Docket: IMM-5108-16
Citation:
2017 FC 667
Ottawa, Ontario, July 10, 2017
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
|
ANITA HORVATHNE
MAJOROS
GABOR MATE
REKA VALERIA
RACZ
ATTILA HORVATH
ALEX HORVATH
LEILA MELANI
HORVATH
|
Applicants
|
and
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial
review of the decision of the Refugee Appeal Division of the Immigration and
Refugee Board of Canada [RAD], dated November 5, 2016 [Decision], wherein the
RAD confirmed the decision of the Refugee Protection Division [RPD] and found
that Anita Horvathne Majoros [Principal Applicant], Gabor Mate [Male Applicant],
Reka Valerie Racz [Female Applicant], Attila Horvath, Alex Horvath, and Leila
Melani Horvath [Minor Applicants] were not Convention refugees or persons in
need of protection under ss 96 and 97 of the IRPA.
II.
BACKGROUND
[2]
The Applicants are citizens of Hungary. They are
an ethnic Roma family consisting of the Principal Applicant, her adult son
[Male Applicant] and daughter-in-law [Female Applicant], and her three minor
children [Minor Applicants]. The Applicants entered Canada and sought refugee
protection on February 27, 2015 on the basis that they faced persecution in
Hungary due to their Roma ethnicity.
[3]
The Applicants’ refugee claim was initially
rejected by the RPD on September 23, 2015, and was appealed and dismissed by
the RAD on December 9, 2015. The Applicants sought judicial review of the
appeal decision and the matter was sent back to the RAD for redetermination on May
2, 2016.
III.
DECISION UNDER REVIEW
[4]
On November 5, 2016, the RAD again denied the
Applicants’ claim for refugee protection.
A.
New Evidence
[5]
The RAD declined to admit the new evidence
presented on appeal by the Applicants. The evidence concerning the positive
decisions of other Roma refugee claimants was rejected on the basis that the
RAD is not bound by RPD or RAD decisions. The evidence consisting of the
National Documentation Package [NDP] and Federal Court decisions related to
other Roma claimants was considered under counsel’s submissions rather than admitted
as new evidence.
B.
Credibility
[6]
The RAD found that the Principal Applicant was
not credible due to inconsistencies between the basis of claim [BOC] submitted
at the port of entry [POE] on February 27, 2015, her amended BOC submitted on March
9, 2015, and her oral testimony provided on April 14, 2015 and June 5, 2015. In
particular, the RAD noted that she had been untruthful regarding her husband’s
cause of incarceration, which was material to the credibility of all the
claims. Although the Principal Applicant had explained that the inaccuracies
were due to medication she had been taking, the RAD did not accept this
explanation because the effects of the medication should have been apparent
prior to the hearings and a psychological assessment should have been ordered
at the time.
[7]
The RAD also found credibility issues regarding
the Male Applicant’s statements. The Male Applicant had answered in the
negative to the question “Did you have any problems
with the police in any country?” However, he stated in his BOC that he
had been abused, fined, and harassed by the Hungarian police. The RAD rejected
the Male Applicant’s explanation that he had misinterpreted the question as one
concerning prior criminal convictions on the basis that the question was
straight-forward. Moreover, even if the explanation were accepted, the RAD found
that the explanation was not corroborated by supporting documentation.
Consequently, the RAD found that the Male Applicant’s allegations had not sufficiently
established that he had been persecuted.
[8]
The RAD also found that the Female Applicant
lacked credibility. Her testimony was contradicted on two occasions, was not
supported by corroborative evidence, and had been acknowledged as convoluted by
her own counsel.
[9]
The RAD then considered the corroborative
evidence. With regard to the psychological reports of Natalie Riback, the RAD
relied on Molefe v Canada (Minister of Citizenship and Immigration),
2015 FC 317 to find that the reports were of minimal probative value and did
not assist in establishing the Applicants’ allegations of persecution and risk.
Similarly, the RAD found that the medical and police reports submitted by the
Male Applicant did not establish the allegations because they did not mention
ethnicity as a cause of the incidents referred to. Combined with the
credibility concerns, the RAD found that the corroborative evidence were
insufficient to establish the Applicants were Convention Refugees or persons in
need of protection.
C.
Discrimination vs. Persecution
[10]
Next, the RAD reviewed the incident in which
Alex, one of the Minor Applicants, was taken into custody for “51 unjustified absences” from school. However, the RAD
noted that the situation was resolved because the teacher was fired and Alex
was able to continue his education without further issues. The RAD found that
the testimony concerning this incident was lacking in credibility because, in
addition to other inconsistencies, the possibility of removal from his family was
not mentioned in the 85-page BOC statement.
[11]
On the issue of employment, the RAD concurred
with the RPD that the Male Applicant’s inability to secure full-time employment
was due to a lack of effort on his part. Additionally, while the Principal
Applicant was also unemployed, it was noted that she had a maternity benefit.
Moreover, the RAD noted that unemployment was a reality and that efforts had
been made in Hungary to assist Roma individuals in securing employment.
[12]
The RAD also considered the Applicants’ eviction
from their residence which, according to the documentary evidence, was part of
a state-initiated plan to “eliminate housing facilities
in disadvantaged Roma neighborhoods.” The Applicants claimed that they
would not be able to find alternative housing due to their Roma heritage, and
this would result in the loss of custody of the Minor Applicants. However, the
RAD agreed with the RPD that the Applicants had not made efforts to seek
alternative housing and explicitly rejected their explanation that they could
not move to another part of the city because “the
racists [were] everywhere.”
[13]
The RPD decision had determined that the incidents
relied by the Applicants, while discriminatory, did not amount to persecution.
The RAD agreed and also found that the discrimination experienced by the
Applicants did not amount to persecution because it did not threaten their fundamental
rights, but rather affected the quality of their existence in Hungary.
D.
State Protection
[14]
On the determinative issue of state protection, the
RAD agreed with the RPD that the Applicants had not adduced credible evidence
to establish persecution. Additionally, the RAD concurred with the RPD that the
adduced evidence did not establish the Hungarian state was unwilling or unable
to protect the Applicants.
[15]
With regard to the investigations into attacks
against the Applicants, the RAD concurred with the RPD that the Applicants had
not adduced sufficient credible evidence of persecution. Although the
Applicants alleged they had sought help from the police approximately 15 times,
the RAD noted that they did not follow up on any of the investigations. The Applicants
also did not adduce evidence that indicated the investigations were capable of
being resolved by the police, such as the known identity of the perpetrators or
any witnesses who could have assisted.
[16]
The RAD found that the RPD had not erred in its state
protection analysis. The documentary evidence, including the NDP for Hungary,
contained very little empirical data or state security expert opinions as to
whether state protection was adequate. The RAD found that although the Roma
face discrimination in Hungary, there was evidence that Hungary had implemented
sustained measures to improve the situation and that these efforts were
effective.
[17]
In particular, the RAD cited the Independent
Police Complaints Board [IPCB], a board that investigates violations and
omissions by the police, as an example of available recourse should the
Applicants return to Hungary and encounter difficulties. The RAD also noted
that there was a number of organizations and agencies available in Hungary to
assist Roma in obtaining services and protection from the government and
authorities.
[18]
The RAD also considered similarly situated
persons, but was of the view that each Roma case must be examined on its own
merits, as not every Roma in Hungary has experienced persecution. The RAD
consulted a report by the European Roma Rights Centre [ERRC], in which the
police had put perpetrators of violence against Roma on trial, to conclude that
racial violence was neither sustained nor systemic in Hungary. Moreover, the
RAD noted that Hungary was part of the European Union and had standards to
uphold in order to maintain membership.
[19]
In terms of racially-motivated police abuse, the
RAD found that the efforts made to eradicate it were somewhat successful,
citing the IPCB as an example. The RAD also examined efforts to improve the
education, employment, health, and housing of Roma, which the RAD found to be
demonstrative of Hungary’s willingness to provide better protection for all its
citizens, including the Roma.
[20]
The RAD also examined the statutory declaration
of Aladar Horvath, but gave little weight to his evidence because his
allegations were not supported by sufficient empirical data. Similarly, the RAD
did not give much weight to the affidavit of Gwendolyn Albert on the basis that
the author simply repeated the findings of other publications.
[21]
The RAD concluded that state protection for Roma
in Hungary, while not perfect, is reasonably forthcoming and adequate. There
was no evidence of a complete breakdown of the state apparatus; rather, there
was evidence of a serious effort to ensure state protection is available to the
Roma. The RAD determined that the Applicants had not met the required burden of
proof to show that Hungary was not able to protect them, which was fatal to
their claim. Accordingly, the RAD confirmed the decision of the RPD and
dismissed the appeal under s 111(1)(a) of the IRPA.
IV.
ISSUES
[22]
The Applicants submit that the following are at
issue in this application:
(1) Did the RAD err by failing to accept into
evidence and consider new evidence submitted by the Applicants?
(2) Did the RAD commit errors with respect to the
issue of the availability of state protection?
(3) Did the RAD err with respect to the issue of
discrimination versus persecution?
(4) Did the RAD err in the analysis of the
credibility of the Applicants?
V.
STANDARD OF REVIEW
[23]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard of
review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[24]
The standard of review for the RAD’s
determination of factual issues and issues of mixed fact and law is one of
reasonableness. This includes determinations regarding the admissibility of new
evidence, state protection, discrimination amounting to persecution, and
credibility: Canada (Minister of Citizenship and Immigration) v Ali,
2016 FC 709 at para 29; Tan v Canada (Minister of Citizenship and
Immigration), 2016 FC 876 at para 14; Deri v Canada (Citizenship and
Immigration), 2015 FC 1042 at para 26; Shabab v Canada (Minister of
Citizenship and Immigration), 2016 FC 872 at para 16.
[25]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at para 47, and Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 59. Put another way, the Court should intervene only if the Decision
was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[26]
The following provisions of the IRPA are
relevant in this proceeding:
Evidence that
may be presented
110 (4) On appeal, the person who is the subject of the appeal may
present only evidence that arose after the rejection of their claim or that
was not reasonably available, or that the person could not reasonably have
been expected in the circumstances to have presented, at the time of the
rejection.
[…]
Decision
111 (1) After considering the appeal, the Refugee Appeal Division
shall make one of the following decisions:
(a) confirm the determination of the Refugee Protection Division;
(b) set aside the determination and substitute a determination
that, in its opinion, should have been made;
or
(c) refer the matter to the Refugee Protection Division for
re-determination, giving the directions to the Refugee Protection Division
that it considers appropriate.
|
Éléments de preuve admissibles
110 (4) Dans le
cadre de l’appel, la personne en cause ne peut présenter que des éléments de
preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas
normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement
présentés, dans les circonstances, au moment du rejet.
[…]
Décision
111 (1) La Section d’appel des réfugiés confirme la décision
attaquée, casse
la décision et y substitue la décision
qui aurait dû
être rendue ou renvoie, conformément à ses
instructions,
l’affaire à la Section de la protection des réfugiés
|
VII.
ARGUMENTS
A.
Applicant
(1)
New Evidence
[27]
The Applicants submit that the RAD erred by
refusing to accept other positive RAD and RPD decisions of Roma claimants as
new evidence. While the RAD is not bound by these prior decisions, neither can
the RAD completely ignore them. The jurisprudence is clear that the RAD must
provide clear and compelling reasons to depart from prior decisions dealing
with similarly-situated persons as a failure to do so creates an aura of
arbitrariness, particularly when the circumstances are identical and deal with family
members: Canada (Minister of Citizenship and Immigration) v Thanabalasingham,
2006 FCA 14 at para 10 [Thanabalasingham]; Shafi v Canada (Minister
of Citizenship and Immigration), 2005 FC 714 at para 12 [Shafi];
Siddiqui v Canada (Minister of Citizenship and Immigration), 2007 FC 6 at
para 19; Mengesha v Canada (Citizenship and Immigration), 2009 FC 431 at
para 5 [Mengesha]; Mendoza v Canada (Citizenship and Immigration),
2015 FC 251 at para 25 [Mendoza]. The Applicants argue that this Court
has determined that the RAD should be consistent in its decision-making: Valeant
Canada LP v Canada (Health), 2013 FC 1254 at para 26; Eng v Canada
(Citizenship and Immigration), 2014 FC 711 at para 29. Additionally, the
Applicants submit that the Court has been clear in requiring reasons for
departing from earlier findings, particularly in the determination of issues
such as state protection: Rusznyak v Canada (Citizenship and Immigration),
2014 FC 255 at para 57; Burton v Canada (Citizenship and Immigration),
2014 FC 910 at para 42 [Burton].
[28]
Consequently, the Applicants submit that the
RAD’s error in ignoring the decisions regarding Roma claimants as evidence is
sufficient to set aside the Decision.
(2)
State Protection
[29]
The Applicants also claim that the RAD committed
several errors with respect to the determinative issue of state protection.
[30]
First, the RAD erred by emphasizing the
availability of state programmes and policies intended to improve the situation
for Roma in Hungary. The focus should be on whether such programmes and
policies produce adequate protection from persecution, as there is a clear
distinction between “adequate protection” and “serious efforts at protection”: Meza Verela v
Canada (Citizenship and Immigration), 2011 FC 1364 at para 16 [Meza];
Orgona v Canada (Citizenship and Immigration), 2012 FC 1438 at paras
11-12 [Orgona]; Kumati v Canada (Citizenship and Immigration),
2012 FC 1519 at paras 27-28, 39. The Applicants argue that the jurisprudence of
this Court demonstrates that serious efforts to provide protection are not
sufficiently demonstrative of adequate state protection, and it is an error to
focus on the former without examining the results of those efforts: Burai v
Canada (Citizenship and Immigration), 2013 FC 565 at para 28; Juhasz v
Canada (Citizenship and Immigration), 2015 FC 300 at para 41; Antoine v
Canada (Citizenship and Immigration), 2015 FC 795 at paras 14-15; Camargo
v Canada (Citizenship and Immigration), 2015 FC 1044 at para 26. Thus, the
RAD erred when it found that “the documents contain
very little in the way of empirical data or opinions of state security experts
as to whether state protection is adequate or operational adequate in Hungary,”
yet concluded that state protection was adequate.
[31]
Second, the RAD’s reliance on the IPCB as an
avenue of state protection is an error. The documentary evidence was clear that,
in practice, the Police Commissioner has neglected 90% of the IPCB’s decisions.
Additionally, this Court has repeatedly found that the IPCB does not represent
an avenue of state protection: Katinszki v Canada (Citizenship and
Immigration), 2012 FC 1326 at paras 14-15 [Katinszki]; Orgona,
above, at para 14; Balogh v Canada (Citizenship and Immigration), 2015
FC 76 at paras 31-32 [Balogh]; Csoka v Canada (Citizenship and Immigration),
2016 FC 1220 at para 23 [Csoka].
[32]
Third, the RAD erred in its reliance on “organizations and agencies that assist Hungarians in
obtaining the appropriate services and protections” as demonstrative of
adequate state protection. The jurisprudence of this Court makes it clear that
reliance on agencies other than the police to provide protection is an error, as
such non-police sources do not substitute for state protection and individuals
have no obligation to seek redress from them: Katinszki, above, at para
15; Flores v Canada (Citizenship and Immigration), 2013 FC 938 at para
38 [Flores]; Hindawi v Canada (Citizenship and Immigration), 2015
FC 589 at para 27 [Hindawi]; Csoka, above, at para 19.
[33]
Fourth, the RAD’s reliance on the ERRC report is
an error. This Court has previously found that this report does not support a
finding of adequate state protection; in fact, reliance on this report is a
strong call for judicial intervention: Hanko v Canada (Citizenship and
Immigration), 2014 FC 474 at paras 13-14 [Hanko]; Csoka,
above, at paras 24-25.
[34]
Fifth, the RAD erred in finding that indications
of prosecution and punishment of abuses by state officials was indicative of
adequate state protection. Investigations of police corruption and abuse and
the presence of infrastructure providing redress do not equate to adequate
state protection: Csoka, above, at paras 17, 21.
(3)
Discrimination versus Persecution
[35]
The RAD also erred in the analysis of
discrimination versus persecution. The RAD found that persecution was the “sustained or systemic violation of basic human rights.”
Yet, despite the extensive documentary evidence concerning the challenges faced
by Roma in accessing education, employment, housing, and healthcare that are in
violation of the United Nations’ Universal Declaration of Human Rights, the RAD
did not find evidence of persecution.
[36]
Moreover, without providing reasons, the RAD
erred in finding that discrimination did not amount to persecution when
considered on a cumulative basis: Mohammed v Canada (Citizenship and
Immigration), 2009 FC 768 at paras 65-66; Tetik v Canada (Citizenship
and Immigration), 2009 FC 1240 at para 27; Bledy v Canada (Citizenship
and Immigration), 2011 FC 210 at para 34; Hegedüs v Canada (Citizenship
and Immigration), 2011 FC 1366 at para 2; Balogh, above, at paras
30-32; Mrda v Canada (Citizenship and Immigration), 2016 FC 49 at para
40.
(4)
Credibility
[37]
The Applicants also take issue with the RAD’s
credibility analysis of aspects of the Applicants’ evidence of their past
experiences in Hungary.
[38]
First, the RAD should have considered whether
there is a serious possibility of persecution upon a return to Hungary, not
whether or not the Applicants have been previously persecuted. Thus, whether or
not the Applicants’ past experiences in Hungary are credible is immaterial: Salibian
v Canada (Minister of Employment and Immigration) (CA), [1990] 3 FC 250 [Salibian];
Valère v Canada (Citizenship and Immigration), 2001 FCT 1200 at para 19
[Valère]; Acevedo v Canada (Minister of Citizenship and Immigration),
2005 FC 585 at paras 11-12 [Acevedo].
[39]
Second, the RAD should have based its
credibility determination on the factor that is central to the claim; that is,
that the Applicants are Roma. Instead, the RAD identified negative credibility
factors that relate to peripheral details regarding the Applicants’ allegations
of previous persecution.
B.
Respondent
(1)
New Evidence
[40]
The Respondent submits that the RAD’s refusal to
admit positive decisions of the RPD regarding other Roma claimants as new evidence
was reasonable and that the five errors alleged by the Applicants are not
errors.
[41]
First, the submitted decisions do not involve
close family members or claims involving identical facts or circumstances. This
distinguishes the present case from the jurisprudence cited by the Applicants. Consistency
between decisions is only required if the decisions sought to be relied on meet
the above circumstances.
[42]
Shafi, above, for
example, was a decision involving the applicant’s sister and membership in a
specific tribe; in the present case, there is no equivalent issue.
[43]
Similarly, Mengesha, above, involved the
acceptance of the applicant’s biological father, mother, and sibling on the
same factual circumstances that the applicant presented; however, in the present
case, the closest relative is an unidentified cousin and there is no analysis
of the factual circumstances in the relative’s case. Additionally, the
applicant in Mengesha was found to be credible and trustworthy, unlike
the Applicants in the present case.
[44]
Likewise, Mendoza, above, is
distinguishable because the applicant’s relative in that case had been accepted
on a claim concerning the same facts, agents of persecution, and conduct in
seeking protection. Conversely, there is no indication that the Applicants in
the current case are in a similar situation to their relatives in regards to
the facts, agents of persecution, or conduct in seeking state protection.
[45]
In Burton, above, reasons were required
for a departure from a previous determination on the availability of state
protection made on identical facts. In this case, there is no evidence that any
of the submitted decisions involved identical facts.
[46]
In Djouah v Canada (Citizenship and
Immigration), 2013 FC 884 at para 25, the Court found that the denial of an
applicant’s claim could not stand when seven of his colleagues had been
accepted as refugees on the same facts and evidence. Again, that is not the
situation in the present case.
[47]
Thanabalsingham,
above, is also distinguishable because it was a detention review, which is a
fact-based decision that determines whether an individual should be detained.
The requirement for clear and compelling reasons to depart from prior decisions
in the context of judicial review is not applicable to decisions involving
different individuals and tribunals, such as the RPD and the RAD.
[48]
Second, the Applicant’s argument that the RAD
erred in failing to admit the decisions is moot because they do not meet the
statutory requirements set out in s 110(4) of the IRPA, which requires
that new evidence must arise after the rejection of the RPD claim and was not
reasonably available, or could not reasonably have been presented, at the time
of the RPD’s rejection of the claim. In contrast, the decisions that the
Applicants sought to admit were rendered prior to the Applicants’ RPD decision
and could have been presented before the RPD. The jurisprudence is clear that s
110(4) of the IRPA should be narrowly interpreted and that claimants
must present all the evidence that is reasonably available to the RPD: Canada
(Citizenship and Immigration) v Singh, 2016 FCA 96 at para 35; Marin v
Canada (Citizenship and Immigration), 2016 FC 847 at paras 26-27. In Abdullahi
v Canada (Citizenship and Immigration), 2016 FC 260 at paras 13-15, Justice
Annis found that admitting evidence that could have reasonably been provided to
the RPD would make the RPD process a monumental waste of time. Although the RAD
did not rely on the criteria in s 110(4) of the IRPA in rejecting the
new evidence, the refusal is consistent with the statutory requirement. As
such, this argument on the admissibility of the new evidence is moot.
(2)
State Protection
[49]
The Respondent submits that the RAD was
reasonable in finding that adequate state protection is available to the
Applicants in Hungary.
[50]
First, despite the Applicants’ argument that the
RAD focused on efforts rather than results, the Respondent notes that the
Decision states: “…the evidence demonstrates that
Hungary’s efforts are actually having an impact operationally on the ground.
The evidence also demonstrates that police do investigate crimes against Roma
and that perpetrators are being held responsible when there is sufficient
evidence…[S]tate protection, while not perfect, is adequate and that measures
taken by the authorities have translated into operational success on the
ground.” These statements show that the RAD considered the real effects
of state protection.
[51]
Second, the Respondent disagrees with the
Applicants’ argument that the RAD relied on the IPCB as an avenue of state
protection. The reference to the IPCB is just one factor considered, and the
RAD provided 17 pages of reasons addressing state protection. Any reliance on
the IPCB is minimal and insufficient to constitute a reviewable error.
[52]
Third, while the RAD mentioned non-police
agencies and organizations that assist the Roma in Hungary, it still concluded
that the evidence demonstrated the police do investigate crimes against the
Roma and that perpetrators are held responsible if there is sufficient
evidence. Additionally, since the Applicants are from a functional democracy,
they face a heavy burden to demonstrate that they should not be required to
exhaust all of the recourses available, including police oversight agencies: Mudrak
v Canada (Citizenship and Immigration), 2015 FC 188 at paras 79, 81 [Mudrak].
[53]
Fourth, the Applicants argue that the RAD erred
in its reliance on the ERRC report that has been criticized by the Court.
However, the report that has been the subject of criticism is from 2011, while
the Decision relies on a report from 2016. Additionally, the conclusion drawn
from the report is different from the conclusion that has been criticized by
the Court. The conclusion relied on in this case, which is that racial violence
is neither sustained nor systemic, is reasonable.
[54]
Fifth, it was not an error for the RAD to note
that Hungary has made efforts to hold police accountable when they fail to
protect citizens, even if it is not directly related to providing protection.
Such an observation does not undermine the finding that the evidence
demonstrates that the police investigate crimes against Roma and hold
perpetrators responsible, which supports a conclusion that state protection is
adequate and state initiatives have been successful.
(3)
Discrimination
[55]
The Respondent submits that the RAD addressed
the discrimination faced by the Applicants in Hungary, but reasonably found
that some of the allegations lacked credibility. Additionally, the RAD noted
that state efforts to combat such discrimination have been effective.
[56]
On the matter of employment, it was reasonable
to consider the general problem of high unemployment and that the Male
Applicant has never accessed state assistance programs. Similarly, with regard
to one of the Minor Applicants’ issues in school, it was reasonable to note
that the teacher had been fired and the child was able to continue his
education without incident.
[57]
The RAD acknowledged the discrimination faced by
the Applicants but concluded that it did not threaten fundamental rights nor
reach the level of persecution. Moreover, since the determinative issue of
state protection was found to be available, the Applicants do not need Canada’s
protection even if the discrimination faced by the Applicants amounts to
persecution.
(4)
Credibility
[58]
The Applicants argue that their credibility is
immaterial because they were not required to demonstrate past persecution.
However, since the Applicants challenged the RPD’s credibility in the appeal,
the Respondent submits that it was appropriate for the RAD to address
credibility.
C.
Applicants’ Reply
[59]
The Applicants disagree with the Respondent’s
submission that the RAD considered whether or not the state’s efforts were
effective in providing state protection, that police investigated crimes against
Roma, and that perpetrators are held responsible. In the Decision, the RAD
states: “[i]n practice, [the Police Commissioner]
“neglect[s]” 90 percent of the [IPCB]’s decisions.”
[60]
Moreover, the Applicants take issue with the
Respondent’s argument that the RAD’s reliance on the IPCB as an avenue of state
protection is “minimal and insufficient to give rise to
a reviewable error.” On the contrary, the Applicants argue that the
RAD’s error ignores the documentary evidence and jurisprudence of this Court,
which should be reviewable errors: Katinszki, above, at paras 14-15; Orgona,
above, at para 14; Balogh, above, at paras 31-32; Csoka, above,
at para 23.
[61]
The Applicants also reiterate their argument
that reliance on non-police agencies in regards to state protection is against
the jurisprudence of this Court: Csoka, above, at paras 19-21.
[62]
Additionally, the Applicants submit that the RAD
erred by ignoring the jurisprudence of this Court in relying on the ERRC report
without distinguishing why the jurisprudence was not followed: Hanko,
above, at paras 13-14; Csoka, above, at paras 24-25.
[63]
In regards to the Respondent’s submission that
the Applicants’ past experiences regarding discrimination lacked credibility,
the Applicants argue that this is immaterial as the issue of persecution is
prospective and not retrospective: Salibian, above; Valère,
above, at para 19; Acevedo, above, at paras 11-12 [Acevedo].
[64]
The Applicants point out that the Respondent is
silent on several submitted errors. For example, the Applicants submitted that
the RAD erred by failing to find that the situation awaiting the Applicants in
Hungary amounts to persecution rather than discrimination. The Applicants also
submitted that the RAD erred in failing to provide reasons for this conclusion.
While the Respondent attempts to provide reasons on behalf of the RAD, the
Applicants note that none of the reasons were referenced in the Decision.
D.
Respondent’s Further Argument
(1)
The IPCB
[65]
The Respondent disagrees that the RAD ignored
the documentary evidence and jurisprudence by relying on the IPCB as an avenue
of state protection.
[66]
First, the jurisprudence does not dictate that
the IPCB cannot be relied upon as an avenue of state protection. The decision
of Mudrak, above, states that the requirement to complain to policing
oversight agencies in a democratic agency is specific and multifactorial.
[67]
Second, the RAD did not rely on the IPCB as a
means of protection, but to find that the police in Hungary arrest and
prosecute perpetrators of crimes against Roma. The statement that the
Applicants could go to the IPCB if they were dissatisfied with the authorities
does not amount to a finding that the IPCB is an avenue of state protection,
given that protection is available directly through the Hungarian police. As
noted by the RAD, the police took the Applicants’ reports; although the
investigations did not result in an arrest, the Respondent notes that there
were no witnesses to corroborate or assist, no evidence that the identity of
the perpetrators was known, and the Applicants did not follow up with the
police.
[68]
Following Mudrak, above, it is clear that
the RAD found the police response to the Applicants’ complaints to be adequate.
Since the RAD did not find misconduct by the police on this ground, the reasons
pertaining to the IPCB are obiter dicta.
(2)
Refusal to Admit Other RPD Claims
[69]
The Respondent also refutes the Applicants’
claim that the Respondent attempts to provide reasons for refusing the
additional evidence regarding successful RPD claims. The Respondent provided
reasons as a response to the Applicants’ arguments in their application for
leave for judicial review. The RAD did not have to provide reasons; the RAD
only needed to state that it was not bound by prior RPD decisions.
[70]
In this application, the Applicants argue that
the principle of consistency should apply because factual similarities existed
between their circumstances and those of the other RPD claims. The Respondent
disagrees because the adduced evidence did not involve close familial relationships
or claims with identical facts or circumstances. The Respondent is permitted to
provide reasons not articulated by the RAD as a response to legal arguments
made before this Court. Moreover, the RAD had no obligation to provide such
reasons when it decided to refuse the admission of the documents.
VIII.
ANALYSIS
[71]
At the review hearing before me on May 30, 2017,
counsel agreed that the determinative issue in the Decision was state
protection so that, for review purposes, the Decision should stand or fall on
the RAD’s state protection analysis.
[72]
The RAD points out that the Applicant’s own
experience in Hungary cannot be taken to be indicative of inadequate state
protection (para 55):
They allege that they went to the police
approximately 15 times, but they acknowledge that reports were taken but
nothing came out of the investigations. However, the RAD notes that the
[Applicants] did not follow up in most cases either with the local police or
higher authorities. Further, there was no evidence adduced to suggest that the
identity of the perpetrators was known, nor were these incidents in which
witnesses were described as being present to corroborate or assist with any
investigations.
[73]
It seems to me that if the Applicants’ own
experience with the police did not support a finding of inadequate state
protection, nor did it suggest the availability of an adequate state response
if the Applicants are returned to Hungary, and this is why the RAD turned to
the documentary evidence to resolve this issue.
[74]
In doing so, the RAD concluded that “the documents contain very little in the way of empirical
data or opinions of state security experts as to whether state protection is
adequate or operationally adequate in Hungary.” After examining what
evidence is available, the RAD comes to the following conclusion (para 78):
Although not perfect, the RAD finds that the
evidence demonstrates that Hungary’s efforts are actually having an impact
operationally on the ground. This evidence also demonstrates that police do
investigate crimes against Roma and that perpetrators are being held
responsible when there is sufficient evidence.
[75]
In reaching this conclusion the RAD relies upon
the following evidence:
a.
Various programmes and policies adopted by the
Hungarian government with a view to improving the situation of the Roma minority
in Hungary;
b.
The existence of the Independent Police
Complaints Board (IPCB) as an avenue of state protection;
c.
Organizations and agencies other than the police
that assist Hungarians in obtaining appropriate services and protections;
d.
A report of the European Roma Rights Centre with
respect to 22 cases of violent attacks on Roma in which 6 convictions were
obtained;
e.
Indications that the government prosecutes and
punishes officials who commit abuses, whether in security or elsewhere in the
government.
[76]
The Court has consistently warned against
relying upon programmes and policies put in place by the government because
this does not necessarily translate into adequate state protection (see, for
example Meza, above, at para 16).
[77]
The Court has consistently found that the
existence of the IPCB is not an avenue of state protection. See, for example, Katinszki,
above, Orgona, above, Balogh, above, Csoka, above.
[78]
The Court has also warned against relying upon
agencies other than the police for evidence of adequate state protection. See,
for example, Flores Zepeda v Canada (Citizenship and Immigration),
2008 FC 491; Katinszki, above; Flores, above; Hindawi,
above; Csoka, above.
[79]
The Court has also pointed out that
investigations and punishment for abuse by the police and state officials do
not equate with state protection. See, for example, Csoka, above.
[80]
When I asked Respondent’s counsel for
advice on what the RAD was relying on for its assertion at paragraph 76 of the Decision
that “the evidence demonstrates that Hungary’s efforts
are actually having an impact operationally on the ground” and that the “evidence also demonstrates that police do investigate crimes
against Roma and that perpetrators are being held responsible when there is
sufficient evidence” he directed me to paragraph 55 of the Decision
which deals with the Applicants’ own experience with the police, and paragraph
65 of the Decision which reads as follows:
In Hungary, the
European Roma Rights Centre examined the progress in 22 known cases of violence
against Roma. In these incidents, seven people died, including a five-year-old
boy, and a number of individuals were seriously injured. 10 Romani homes were
set on fire with various levels of destruction. Guns were involved in 10 of the
examined cases and in two cases, hand-grenades were used. Out of the 22
attacks, nine, resulting in six deaths, are believed by police to have been
committed by the same four suspects who are currently on trial. Although
disturbing, these incidents occurred within a population of 10 million people,
up to 750,000 of whom are Roma. In light of this, the RAD finds that the racial
violence is neither sustained nor systemic.
[81]
In my view, paragraph 5 of the Decision says
nothing more than that the Applicants’ own experiences are not conclusive on
the adequacy of state protection so that it is necessary to examine the
documentary evidence on point.
[82]
With regards to the European Roma Rights Centre
report referred to in paragraph 65 of the Decision, the Court has commented
upon a previous version of this report in the Hanko, above and in Csoka,
above:
[24] As to the ERRC report, this Court
found it specifically flawed, in somewhat strong terms, in Hanko v Canada
(Citizenship and Immigration), 2014 FC 474 [Hanko] at paras 12-14 and Marosi v
Canada (Minister of Citizenship and Immigration), (November 26, 2013)
IMM-1675-13 at paras 7-8. Contrary to the Minister’s submission, this ERRC
report was not one of many such reports considered by the RAD in its decision.
It rather stands out as the only piece of evidence cited by the RAD in support
of effective police protection.
[25] What is even more troubling is
that, in its reasons, the RAD parroted, word for word, the very passage
criticized and jettisoned by the Court in Hanko. For the RAD to ignore this,
and to remain deaf to this issue despite the fact that counsel for the Csoka
family specifically drew the RAD’s attention to it in its submissions, is
beyond comprehension, and certainly well outside the boundaries of
reasonableness. When a decision-maker disregards prior teachings of this Court
in such an unbridled way and invokes as the main proof of adequate state
protection by the police a report specifically discarded in previous decisions,
this strongly calls for the Court’s intervention.
[83]
In the present case, the Respondent says that
the RAD is referring to a 2016 ERRC report and makes a difference point from
the issues rejected in Hanko and Csoka:
30. Fourth, the Applicants allege that
the RAD erred by relying on a previously criticized report of convictions in 22
cases of violent attacks when the general message of the report is that the
state authorities are not effective. What the RAD relies on however is not the
2011 report that had been criticized by this Court, but on a report or
submission from 2016. The RAD also draws a different conclusion from the report
than the conclusion that this Court has criticized. The RAD notes that these
reports of only 22 violent attacks (between the period of 2008 to 2010) must be
seen in the context of a population of up to 750,000 Roma in Hungary and
concludes, “In light of this, the RAD finds that racial violence is neither
sustained nor systemic”. This conclusion is reasonable and fails to raise a
serious issue for judicial review.
Respondent’s Memorandum of Argument, para 30
[84]
The 2016 report references what appears to be
the same 22 attacks in regards to the severity/injuries (e.g. seven people
died, ten homes set on fire, gun involvement), but not the progress of the
police investigations. Hanko specifically referred to the outcomes of
police investigations into the 22 attacks (e.g. investigation was suspended,
prosecution was pending, etc.). That said, the 2016 report says that: “In Hungary the European Roma Rights Centre examined the
progress in 22 known cases of violence against Roma.” The report also
cites the 2011 ERRC report as a source, and Hanko refers to a 2011 ERRC
report. So they are likely referring to the same attacks and, as previously
pointed out by the Court in Hanko, evidence in these well-publicized
cases is of little persuasive value in showing how the police function when it
comes to the more common type of cases.
[85]
The 2016 report states that “In the majority of the cases examined, the information provided
by the State authorities was inadequate. Where information was provided,
limited results of investigation and prosecution were revealed. In several
cases information was not provided by the authorities, who cited data
protection and criminal procedure laws.”
[86]
So there is no real evidence in the 2016 report on
how the police function when it comes to the more common types of cases, but it
can be inferred that there is a lack of prosecution. The rest of the report
goes on to say that there are no statistics on racially motivated crimes and
the number of criminal investigations for such crimes is extremely low.
Moreover, the report says that the authorities: do not monitor racist violence;
are reluctant to consider racial bias as an aggravating circumstance to crimes;
and have not included such bias as an aggravating circumstance to crimes in the
Criminal Code. The inference is clear that the state response to violence
against Roma is inadequate since there are no statistics demonstrating that
prosecutions occur or that there are even statutory mechanisms to allow
prosecution.
[87]
The 2016 report does not support the RAD’s
conclusions on adequate state protection.
[88]
All in all, I do not think that the evidence
relied upon by the RAD for its conclusions that the Applicants have not
established that adequate state protection for Roma people does not exist in
Hungary stands up to scrutiny, and this renders the findings on this determinative
issue unreasonable.
[89]
Counsel concur there is no question for
certification and the Court agrees.
[90]
I note that the Applicants have named the
Minister of Immigration, Refugees and Citizenship as the Respondent. The
correct Respondent is the Minister of Citizenship and Immigration. Accordingly,
the style of cause is amended to read the Minister of Citizenship and Immigration
as the Respondent.