Date:
20131115
Docket: IMM-10944-12
Citation: 2013 FC 1164
Ottawa, Ontario, November 15, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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SANDOR IGNACZ
ANDREA BALOG
BRENDON IGNACZ
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is yet another application for judicial
review of a decision of a Member of the Refugee Protection Division of the
Immigration and Refugee Board of Canada [the Member], denying the Roma
Applicants’ application for refugee protection on the grounds that the they had
not rebutted the presumption of state protection in Hungary.
[2]
Each decision turns on its own facts and the thoroughness
of the analysis done by the Board, which explains why many claims are denied on
the basis of state protection while others succeed, despite being determined on
the same national documentation package [NDP].
BACKGROUND
[3]
The Applicants are Hungarian citizens of Roma ethnicity who lived in the
small town of Mohacs in southern Hungary. They arrived in Canada on May 17, 2011, and claimed refugee status the next day. Mr. Sandor Ignacz is 31
years old. He has a common law wife, Andrea Balog who is 25 years old, and together,
they have a 3 year old son, Brendon Ignacz.
[4]
The RPD accepted the evidence of the Applicants as to their treatment
and experiences in Hungary. There were three particular events relied on by
the Applicants that were considered by the RPD in concluding that they had
failed to rebut the presumption of state protection.
1. 2004 Attack
[5]
In 2004, the adult claimants were assaulted by a group of young adults
[the 2004 Attack]. Mr. Ignacz was hit and, when on the ground, was kicked and
punched. Ms. Balog tried to come to his aid but was grabbed by the hair and
thrown to the side. She lost consciousness during the attack. When she came
to, she found Mr. Ignacz bloodied and on the ground, but conscious. She took
him to a hospital where they received care for their injuries. They went to
the police to file a report regarding the attack and were told that they would
be contacted if the perpetrators were found, but the police did not take any of
their personal information. They were unable to provide the police with any
identifying information except for the location of the attack, and their
attackers’ clothing, skin tone, and height.
2. 2007
Incident
[6]
In February 2007, around noon, while at an annual festival, Mr. Ignacz
and Ms. Balog were chased by uniformed members of the Hungarian Guard, an outlawed,
extremist right-wing organization [the 2007 Incident]. They escaped without
incident and after calling the police from a safe location, they were told that
nothing could be done because the festival was going on and to stay at the
location they were at as it was safe.
3. 2010
Incident
[7]
In late 2010, the Applicants were visiting Ms. Balog’s father who
recently had surgery. When the four of them left Mr. Balog’s home, members of
the Hungarian Guard, who were marching and conducting a protest in the area, attacked
the Applicants and Mr. Balog. Mr. Balog and Mr. Ignacz were both beaten and
humiliated. They retreated into the house, but the Hungarian Guard broke the
windows [the 2010 Incident]. The Applicants called the police who advised them
to stay indoors. The police arrived at Mr. Balog’s house quickly and spoke to
the Hungarian Guard members outside the house. Both the police and the Guardists
then left. The police did not go into the house to talk to the Applicants about
the assault or the broken windows. No arrests were made.
[8]
It was this incident that precipitated the Applicants fleeing to Canada and seeking protection.
THE DECISION
[9]
The Member determined that the Applicants were
not Convention refugees or persons in need of protection pursuant to sections
96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27.
The Member noted that there is “widespread reporting of incidents of
intolerance, discrimination, and persecution” of Roma in Hungary. She further found that the evidence indicates that the attitudes in Hungary towards Roma are “discriminatory and prejudicial.” However, the Member ultimately
determined that the Applicants had received adequate state protection or, in
the alternative, had not taken all reasonable steps in the circumstances to
seek out state protection. Specifically, the Member found that they did not
complain to higher authorities about their dissatisfaction with police
responses. The Member specifically noted that they failed to engage the
president of their Roma community, and the complaints mechanisms available
through the new Commissioner of Fundamental Rights [CFR], and the Independent
Police Complaints Board [IPCB].
Analysis of the
Reasonableness of the Finding that the Applicants Failed to
Rebut the
Presumption of State Protection
[10]
The only issue raised in this application is the reasonableness
of the Member’s state protection finding. For the reasons that follow, I find
that the state protection finding is not reasonable and the decision under
review must be set aside.
Unreasonable
Assessment of the Adequacy of the State Protection Actually Received
[11]
The RPD found “the response that they [the
Applicants] received from the police they contacted to be adequate in the
circumstances.”
[12]
With respect to the 2004 Attack, the RPD found
the police response adequate because “the claimants were unable to provide any
specific description of their assailants to the police so that they could
properly investigate the criminal activity.” I have two issues with that
conclusion.
[13]
First, the police not only failed to
investigate, the police “did not write down any data.” (Emphasis
added). Ms. Balog testified that “as soon as we went in they didn’t take any
data from us” and that “they didn’t take our personal data,” despite informing
the police that the assailants all wore black army boots and white T-shirts
with the emblem of the Guardists. She also told the police that they were
white people and she told the police their heights. The Member asked Ms. Balog
what she expected the police to do given that she could not really describe the
attackers. She responded that “we wished that they could even try to find
them.” I have previously stated that “accepting a report of criminal
conduct does not establish adequate police protection when no steps are taken
to investigate the complaint. If police had no obligation to investigate a
complaint where the assailant was unknown, their job would be remarkably easier:”
Pinter v Canada (Minister of Citizenship and Immigration), 2012 FC 1119
at para 14.
[14]
There may be a few circumstances where a police response to do nothing
is not unreasonable - perhaps a hooded figure taking gum from a child’s hand is
one example. Being short-staffed because police resources are tied up dealing
with threats to the lives of many may be another example. However, I do not
find a police response of doing absolutely nothing to be adequate when two
citizens are beaten to the point that they are required to be treated at a
hospital for their injuries. It is a particularly inadequate and unreasonable
response when the attack has all the ear-marks of a racially motivated attack
by a group of thugs. Moreover, in my view, there was every indication that the
police were not taking the report of an assault seriously and that they had no
intention of doing anything because they failed to take down the personal data
of the Applicants, even though they said they would contact them in the future
if the perpetrators were apprehended. How, one must ask, would they have done
that when they had failed to record the names, addresses, or phone numbers of
the Applicants?
[15]
If this was the only occasion when the police response was to do
nothing, it may have been insufficient to overcome the presumption of state
protection - but it was not.
[16]
The RPD found the police response to the 2007
Incident to be adequate because “without a description of exactly who they were
supposed to be looking for, it was reasonable for the police to suggest that
the claimants remain in a safe place away from the area where they had been
harassed.” I cannot see how a police response of stating the obvious but doing
nothing constitutes adequate protection.
[17]
The Applicants had taken shelter from the thugs
pursuing them in a friend’s home. Advising them to stay put is not offering
protection - coming to their location, assessing the situation, showing a
police presence to the assembled group - that is offering protection. Again,
the incident had all the signs of being racially motivated. There was
nothing to suggest that the police were so short-staffed that they could not
send an officer or two to the Applicants’ location to ensure that they were
safe, or to escort them to their house, or to attend at the site to see if the
culprits were otherwise engaged in harassing other Roma. Again, I ask, how is
giving the same advise - stay indoors - that a mother would give her child
being bullied in the school yard, reasonably adequate police protection?
[18]
The RPD also found the police response to the
2010 Incident to be adequate “based on the fact that when they were called,
they advised the claimants to stay in the house away from the perpetrators,
they came to the scene in a prompt manner, and they spoke to the perpetrators
and sent them away.” In this instance, at least, the police did more than tell
them to stay indoors; they showed up. However, how can one reasonably say that
the police sending the perpetrators away is adequate protection when there had
been an assault on the two men and property destruction? Here, the identity of
the perpetrators was known - the police spoke to them, but they did nothing
other than send them away. Admittedly, the Applicants were thus protected by
the state; but the police response to the crimes committed against them was, in
my view, wholly inadequate. Not only did the police not arrest or charge the
perpetrators, they failed to even speak to the Applicants to see if they could
identify any of their attackers from those gathered outside the house.
[19]
In my view, the Member’s assessment that the
police response in these three incidents constituted adequate state protection
is wholly unreasonable. Perhaps the Member ought to have asked herself this
question: “Had these events happened to me or my family would I have thought
that the police response provided me with adequate protection?” The 2010
Incident, in particular, is a glaring illustration of how the police were
unable, or unwilling to address the Applicants’ agents of persecution.
Unreasonable
Assessment of the Failure to Seek Protection from Higher Authorities
[20]
The Member also found that the Applicants had
failed to rebut the presumption of state protection because they failed to take
their concerns regarding the police response to those higher up.
[21]
The Member found that “the central government is motivated and willing
to implement measures to protect the Roma and has provided specific examples
of how this is effective at the operational level” (emphasis added).
[22]
Two examples of what the Member considers effective measures on an
operational level are the CFR and the IPCB, of which she says the NDP “indicate[s]
that these complaint mechanisms do in fact, take complaints, make findings and
then report those findings back to the appropriate authorities for their
response.” I agree entirely with the observation of Justice de Montigny that
the mandate of these and similar organizations in Hungary “is not to provide
protection but to make recommendations and, at the best, to investigate police
inaction after the fact:” Katinszki v Canada (Minister of Citizenship and
Immigration), 2012 FC 1326 at para 14. I further agree with his statement at
paragraph 15 that “the jurisprudence of this Court is very clear that the
police force is presumed to be the main institution mandated to protect
citizens, and that other governmental or private institutions are presumed not
to have the means nor the mandate to assume that responsibility.”
[23]
I repeat the question I posed in Majoros v Canada (Minister of
Citizenship and Immigration), 2013 FC 421: Had the applicants followed up
with the president of their Roma community, or used the
complaints mechanisms available through the CFR and the IPCB, would they be any
safer or any more protected? Unless, one can answer that question positively -
and there is nothing in the NDP that would support that response - then failing
to approach these authorities cannot be fatal to a refugee claim when police
protection has been unsuccessfully sought. The Member’s finding that these
institutions offered the Applicants - and Roma generally - effective
protection at the operational level is just not supported by the evidence and
her conclusion that the claims of the Applicants must fail because they failed
to seek it out, is therefore unreasonable.
Unreasonable Reliance on Amendments
to the Hungarian Criminal Code
[24]
In her reasons, the Member noted Article 174/B of the Hungarian Criminal
Code which “criminalizes violent acts committed against a person for belonging
to a national, ethnic, racial, or religious group.” This, the Member states,
is an example of an initiative that Hungary has implemented to ensure adequate
state protection on an operational level.
[25]
In relying on the implementation of Article 174/B, the Member ignores
evidence regarding the actual, as opposed to the theoretical, effectiveness of
this amendment. Article 174/B has been in force since 2004. One would expect
that in the nearly ten years since its enactment, there would be tangible
results speaking to this provision’s effectiveness at the operational level.
Yet the evidence in the record states that the Article “is not systematically
applied,” that “police often choose to begin the investigation on the basis of
non-hate crime charges,” and that police, prosecutors and court officials are
“reluctant to consider racial bias motivation as an aggravating circumstances
to crime.” In other words, it is not being implemented.
[26]
The statistics are also telling. In each of 2004 and 2005, the police
only identified seven crimes that would be punishable under Article 174/B. In
2008, this number rose to 12, but in 2009, immediately receded back to 6.
Further, in spite of Article 174/B, the Member herself confirms that “in recent
years, “conditions for the Roma have deteriorated” and “worsened” and that
“hidden anti-Roma attitudes are becoming more open.” The Member therefore
erred by concluding that Article 174/B exemplifies Hungary’s efforts to make
state protection at the operational level adequate, without actually addressing
the evidence in the record to the contrary.
[27]
Moreover, had it been evidence of adequate protection, one would have
expected the police to have used this criminal provision in dealing with the
2010 Incident, if not all three relied upon by the Applicants, and not simply have
let the gang leave the scene without even questioning them.
Selective Reading of the
Evidence in the NDP
[28]
Finally, while I acknowledge the presumption that the Member considered
all of the evidence in the NDP before her, I note that the Member selectively
pulled excerpts from the NDP that supported her view that state protection was
adequate in this case, and failed to address evidence in the NDP that
contradicted her conclusion. The Member even states that:
… there are some inconsistencies among
several sources within the documentary evidence; however, the objective
evidence regarding current country conditions suggests that, although not
perfect, there is adequate state protection in Hungary for Roma who are victims
of crime, police abuse, discrimination or persecution, that Hungary is making
serious efforts to address these problems and to implement these measures at
the operational or local level and that the police and government officials are
both wiling and able to protect victims.
[29]
However, despite noting the “inconsistencies” in the evidence, the
Member does not deal with any of those inconsistencies specifically, nor does
she explain why she prefers the evidence in the NDP that suggests that there is
adequate state protection. The following are just some of the examples of
evidence in the NDP that undermine the Member’s conclusion that adequate state
protection - from either the police, or higher authorities - would have been
available to the Applicants had it been sought out.:
a.
The Society for Threatened Peoples note that “state response to
anti-Roma sentiment and violence is ‘often restrained and not particularly
effective’;”
b.
In 2011, the UN Special Rapporteur stated that “racism against Roma is
prevalent within public institutions, notably the police and judicial system”
and emphasized “the racial profiling and abuse against Roma by the police,
as well as refusal of police officers to record Roma complaints and
imposing ‘disproportionate fines’ when Roma broke the law” (emphasis added);
c.
The European Human Rights Court ruled against Hungary in a case
involving a Roma woman and held that the police had used excessive force and
that there was a “failure to conduct an effective investigation” after the
woman filed a complaint against the police; (emphasis added) and
d.
Human Rights First reports that because of cases of police
“ill-treatment and discrimination” against Roma, there is a “high level of
mistrust of authorities’ within Roma communities, which results in ‘severe
underreporting’ of racist and violent incidents.”
[30]
The above excerpts from the NDP provide objective and reasonable
explanations for why the Applicants in this case may not have sought protection
from higher authorities, and examples of failures of the complaint mechanisms
that the Member concluded were adequate. In my view, by failing to address any
of the evidence in the NDP that contradicted her conclusions - apart from
saying that it exists - the Member’s reasons do not live up to the “justification,
transparency and intelligibility” mandated by Dunsmuir v New Brunswick,
2008 SCC 9 at para 47.
CONCLUSION
[31]
The decision under review does not withstand scrutiny using the test
enunciated by the Supreme Court in Dunsmuir v New Brunswick, 2008 SCC
9. The rejection of the Applicants’ claims for protection was unreasonable
because: (1) the Member found that they had received adequate state protection
in Hungary when they had received no protection at all, and (2) the Member
found that they had failed to rebut the presumption of protection because, even
if they had not received protection from the police, they failed to complain of
police failures to higher authorities, when there was no evidence that those
authorities were in a position to actually protect the Applicants.
[32]
No question for certification was proposed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application is allowed, the decision denying the
Applicants claims for protection is set aside, their claims for protection are
referred to another Member for determination, and no question is certified.
"Russel
W. Zinn"
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