Federal Court Decisions

Date: 20060602

Docket: IMM-5172-05

Citation: 2006 FC 682

Ottawa, Ontario, June 2, 2006

PRESENT:      The Honourable Justice James Russell

BETWEEN:

JOZSEF TOTH

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

APPLICATION

[1]                This is an application under section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 for judicial review of a decision dated July 26, 2005 (Decision) of the Refugee Protection Division of the Immigration and Refugee Board (Board), wherein it was determined that Jozsef Toth was not a Convention refugee or a person in need of protection.

BACKGROUND

[2]                The Applicant is a Hungarian citizen. He claims refugee status on the basis of his Roma ethnicity. The Applicant grew up in Debrecen, Hungary, in an ethnically diverse neighbourhood. He attended school up to grade 8. He does not speak the Roma language and says his parents did not teach it to him.

[3]                The Applicant claims that in the fall of 1996 he was beaten on several occasions by skinheads and was the target of anti-Roma graffiti. The police did nothing to assist him. In February 1997, the Applicant and his parents moved to Budapest, but he was unable to find work except as a manual labourer. After arriving in Budapest, he alleges that he was targeted by the police, who habitually accuse Roma of crimes they have not committed. In June 2001, the Applicant says that he participated in a protest against racism and mounted a podium to criticise the government.

[4]                Starting in August 2001, the Applicant claims to have been the target of a group of skinheads who insulted and beat him. On September 27, 2001, he discovered a swastika painted in front of his house, but he alleges that when he complained to the police they accused him of being responsible for starting fights. According to the Applicant, one of the policemen was related to a skinhead. That same night, more threatening graffiti appeared on the Applicant's house. Skinheads broke down the door and threw in a gas bomb. The police were called but never arrived. When the Applicant went to the Roma Minority Self-Government, a body responsible for promoting the interests of Roma, he was told that they could not help him financially if he wanted to start litigation against his persecutors.

[5]                The Applicant says he decided to leave for Canada at the end of September 2001. His passport shows that he went to the Australian Embassy on October 30, 2001. In his testimony, he explained he had considered Australia as an alternative destination, but that he had been denied a visa to go there. No visa was required to come to Canada. The Applicant left Hungary on November 16, 2001. He claims that, due to a misunderstanding at the airport, he entered the country as a visitor. It was only two weeks after his arrival that he submitted his refugee claim.

DECISION UNDER REVIEW

[6]                The Board concluded that the Applicant was not a Convention refugee, nor a person in need of protection. While it accepted that he had been able to prove his identity, it questioned his credibility. The Board pointed out that the Applicant claimed to have decided to come to Canada in September 2001 because of the quality of the Canadian refugee program, yet he went to the Australian Embassy in October to try to get a visa. The Board found the Applicant to be ill at ease when answering its questions on this issue. It concluded that he was, in fact, trying to immigrate to whichever country might offer him better economic opportunities.

[7]                The main factor in the Board's Decision was its conclusion that the Applicant had failed to demonstrate that state protection was unavailable in Hungary. The Board noted that there is a presumption that state protection exists, particularly in the case of a democratic state. The documentary evidence did not suggest that there was systematic persecution of Roma in Hungary, or that state institutions had broken down, or that the state was unwilling to protect its citizens. The Board pointed to evidence indicating that Hungary has taken steps to deal with corruption within the police, as well as to curb organised crime. Specific measures have been put in place to improve the conditions for Roma who have increasingly made use of the judicial system to obtain redress.

[8]                In this context, the Board considered that the Applicant should have pursued more "vigorously" the recourses that were open to him in Hungary. The Board found that he had not filed any complaints against the discrimination that he allegedly suffered at the hands of the authorities. The Board also considered that the Applicant had not provided any evidence to support his claim that he went to the authorities for protection from his persecutors. In order to rebut the presumption of state protection, the Applicant should have exhausted the recourses that were available to him. The Board also hinted at the availability of an internal flight alternative (IFA).

[9]                Having found that the Applicant did not qualify for refugee status, the Board also concluded that he was not a person in need of protection, as he had failed to prove that he was personally in danger, having regard to the situation of similarly situated persons.

ISSUES

[10]            The Applicant raises the following issues:

1. Did the Applicant rebut the presumption of state protection?
2. Did the Board err in concluding that the Applicant lacked credibility?
3. Did the Board err in concluding that the Applicant had an IFA?

APPLICANTS' SUBMISSIONS

[11]            In his submissions, the Applicant claims that the Board's Decision should be quashed if it is based on improper principles, erroneous findings of fact made in a perverse or capricious manner without regard for the material before it, or errors of law or bad faith (Ibrahim v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 241 (F.C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1570 (F.C.A.); Ye v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 584 (F.C.A.); Bains v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497).

[12]            Turning to the specific facts of the case, the Applicant says that the Board failed to properly assess the evidence that was before it. In particular, the Board did not pay attention to several reports describing the difficulties faced by Roma in Hungary, notably in the context of the judicial process. The Board stated in its Decision that it preferred to rely on documentary evidence from reliable sources rather than newspaper articles. However, the Applicant points out that he submitted several credible reports to back up his claim.

[13]            The Applicant also argues that the Board erred when it concluded that he had not provided sufficient evidence to prove he had contacted the police. He claims that the Board failed to consider the difficulty of obtaining such evidence when the police were hostile to him. He feels that the Board was unjustly fixated on the need for documentary evidence, and he says oral testimony should be sufficient unless contradicted by other evidence (Lachowski v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 1138).

[14]            The Applicant also points out that on page 4 of its Decision, where it states that the onus is on the Applicant to exhaust local remedies, the Board referred to him as "the claimants." This use of the plural suggests that the Board's words may not have been crafted with the Applicant in mind. Additionally, the Applicant suggests that it is inappropriate for the Board to have expected him to "vigorously" seek protection, considering his low level of education and lack of sophistication. The Board committed a further error when it used its specialized knowledge to mention the introduction into the Hungarian Penal Code of an article establishing hate crimes as a new offence. The Applicant claims that the Board was obliged to warn him that it would be using its specialized knowledge in this way so that he would have a chance to respond (Gracielome v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 463 (F.C.A.); Tanase v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 32; Torres v. Canada (Minister of Citizenship and Immigration), 2002 FCT 212, [2002] F.C.J. No. 277).

[15]            The Applicant also challenges the Board's view that his delay in beginning his refugee claim had a negative effect on his credibility. He claims that the delay was not significant enough to be relevant. He concludes by claiming that the Board erred when it stated that he had an IFA, since it failed to specify where this IFA might be. The Applicant relies on Nosakhare v. Canada (Minister of Citizenship and Immigration), 2001 FCT 772, [2001] F.C.J. No. 1120, where Justice Tremblay-Lamer stated that an IFA cannot be speculative and must be an identifiable and realistic option.

RESPONDENT'S SUBMISSIONS

[16]            The Respondent did not make written submissions.

ANALYSIS

[17]            At the commencement of the hearing counsel for the Respondent conceded significant omissions that had come to light upon her detailed review of the record in preparation for the hearing. In particular, counsel highlighted the omission of the Board to deal with crucial evidence regarding the Applicant's dealings with the police in 1996 that goes to the core issue in the Decision, which is state protection. In addition, counsel pointed out to the Court that the Board refers to a document that was not part of the record, thus raising the spectre of evidence that may not have been disclosed to the Applicant, who represented himself at the hearing before the Board.

[18]            After hearing counsel on these matters, my conclusion was that the mistakes highlighted were so central to the Decision that they render it patently unreasonable and there was simply no point in proceeding to address other issues raised by the Applicant.

[19]            In view of the new information brought to my attention by Respondent's counsel, I am of the view that this Decision is unsafe because of reviewable errors and must be returned for reconsideration. Counsel for the Respondent, commendably in my view, did not resist this conclusion.

ORDER

THIS COURT ORDERS that

1.                   The application for judicial review is allowed. The mater is returned for reconsideration by a differently constituted Board.

2.                     There is no question for certification.

"James Russell"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-5172-05

STYLE OF CAUSE:                           JOZSEF TOTH

                                                            

                                                             v.

                                                            THE MINISTER OF CITIZENSHIP AND    IMMIGRATION

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       MAY 9, 2006

REASONS FOR ORDER:                RUSSELL J.

DATED:                                              June 2, 2006               

APPEARANCES:

Kingsley Jesuorobo	FOR THE APPLICANT(S)
Leena Jaakkimainen	FOR THE RESPONDENT(S)

SOLICITORS OF RECORD:

KINGSLEY JESUOROBO Barrister and Solicitor Toronto, Ontario	FOR THE APPLICANT(S)
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT(S)