Docket: IMM-4924-16
Citation:
2017 FC 899
Ottawa, Ontario, October 11, 2017
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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MARCELLA OLAH
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Applicant
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and
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THE MINISTER OF
IMMIGRATION,
REFUGEES AND
CITIZENSHIP
THE MINISTER OF
PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
Marcella Olah [Ms. Olah, or the Applicant] seeks
judicial review of the decision of a Senior Immigration Officer [the Officer],
which rejected her application for a Pre-Removal Risk Assessment [PRRA] under
section 112 of the Immigration and Refugee Protection Act, SC 2001,
c. 27 [IRPA].
[2]
Ms. Olah first came to Canada with her husband
in May 2011. She made a claim for refugee protection, but it was withdrawn on
October 19, 2011 when they returned to Hungary. She claims she had to return to
Hungary due to health problems of a close family member. She then returned to
Canada in late 2015. By application dated January 6, 2016, Ms. Olah requested a
PRRA and stay of deportation pending the PRRA. On September 2, 2016, the
Officer determined that Ms. Olah was neither a Convention refugee nor a person
in need of protection under sections 96 and 97 of the IRPA. On December
6, 2016, Mr. Justice Russell granted Ms. Olah a stay of the deportation
order.
[3]
Ms. Olah’s profile is that of an unemployed Roma
woman, over the age of 50, suffering from domestic abuse.
In her PRRA application, Ms. Olah said that she did not seek police protection
because, as a Roma, she feared that protection would not be forthcoming. Given
that the Officer considered Hungary a functioning democracy, he decided that he
would look at the objective evidence to determine whether state protection was
available to Ms. Olah in Hungary.
[4]
For the reasons that follow, this application is
allowed. The Officer performed little or no analysis of the adequacy of state
protection. He drew conclusions without explaining how he reconciled various
conflicting reports and he failed to critically examine those reports in terms
of Ms. Olah’s profile. He also did not consider whether the cumulative effects
of the discrimination she suffered amounted to persecution. As a result, in
this case, the decision is unreasonable.
II.
Standard of Review
[5]
The Officer’s determination of whether there is
adequate state protection is reviewable on a standard of reasonableness as it involves
questions of mixed fact and law: Hinzman v Canada (Minister of Citizenship
and Immigration), 2007 FCA 171 at para 38, 282 DLR (4th) 413; GM v
Canada (Minister of Citizenship and Immigration), 2013 FC 710 at para 27,
434 FTR 298.
[6]
A decision is reasonable if the decision-making
process is justified, transparent, and intelligible, resulting in a
determination that falls within the range of possible, acceptable outcomes
which are defensible on the facts and law: Dunsmuir v New Brunswick, 2008
SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir].
III.
Analysis
[7]
The Officer’s decision first considered the
general state of Roma in Hungary before turning to a discussion of state protection
and discrimination. Although not identified as a discrete issue, the Officer
also made several references to the failure of local authorities to implement
central government measures, which will also be addressed in these reasons.
A.
Roma in Hungary
[8]
The Officer began by dealing generally with the
situation of Roma in Hungary. He outlined the inability of the various levels
of government in Hungary to implement measures to combat racism and address
Roma issues with housing, education, and unemployment. Violence toward the Roma
stems, he said, from right-wing extremist groups including the Jobbik, an
extreme right-wing political party with a strong anti-Roma and anti-Semitic
agenda.
[9]
The Officer referred to the fact that the United
States Department of State’s Country Report on Human Rights Practices in
Hungary for 2015 [DOS 2015] confirms that the Jobbik continue to use derogatory
rhetoric about “Gypsy crime” and incite hatred
against the Roma community. He then inserted a “however”
and referred to a 2014 article by the Athena Institute which was outlined in the
Response for Information Request HUN105587.E [RIR 2016]. He highlighted that
the article said extremist groups were “on a path to
insignificance” and membership was nowhere near the peak that had been reached
“a couple of years ago”.
[10]
The Officer’s background section on the
situation of Roma in Hungary ends at that point. The Officer failed to mention
that DOS 2015 reported that the Jobbik increased the number of seats it held in
the National Assembly following the 2014 national election and that one of its leaders
was elected to be one of five deputy speakers of parliament. These facts,
omitted by the Officer from the decision, run counter to the inference in the
decision that the Jobbik is “on a path to
insignificance”. Quite the contrary, the voter support given to the
Jobbik, which espouses an anti-Roma, anti-Semitic philosophy, indicates it is
on the rise in popularity and exerts more influence within the government.
[11]
While it is disappointing that the Officer
selectively referred to extracts from the reports in the background section of
his decision, that alone does not serve to render his decision unreasonable. Nonetheless,
it casts a pall on it.
B.
Discrimination
[12]
After reviewing Hungary’s obligation to uphold
standards in order to maintain membership in the European Union, the Officer
noted that Hungary was one of the first signatories to the Framework Convention
for the Protection of National Minorities of the Council of Europe [Framework
Convention]. The Officer indicated that the Hungarian parliament ratified the
Framework Convention in 1999.
[13]
DOS 2015 states that “human
rights NGOs [non-governmental organizations] continued to report that Roma
suffered social exclusion and discrimination in almost all fields of life, particularly
in employment, education, housing, prisons, and access to public places, such
as restaurants and bars”. This passage was cited by the Officer in the
background section of the decision. Moving from the general treatment of Roma
to the specific experience of Roma women, DOS 2015 finds that there was
economic discrimination against women in the workplace, particularly against
job seekers older than 50. That describes Ms. Olah.
[14]
Later on, when discussing discrimination against
the Roma, the Officer asserts that, “[e]ven if
criticism of Hungary’s measures to combat racism is warranted, particularly
against the Romani population, on a balance of probabilities, Hungary is taken [sic]
the measures to implement the standards that are mandated as a member of the
European Union”. This exact statement, as well as several others in the
Officer’s decision, is boilerplate that appears in a number of decisions
considering Roma in Hungary. It was most recently criticized by Mr. Justice
Boswell as being “flawed at best and, indeed, as the
Applicant argues, little more than a boilerplate analysis which appears to have
been copied and pasted from another decision”: Kohazi v Canada (Minister
of Citizenship and Immigration), 2015 FC 705 at para 17, 482 FTR 119.
[15]
Multiple instances of boilerplate, including
conclusions that are written in the first person, without attribution, are also
present in the decision under review. It leaves the Court with little
confidence that any analysis of the particular facts and up-to-date evidence
put forward by counsel for Ms. Olah was read or considered by the Officer prior
to dismissing her application. If it was, there is no indication in the
decision of how the evidence was assessed, weighed, or rejected by the Officer.
The result is that neither Ms. Olah nor the Court can understand why the
Officer came to the conclusion that Hungary is taking measures to implement the
standards prescribed by the European Union.
[16]
Simply put, regardless of the Framework
Convention, the fact that Hungary is “tak[ing] measures
to implement” certain standards is not the same as providing citizens
with adequate state protection from discrimination. One is a paper tiger; the
other is the realization of the state’s obligation.
[17]
Finally, having recognized that discrimination
exists against Roma in virtually every facet of daily living, the Officer
should have considered, but did not, whether such cumulative discrimination
amounted to persecution in Ms. Olah’s case. Not only is Ms. Olah Roma, she is an
unemployed woman who is over the age of fifty. As reported in DOS 2015, NGOs
recognize this as a particular form of economic discrimination against women.
The failure to examine Ms. Olah’s personal domestic abuse allegations and to
consider whether her cumulative grounds of discrimination amount to persecution
prevented the Officer from fully considering whether state protection would be
available to Ms. Olah.
C.
State Protection
(1)
Ms. Olah’s Personal Risk
[18]
At no point did the Officer assess Ms. Olah’s allegation
of domestic abuse. As he never challenged her credibility, the Officer
presumably believed her allegations. The Officer only examined the question of
whether Ms. Olah’s failure to report her domestic abuse to the police was
warranted on the basis, as the Officer put it, that she lacked trust and
confidence in the willingness of the police to protect her Roma ethnicity.
[19]
The assessment of state protection is largely a
factual assessment made on a case-by-case basis: Molnar v Canada (Minister
of Citizenship and Immigration), 2012 FC 530 at para 93 [Molnar]. By
not assessing the risk to Ms. Olah of her husband’s domestic abuse, as supported
by his 12 brothers, the Officer neglected to consider an important fact
relevant to her ability to obtain state protection. Similarly, the Officer’s
failure to consider whether the cumulative acts of discrimination to which Ms.
Olah would be subject, given her profile, could amount to persecution is a
reviewable error by the Officer.
(2)
The Presumption of State Protection
[20]
The Officer noted generally that the presumption
of state protection cannot be rebutted in a functioning democracy by asserting
only a subjective reluctance to engage the state. He acknowledged that the
objective evidence confirms “ongoing challenges with
societal racism in Hungary”. He found, though, that such evidence was “counterbalanced” by information from the European
Roma Rights Centre (ERRC), the Chance for Children Foundation (CFCF), and the
Hungarian Helsinki Committee (HHC) that Hungary has one of the most advanced
anti-discrimination laws and a system for minority protection in the Central
and Eastern European region. The Officer did not indicate that he understood
that passing anti-discrimination laws is not the same as implementing those
laws. He does not appear to have considered whether the mechanisms that were
developed on paper to combat the challenges with racism in Hungary were in fact
a real counterbalance to those challenges.
[21]
Such evidence that there may not be a real
counterbalance was before the Officer, but not mentioned by him. The Officer
relied on several parts of DOS 2015 but did not mention many parts that were
highly critical of the Hungarian central government. DOS 2015 reports that NGOs
have reported failures and omissions on the part of the police and prosecution
in investigating hate crimes committed against minority group members
(including the Roma). The Executive Summary, at page 1 of the report, states
that:
International organizations and human rights
nongovernmental organizations (NGOs) continued to voice criticism of the systematic
erosion of the rule of law, checks and balances, democratic institutions, and
transparency, and intimidation of independent societal voices.
[22]
Systematic erosion of the rule of law in this
context implies that anti-discrimination laws may not be followed; indeed, if
the rule of law is fully eroded, there is no democratic institution from which
the presumption of state protection can arise. This strong language in DOS 2015
deserves more than an unexplained conclusion from the Officer: it deserves full
consideration and analysis so that his conclusion can be understood.
[23]
The Officer’s unsupported “counterbalance” conclusion is all the more confusing
given his earlier acknowledgements that there was a “general
failure” to maintain strong and effective control mechanisms over rights
violations of the Roma and that “the system is not
perfect”. In my view, a general failure to control rights violations begs
the question of whether the central government is making any efforts, serious
or otherwise, to protect its Romani citizens. Achieving the operational
adequacy of state protection is even harder to envision in a government in
which the rule of law is eroding and there is a general failure of the very
mechanisms that are supposed to be in place to prevent hate and discrimination
against an ethnic group such as the Roma.
(3)
Local Failures to Provide Effective Policing
[24]
The Officer concluded, once again without
explanation, that a fair reading of the documentary evidence showed that the
central government was motivated and willing to protect the Roma, but that the
measures were not always implemented effectively at the local or municipal
level. He then recited that local failures to provide effective policing do not
amount to a lack of state protection unless there was a broader pattern of
state inability or refusal to provide protection.
[25]
The Officer relies upon the Federal Court of
Appeal’s decision in Canada (Minister of Employment and Immigration) v
Villafranca (1992), 99 DLR (4th) 334 to support his statement about local
failures not amounting to a lack of state protection. In Canada (Minister of
Citizenship and Immigration) v Kadenko (1996), 124 FTR 160 [Kadenko],
the Court of Appeal said that, if the refusal to provide protection was a more
or less general refusal by the police force to provide protection, the answer
as to whether a state is capable of protecting citizens might be different as
it would be more than a mere local failure.
[26]
Unfortunately, the Officer failed to assess whether
there was a broad pattern of refusal or failure to assist Roma as envisioned in
Kadenko. This omission is of particular concern in light of the
Officer’s initial comment of a “general failure”
to maintain strong and effective mechanisms to control rights violations of the
Roma, together with the DOS 2015 report that a systematic erosion of the rule
of law was taking place in Hungary. Both speak to more than “mere” local failures.
[27]
A failure of a general nature signifies that the
failure is more common than not; it is more widespread than merely local. The
meaning appears to come within that which was contemplated in Kadenko: a
more or less general refusal by the police force to provide protection. In that
instance, Ms. Olah would not be expected to seek police protection. Having
identified the existence of a general failure to control rights violations of
the Roma, the Officer ought to have examined the nature and extent of that
general failure when considering whether Ms. Olah could actually avail herself
of the protection of the state of Hungary. His failure to do so is unreasonable
on the facts of this case.
(4)
Alternative Sources of Recourse
[28]
The Officer next turned to a consideration of
alternative sources of recourse — mentioning the Independent Police Complaints
Board, the Equal Treatment Authority, and the Commissioner for Fundamental
Rights — to which Ms. Olah could turn. The Officer noted these
organizations would take complaints, make findings, and then report those
findings to the appropriate authorities for their response.
[29]
As has been said many, many times by this Court,
the taking of a complaint against the police for non-action is not, in any way,
the equivalent of providing state protection. Mr. Justice Zinn put it this way:
“Actions, not good intentions, prove that protection
from persecution is available” (see Orgona v Canada (Citizenship and
Immigration), 2012 FC 1438 at para 11 and cases cited therein).
(5)
The Officer’s State Protection Conclusion
[30]
The Officer then concludes his state protection analysis
by stating the following:
I recognize 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 that the
police and government officials are both willing and able to protect victims.
[31]
The Officer refers to “serious
efforts” without assessing operational adequacy, which in and of itself
is fatal to his analysis: Paul v Canada (Immigration, Refugees, and
Citizenship), 2017 FC 687 at paras 15, 17. Other than his previous reference
to the “alternative sources of recourse”, no
reason for this conclusion is articulated by the Officer. From my reading of
the decision, as explained below, it is likely that the Officer has merely
adopted the conclusion given by other officers in other decisions. Yet, those
decisions are factually different than Ms. Olah’s case.
[32]
The Officer also fails to explain how he
reconciled the documentary inconsistencies. Which pieces of objective evidence did
he rely upon? Which did he reject? It is not possible to understand how the
Officer determined that the state and police are able to protect Romani victims
of, for example, the police abuse or discrimination to which he referred.
[33]
The decision does not show that Ms. Olah’s claim
was analyzed by the Officer. It appears to be an off-the-shelf general statement
about the plight, or lack thereof, of Roma in Hungary. It could apply to any Roma
fact situation. The Officer’s state protection conclusion is a verbatim quote
of the finding by the Refugee Protection Division [RPD] as set out in paragraph
27 of Mudrak v Canada (Citizenship and Immigration), 2016 FCA 178, 485
NR 186, which language first seems to have appeared in the RPD’s decision of
X (Re), 2011 CanLII 94218 at para 13 (CA IRB) [Re X]. Previous to
that case, the RPD only appears to have referred to the fact that Hungary was
making “serious efforts” to provide state
protection. In Re X, however, the panel added that “the police and government officials are both willing and
able to protect victims” (at para 13). The same quote — occasionally
with minor amendments for the nature of the discrimination being experienced
(for example, substitute “LGBTI” for “Roma”) or by reference only to the last part which
addresses the adequacy of state protection — also appears in the following
decisions: GS v Canada (Minister of Citizenship and Immigration), 2017
FC 599; Peter v Canada (Minister of Citizenship and Immigration), 2015
FC 619, 481 FTR 10; Kovacs v Canada (Minster of Citizenship and Immigration),
2015 FC 337; Dinok v Canada (Minster of Citizenship and Immigration),
2014 FC 1199; Varga v Canada (Minster of Citizenship and Immigration),
2014 FC 1030; Majlat v Canada (Minster of Citizenship and Immigration),
2014 FC 965; Balogh v Canada (Minster of Citizenship and Immigration),
2014 FC 771, 29 Imm LR (4th) 17; Rusznyak v Canada (Minster of Citizenship
and Immigration), 2014 FC 255, 23 Imm LR (4th) 318; Buri v Canada (Minster
of Citizenship and Immigration), 2014 FC 45, 446 FTR 57; Hetyei v Canada
(Minster of Citizenship and Immigration), 2013 FC 1208; Ignacz v Canada
(Minster of Citizenship and Immigration), 2013 FC 1164, 443 FTR 1; Beri
v Canada (Minster of Citizenship and Immigration), 2013 FC 854, 18 Imm LR
(4th) 325; Nagy v Canada (Minster of Citizenship and Immigration), 2013
FC 299; Gulyas v Canada (Minster of Citizenship and Immigration), 2013
FC 254, 429 F.T.R. 22; and Molnar, above. Further, it also appears in a
great number (over 100) of the tribunal decisions over the years.
[34]
The decision-making process in this instance was
not reasonable. A PRRA is a forward-looking analysis that is personal to an Applicant.
Objective evidence of country conditions is to be assessed in evaluating an
applicant’s risk. However, adopting in 2016 the findings first made by others
in 2011, without scrutinizing or updating those findings, or applying them to
the particular facts presented to the Officer, is not an acceptable approach to
determining the risk presented in Ms. Olah’s PRRA application.
IV.
Conclusion
[35]
The Officer’s state protection analysis and
conclusion is flawed and incomplete. He did not assess any of Ms. Olah’s risks
at all. He selectively referred to parts of documents supporting his finding
without acknowledging the contrary position, other than to say there were some
inconsistencies — and those he did not weigh or reconcile with his conclusion.
He wrongly indicated that Ms. Olah had other sources of recourse available to
her when those resources could only accept a complaint of inaction by the
state.
[36]
The Officer drew conclusions without providing
any foundation for them. He also failed to address the significant amount of
contradictory evidence put forward by counsel for Ms. Olah. A review of
the record indicates there were a great number of facts which relate to her profile
that cumulatively could support Ms. Olah’s argument of persecution. None of
these facts were addressed by the Officer.
[37]
The decision must be set aside and the matter
returned for consideration by a different officer. Overall, the reasons for the
outcome are neither transparent nor intelligible. Consequently, it is not
possible to say that the state protection analysis, which is the determinative
issue in the decision, falls within the range of possible, acceptable outcomes
based on the facts and law, as required by Dunsmuir.
[38]
Throughout the decision, the Officer recited
from the country condition documents without applying them to Ms. Olah’s
circumstances as a Roma woman who suffers specifically from domestic abuse and
generally from discriminatory treatment based on her being an unemployed Roma
woman over the age of 50. When this application is reconsidered, it is hoped
that those oversights will be corrected.
[39]
On these facts, there is no question for
certification nor was one suggested by counsel.
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