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Federal Court |
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Cour fédérale |
Toronto, Ontario, June 23, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
TAMASNE BANYA
AND KLAUDIA NATASA BANYA
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicants in the present Application are a mother, father and daughter who, in applying for a Pre-Removal Risk Assessment (PRRA), provided extensive evidence that, as Roma from Hungary, should they be required to return to Hungary, there is more than a mere possibility that they would be persecuted pursuant to s. 96 and would suffer the probability of risk pursuant to s.97 of the IRPA. Because the Applicants had made a prior claim for protection before the Refugee Protection Division but had it declared abandoned with no opportunity to reopen, the PRRA application required a full consideration of the s. 96 and s. 97 claims by the PRRA Officer concerned.
[2] In the submissions which went to the PRRA Officer the Applicants recounted their past experiences in Hungary of persecution as Roma, and supplied copious current documentary evidence of the in-country conditions in Hungary to prove that, should they be required to return to Hungary, there is a probability they would suffer persecution and risk to life. In rejecting the Applicants’ claim for PRRA relief, the PRRA Officer made the following critical findings:
Counsel, in her written submission, contends that the applicants are at risk in Hungary because they are Roma and that the government of Hungary cannot provide adequate protection for Romas. Counsel argues that Romas in Hungary continue to be an extremely marginalized minority and have recently been subjected to violent and deadly attacks which the state seems unable or unwilling to prevent. Counsel also asserts that the Hungarian state has shown that they are unable or unwilling to take any steps to help improve the conditions of the Roma. Counsel adduced several media articles in support of this argument. I have carefully reviewed and considered all of the evidence before me. I find that Counsel’s submissions do not provide sufficient objective evidence of risk that is personal to the applicants. Furthermore, Counsel’s submissions do not satisfy me that the applicants, upon their return to Hungary, would be persons of interest or that they would be targeted by the authorities or any other groups or individuals because they are Roma.
[…]
I have also assessed Counsel’s evidence in the context of section 97 of the IRPA. Other than the applicants’ statement that they are Roma, the applicants have provided no additional evidence that they are Roma or that they will be perceived as Roma by the authorities or any other groups or individuals should they return to Hungary. As such, I find the applicants and their Counsel have provided insufficient objective evidence and that the applicants are more likely than not to face a danger or torture, or a risk to life, or a risk of cruel and unusual treatment or punishment upon their return to Hungary because they are Roma.
[Emphasis added]
(Decision, p.5-6, and p.7)
I find that the errors exposed in the quoted paragraphs are fundamental and constitute reviewable errors. First, the whole of the evidence placed before the PRRA Officer was that as Roma, on the basis of the current in-country conditions, the Applicants are entitled to a positive PRRA decision. The critical factor in the Applicants’ claim is that the immutable personal characteristic upon which their application is based is their ethnicity. There is absolutely no evidence on the Record upon which a doubt can be raised with respect to this fact. Nevertheless, as quoted above, the PRRA Officer held a belief that the very underpinning of their applications for risk relief, being their ethnicity, is in doubt. I find that this unsubstantiated and unwarranted suspicion which effectively constitutes an unsupported negative credibility finding explains how the negative PRRA decision could be rendered without a full contextual analysis of the evidence of the horrific suffering that the Applicants would probably experience should they be required to return to Hungary. The evidence is found in 24 articles in the Tribunal Record of in-country conditions in Hungary, a primary representative source of which is the U.S. Department of State Country Reports on Human Rights Practices – 2008, dated February 25, 2009, the introduction of which reads as follows:
The government generally respected the human rights of its citizens; however, problems remained and worsened, including in the following areas: reports that police used excessive force against suspects, particularly Roma; progovernment bias in state-owned media; extremist violence and propaganda against ethnic and religious minority groups; and government and societal corruption. Other human rights problems included societal violence against women and children, sexual harassment of women, and trafficking in persons. Extremists increasingly targeted Roma and other dark-skinned persons. A series of violent attacks against Roma led to four deaths and multiple injuries. Discrimination against Roma in education, housing, employment, and access to social services continued. Violence and abuse directed at gays continued to be a problem.
[3] As a result, I find that the decision under review is unreasonable.
ORDER
THIS COURT ORDERS that the decision under review is set aside, and the matter is referred back to a differently constituted panel for re-determination.
There is no question to certify.
“Douglas R. Campbell”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4934-09
STYLE OF CAUSE: TAMAS BANYA, TAMASNE BANYA AND KLAUDIA NATASA BANYA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: June 22, 2010
APPEARANCES:
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Wennie Lee
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Kevin Doyle |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Lee & Company Toronto, Ontario
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FOR THE APPLICANTS |
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Myles J. Kirvan Deputy Attorney General of Canada
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FOR THE RESPONDENT |