, 2013, the applicants filed a
notice of discontinuance except for the principal applicant’s son (Richard
Rezmuves or the applicant) who continued with the application for leave challenging
the Board’s decision.
[12]
The application for leave was granted on July
23, 2014.
II.
Decision under Review
[13]
The Board was satisfied with the applicants’
identities.
[14]
The Board found that the applicants were not
Convention refugees nor were they persons in need of protection. The
determinative issue was credibility and in the alternative, state protection.
III.
Credibility
[15]
The Board had issues with the applicants’
credibility, including:
1.
All four of the principal applicant’s children
were attending the same school, yet only one incident which involved one of the
four children was reported. The applicants provided no evidence that the single
pushing incident in 2006 was anything more than schoolyard bullying.
2.
The principal applicant could not remember the
date of the event that triggered their decision to flee Hungary, that being the arrival of Hungarian guards in their village.
3.
There was no mention of the arrival of Hungarian
guards in the principal applicant’s PIF.
4.
The principal applicant had no medical documents
to corroborate his story of an alleged attack by Hungarian guards in the spring
of 2010. He testified that he forgot the medical records at home. However, the
Board noted that on a balance of probabilities, this incident likely occurred.
5.
The principal applicant testified never having
gone to the state to complain about discrimination and racist attitudes because
“at my workplace there were not such problems.”
6.
The applicants all received education from their
state. The principal applicant’s allegation that he was denied higher education
is unsupported by any objective evidence.
7.
The principal applicant was never denied
employment.
8.
The applicants were never denied medical care.
9.
The principal applicant agreed with the fact
that the Hungarian government was aware of the serious problem that anti-Roma
sentiment posed in Hungary and that the government was taking steps to correct
the situation.
[16]
The Board found that the applicants’ fears were
not well founded and that this finding alone was fatal to their claims.
IV.
State Protection
[17]
The Board noted that the police took the
principal applicant’s son to the hospital when he was assaulted in 2010. Also,
the principal applicant could afford medical care and obtain state protection
following the assault by guardsmen on him in 2010.
[18]
The Board noted that the principal applicant was
asked several times if the police would help and he said “yes I can go to the police.” When asked if he went
back to his country and faced violence from guardsmen and other racists could
the police give him protection, he answered “in my
opinion, yes.” He also testified that he did not know if the police
would help him.
[19]
After reviewing the law on state protection and reviewing
the situation in Hungary based on the National Documentation Package, the Board
concluded that on a balance of probabilities, given the objective evidence and
the principal applicant’s own testimony, the applicants failed to rebut the
presumption of state protection. They failed to present clear and convincing
evidence to establish that adequate, albeit imperfect, state protection would not
be available to them upon returning to Hungary. This finding alone was also
fatal to their claims.
V.
Issues
[20]
The remaining applicant raises three issues for
my consideration:
1.
Did the Board err in the findings regarding the
availability of state protection in Hungary for those of Roma ethnicity?
2.
Did the Board err by failing to find that the
discrimination experienced by the applicant amounts to persecution?
3.
Did the Board err by failing to conduct a full
and separate analysis of the risks of return pursuant to section 97 of the Act?
[21]
The respondent raises one issue in response: has
the applicant failed to show an arguable issue of law upon which the proposed
application for judicial review might succeed?
[22]
In my view, there are three issues:
1.
What is the standard of review?
2.
Did the Board commit a reviewable error in
assessing the applicant’s credibility?
3.
Did the Board commit a reviewable error in
finding that the applicant had failed to rebut the presumption of state
protection?
VI.
Applicant’s Written Submissions
[23]
First, the applicant submits the Board’s
determination on state protection is unreasonable because it relied on evidence
of measures taken by the government to determine adequate state protection. He
argues that recent decisions of this Court show disagreement with the Board
decisions where the decision-maker decided that adequate state protection for
Roma in Hungary exists based upon evidence of what measures the government has
taken to provide state protection (Hercegi v Canada (Minister of Citizenship
and Immigration), 2012 FC 250, [2012] FCJ No 273; and Rezmuves v Canada
(Minister of Citizenship and Immigration), 2012 FC 334, [2012] FCJ No 374).
[24]
Second, the applicant submits that based on the
evidence, the Board was unreasonable in failing to find that the discrimination
experienced by the claimant amounted to persecution.
[25]
Third, the applicant submits that the Board
committed a reviewable error by failing to conduct a section 97 analysis. The applicant
argues that here, the Board did not address the evidence regarding country
conditions with a view to determine whether the objective evidence indicated
that the ill treatment of people sharing the applicant’s profile would subject
the applicant personally to a section 97 risk in Hungary. He cites excerpts
from multiple documents for support, such as the U.S. Department of State 2012
Human Rights Report and the report on the Role of the Police and Security
Apparatus.
VII.
Respondent’s Written Submissions
[26]
The respondent submits the applicable standard
of review in this case is the standard of reasonableness and the Board’s
factual findings are owed deference (Newfoundland and Labrador Nurses’ Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraphs 16
to18, [2011] 3 S.C.R. 708).
[27]
The respondent submits that a negative
credibility finding is determinative per se and the applicant’s failure
to prove that it is unreasonable is sufficient to defeat the application (Salim
v Canada (Minister of Citizenship and Immigration), 2005 FC 1592 at paragraph
31, [2005] FCJ No 1963; and Cienfuegos v Canada (Minister of Citizenship and
Immigration), 2009 FC 1262 at paragraphs 25 and 26, [2009] FCJ No 1591).
[28]
First, the respondent argues that this is not a
case where the Board made “replete statements regarding
the Hungarian government’s intentions to assist the Romani population.” Based
on the objective evidence and the oral evidence in the present case, the
applicant failed to demonstrate that he could not rely on state protection.
[29]
Second, the respondent argues the applicant did
not provide evidentiary support to his challenge of the Board’s appreciation of
current country conditions in Hungary; rather, the applicant re-pleads the
merits of some of the evidence before the Board.
[30]
Third, the respondent argues the Board was not
required to conduct an independent analysis under section 97 for this case.
Here, the Board found there was adequate state protection and this is applied
equally under sections 96 and 97. Where there is no evidence before the Board
that would support a claim under section 97, no separate section 97 analysis
would be required (Racz v Canada (Minister of Citizenship and Immigration),
2012 FC 436 at paragraphs 6 and 7, [2012] FCJ No 497; Csaba Racz v Canada
(Citizenship and Immigration), 2013 FC 702 at paragraph 7, [2013] FCJ No
747; and Horvath v Canada (Minister of Citizenship and Immigration),
2014 FC 670 at paragraph 25, [2014] FCJ No 692).
[31]
The respondent submits therefore, the Board’s
findings were reasonable and this Court’s intervention is not warranted.
VIII.
Preliminary Issue
[32]
At the commencement of the hearing of this
matter, the applicant requested that the Court grant a hearing de novo for
Richard Rezmuves’ claim for refugee protection as the Board’s file had been
lost and the Board had provided a “recreated certified
copy of the Tribunal Record” (transcript of judicial review hearing at page 4).
This recreated record contained the Board decision, the Board reasons,
the National Documentation indexed for Hungary and the transcription of the
Board hearing held on March 15, 2013. No Personal Information Form or affidavit
were contained in the recreated record.
[33]
Counsel for the respondent did not dispute the
fact of the incomplete record.
[34]
In my view, it is always important to have a
complete record when deciding a judicial review application. In some cases, a
missing part of the record may not be significant. However, in a case such as
the present case where credibility was the determinative issue, I believe it is
necessary to have a record which includes Personal Information Forms and any
filed affidavits.
[35]
As a result, I am of the opinion that this
judicial review must be allowed and the matter remitted to a different panel of
the Board for redetermination by way of a hearing de novo.
[36]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
[37]
Because of my finding on the preliminary issue,
I need not deal with the other issues.
Email this Content