Date:
20130409
Docket:
IMM-8054-12
Citation:
2013 FC 355
Toronto, Ontario,
April 9, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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IMRE GULYAS
IMRENE GULYAS
IMRE GULYAS
KONSTANTINA HAJ GULYAS
KONRAD GULYAS
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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
I. Introduction
[1]
The
Applicants seek judicial review of a Refugee Protection Division [RPD] of the
Immigration and Refugee Board decision, wherein it was determined that they are
neither Convention refugees nor persons in need of protection under sections 96
and subsection 97(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA]. In particular, the Applicants challenge the finding
that an internal flight-alternative [IFA] was available to them.
II. Judicial Procedure
[2]
This
is an application under subsection 72(1) of the IRPA for judicial review
of the RPD decision, dated July 16, 2012.
III. Background
[3]
The
principal Applicant, Mr. Imre Gulyas (born in 1972); his spouse, Mrs. Imrene Gulyas (born in 1976), their daughter Imre Gulyas (born in 1995) and their
twin sons, Konstantina Haj Gulyas and Konrad Gulyas (born in 1998) are
Hungarian citizens.
[4]
The
principal Applicant alleges that his children were abused at school by
students, staff, and teachers. When he complained, the school called the
police, who beat him.
[5]
The
principal Applicant claims that, since the rise of the Hungarian Guard [HG] and
Jobbik, the situation of Hungary’s Roma has been placed in grave jeopardy
(extensive country condition evidence was submitted in this regard). HG menaced
and killed Roma in his village and he personally has received death threats and
anti-Roma fliers.
[6]
Describing
a Jobbik flier telling Roma to leave Hungary on threat of death, the principal
Applicant testified that he feared an eventual genocide of the Roma and HG and
Jobbik pervade Hungary (Certified Tribunal Record [CTR] at pp 70 and 72).
[7]
On
August 20, 2007, the principal Applicant’s niece was assaulted by a truck
driver shouting anti-Roma epithets. He was detained but escaped after
assaulting the arresting officer. After recapture, he was taken into custody
but released that day.
[8]
The
principal Applicant’s spouse cooperated in the investigation but the
investigating officer did not accurately transcribe her statement and omitted
key points. The truck driver threatened her at the police station on multiple
occasions.
[9]
The
investigation terminated; no charges were made and the principal Applicant’s
family did not receive protection (including a restraining order) from the
truck driver.
[10]
The
principal Applicant and his spouse presented a police statement, dated
September 11, 2007, to the RPD stating, “in connection with a police procedure
against an unknown offender based upon a reasonable suspicion of a criminal
action which breaks the Criminal law Section 186, Paragraph (1) and qualifies
by the same paragraph as causing danger on the public roads” (CTR at pp
486-489).
[11]
From
the lax police investigation, the principal Applicant and his spouse have
inferred that the truck driver is a member of HG or Jobbik. As recently as
August 2011, the truck driver attempted to locate the spouse, posing as her
friend.
[12]
On
November 2, 2008, the principal Applicant’s cousin and her brother-in law were
shot in a nearby village fleeing a racist attack on her house with Molotov cocktails.
[13]
The
principal Applicant presented a medical certificate of death for his cousin
identifying her cause of death as a “gunshot wound caused by a criminal act”, a
statutory declaration describing the attack and naming the principal Applicant
as a relative (CTR at pp 782-787), and a photo of a recent anti-Roma flier
similar to that distributed to his cousin’s family before her murder (CTR at p 475).
[14]
In
2010, a gynaecologist performed an abortion on the principal Applicant’s spouse
with minimal examination and no medical report, telling her the foetus was
dead. On returning for a report, he told them to leave or he would call the
police, and stated: “… Why does this matter to you? Why would you - how much
do you want to procreate? There [are] so many of you …” (CTR at p 51).
[15]
They
reported the incident to a medical board but the gynaecologist committed
suicide. They allege he was involved in an HG training camp, was connected to
the murder of Roma, and had performed similar abortions on Roma women.
[16]
The
principal Applicant and associated claimants arrived in Canada on May 29, 2010.
IV. Decision under Review
[17]
The
RPD found that the Applicants were not Convention refugees or persons in need
of protection because they had viable IFAs.
[18]
The
RPD found that procedures and processes to protect Roma exist generally in Hungary but state protection from the truck driver was unavailable. Police failure to protect
the spouse from the truck driver, who threatened her in their presence, left
her “exposed to the future possibility of revenge, threats and retaliation” (Decision
at para 28). It was objectively unreasonable to expect them to seek further
protection.
[19]
In
finding that a viable IFA was available, the RPD applied Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC 706.
[20]
The
RPD was satisfied, on a balance of probabilities, that there was not a serious
possibility that the Applicants would be persecuted, or face a risk to life, or
a risk of cruel and unusual treatment or punishment or danger of torture in Budapest or Szeged. The RPD acknowledged the principal Applicant’s fear that the truck
driver, given his presumed links to the HG, could track them throughout Hungary with the assistance of the authorities but responded that the evidence showed that
the primary agents of persecution were localized. The main incidents underlying
the claim occurred in Forro, Hungary, from which the proposed IFAs were
geographically distant. Even if the unsubstantiated belief that the truck
driver is a member of the HG was correct, the RPD did not find that outside HG
members would, years later, be seriously interested in the principal Applicant
and his family. The truck driver would not likely be aware of their return if
they relocated to a large city; nor would he likely pursue them in a distant
part of the country.
[21]
The
RPD found that the IFAs would not be unreasonable in the circumstances. The
principal Applicant, having worked abroad, would have job prospects in the
large cities of Budapest and Szeged. It also distinguished his situation from
the socio-economic conditions of many Roma in Hungary: (i) his move to Canada
illustrated independence and resourcefulness; and (ii) he has a post-secondary
education from a technical institute, worked in the past as an engine fitter,
vocational training as a structural welder, and a stable employment history
working for Roma and non-Roma employers. His spouse had vocational training,
was a seamstress for 17 years for a Dutch company, and received employer and
government-funded maternity leave.
V. Issue
[22]
Is
the decision unreasonable because the RPD construed the risk profile of the
Applicants too narrowly?
VI. Relevant Legislative
Provisions
[23]
The
following legislative provisions of the IRPA are relevant:
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Convention
refugee
96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion,
(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
(b) not having a country
of nationality, is outside the country of their former habitual residence and
is unable or, by reason of that fear, unwilling to return to that country.
Person
in need of protection
97. (1) A person
in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by
the person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care.
Person
in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection.
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Définition
de « réfugié »
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité
de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2) A également qualité de
personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
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VII. Position of the Parties
[24]
The
Applicants submit that the IFA analysis is internally-inconsistent and fails to
consider the specific nature of his risk. The Applicants contend that the RPD
failed to address the specific risks of abuse, discrimination, and harassment
the family would face as Roma in Hungary. Noting that the RPD accepted the
credibility of their narrative, the Applicants argue that the IFA analysis
fails to consider how these specific risks would arise in the proposed IFAs. In
light of these other specific risks, the Applicants take the position that the
RPD’s conclusion that state protection would not be available to them is
inconsistent with its IFA finding. The IFA finding is also unreasonable,
according to the Applicants, due to the mobility restrictions on Roma in Hungary. Finally, the RPD’s comments on the principal Applicant’s job prospects are
speculative and unreasonable in light of country condition evidence on the
worsening situation of the Roma.
[25]
The
Applicants also contend that the RPD decision is based on erroneous findings of
fact made without regard to the material before it. Specifically, the RPD’s
inferences that the Driver was local and lacked the interest, motivation,
means, and resources to pursue the Applicants in Budapest and Szeged is not
based on any evidence. These inferences contradict evidence that considerable
resources were available to the Driver (who was not arrested for attacking them
or assaulting the arresting police officer), he was not local, and he was a
truck driver who travels regularly and would not find it difficult to pursue to
Budapest or Szeged.
[26]
The
Respondent counters that the RPD analyzed the specific risks confronting the
Applicants. In the Respondent’s view, the principal Applicant identified the
truck driver as his family’s primary agent of persecution and the RPD
determined the claim on that basis. Further, the state protection analysis was
not in respect of Roma generally but rather in respect of the family’s personal
situation vis-à-vis the Driver.
[27]
The
RPD’s IFA finding, according to the Respondent, is reasonable because the
Applicants did not establish that they would be at risk in Budapest or Szeged. The principal Applicant’s testimony regarding the truck driver’s HG connections
and ability to track his family to those large cities was speculative. It was
also reasonable to infer from the principal Applicant’s employment and
education history (and that of his spouse) that the IFAs would not be
unreasonable in their particular circumstances.
VIII. Analysis
[28]
The
characterization of a claimant’s risk profile attracts deference (Olivares v
Canada (Minister of Citizenship and Immigration), 2012 FC 1010 at para
5).
[29]
If
the standard of reasonableness applies, courts may only intervene if reasons
are not “justified, transparent or intelligible”. To meet the standard, a
decision must also fall in the “range of possible, acceptable outcomes ...
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[30]
In
Olivares, above, Justice Mary Gleason explains that “RPD decisions which
mischaracterize an applicant's profile are unreasonable because in making such
a decision the Board fails to consider the evidence before it and to properly
evaluate the risk that might be faced by the claimant” (at para 6).
[31]
In
this Application, the principal Applicant presented evidence that: (i) his
children suffered discrimination in school; (ii) the HG and Jobbik menaced and
terrorized Roma in his village; (iii) the HG and Jobbik pervade Hungary;
(iv) an anti-Roma truck driver had assaulted his niece and threatened his
spouse; (v) his cousin was murdered in a violent anti-Roma attack; and (vi) a
gynaecologist aborted a child carried by his spouse for anti-Roma reasons. The
Applicants presented extensive country condition evidence on anti-Roma violence
and discrimination throughout Hungary and the principal Applicant testified
that he feared an eventual anti-Roma genocide in that country.
[32]
In
characterizing the Applicants’ specific risk as localized, the RPD limited its
risk analysis to retribution for the truck driver investigation. Focusing on
this incident, the RPD failed to analyze other, ample evidence of education
discrimination, widespread anti-Roma violence and discrimination, the murder of
relatives, the abortion, and the general country condition evidence.
[33]
Without
analyzing other evidence suggesting a broader risk profile for the Applicants,
the RPD could not properly analyze their risk and hence, whether a viable IFA
was available. Indeed, its IFA analysis is predicated on an unreasonably narrow
characterization of their risk profile. Notwithstanding the evidence on a wide
array of risks that the Applicants would face as Roma in Hungary, the RPD
concluded that IFAs were available in the cities of Budapest and Szeged because
(i) the truck driver would not have the ability or inclination to track them in
those cities; and (ii) the HG would not be interested in them due to this
incident.
[34]
The
RPD’s analysis is reminiscent of another RPD decision in Parra v Canada (Minister of Citizenship and Immigration), 2013 FC 65. In Parra, a
decision-maker found that a union organizer who was assaulted by three men for
union activities had an IFA because there was no evidence that his attackers
would be able or inclined to pursue him in Bogota. At the hearing, the Applicant
testified that he would resume his union and activist activities in Colombia. Justice Luc Martineau found the decision unreasonable because, in focusing on the
Applicant’s particular attackers, the decision-maker failed to consider risks
that would arise in Colombia from being a union organizer or activist
generally. The RPD failed to meet its “burden of explanation” under Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35 with
respect to country condition evidence on the persecution of this group not
discussed in the decision and to conduct “a true contextual analysis ... of the
prospective risks the applicants face” (Parra, above, at para 18). In
sum, “the panel misunderstood or too narrowly characterized the profile of a
refugee claimant with respect to his ... specific risk profile” (at para 20).
[35]
The
same issues arise in this Application. In focusing on a single instantiation of
violence involving the Applicants, the RPD failed to consider the specific
risks arising from the cause of that violence. This approach ignored evidence
of other anti-Roma violence and discrimination experienced by the Applicants
personally and the country condition evidence on the current situation of Roma in
Hungary. The RPD fails to contextually analyze the prospective risks the
Applicants face in Hungary and to construct an accurate risk profile.
[36]
In
arguing that the principal Applicant identified the truck driver as his primary
agent of persecution, the Respondent mischaracterizes his testimony. The record
shows that the principal Applicant identified both the truck driver and
anti-Roma groups like the HG and Jobbik as the basis for his fear of
persecution:
Q. So to begin with, sir, I am going to ask
you, can you tell me who it is you fear in your homeland and be as specific as
possible.
A. From racist individuals mostly. How
should I say this, and my wife’s and from my wife’s vengeance I am afraid of –
I am afraid for the most – of the most.
Q. Okay. When you say “racist individuals”
can you be specific? Do you know who they are?
A. They are members of the Hungarian Guard
and the Jobbik Party that is represented in the Parliament as well.
(CTR at p 15).
IX. Conclusion
[37]
For
all of the above reasons, the Applicants’ application for judicial review is
granted.
JUDGMENT
THIS COURT
ORDERS that the Applicants’ application for judicial review be
granted and the matter be returned for determination anew (de novo)
before a differently constituted panel. No question of general importance for
certification.
“Michel M.J. Shore”
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