Docket: IMM-1504-16
Citation:
2016 FC 1074
Toronto, Ontario, September 21, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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HORVATH, GYULA,
HORVATH,
GYULANE,
HORVATH GYULA
(MINOR),
HORVATH,
BOGLARKA (MINOR), HORVATH FANNI (MINOR)
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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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JUDGMENT AND REASONS
(Rendered on the Bench at Toronto,
Ontario on September 21, 2016)
I.
Overview
[1]
Whatever the outcome of a case is, is in the
very domain of the RAD; but it must do its individual assessment! That the jurisprudence has clearly confirmed (Reference is made to Majoros
v Canada (Citizenship and Immigration), 2013 FC 421, specifically
paragraphs 8, 13, 14):
[8] In its decision, the Board found
that applicants failed to rebut the presumption of state protection because
they had failed to provide sufficient information to the police after the
various attacks to allow them to properly investigate and apprehend the
persecutors, and did not make any complaint to any state authority that they
were dissatisfied with the police response.
[13] One can only conclude from reading
the Board’s decision as a whole that it placed decisive emphasis on the
applicants’ attempts to engage the police, and lost sight of the real question
of whether state protection in Hungary is adequate.
[14] The difficulty with the Board’s
emphasis on the actions of these applicants is this: the evidence on the record
was that the persecution suffered by the applicants was from a right-wing
movement, and that the particular acts of violence and harassment were
perpetrated indiscriminately. As a result, one must ask: “What difference would
it have made if the applicants had more diligently reported and followed up
with the police, and the individuals responsible for the various acts of
violence had been caught?” Based on the record, one can only conclude nothing,
or at the very most very little would have changed: persecution against the
Roma in Hungary is widespread and in most cases indiscriminate. As a result, the
state would be offering no more “protection” than it did prior the particular
acts of persecution.
[2]
This is a judicial review of a decision of the
Refugee Appeal Division [RAD] which confirmed the determination of the Refugee
Protection Division [RPD] that the Applicants are not Convention refugees or
persons in need of protection. The RAD reached its negative determination on
the basis of what it considered the reasonable lack of credibility findings of
the RPD and the failure of the Applicants to rebut the presumption of state
protection.
[3]
It is significant to note that the RAD did not
assess the credibility findings, rather the RAD stated “as
the issue of state protection is sufficient to dispose of the appeal, however,
it is not necessary for the RAD to consider the Appellants’ arguments in
respect of credibility, other than those that relate to RPD’s analysis of state
protection”. Although the RAD did recognize the argument made before it,
it did not consider the issue of credibility, except to confirm without its
review, the credibility findings of the RPD. The RAD, thus, for this alone, did
not conduct the scope of review and assess, as it was meant to do, the refugee
protection sections of 96 and 97 respectively.
[4]
The RAD must ensure that it analyzes each case
as a comprehensive whole, integrally; it must consider the personal narratives
of each Applicant; and, then analyze the whole, together with the country
condition evidence in context, not in segmented excerpts but as a comprehensive
background to personal narratives.
[5]
The Applicants relied on significant voluminous
documentary evidence of the general treatment of Roma citizens in Hungary. As
was pointed out by this Court in Alakozai v Canada (Citizenship and
Immigration), 2009 FC 266, the onus was on the Applicants to demonstrate
the link between their personal situation and the objective evidence. The
Applicants did bring that forward. That evidence must be analyzed by the RAD,
not necessarily with a long decision, based on general jurisprudence, without
considering the point-specific evidence on the treatment of each Applicant,
against the background of country conditions, but rather with the point-specific
evidence demonstrating independent analysis of that personal evidence in
context with the country condition evidence.
[6]
The RAD must make its determination
independently.
[7]
For all of the above, the Court sends the matter
to a differently constituted panel of the RAD.
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