Molnar v. Canada (Citizenship and Immigration)

Molnar v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2012-05-04
Neutral citation
2012 FC 530
File numbers
IMM-5879-11
Decision Content
Federal Court
Cour fédérale
Date: 20120504
Docket: IMM-5879-11
Citation: 2012 FC 530
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
VIKTOR MOLNAR; JOLAN PITLIK; RAYMOND MOLNAR; ANDREA BIANKA MOLNAR; VIKTOR RICHARD MOLNAR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC­ 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 4 July 2011 (Decision), which refused the Applicants’ application to be deemed Convention refugees or persons in need of protection under sections 96 and 97 of the Act.
BACKGROUND
[2] The Applicants are Roma citizens of Hungary. They seek protection in Canada from persecution on the basis of their ethnicity. The Adult Applicants are the Male Applicant, Viktor Molnar and the Female Applicant, his common-law wife, Jolan Pitlik. The Minor Applicants are their children, Viktor Richard Molnar (Richard), Raymond Molnar (Raymond), and Andrea Bianka Molnar (Andrea).
[3] The Applicants arrived in Canada on 16 July 2009. At that time, the Adult Applicants filed IMM 5611 forms to initiate their claims for protection. In the Male Applicant’s form, he said he was afraid of the Hungarian Guard (Magyar Guarda) who were racist against Roma people. He also said that there was discrimination against Roma people in Hungary. The Female Applicant said she was afraid of Magyar Guarda and society in general. She also said she was afraid for her family’s safety and noted that on one occasion she was attacked by Magyar Guarda members on her way home from work because she is Roma. The Adult Applicants declared that these forms were true, complete, and correct.
[4] Each of the Applicants filed a Personal Information Form (PIF) with the RPD on 14 August 2009. All of the Applicants submitted the same narrative (Original Narrative), which appeared in their forms under the heading “Viktor Molnar.” This narrative spoke of discrimination in Hungary based on the Applicants’ ethnicity. They included accounts of Roma people being killed and of their house being set on fire. The Original Narrative also related an event where Richard was attacked by other students at school. This narrative said he was seriously injured and endured a long wait because ethnic Hungarian patients were treated before him at the hospital. According to the Original Narrative, the Male Applicant told the police about this attack but they did nothing. The Original Narrative also said that Magyar Guarda members came to the Applicants’ home, broke in, and smashed their possessions after the Male Applicant complained to the police about an attack which left his nephew bleeding from the head.
[5] In the section titled “Your Counsel,” all of the Applicants’ PIFs are marked with a stamp from Veena Immigration Practice, indicating that they are represented by Sam Nagendra, a Certified Canadian Immigration Consultant (Nagendra). The Certified Tribunal Record (CTR) includes a faxed copy of a Counsel Contact Information Form which indicates that Nagendra is the Applicants’ Counsel of Record. Nagendra faxed the RPD on 13 January 2011 and indicated that he was not Counsel of Record for the Applicants because he had not been retained.
[6] The RPD sent the Applicants a Notice to Appear for a Scheduling Conference on 9 March 2011. The Statement of Service attached to this notice indicates that the RPD believed the Applicants were not represented by counsel at that date. The RPD served this notice on the Applicants personally; “no counsel” is written on it under the heading “Counsel.” Robert Blanshay – a Barrister and Solicitor practicing in Toronto – faxed the RPD on 23 March 2011 and indicated that he was representing the Applicants on a pro bono basis. Applicants’ current counsel wrote to the RPD on 25 March 2011 to indicate that he would represent them if they were granted a certificate from Legal Aid. The Applicants submitted a Confirmation of Readiness form to the RPD on 27 April 2011, which shows their current counsel as Counsel of Record.
[7] The Applicants submitted a package of documents to the RPD on 6 June 2011, which included an amended PIF narrative written by the Female Applicant (Amended Narrative). This narrative differs significantly from the Original Narrative; it does not include any of the events recounted in the Original Narrative. In the Amended Narrative the Female Applicant said that teachers at the Minor Applicants’ school called them “stinking damn gypsies.” She also said that they received threatening letters between 2006 and 2009 when they lived in Budapest and that shopkeepers would not serve them because they are Roma.
[8] The Female Applicant also included in the Amended Narrative an account of an incident where, when she picked him up from school on 10 November 2007, she found Raymond bleeding from the head. Students at the school said a teacher slammed Raymond against a wall; when she asked the teacher what happened, he said he did not know. The teacher denied hurting Raymond and said “the stinking gypsy kids are lying.” The Female Applicant told the teacher she was going to report him to the police. The Female Applicant took Raymond to the hospital in a taxi, and then went to a police station to file a complaint. She wrote in the Amended Narrative that the police took her complaint and said they would investigate the unknown perpetrator, but she knew this meant nothing would happen.
[9] The Female Applicant also wrote about an incident on 10 May 2009 when she was attacked on her way home from work. She complained to the police after this incident, but said she did not know if anything came of their investigation. She also wrote that, in June 2009, someone threw a Molotov cocktail at the Applicants’ apartment.
[10] The RPD joined the Applicants’ claims under subsection 49(1) of the Refugee Protection Division Rules SOR/2002-228 and heard their claims together on 27 June 2011. In the early stages of the hearing, the following exchange occurred:
RPD: Okay, now I have your [PIFs] and an amendment… an amended… an addendum to the principal female claimant’s personal information form
Now, they contain interpreter’s declarations indicating that the completed [PIFs] were interpreted to you and they also contain your declarations indicating that the information you provided is complete, true, and correct. And would you each confirm that your completed personal information forms, including narratives and any changes, or additions made to the narratives were translated back to you in Hungarian?
Female Applicant: Yes
Male Applicant: Yes
Applicants’ counsel: Hold on, I just want to make sure they understand that they are saying that both narratives were... you were talking about both narratives, the first one as well.
Female Applicant: The first narrative was completed before we hired [Applicants’ counsel], so I do not know, it was not translated back and we made a complaint about it, about the way it was made and the second one, yes it was translated back and we know everything that contains.
RPD: Okay and so why did you sign the first [PIF] if it was not translated back to you?
Female Applicant: Unfortunately I was mislead and the people we knew two or three days after we arrived in Canada told us that that is the way we are supposed to (inaudible) and unfortunately (inaudible) and I thought it is the right thing to do at that time.
[…]
RPD: Okay, so it was translated to you, although it was after the fact?
Female Applicant: Yes, we obtained all these papers with difficulty after we complained… filed a complaint.
[11] The Female Applicant went on to say that the Applicants had complained to a Legal Aid centre and that they did not know Nagendra was an immigration consultant and not a lawyer. The RPD noted that their PIFs indicated Nagendra was a Certified Canadian Immigration Consultant and asked if the Applicants complained about him. The Female Applicant said the lawyer she talked to at Legal Aid said she took steps to file complaints everywhere; Applicants’ counsel said that he had heard that Nagendra was under investigation from the authorities and also said that he wished he had confirmed this and brought something for the RPD in writing.
[12] The RPD asked the Applicants whether they had complained about Nagendra, noting that this was very important. The Female Applicant said that she had not been in this kind of situation before and that a Legal Aid lawyer named Georgina said she would file a complaint.
[13] The Female Applicant indicated that nothing in the Original Narrative was true except for statements about the general situation faced by Roma people in Hungary. She said five or six families had submitted the same story to the RPD, but the same events could not have happened to all of them. The Female Applicant also said she realized on 28 March 2011 that the Original Narrative was not correct after it was translated to her when the Applicants retained their current counsel. The Original Narrative was not true or correct and the events described in it had not happened to the Applicants.
[14] The Female Applicant also described the events surrounding the retention of Applicants’ current counsel. She said that, on 10 March 2011, the Applicants received a notice to appear for a hearing on 28 March 2011. The Female Applicant called Nagendra on 10 March 2011 to tell him about the hearing. Nagendra asked her if the Applicants had Legal Aid and told her that, if she did not have a lawyer, he would represent them for $1500. The Applicants then engaged their current counsel, having obtained a Legal Aid certificate.
[15] After hearing the Applicants’ claims, the RPD made its Decision on 4 July 2011and notified the Applicants of the outcome on 11 August 2011.
DECISION UNDER REVIEW
[16] The RPD found that the Applicants are not Convention refugees or persons in need of protection because they were not credible and had failed to rebut the presumption of state protection in Hungary. The RPD also found that the Applicants had suffered discrimination, but this did not amount to persecution within the meaning of section 96 of the Act.
Credibility
Different PIF Narratives
[17] The RPD found that the Applicants were not credible because of differences between the Original Narrative and the Amended Narrative. It noted that the Adult Applicants had testified that the Original Narrative was not translated to them in Hungarian, although they signed the declaration saying it was. After their current counsel had the Original Narrative translated to them, they said they discovered several errors in it.
[18] The RPD found it was unreasonable for the Adult Applicants to sign the declaration on their PIFs if they did not understand the contents because they had not been translated to them. The PIFs also contain an interpreter’s declaration which says the interpreter translated the PIFs to the Applicants. The RPD also found it was unreasonable for the Applicants not to have had their PIFs translated to them in the two years between when they filed the Original Narrative and when they retained new counsel. It noted the Applicants only sought new counsel when previous counsel demanded a higher fee. The RPD said the onus is on refugee claimants to ensure they are adequately represented. The RPD concluded that their substitution of the Amended Narrative for the Original Narrative undermined the Applicants’ credibility.
Raymond and the Teacher
[19] After reviewing the portion of the Amended Narrative where the Female Applicant says Raymond was thrown into a wall by a teacher, the RPD was not persuaded that this incident actually occurred. It noted it had asked the Female Applicant three times what Raymond told her about this incident; she said a teacher assaulted him, he did not talk about it, and he did not say anything. The Female Applicant also testified that she did not know the teacher’s name, but that she could have found this information because Raymond told her it was the Physical Education teacher. She also testified that she did not give the police the teacher’s name and they did not ask for it, though she expected the police to hold him accountable. The RPD said it is expected that a parent would find out all the details of an incident like this and would report it to the authorities. Since the Female Applicant did not know all the details of this attack, the RPD concluded it had not occurred.
Whispering in the Hearing Room
[20] The RPD also found that, when the Female Applicant whispered to the Male Applicant while he was testifying, this undermined their credibility. During the hearing, the RPD saw the Female Applicant whispering to the Male Applicant and told her to stop. She did the same thing again while the RPD questioned the Male Applicant about his work history.
[21] The RPD noted that it told the Applicants at the beginning of the hearing that they were not to assist or correct one another during their testimony. It expected the Adult Applicants to be able to testify about what happened to them in Hungary without assistance from each other. The Male Applicant did not appear to need assistance in testifying, but the Female Applicant whispered to him anyway.
[22] The RPD also found that the neither of the Adult Applicants had any trouble obtaining employment in Hungary, even though the Male Applicant testified that Roma people in Hungary have trouble getting work because of discrimination. The Male Applicant was continuously employed between 1990 and 2009, as shown by his PIF and oral testimony, and the Female Applicant was employed as a chambermaid for the ten years before the Applicants came to Canada and in a glass factory before that. The RPD found that the Male Applicant’s assertion that they faced discrimination in employment was not credible.
Discrimination vs. Persecution
[23] The RPD also found that the Applicants had not experienced persecution in Hungary. Their testimony about the incidents that occurred to them was vague and general and their complaints about harassment in education and employment were based only on speculation. In light of its general negative credibility finding, and because neither the PIFs nor the IMM 5611 forms completed on arrival contained enough detail about what happened to them, the RPD found they were also not credible in this respect. It found that what they said had happened to them did not amount to persecution.
State Protection
[24] The RPD found that the Applicants had not rebutted the presumption of state protection established in Canada (Attorney General) v Ward, [1993] 2 SCR 689. It noted that Hungary is in effective control of its territory and has a functioning security force to uphold its laws and constitution. The RPD also found that Hungary is a functioning democracy with free and fair elections which, following Hinzman v Canada (Minister of Citizenship and Immigration) 2007 FCA 171, meant the burden on the Applicants to rebut the presumption of state protection was high. Further, the RPD noted that a subjective reluctance to engage the state will not rebut the presumption, nor will the fact that state efforts to protect are not always successful. In order to rebut the presumption, the Applicants had to show they had taken all reasonable steps to seek protection in the circumstances.
[25] Against the presumption of state protection, the RPD weighed what it found were insufficient efforts to seek state protection. Although the Female Applicant reported the teacher’s assault on Raymond to the police, she did not give them the teachers name even though she could have found it out. It was unreasonable for the Female Applicant to expect the police to investigate this complaint when she did not give them important information. It also relied on its earlier finding that this event had not actually happened.
[26] The RPD also found that there was insufficient evidence that the police were not investigating the 10 May 2009 assault on the Female Applicant. The Amended Narrative said she was attacked by four or five people on that day. She testified that she reported this incident to the police and told them she believed she was attacked by the same people who had sent her threatening letters. She also said she went back to the police for a report about their investigation into this incident in June 2009, before the Applicants left for Canada, but could not get one. She also did not know if the police were investigating the incident. The RPD found that the documentary evidence before it showed that, if the Applicants were not satisfied with the police response to their complaints, other recourse was available to them. Rather than seeking state protection, the Applicants fled Hungary.
[27] On the evidence before it, the RPD was not satisfied that the police would not have investigated the Applicants’ complaints or that they would not prosecute the perpetrators if the evidence warranted it. Although there was information before the RPD that Hungarian Roma face discrimination, there was also evidence before it that Hungary acknowledges this problem and is making serious efforts to address it.
[28] Against the Applicants’ limited efforts to seek state protection, the RPD weighed evidence which showed the efforts Hungary was taking to protect Roma people. While a report from the Open Society Institute established that Hungary had one of the most advanced systems for minority protection in the region, other evidence showed government funding for programs to help Hungarian Roma often failed to reach the groups who needed it most. The RPD also found that Roma who experience discrimination can go to the Parliamentary Commissioner for the Rights of National and Ethnic Minorities (Minorities Commissioner). The Minorities Commissioner could take action if he/she became aware of unjust procedures or discrimination. Further, an Independent Police Complaints Board had begun to operate in January 2008. This independent board could review complaints of rights violations by police.
[29] The RPD also weighed evidence the Applicants submitted, including a report from Human Rights First, which indicated an increase in racist attacks on Roma since 2008. This report noted that the government response had been mixed, with high-profile cases of violence attracting a response as well as shortcomings in the government’s efforts. The RPD noted that reports the Applicants submitted showed problems faced by Hungarian Roma people, but these reports also contained accounts of successful efforts by Hungary to protect its citizens. For the RPD, this showed that Hungary was committed to addressing the problems faced by Roma people.
[30] The RPD said it considered the totality of the evidence before it and found the Applicants had failed to rebut the presumption of state protection. Since they had not rebutted the presumption, the RPD concluded that state protection was available to them. It found there was no persuasive evidence that the Applicants faced persecution, a risk to life or of cruel and unusual treatment or punishment, or a danger of torture in Hungary. It concluded the Applicants are not Convention refugees or persons in need of protection.
ISSUES
[31] The Applicants raise the following issues in this case:
1. Whether the RPD’s negative credibility finding was reasonable;
2. Whether the RPD’s state protection finding was reasonable;
3. Whether the RPD provided adequate reasons;
4. Whether the RPD breached their right to procedural fairness by failing to keep an open mind;
5. Whether their previous counsel’s incompetence resulted in a breach of their right to procedural fairness;
6. Whether the Court should consider new evidence they have introduced on judicial review.
STANDARD OF REVIEW
[32] The Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9, held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[33] In Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (FCA) the Federal Court of Appeal held at paragraph 4 that the standard of review on a credibility finding is reasonableness. Further, in Elmi v Canada (Minister of Citizenship and Immigration), 2008 FC 773, at paragraph 21, Justice Max Teitelbaum held that findings of credibility are central to the RPD’s finding of fact and are therefore to be evaluated on a standard of review of reasonableness. Finally, in Wu v Canada (Minister of Citizenship and Immigration) 2009 FC 929, Justice Michael Kelen held at paragraph 17 that the standard of review on a credibility determination is reasonableness. The standard of review on the first issue is reasonableness.
[34] Reasonableness is also the standard of review applicable to the RPD’s state protection finding. In Carillo v Canada (Minister of Citizenship and Immigration) 2008 FCA 94, the Federal Court of Appeal held at paragraph 36 that the standard of review on a state protection finding is reasonableness. Justice Leonard Mandamin followed this approach in Lozada v Canada (Minister of Citizenship and Immigration) 2008 FC 397, at paragraph 17. Further, in Chaves v Canada (Minister of Citizenship and Immigration) 2005 FC 193, Justice Danièle Tremblay-Lamer held at paragraph 11 that the standard of review on a state protection finding is reasonableness.
[35] The Supreme Court of Canada has recently given guidance to courts in assessing the adequacy of a decision-maker’s reasons, the third issue in this case. In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62, the Supreme Court of Canada held at paragraph 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” The adequacy of reasons, therefore, is to be analysed along with the reasonableness of the Decision as a whole.
[36] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[37] The Applicants argue that their procedural rights were violated when the RPD did not listen to them with an open mind. As the Supreme Court of Canada said in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paragraph 22, procedural fairness includes the right to have submissions considered. Further, in Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour) 2003 SCC 29 (QL), the Supreme Court of Canada held at paragraph 100 that “It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.” Further, the Federal Court of Appeal in Sketchley v Canada (Attorney General) 2005 FCA 404 at paragraph 53 held that the “procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” The standard of review on the fourth issues is correctness.
[38] The standard of review on the fifth issue is also correctness. In Osagie v Canada (Minister of Citizenship and Immigration) 2004 FC 1368, Justice Anne Mactavish held counsel’s incompetence can result in a breach of procedural fairness (paragraphs 18 to 20). Justice Mactavish also held in Lahocsinszky v Canada (Minister of Citizenship and Immigration) 2004 FC 275 at paragraph 15 that those who allege a breach of fairness on this basis must demonstrate that “there is a reasonably probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” This analysis calls for the reviewing court to make its own judgment on the question, which is the definition of the correctness standard (Dunsmuir at paragraph 50).
[39] On the sixth issue, the standard for the introduction of new evidence on judicial review is high. It is trite law that the reasonableness of a decision is only to be evaluated on the basis of the record which is before the decision maker. New evidence may be introduced on judicial review only to demonstrate a breach of procedural fairness or jurisdiction and may not be used to show that a decision was correct on the merits (see Canadian Federation of Students v National Sciences and Engineering Research Council of Canada 2008 FC 493 at paragraph 40, Vennat v Canada (Attorney General) 2006 FC 1008 at paragraph 44, and McFadyen v Canada (Attorney General) 2005 FCA 360 at paragraph 15). The decision to admit new evidence is a question within the jurisdiction of the reviewing court.
STATUTORY PROVISIONS
[40] The following provisions of the Act are applicable in this proceeding:
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;
[…]
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
[…]
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;
[…]
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.
[…]
ARGUMENTS
The Applicants
Unreasonable State Protection Finding
[41] The Applicants argue the RPD’s finding they had not rebutted the presumption of state protection is unreasonable because it was not based on the totality of the evidence. The RPD ignored documentary evidence which establishes that Roma people are at risk in Hungary. Although the RPD referred to country documents which showed that democratic institutions are present in Hungary, it ignored evidence which shows that state resources and police support are not available to Roma people. Contrary to the RPD’s conclusion, there was evidence before it which established that Roma people in Hungary face discrimination and violence.
[42] The Applicants also say the RPD referred to country documents which are out of date. The evidence the RPD relied on to show Hungary’s efforts to protect its citizens, including Roma people, dates from 2004 to 2008. However, there was also evidence before the RPD that violence and discrimination against Roma people in Hungary have increased since 2008. The Applicants point to evidence which shows that Jobbik – a fascist political party – holds opposition status in the Hungarian Parliament. This shows that racism against Roma people permeates Hungary’s state institutions. Jobbik is linked to the Magyar Guarda – a group which violently targets minorities, including Roma people.
[43] Although the Applicants submitted evidence which showed law enforcement officials are linked to Jobbik and Magyar Guarda, the RPD did not refer to either of these groups. The evidence of Jobbik’s rise to prominence was highly relevant and probative, but the RPD did not mention it in its reasons. The Court can infer that the RPD did not consider it (see Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425) and find the Decision is unreasonable (see Zheng v Canada (Minister of Citizenship and Immigration), [1995] FCJ No 140).
[44] The Applicants say the RPD’s analysis of state protection was illogical. The RPD mentioned evidence showing that violence against Roma people in Hungary has increased and should have concluded that state protection is not available to them.
[45] The Applicants point to Molnar v Canada (Minister of Citizenship and Immigration) 2002 FCT 1081, at paragraphs 29 and 30, where Justice Danièle Tremblay-Lamer held at follows:
In the case at bar, the acts committed against the applicants were not merely discriminatory, but also criminal. They were threatened, detained, and beaten. Most of these acts were committed by the police, the authority that is supposed to provide protection. The Board, by concentrating on the existence of human rights agencies and legal aid, failed to address the real issue of protection from criminal acts.
In these circumstances, where protection from crime is at issue, it is questionable whether redress could have been obtained by seeking assistance from human rights organizations. The only authority that could have provided assistance is the police. In my view, once the applicants sought assistance from the police and they refused, there was no obligation on them to seek redress through other sources.
[46] The Applicants say Molnar stands for the proposition that Roma in Hungary are not obligated to seek state protection beyond going to the police. In their case, the Applicants went to the police, who did nothing; it was unreasonable for the RPD to require them to go to agencies other than the police for help.
[47] Further, the Applicants say Molnar shows that state protection is not available to Roma in Hungary, so it was unreasonable for the RPD to conclude otherwise. State efforts to protect Hungarian Roma are superficial and ineffective. In the context of Jobbik’s election to the Hungarian parliament and an increase in violence against Roma, the Applicants say it is clear there is no protection for Roma in Hungary.
Unreasonable Credibility Finding
[48] The Applicants also argue the RPD’s finding the Male Applicant’s testimony was not credible is unreasonable because it ignored their explanations for why they filed new PIFs. The RPD’s credibility finding was also unreasonable because it drew an improper inference from the fact that the Female Applicant was whispering to the Male Applicant in the hearing room.
Previous Counsel and the Amended PIFs
[49] The Applicants say the RPD unreasonably found that filing the Amended Narrative undermined their credibility. The RPD did not take into account the reasons why they did not have the Original Narrative interpreted to them earlier: they trusted their original counsel and did not know about the procedure for refugee claims. The RPD did not account for the fact that the Applicants only learned their previous counsel had filed a template narrative after they hired new counsel and obtained a copy of their PIFs. The Applicants say that, because they are new to Canada, they cannot be expected to know Canadian legal procedure. They also note they do not speak English, were not aware of their rights, and are unaccustomed to asserting their rights. The RPD did not adequately consider their situation when it concluded they were not credible.
Whispering in the Hearing Room
[50] The RPD unreasonably found that the whispering in the hearing room between the Male Applicant and the Female Applicant undermined their credibility. They say the Female Applicant only whispered to the Male Applicant twice, during portions of his testimony which were not relevant to the persecution they suffered in Hungary on which they based their claim. The Female Applicant also interfered with the Male Applicant’s testimony when he was slow in answering only because she thought the RPD would infer they were lying from his slowness. Further, the Applicants say the Female Applicant has a habit of interrupting her husband and this is common among spouses.
The Teacher’s Name
[51] It was unreasonable for the RPD to infer that the Female Applicant was not credible because she could not remember the name of the teacher who assaulted Raymond. The RPD also unreasonably expected her to remember all of the circumstances of the assault on Raymond. The Female Applicant says that her testimony about what happened to Raymond was accurate. Given that the police in Hungary do not help Roma people, the Female Applicant’s testimony that the police did not help her was believable. The RPD did not consider evidence that the police in Hungary do not help Roma people when it evaluated the Female Applicant’s credibility.
Breach of Procedural Fairness
[52] The RPD breached their right to procedural fairness by failing to hear their case with an open mind. When the RPD asked the Female Applicant about her amended PIF narrative and whether she had filed a complaint about previous counsel, the RPD was looking for a reason to refuse the claim. The Applicants note that this Court requires a refugee claimant who makes allegations against former counsel to notify that counsel. Because the RPD asked the Female Applicant if she had met this obligation, this shows that it was looking for a reason to deny the Applicants’ claim and did not give them a fair hearing.
The Respondent
State Protection was Determinative
[53] Although the Applicants have impugned the conduct of their previous counsel, his conduct did not affect the outcome of their claim. The RPD analysed whether state protection was available to them in Hungary on the basis of the events in the Amended Narrative and oral testimony and still concluded that state protection was available to them. The question of whether state protection is available is within the expertise of the RPD. Further, in Carrillo above, the Federal Court of Appeal held at paragraph 30 that
In my respectful view, it is not sufficient that the evidence adduced be reliable. It must have probative value. For example, irrelevant evidence may be reliable, but it would be without probative value. The evidence must not only be reliable and probative, it must also have sufficient probative value to meet the applicable standard of proof. The evidence will have sufficient probative value if it convinces the trier of fact that the state protection is inadequate. In other words, a claimant seeking to rebut the presumption of state protection must adduce relevant, reliable and convincing evidence which satisfies the trier of fact on a balance of probabilities that the state protection is inadequate.
[54] A subjective reluctance to approach the state for protection is not enough to rebut the presumption of state protection. When the RPD concluded that the Applicants had not rebutted the presumption of state protection, it appropriately analysed their circumstances and all the relevant facts before it, so the Decision should not be returned on this basis.
The RPD Considered All the Evidence
[55] The Respondent also says that Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (FCA) establishes a presumption the RPD has considered all the evidence before it. The RPD said that it had made its finding on state protection “having considered the totality of the evidence.” The RPD’s reasons show it conducted a detailed analysis of whether adequate state protection was available to the Applicants and drew a reasonable conclusion in this regard. It specifically addressed country condition evidence before it which spoke to the situation after 2008. The RPD also acknowledged evidence before it which showed an increase in racial violence since 2008, including attacks on Roma people.
[56] The RPD took this evidence into account but concluded that state protection was available to the Applicants. Some of the documents before the RPD which showed incidents of violence and discrimination directed at Roma people also indicated that the efforts of the authorities to protect had met with some success. In some cases, law enforcement officials had been held accountable for misconduct in hate crime investigations. The RPD weighed the evidence which showed Hungarian Roma face discrimination against what it found was persuasive evidence that state efforts were underway to protect Roma. The RPD concluded that Hungary could provide protection which was adequate, even if it is not perfect.
[57] The RPD also examined the Applicants personal circumstances and reasonably concluded they had not rebutted the presumption of state protection. It noted they had only approached the police on two occasions. When the Female Applicant approached the police about Raymond’s experience with the teacher, she did not give them the teacher’s name, even though she could have found it out. The RPD reasonably concluded that the police could not have investigated this incident without knowing the teacher’s name. With respect to the beating the Female Applicant said she suffered on 10 May 2009, the RPD found there was no evidence to show the