Date: 20010620
Docket: IMM-3546-00
Neutral citation: 2001 FCT 680
BETWEEN:
KOSZEGI ELEMER and KOSZEGI ELEMER LAJOSNE
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] These reasons arise out of an Application for Judicial Review of the decision of the Convention Refugee Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning given that phrase in subsection 2(1) of the Immigration Act.[1] The decision of the CRDD is dated the 10th of May, 2000.
[2] The applicants are husband and wife, he in his early 50's and she in her late 40's. They are citizens of Hungary and are of Roma ethnicity. They base their claim to Convention refugee status on an alleged well-founded fear of persecution if they are required to return to Hungary, based on their Roma ethnicity.
[3] The male applicant, in the narrative portion of his Personal Information Form, succinctly describes a lifetime of harassment, discrimination, and humiliation culminating with three violent attacks in a relatively short space of time. The first attack was in the spring of 1997 and was committed against both applicants. The male applicant was beaten, knocked down and kicked. The female applicant was grabbed by the hair and pushed to the ground. The second attack occurred in August, 1998. The male applicant was punched, knocked to the ground and once again kicked. In this incident, the male applicant suffered a broken nose and a broken rib. The third incident was in January, 1999 when the male applicant was again attacked. In this case, the attack resulted in a broken ankle.
[4] The applicants attempted to report the first attack to the police but their efforts were summarily rebuffed. In the case of the second attack, when the applicant went to the police, he was accused of being drunk and he was again rebuffed. The medical doctor who attended to the male applicant's injuries submitted a report of the incident to the police. Apparently, some kind of investigation was conducted. About a month after the incident, the male applicant was called to the police station and asked to identify his assailants from a number of persons who were present. None of the persons present was among the male applicant's assailants.
[5] The third incident was not reported to the police. The male applicant testified that he despaired of receiving any satisfaction or protection from the police.
[6] The female applicant adopted the male applicant's Personal Information Form narrative as her own.
[7] The CRDD, in its reasons, raised no credibility concerns with respect to the Personal Information Form narrative and the oral testimony adduced before it. It made no finding regarding the subjective fear of the applicants, but impliedly concluded that their fear was not objectively well founded by reason of a presumption of effective state protection available to them in Hungary.
[8] In a very brief analysis, the CRDD wrote:
I would be remiss if I did not concede that societal discrimination against Roma, from all sections in Hungary, still prevails; however, in the circumstances of this claim, I find that the claimants have not adduced clear and convincing proof of the state's inability to protect them, should they return to Hungary.
I find that the claimants have not met the burden of proof to establish that they sought state protection through the police or any other state institution in Hungary, and was [sic] refused, excepting the 1997 occasion when the police cynically dismissed the claimants. There is clear evidence from the documentation that the State is no longer willing to tolerate discriminatory treatment of minorities by its enforcement agents – that is, the police – and that the State is taking effective steps to punish and hold accountable those who discriminate against the Roma minority.
In considering the agent of persecution, and placing it in its proper perspective in Hungary, the three incidents allegedly concerned attacks by skinheads. The documentary evidence reveals that there has been a dramatic decline in skinhead activity. It is widely thought to be 2-3% of what it was in the early 1990's.
Documentary evidence also reveals to the panel's satisfaction that the government of Hungary has demonstrated, both in law and in practice, its ability to provide adequate protection to the Roma minority. The Government of Hungary is not ignoring the problems affecting the Roma and other ethnic minorities. On the contrary, it has enacted legislation, created structures and programs to remedy the situation. It is clear from the documents, that while the situation is not perfect, the State is making a serious effort to offer protection and to improve the conditions of ethnic minorities.
[9] The CRDD's reference to "...clear and convincing proof of the state's inability to protect them ..." is drawn from the decision of the Supreme Court of Canada in Canada (Attorney General) v. Ward[2] where Mr. Justice LaForêt, for the Court, wrote at pages 724 -5:
... clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.
[emphasis added]
[10] Here, there was some evidence of an unwillingness or inability on the part of the state, through its police, to effectively protect the applicants. The credibility of that evidence was not questioned. Nonetheless, as evidenced by the foregoing quotation from the reasons of the CRDD, it saw fit to prefer documentary evidence to the contrary to which it referred in only the most general of terms, without footnote references that would have enabled a reader of the CRDD's reasons to verify the references, and without any reference whatsoever, save for the acknowledgment of "societal discrimination" against Roma in Hungary, of documentary evidence that was consistent with the applicants' experiences.
[11] The CRDD acknowledged that the reaction of the police following the first violent incident involving the applicants was "... clearly repugnant, and demonstrates, in my view, their insensitivity and racial intolerance." The treatment of the male applicant when he reported the second violent incident was no better. As earlier indicated, he was accused by the police of being drunk. It was only after the police received a doctor's certificate indicating the male applicant's injuries, that any investigation would appear to have been undertaken. That investigation proved fruitless.
[12] With respect to the third incident, the CRDD commented negatively on the failure of the male applicant to report the third incident. It noted: "... the claimants had an obligation to seek protection or redress." On two prior occasions, they had been humiliated by the police. On the first occasion, no report of the incident was taken. On the second occasion, it was apparently only when medical evidence was provided that the police took the male applicant's report seriously. The question of how often the applicants were required to endure attacks only to be followed by abuse at the hands of the police was not addressed. The applicants chose to take matters into their own hands and left for Canada shortly after the third attack.
[13] While the ultimate decision arrived at by the CRDD might well have been reasonably open to it, I conclude that the analysis which it has provided in support of its conclusion is entirely inadequate and results, in the absence of a more cogent analysis, in a simply perverse conclusion based on the totality of the evidence that it had before it, much of which it either chose to ignore or simply misinterpreted.
[14] In the result, this application for judicial review will be allowed, the decision of the CRDD that is under review will be set aside and the applicants' application for Convention refugee status will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[15] Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
June 20, 2001
Toronto, Ontario
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3546-00
STYLE OF CAUSE: KOSZEGI ELEMER and KOSZEGI ELEMER LAJOSNE
Applicants
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, JUNE 18, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: WEDNESDAY, JUNE 20 2001
APPEARANCES BY: Ms. Elizabeth Jaszi
For the Applicants
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD:
Barrister & Solicitor
1267 A St. Clair Avenue West
Unit #1
Toronto, Ontario
M6E 1B8
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010620
Docket: IMM-3546-00
Between:
KOSZEGI ELEMER and KOSZEGI ELEMER LAJOSNE
Applicants
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER