Date: 20041230
Docket: IMM-3784-03
Citation: 2004 FC 1782
Halifax, Nova Scotia, this 30th day of December, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
KISS SANDOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated April 23, 2003, wherein it was determined that the applicant is not a Convention refugee or a person in need of protection.
[2] The applicant requests a declaration that he is a Convention refugee or, in the alternative, a writ of certiorari quashing the decision of the Board and remitting the matter back for redetermination. The applicant also seeks costs of this application.
Background
[3] The applicant, Kiss Sandor (the "applicant"), is a citizen of Hungary who claims a well-founded fear of persecution on the basis of his Roma ethnicity.
[4] Alternatively, the applicant claims to be a person in need of protection who, if removed to Hungary, would personally be subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment.
[5] In the amendment to the narrative portion of his Personal Information Form ("PIF"), the applicant alleged that in October 1994, he was beaten to unconsciousness by bouncers at an entertainment club due to his Roma ethnicity. The applicant stated that the police officer called to the scene did not take a report of the incident. After his medical recovery, the applicant reported the incident to the local police station who investigated, charged and convicted the assailants, who were sentenced to six years in prison.
[6] The applicant alleged that he received threatening phone calls and letters from the assailants and their associates. The applicant further alleged that he, his brother and father were all beaten for being Roma. The applicant also stated that he was harassed at work and then fired from his job for his ethnicity.
[7] The applicant described an incident where he was attacked and beaten on the way home one day, but he managed to escape. He found a police officer, who refused to help him and warned him that as a Roma, he should be more careful.
[8] Finally, the applicant alleged that the death of his brother in a November 2000 car accident was caused by the same assailants and their associates who had accosted him in 1994. The applicant reported his suspicions to the police, who said they could not do anything without proof. Further, they informed the applicant that his 1994 attackers would be released from prison in January 2002.
[9] The applicant decided to leave Hungary. He arrived in Canada on November 2, 2001 and made a claim for refugee protection on November 8, 2001.
[10] On February 25, 2003, the Board held a hearing to determine the applicant's claim.
Reasons of the Board
[11] In a decision dated April 23, 2003, the Board determined that the applicant was neither a Convention refugee nor a person in need of protection within the meaning of IRPA.
[12] The basis for the Board's negative decision was that the applicant had not rebutted the presumption of adequate state protection being available in Hungary. Since this was a necessary component under the definition of either a Convention refugee or a person in need of protection, the Board rejected the applicant's claim.
[13] In considering the evidence before it regarding the availability of state protection for Roma in Hungary, the Board noted that the applicant's 1994 attackers were arrested by police and successfully prosecuted. On several other occasions, the applicant stated that he did not seek the assistance of the police, or the Roma Self-Government, or the Legal Defence Bureau for National and Ethnic Minorities ("NEKI"). Furthermore, the applicant testified to never having heard of the Office of the Ombudsman or the Office of the Prosecutor.
[14] The Board also concluded that the Hungarian authorities are making serious efforts to protect Roma citizens and noted the standard set out in Canada (Minister of Employment and Immigration) v. Villafranca (1992), 99 D.L.R. (4th) 334 (F.C.A.), leave to appeal to S.C.C. refused, [1993] S.C.C.A. No. 76 (QL), that states are not required to afford perfect protection to its citizens at all times.
[15] The Board concluded that the applicant had not provided clear and convincing proof that even if the police were unable to protect him, that he could not seek the protection of, and assistance from a network of government and government-sponsored organizations active throughout Hungary to assist Roma, including:
1. The Office of the Ombudsman (Parliamentary Commissioner for the Rights of National and Ethnic Minorities), which has been in place since 1995 and conducts investigations into alleged abuses and makes recommendations to the authorities. The Ombudsman has developed into a powerful institution and receives substantial attention from the press and general public.
2. Human rights organizations such as the European Roma Rights Center ("ERRC").
3. Twenty-nine civil legal protection organizations which often defend Roma interests and rights.
4. Publicly-funded non-governmental organizations such as the Roma Civil Rights Foundation, NEKI, ERRC, the Hungarian Helsinki Committee and the Roma Parliament.
[16] The Board also noted that in Nagy v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 370 (QL), 2002 FCT 281, this Court upheld the Board's decision that a refugee claimant should have sought the protection of the Ombudsman or the Office of the Prosecutor, who were non-police groups capable of protecting Roma citizens. The Board relied on Nagy, supra, in addition to more recent documentary evidence that supports the view that the authorities and state-funded organizations are taking effective action against persecution of Roma. The Board reviewed the following examples:
1. Changes to Hungary's penal code, stiffer penalties for hate crimes based on ethnicity, race or nationality and make the provisions easier to enforce;
2. A number of recent examples of hate crime prosecution and sentencing;
3. The first compensation court decision was won by a plaintiff alleging racist abuse due to Roma ethnicity; and
4. Police officers being fined or dismissed for their involvement in incidents of Roma mistreatment.
[17] The Board also reviewed the documentary evidence suggesting continued police mistreatment and difficulty in obtaining appropriate redress for police abuse of Roma as follows:
1. A defense lawyer's statement that five to six Roma per week report being beaten by the police and the government does not make any serious efforts to prevent abuse of power or address systemic racism in police ranks;
2. Very few charges are laid against police and courts tend to be very lenient on those who are convicted;
3. Country condition reports that police fail to intervene to prevent violence against Roma; and
4. The limited resources of the state-funded organizations intended to assist Roma.
[18] The Board went on to distinguish the decision in Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339, 2002 FCT 1081, on the basis that in that case, the agents of alleged persecution were the police, whereas in this case the applicant had not made that kind of allegation.
[19] The Board concluded that the applicant had failed to provide clear and convincing proof of the Hungarian state's inability to protect him. In the Board's view, the applicant had not fully availed himself of the avenues of complaint and redress available to him in Hungary. Even taking into consideration the limited financial resources and potential racism associated with various state-funded organizations, the Board found that adequate state protection would be available to the applicant.
[20] On this basis, the Board rejected the applicant's claims. This is the judicial review of the Board's decision.
Applicant's Submissions
[21] The applicant submitted that it is a settled principle of law that a refugee claimant need not establish past persecution in order to establish a well-founded fear or persecution on Convention grounds.
[22] Relying on Salibian v. Canada (Minister of Citizenship and Immigration), [1990] 3 F.C. 250 (C.A.), [1990] F.C.J. No. 454 (QL), and Canada (Attorney General) v. Ward, [1993] 2 S.C.R 689, the applicant submitted that evidence of similarly-situated individuals can be used to establish the objective basis for a fear of persecution. In the applicant's view, the Board erred by failing to recognize, based on either the applicant's own testimony and/or the documentary evidence before it regarding the treatment of Roma in Hungary, that he had a well-founded fear of persecution.
[23] The applicant further submitted that the Board erred by ignoring his evidence that due to a group of racist skinheads, his life was at risk and he was at risk of cruel and unusual punishment.
[24] The applicant relied on Molnar, supra, which states that there is no obligation on a claimant to approach human rights agencies or other groups where the police are unwilling to offer protection. The applicant submitted that the Board erred in finding adequate state protection was available to him based on the existence of such groups.
[25] The applicant submitted that the Board ignored evidence that the police themselves persecute Romas and that the skinhead movement in Hungary is connected to the police and the judicial systems. In the applicant's view, the increase in police racism alone establishes the well-foundedness of his claim, since the police are meant to be the body that protects its citizens.
[26] The applicant submitted that the Board erred by misapprehending the evidence, ignoring relevant evidence, and making an unreasonable assessment of the evidence as a whole. The applicant further submitted that the documentary evidence corroborated the testimony of the applicant that racist Hungarians attacked and threatened him, sometimes with the acquiescence of the police.
[27] The applicant submitted that the Board erred in ignoring or failing to adequately consider that the ten-year shorter life span of Romas, along with their poor housing and social situation in Hungary, amounts to persecution. The Board thereby misconstrued the definition of a Convention refugee, as argued the applicant, by failing to consider whether this supported the well-foundedness of his claim.
Respondent's Submissions
[28] The respondent submitted that the applicable standard of review is patent unreasonableness. In support of this argument, the respondent cites Zambo v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 539 (QL), 2002 FCT 414, a case where Roma from Hungary claimed refugee status and the key issue was, as here, the availability of adequate state protection.
[29] The respondent noted the applicant's argument that the Board erred by ignoring the documentary evidence that police persecute Romas and that the skinhead movement is connected to the police and judicial systems. On this issue, the respondent submitted that first, the applicant failed to direct the Court's attention to where this evidence appeared in the record; and second, there was evidence before the Board that the applicant had successfully sought police assistance and in other cases did not attempt to get police help. Furthermore, the Board held that the police were not the agents of persecution in this case, and noted the documentary evidence before it that rogue police officers existed but were being prosecuted. In view of this analysis, the respondent contended that the Board thoroughly considered the matter and evidence relating to adequate state protection. It is argued that this Court's intervention is not warranted.
[30] The respondent submitted that the applicant's allegation that the Board ignored evidence that Roma citizens suffer poor housing and social conditions, in addition to having a ten-year shorter life expectancy than the general Hungarian population, is not supported by any evidence.
[31] The respondent requested that this application for judicial review be dismissed.
Issues
[32] The following are the issues in this case:
1. Was there a denial of natural justice?
2. Did the Board err in its finding that the applicant is not a Convention refugee or a person in need of protection?
Relevant Statutory Provisions
[33] Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows:
|
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
. . .
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. |
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;
. . .
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. |
Analysis and Decision
[34] Issue 1
Was there a denial of natural justice?
The applicant was represented by an immigration consultant at the hearing before the Board. The applicant retained legal counsel for this hearing and that counsel raised a new issue at the commencement of the hearing. The new issue was whether the Board member's questioning of the applicant and the Board's decision to allow the Refugee Protection Officer ("RPO") to question the applicant before the examination in chief of the applicant was completed, amounted to a denial of natural justice. The respondent objected to the inclusion of this argument but the matter was resolved by allowing the applicant to address this argument at the hearing and the respondent could submit written representations on the argument after the conclusion of the hearing. The applicant could reply to the respondent's written argument.
[35] I have reviewed the transcript of the Board hearing and I note that there was extensive questioning of the applicant by the Board member. By way of example, the Board member's examination of the applicant is shown at pages 345 to 349 of the tribunal record. Another example of the member's questioning is found at pages 350 to 354 of the transcript:
COUNSEL: No. When did you first start go [sic] to police?
CLAIMANT: This was around December of 1994. This was after the accident.
COUNSEL: How long after?
CLAIMANT: It was about two months following the accident. I had to wait till my recovery allowed me to go to the police when I first started to walk.
PRESIDING MEMBER: What accident, sir?
CLAIMANT: This was the big one when I was beaten up.
PRESIDING MEMBER: This was an accident?
CLAIMANT: This was not an accident, this was a beating.
PRESIDING MEMBER: So, why would you call it an accident?
CLAIMANT: This was a slip of tongue. I apologize for it.
PRESIDING MEMBER: I'm not very clear here. Was this an accident or was this an assault?
CLAIMANT: This was an assault.
PRESIDING MEMBER: And your reason why you called it an accident was a slip of the tongue?
CLAIMANT: Yes, this was a slip of tongue, because suddenly I was just thinking at the same time of the accident of my brother, as well, and this is what came out.
PRESIDING MEMBER: Counsel?
COUNSEL: So, when did that assault happen?
CLAIMANT: This was during the fall of 1994 in October.
COUNSEL: You've been hospitalized?
CLAIMANT: Yes.
COUNSEL: For how long?
CLAIMANT: I was - - they kept me on intensive care for a week and then as a walk-in patient I had to go back for the remainder of the time.
COUNSEL: When the incident happened, the assault happened, did the police come to see you?
CLAIMANT: Yes, the local policeman came to the scene. That was one police officer attending.
COUNSEL: He took some evidence leading to some report from witnesses?
CLAIMANT: He was supposed to - - he wrote a report, but as an official duty he was supposed to report the perpetrators, what he failed to do. That's why I had to follow up on that and go back to the police station after my recovery.
PRESIDING MEMBER: Sir, correct me if I'm not right: You were unconscious after this, were you not, after this assault?
CLAIMANT: Yes, that's the case.
PRESIDING MEMBER: So, you really don't know what happened with respect to the policeman, what he did and what he didn't do.
CLAIMANT: The source of my information was the nurse who came with the ambulance car to pick me up, and later on in the hospital she informed me that neither the ambulance nor the paramedic nor the policeman filed any reports against anyone.
PRESIDING MEMBER: Sir, did the nurse accompany you back to the hospital?
CLAIMANT: Yes, she was in the paramedic [sic].
PRESIDING MEMBER: Right. So, don't you think her attention was primarily based on you and your health and getting you to the hospital?
CLAIMANT: No. I think she, in her professional duty, she thought that she - - she had been sworn in as a nurse. This professional duty included the information, to provide information to me what was going on, and this was one of the reasons. The other one was that when I went to follow up to the police station, this was entirely new to them, this whole story.
PRESIDING MEMBER: Okay, but the final conclusion of this particular matter, sir, was that one of your attackers was sentenced, prosecuted, and went to jail for six years; is that correct?
CLAIMANT: Two people were handed down verdicts. Just due to this case, they were given one-year jail term. The reason why it came to six years altogether because they had some suspected verdicts already.
PRESIDING MEMBER: Okay, but the point that I'm making, sir, is that in the particular matter the assailants were charged, convicted, and sentenced; is that not correct? Let him answer the question, Counsel.
COUNSEL: Let me clarify.
PRESIDING MEMBER: No. I want the question answered, Counsel.
CLAIMANT: In the sentence it was not stated that the reason for the assault was - - they assaulted me because I'm of Roma origin, even though I asked it from the judge - -
PRESIDING MEMBER: Sir, stop. Sir, I'm asking you a question. I want you to listen to it and I want you to provide me with the answer to the question.
In this matter, were the individuals who allegedly assaulted you charged, convicted, and sentenced? Yes or no?
CLAIMANT: Yes, they were charged, they were sentenced, they spent the jail term, but not for the reason what they should have been sentenced for.
PRESIDING MEMBER: What do you mean?
CLAIMANT: The sentence was in return or for the body assault, but the way they treated me during the assault, the way they addressed me or they treated me like a dog because I am of Roma origin. This was not expressed in the sentence. They were just sentenced because they assaulted me so badly that I almost died, I hardly survived, and they were given only one year sentence for that.
PRESIDING MEMBER: Are you saying, sir, that they didn't receive additional sentencing because of derogatory remarks they made to you?
CLAIMANT: No. What I'm referring to that somebody who beats another person almost dead, and that person is given one-year jail term is disproportionate with a one-year jail term which is given for stealing a car, for example. This is my point.
PRESIDING MEMBER: Okay, you may not be happy with the sentence, but, in fact, they were sentenced, charged, and convicted.
CLAIMANT: Yes, that's correct.
[36] I am of the view that the questioning of the applicant by the Board member as noted above and as evidenced elsewhere in the transcript of the hearing, in addition to the fact that the RPO was allowed to cross-examine the applicant before his examination in chief was completed, resulted in a denial of the applicant's entitlement to a fair hearing. As a result, the decision of the Board must be set aside and the matter referred to a differently constituted panel for redetermination.
[37] Because of my finding on Issue 1, I need not deal with the remaining issue.
[38] Neither party submitted a serious question of general importance for my consideration for certification.
ORDER
[39] IT IS ORDERED that the decision of the Board is set aside and the matter referred to a differently constituted panel for redetermination.
"John A. O'Keefe"
J.F.C.
Halifax, Nova Scotia
December 30, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3784-03
STYLE OF CAUSE: KISS SANDOR
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 30, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
George J. Kubes
FOR APPLICANT
Aviva Basman
FOR RESPONDENT
SOLICITORS OF RECORD:
George J. Kubes
Toronto, Ontario
FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT