Docket: IMM-2630-16
Citation:
2016 FC 1337
Toronto, Ontario, December 5, 2016
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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VIKTOR GASPAR
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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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JUDGMENT AND REASONS
[1]
The present Application concerns the Applicant’s
claim for refugee protection on the ground of his Roma ethnicity as a citizen
of Hungary. The Refugee Protection Division (RPD) rejected the Applicant’s
claim. The Applicant’s appeal to the Refugee Appeal Decision (RAD) was
dismissed by the decision presently under judicial review dated June 8, 2016.
[2]
In reaching a decision on appeal, the RAD
canvassed the RPD’s evaluation of the Applicant’s experience while living in
Hungary and stated the following conclusion:
The RPD acknowledged the widespread
discrimination against Romas [sic] in Hungary. However, it found that the
discrimination experienced by the Appellant, did not rise to the level of
persecution. The RPD considered the UNHCR Handbook dealing with cumulative
discrimination.
[…]
The RPD concluded that given the overall
country conditions and government’s actions in regards to employment equity
for Roma, that the Appellant would not face any difficulties that would be
tantamount to persecution. The RPD concluded that the cumulative effective of
discrimination suffered by the Appellant did not amount to persecution. It
found that the Appellant’s basic human rights were not threatened, but rather
what the Appellant experienced affected the quality of its [sic] existence in
his home country.
[Emphasis added]
(Decision, paras. 25 and 27)
[3]
As a result, the RAD found that there was
insufficient credible and trustworthy evidence to establish a risk of
persecution should the Appellant return to Hungary (Decision, para. 35).
However, in my opinion, the RAD also made a finding which not only impugns the
RPD’s decision but constitutes a reviewable error in the RAD’s decision.
[4]
The following passage from the RAD’s decision
establishes that there was cogent evidence on the record before the RPD which
was not considered by the RPD:
The Appellant submits that the RPD erred
when it stated that the panel was unable to find reports in the past two years
of violent attacks committed against Roma in Hungary, when there are, in fact,
such reports against Roma prior to 2014, and subsequently. The Appellant
submits that the RPD erred when it ignored all of the foregoing evidence, and
did not explain what documentary evidence supports its conclusion.
The RAD finds that the RPD's decision was
not based on the issue of "state protection". Accordingly, the RAD
declines to make comment on the submissions surrounding this issue. Having said
this; the RAD concurs with the Appellant that it was incorrect for the RPD
to state that the panel was unable to find reports in the past two years of
violent attacks committed against Roma in Hungary. The documentary evidence
speaks to the contrary. However, this error by the RPD does not, in any
way, affect the outcome of the decision as the RPD's determination was based on
credibility and discrimination vs. persecution.
[Emphasis added]
(Decision, paras. 37 – 38)
[5]
With respect to the importance of the
evidentiary discovery, I find that the conclusion reached by the RAD
constitutes a reviewable error.
[6]
The RPD was charged with making a prospective
risk assessment as to whether, upon returning to Hungary, the Applicant would
face more than a mere possibility of persecution pursuant to s. 96 of the IRPA
or probability of risk pursuant to s. 97. In reaching an assessment the RPD
considered the Applicant’s past experience in Hungary and, properly, also
considered evidence of current in-country conditions. However, in the course of
making its own assessment of the evidence, the RAD discovered that, due to a
mistake, the RPD had not considered critical in-country evidence on the record.
Thus, in my opinion, the RPD effectively rendered its decision in mistake of
fact.
[7]
On issues of fact or mixed fact and law, the RAD
is required to review an RPD decision on the standard of correctness (see: Huruglica
v Canada, 2016 FCA 93 at para. 103). Therefore, upon discovering that the
RPD had delivered its decision with the mistake outstanding, the RAD had the
responsibility of dealing with the mistake. Given the serious nature of the
mistake, I find that, pursuant to s. 111(1)(b) and (c) of the IRPA, the
RAD was required to either set the RPD’s decision aside, or make its own
independent determination upon properly considering all the evidence of risk on
the RPD record. Since the RAD did neither, but acted to avoid the mistake
entirely, I find that the RAD’s decision is issued in error of law.
[8]
Accordingly, I find that the decision under
review is unreasonable.
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