G.M. v. Canada (Citizenship and Immigration)

G.M. v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2013-06-26
Neutral citation
2013 FC 710
File numbers
IMM-7850-12
Decision Content
Date: 20130626
Docket: IMM-7850-12
Citation: 2013 FC 710
Ottawa, Ontario, June 26, 2013
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
G.M.
Applicant
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 a Senior Immigration Officer (Officer), dated 30 July 2012 (Decision), which refused the Applicant’s application for a Pre-Removal Risk Assessment (PRRA).
BACKGROUND
[2] The Applicant is a Hungarian man of Roma ethnicity. In 2001, he entered Canada and made a claim for refugee protection. In 2003, his claim was denied, and the Applicant left Canada in 2004.
[3] After returning to Hungary, the Applicant began working for a prominent Roma rights activist and politician, who eventually became a Member of the European Parliament. They worked closely together and developed an intimate relationship, and are now married. After getting married, the Applicant took his wife’s name.
[4] The Applicant’s wife garnered a great deal of notoriety due to her work in investigating crimes against Romani and her political activism. The Applicant travelled everywhere with her, and would sometimes work directly on initiatives with which she was involved.
[5] On at least two occasions, the Applicant was threatened at events where neo-Nazi demonstrators were in attendance. The first incident occurred in 2008. A man pointed at the Applicant and told him that he would die at midnight. The second incident occurred later in 2008. On this second occasion, a group with ties to the Jobbik party was in attendance. The mayor of the town was an old classmate of the Applicant’s, and the Applicant identified himself to the mayor not realizing he was a Jobbik supporter. This made the Applicant fear for his safety.
[6] On one occasion in 2009, the Applicant was alone at his home in Budapest. A group of neo-Nazis gathered at the home and began throwing glasses at the house. The police refused to help, and the Applicant’s wife eventually called a connection she had with a police chief in another city. He said he likely could not help with what was going on in Budapest, but soon after the Applicant heard a pub owner call the group back inside.
[7] Despite these incidents, the Applicant’s wife wanted to remain in Hungary and continue her human rights work. However, by the summer of 2011 she felt that the situation had worsened for Roma in Hungary to such an extent that they ought to leave the country.
[8] The Applicant and his wife fled to Canada in 2011. His wife arrived first with her children, and they made a refugee claim upon arrival. The Applicant arrived three days later, and was given a six-month visitor’s visa upon arrival. Ordinarily, the Applicant would have made a refugee claim that would have been joined with his wife’s. However, his previous refugee claim made him ineligible to make another one.
[9] In June, 2012, the Applicant was ordered deported. He applied for a PRRA, which relied primarily on his wife’s declaration (which is confidential). The Applicant’s wife said that she was concerned the Applicant would be targeted because authorities in Hungary would assume she had shared state secrets with him, and that she was prepared to testify orally on this issue but did not want to give a written statement. The Applicant also requested an oral interview for himself.
[10] The Officer considered the Applicant’s PRRA application and rejected it on 30 July 2012.
DECISION UNDER REVIEW
Oral Hearing
[11] Due to the fact that the Applicant spoke little English and was being held in immigration detention, no sworn statement was provided with his PRRA submissions. The Officer noted that the purpose of an oral hearing is to assess the issue of credibility when it is a serious issue in the application. The Officer did not question the Applicant’s credibility in this case, and so concluded that an oral hearing was not required.
Country Conditions
[12] The Officer reviewed country condition documents on the treatment of Roma in Hungary, paying specific attention to the United States Department of State’s (US DOS) Country Reports on Human Rights Practices for 2011. This report stated that Roma are discriminated against in almost all areas of life, and that extreme right-wing political parties such as the Jobbik continue to incite violence against Roma. The report also discussed the mandate and function of the Independent Police Complaints Board, as well as the ombudsmen for ethnic minority rights.
[13] The Officer reviewed IRB document HUN103822.E, which reviewed incidents of demonstrations in Hungary by right-wing groups against Roma. The report noted that the police evacuated Roma from a village on one occasion, and installed barriers to keep Jobbik supporters away in another instance. This report also noted that the Hungarian Parliament has recently introduced stricter hate speech laws.
[14] Document HUN103232.E reported police brutality and racial profiling against Roma, and said that many victims remained fearful of seeking legal remedies or notifying NGOs. This document also discussed: police initiatives in 2009 to investigate crimes against Roma and to seek new ways of addressing discrimination and anti-Roma crime; the Equal Treatment Authority which is tasked with investigating complaints of discrimination against public authorities; and new laws that were passed to allow more minority self-governments.
[15] The Applicant also provided statements from two experts on Roma rights, Mr. Aladar Horvath and Ms. Gwendolyn Albert. Mr. Horvath discussed discrimination he had faced due to his work for Roma rights, but the Officer found that Mr. Horvath provided little documentary evidence to support his claims. Mr. Horvath also stated that the network that had once provided free legal assistance to Roma in Hungary has been eliminated, but again the Officer found there was little evidence to support this claim. Ms. Albert provided statements about the treatment that Roma have experienced in Hungary; the Officer accepted that Roma in Hungary continue to be discriminated against and are at times mistreated by the authorities.
[16] The Officer found that violence and racism against Roma in Hungary continues, but the state has put into place measures to combat these issues. The police have developed policies to better co-operate with the Roma community, and respond to problems. Hungary is a democratic state, with various agencies that the Applicant could turn to for assistance. Mr. Horvath stated that these institutions are ineffective, but the Officer thought there was little evidence that this experience is systemic for all Roma.
[17] The Officer noted that the Applicant had an obligation to seek protection from the state, and he had provided little evidence that the threats he experienced in 2008 and 2009 continued. Further, neither the Applicant nor his wife provided information about what transpired between 2009 and 2011 that made them decide to leave Hungary. They provided little evidence on what state protection was sought and refused after the Applicant’s wife’s term with the European Parliament ended in 2009.
[18] The Applicant’s wife said that she was concerned the Applicant will be persecuted if returned to Hungary because authorities may believe he has been privy to state secrets that she knows. She was not prepared to put these details in writing. The Officer noted that the Applicant has provided little evidence or information that he or his family have been targeted due to his wife’s public profile. The onus was on the Applicant to provide all relevant information and, as discussed above, an oral hearing was not required because the Applicant’s credibility was not being questioned.
[19] The Officer noted that the judiciary in Hungary remains free and independent, and should the Applicant be persecuted due to the presumption that he knows “state secrets” he will be able to turn to the judiciary and authorities for assistance. The Applicant provided little evidence that he would not be able to obtain help from the authorities should he require it upon his return to Hungary.
[20] Based on the above, the Officer concluded that the Applicant was not described by sections 96 or 97 of the Act, and rejected his application for protection.
ISSUES
[21] The issues raised by the Applicant are:
1. Did the Officer’s failure to conduct an oral hearing breach the Applicant’s right to procedural fairness?
2. Did the Officer fail to apply, or misapply, the test for persecution under section 96 of the Act?
3. Did the Officer err in assessing state protection by coming to an unreasonable conclusion on the evidence and/or by applying the wrong test?
STANDARD OF REVIEW
[22] 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.
[23] In regards to a PRRA Officer’s decision to hold an oral hearing, views have differed in the Federal Court as to whether the core of the issue is procedural fairness (see Prieto v Canada (Minister of Citizenship and Immigration), 2010 FC 253; Sen v Canada (Minister of Citizenship and Immigration), 2006 FC 1435) or an evaluation of facts requiring deference (see Puerta v Canada (Citizenship and Immigration), 2010 FC 464; Marte v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 930). Justice Judith Snider dealt with this issue in Mosavat v Canada (Minister of Citizenship and Immigration), 2011 FC 647, where she said at paragraph 9:
In my view, the applicable standard of review is reasonableness. The Officer's task is to analyze the appropriateness of holding a hearing in light of the particular context of a file and to apply the facts at issue to the factors set out in s.167 of the Regulations. Thus, the question is one of mixed fact and law. As the Supreme Court held at paragraph 53 of Dunsmuir v New Brunswick, 2008 SCC 9, questions of mixed fact and law attract deference and are reviewable on the reasonableness standard.
This approach was followed in Rajagopal v Canada (Minister of Citizenship and Immigration), 2011 FC 1277, Adetunji v Canada (Minister of Citizenship and Immigration), 2012 FC 708, and Brown v Canada (Minister of Citizenship and Immigration), 2012 FC 1305.
[24] Although an officer’s decision to conduct an oral hearing is usually evaluated on a reasonableness standard, the Applicant has raised issues in this application that fall outside the usual determination of whether the PRRA application involves issues of credibility. The Applicant’s right to present his case in full is a matter of procedural fairness, and will be evaluated on a correctness standard (see Xu v Canada (Minister of Citizenship and Immigration), 2006 FC 718, Baker v Canada (Minister of Citizenship and Immigration, [1999] 2 SCR 817 [Baker] at paragraph 22).
[25] In Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29, 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.”
[26] The interpretation of the correct legal test for “persecution” is a question of law to which the correctness standard is applied (Leshiba v Canada (Minister of Citizenship and Immigration), 2011 FC 442). However, a persecution analysis goes to the interpretation of evidence, and is reviewable on a reasonableness standard (Alhayek v Canada (Minister of Citizenship and Immigration), 2012 FC 1126 at paragraph 49).
[27] In Pacasum v Canada (Minister of Citizenship and Immigration), 2008 FC 822 at paragraph 18, Justice Yves de Montigny held that state protection is a question of mixed fact and law to be evaluated on the standard of reasonableness (see also Estrada v Canada (Minister of Citizenship and Immigration), 2012 FC 279; Canada (Minister of Citizenship and Immigration) v Abboud, 2012 FC 72). Further, the Federal Court of Appeal held in Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 that the standard of review on a state protection finding is reasonableness. However, when examining whether the correct test for state protection was applied the appropriate standard of review is correctness (Cosgun v Canada (Minister of Citizenship and Immigration), 2010 FC 400 at paragraph 30; Koky v Canada (Minister of Citizenship and Immigration), 2011 FC 1407 at paragraph 19).
[28] 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.”
STATUTORY PROVISIONS
[29] 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
[…]
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in
accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
[…]
113. Consideration of an application for protection
shall be as follows:
(a) an applicant whose claim to refugee protection has been rejected may present only
new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;
(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;
[…]
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.
[…]
112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).
[…]
113. Il est disposé de la demande comme il suit:
a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement
accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;
b) une audience peut être tenue si le ministre l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98;
[…]
[30] The following provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) are applicable in this proceeding:
Hearing – prescribed factors
167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the application for protection.
Facteurs pour la tenue d’une audience
167. Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider si la tenue d’une audience est requise :
a) l’existence d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur;
b) l’importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée la protection.
ARGUMENTS
The Applicant
The Certified Tribunal Record
[31] The Applicant says that the Certified Tribunal Record (CTR) contains a detention review decision and about 85 pages of Field Operation Support System (FOSS). It is unclear whether these materials were considered by the Officer. The Applicant requests that pages 362-455 be excised from the CTR. In the alternative, the Applicant requests that these pages be sealed, as they contain personal information about him and his wife.
Oral Hearing
[32] The Applicant says that the Officer’s failure to conduct an oral hearing breached his rights to procedural fairness which he is owed under section 7 of the Canadian Charter of Rights and Freedoms (Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177 [Singh] at paragraph 47). The Applicant is being detained at the Toronto East Detention Centre, and was not able to arrange a Hungarian interpreter within the PRRA application deadline. This meant that the Applicant relied on his wife’s declaration in his application and requested an oral interview.
[33] The Applicant submits that, in the unique circumstances of this case, the Officer should have interviewed both him and his wife. The sensitive nature of the Applicant’s wife’s information, combined with his detention and language restrictions, meant that the Applicant was not able to submit an affidavit in support of his application or to properly present his case. The Applicant’s wife has not even provided the details of her information in the Personal Information Form for her refugee claim, and it was unreasonable for the Officer to have expected her to do so.
[34] As the Supreme Court of Canada said in Singh, sometimes decisions based on written submissions will be enough to satisfy fundamental fairness, but written submissions will not always be satisfactory. Although Singh was concerned with adverse credibility findings in the absence of an oral hearing, it is clear that the unique circumstances of this case left the Applicant without an opportunity to meaningfully present his case. The Officer found that there was insufficient evidence to support the Applicant’s experiences and threats in Hungary, and this is directly related to the Applicant’s, and his wife’s, limited ability to put forward their evidence.
[35] Section 167 of the Regulations focuses on issues of credibility, but the Officer’s decision whether to hold an oral hearing is discretionary (Ventura v Canada (Minister of Citizenship and Immigration), 2010 FC 871). The Officer’s decision not to hold an oral hearing in this case was based on the fact that no adverse credibility findings were made; the Applicant submits that the Officer therefore erred by interpreting the Regulations as limiting her discretion to hold an oral hearing.
[36] In the alternative, the Applicant submits that if the Regulations do fetter the Officer’s discretion to hold an oral hearing in circumstances such as the Applicant’s, then those provisions improperly fettered the Officer’s discretion to hold an oral hearing when one was required by the principles of fundamental justice. If fundamental justice requires an oral hearing to be held, then those sections which restrict it are inconsistent with section 7 of the Charter.
[37] In the case at bar, the Applicant did not have an opportunity to address the Officer’s concerns about the lack of evidence. By failing to conduct an oral interview, in light of the Applicant and his wife’s requests, as well as the Officer’s apparent need for more information, the Officer breached the Applicant’s right to procedural fairness.
Persecution
[38] The Applicant’s PRRA application asserts that he faces persecution in Hungary on the grounds of his ethnicity, his political opinion, and his membership in a particular social group (his family). The Officer accepted that the attacks on the Applicant and his wife occurred in 2008 and 2009, but found there was insufficient evidence that the Applicant was threatened in 2010 and 2011. The Applicant submits that in so concluding the Officer erred by conflating the tests for sections 96 and 97 of the Act, focusing on whether the Applicant had been “personally” targeted, rather than whether his persecution is based on his ethnicity, his political opinion and his membership in a particular social group.
[39] Under a section 96 analysis, the perceived “gap” in threats during 2010 and 2011 is hardly dispositive of the case. The Officer is required to consider persecution against members of the group to which the Applicant belongs in determining whether there is more than a mere possibility, or a reasonable possibility, that he will face persecution. Section 96 does not require that the risk to the Applicant be personalized (Voskova v Canada (Minister of Citizenship and Immigration), 2011 FC 1376 at paragraphs 30-34).
[40] There was much documentary evidence before the Officer that describes a context of escalating right-wing extremism, severe and systemic discrimination, racially motivated violence and police brutality against Roma in Hungary. Specific evidence of similarly situated persons was before the Officer, including attacks on higher profile Roma activists.
[41] In light of the test under section 96 and the evidence of similarly situated persons in the Applicant’s supporting documentation, the Applicant submits that the Officer erred by focusing only on whether the Applicant was targeted in 2010 and 2011. The Officer either failed to apply, or misapplied, the test for persecution under section 96.
[42] The Applicant further submits that the Officer did not properly consider whether discrimination of Roma in Hungary rises to the level of persecution, as is demonstrated overwhelmingly in the documentary evidence the Applicant submitted in support of his application. The Officer also concluded with reference to one of the expert reports that discrimination is not systemic, which is clearly contradicted by much of the documentary evidence. As such, the Applicant submits that the Officer’s analysis in this regard is unreasonable.
State Protection
[43] The Applicant submits it was unreasonable for the Officer to find that the Applicant ought to have sought protection from human rights agencies and the judiciary in Hungary. Considering the documentary evidence, the Applicant further submits that it was unreasonable for the Officer to conclude that the Applicant can expect the police in Hungary to protect him.
[44] Federal Court jurisprudence states that only the police can be expected to offer protection (Zepeda v Canada (Minister of Citizenship and Immigration), 2008 FC 491 at paragraphs 24-25). Thus, it was unreasonable for the Officer to expect the Applicant to approach human right agencies for protection.
[45] Furthermore, given that the Applicant may be targeted for a perceived knowledge of state secrets implicating the authorities in human rights abuses, the Officer’s conclusion that he can expect protection from these same authorities is unreasonable. Firstly, the Applicant fears the same people the Officer expects him to approach for protection. Secondly, documentary evidence such as a report from Human Rights Watch says that recent changes in the judicial system have significantly threatened judicial independence in Hungary.
[46] The documentary evidence shows that there is inadequate state protection for Roma in Hungary, and that the police continue to commit violence towards Roma. Discriminatory attitudes and racial profiling create significant obstacles for Roma seeking access to the justice system. The Applicant submits that the availability of state protection must be viewed within the context of the increasingly intolerant and racist attitudes towards Roma people in Hungary. As Ms. Alberts states in her affidavit, the targeting of Roma by political groups is becoming an increasingly serious problem.
[47] The isolated examples of police efforts cited by the Officer do not demonstrate that adequate protection exists for Roma in Hungary. To the contrary, examples of systematic problems for Roma indicate that adequate state protection likely does not exist. The Applicant states that the Officer failed to explain why he or she preferred the isolated examples cited to the other evidence.
[48] The Applicant further submits that the Officer erred by applying a “serious efforts” test to the state protection analysis. State protection is not determined by a state’s willingness to provide protection; the state protection offered must be effective and reasonably forthcoming (Canada (Attorney General) v Ward, [1993] 2 SCR 689 at paragraphs 48-49; Mendoza v Canada (Minister of Citizenship and Immigration), 2010 FC 119 at paragraph 33). As the Court said at paragraph 17 in Streanga v Canada (Minister of Citizenship and Immigration), 2007 FC 792:
In Garcia v. Canada (MCI), [2007] F.C.J. No. 118, 2007 FC 79, the Federal Court held that a state’s “serious efforts” to protect women from the harm of domestic violence are not met by simply undertaking good faith initiatives. The Court stated at paragraph 14:
It cannot be said that a state is making “serious efforts” to protect women, merely by making due diligence preparations to do so, such as conducting commissions of inquiry into the reality of violence against women, the creation of ombudspersons to take women’s complaints of police failure, or gender equality education seminars for police officers. Such efforts are not evidence of effective state protection which must be understood as the current ability of a state to protect women...
[49] The Officer makes several references to measures put into place by the Hungarian Government, and concludes that “the State has recognized the discrimination faced by Roma to be an issue and has made serious efforts to protect the Roma.” The Applicant submits that the Officer’s reliance on the state’s efforts rather than on whether adequate protection exists at the operational level is an error of law.
The Respondent
Certified Tribunal Record
[50] The Respondent is opposed to the pages requested by the Applicant being excised from the CTR. The Respondent is amenable to the pages that relate to the Applicant’s wife being sealed, in a manner consistent with the original confidentiality order, but states that very few of those pages relate to the Applicant’s wife. The Respondent submits that only pages 362-365, 367, 400 and 408 need to be sealed.
Oral Hearing
[51] The decision to conduct an oral hearing lies solely in the discretion of the Officer; it is “a matter of discretion, not a matter of right” (L.Y.B. v Canada (Minister of Citizenship and Immigration), 2009 FC 1167 at paragraph 19). Oral hearings are intended to be held only in exceptional circumstances (Ahmad v Canada (Minister of Citizenship and Immigration), 2012 FC 89 at paragraph 38).
[52] The Applicant bears the onus to provide the Officer with the best evidence to support his PRRA application. In Pareja v Canada (Minister of Citizenship and Immigration), 2008 FC 1333, the Court said at paragraph 26:
The applicant would have not gained anything from a hearing since he had ample opportunity to make his arguments and to submit all of the documentary evidence and written submissions deemed necessary to support his claims. The PRRA officer did not determine in her decision that the applicant lacked credibility, but rather that he had not satisfied his burden of proof establishing a personalized risk. This finding is perfectly justified and possible in terms of the evidence offered in this matter and the law. In short, it is once again a reasonable finding that does not justify the intervention of this Court.
[53] The Officer had no obligation to confront the Applicant with insufficiencies in his evidence. As the Court said in paragraph 22 of I.I. v Canada (Minister of Citizenship and Immigration), 2009 FC 892 [I.I.], the “PRRA officer’s role is to evaluate and weigh the evidence before him and make a reasonable finding not to set out, for the Applicant, what evidentiary elements he should provide in order to meet his burden.”
[54] The Officer noted that the Applicant was detained and spoke little English, and so wished to rely on the facts asserted in the affidavit of his wife. The Officer acceded to this request. The Officer noted that the purpose of an oral hearing is to address credibility concerns, and so declined to allow the Applicant’s wife to testify at an oral hearing. Even where credibility concerns arise, this only creates a presumption of an oral hearing, as the matter remains wholly within the Officer’s discretion (Yakut v Canada (Minister of Citizenship and Immigration), 2010 FC 628). There is no reasonable expectation that an oral hearing would be granted simply because the Applicant requested one.
[55] An oral hearing is not intended to provide an opportunity for the Applicant to improve his evidence (Iboude v Canada (Minister of Citizenship and Immigration), 2005 FC 1316 at paragraph 14). This is essentially what the Applicant requested in this case; the Applicant argues that an oral hearing should have been convoked to allow his wife to provide additional testimony. The onus was on the Applicant to provide the best evidence available in the first instance, and the Officer made no error by noting the shortcomings of the evidence presented. The Respondent submits it was reasonable for the Officer to decline to conduct an interview.
[56] Where the Officer concludes that the evidence tendered does not have sufficient probative value, the officer is not making a determination about the credibility of the person providing the evidence, and therefore no interview is required (Mosavat, above). The Applicant has not established that an oral hearing was necessary, advisable or reasonably required in the circumstances of this case.
Persecution
[57] The Respondent further submits that the Officer’s finding that the Applicant does not face a risk of persecution was reasonable. At the first two incidents in 2008 and 2009 the police attended and prevented any violence, and there were no follow-up threats or persecutory acts that stemmed from these incidents. During the third incident, which involved things being thrown at the Applicant’s home, nothing further happened after a bar owner called the attackers away. The Applicant and his wife lived in Hungary for two more years after this, during which time there were no more incidents and they never sought protection from the police. The Applicant did not provide evidence of any recent threats, and the threats he received in the past never materialized into persecution.
[58] The Applicant argues that the Officer “conflated” the tests for risk under section 96 and 97 by requiring the Applicant to show a personalized risk of persecution; however the Officer was entitled to assess the Applicant’s personal situation to determine the risk of persecution he would face upon returning to Hungary. For the preceding two years prior to the Applicant’s departure from Hungary neither he nor his wife was threatened. This is certainly relevant to the likelihood of whether the Applicant would face persecution upon his return.
[59] Furthermore, the Officer specifically considered the risk the Applicant faces as a Roma. The fact that the documentary evidence shows that Roma have been attacked in 2010 and 2011 does not necessarily mean that the Applicant faces a risk of attack. The Applicant argues that the Officer was required to look at individuals similarly-situated to the Applicant, but the Officer specifically considered the treatment of Roma and the availability of assistance in Hungary. In any event, any risk based on these factors was mitigated by the Officer’s finding that state protection was available.
State Protection
[60] The Respondent states that the Applicant is essentially asking the Court to reweigh the evidence on state protection, and the Officer’s finding in this regard is deserving of deference (Diallo v Canada (Minister of Citizenship and Immigration), 2007 FC 1063 at paragraph 17; James v Canada (Minister of Citizenship and Immigration), 2010 FC 318 at paragraphs 16-17). A number of recent cases from the Court support the Officer’s finding that state protection for Roma is available in Hungary (Matte v Canada (Minister of Citizenship and Immigration), 2012 FC 761; Horvath v Canada (Minister of Citizenship and Immigration), 2012 FC 253; Balogh v Canada (Minister of Citizenship and Immigration), 2012 FC 216; Banya v Canada (Minister of Citizenship and Immigration), 2011 FC 313).
[61] The Applicant alleges that he will not be able to access state protection because he will be perceived as having access to “state secrets.” However, there is no indication that these state secrets involve information that was recently obtained. The Applicant resided in Hungary until 2011, and was never targeted based on an alleged knowledge of state secrets. The Applicant opted not to put forth details of these alleged state secrets in his application, and without an evidentiary basis for this allegation the Applicant has not established that he would be a target of the authorities or that they would be unwilling to help him. The Applicant’s assertions are vague, and do not undermine the reasonableness of the Officer’s finding that state protection is available.
[62] The Applicant says that only the police can be expected to offer state protection, but other cases of this Court state that claimants are expected to access other sources of assistance (Granados v Canada (Minister of Citizenship and Immigration), 2009 FC 210; Romero v Canada (Minister of Citizenship and Immigration), 2008 FC 977; Sanchez v Canada (Minister of Citizenship and Immigration), 2008 FC 134; Gutierrez v Canada (Minister of Citizenship and Immigration), 2008 FC 971).
[63] The Applicant also argues that the Officer wrongly applied the “serious efforts” test in assessing state protection. The Federal Court of Appeal said at paragraph 7 of Canada (Minister of Employment and Immigration) v Villafranca, [1992] FCJ No 1189 [Villafranca] that the test for state protection is whether the state has made “serious efforts to protect its citizens.” The Applicant argues that the Court should import a standard of “effectiveness” into the state protection analysis, but the Respondent maintains that Villafranca remains good law.
[64] The Federal Court of Appeal restated the test in Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at paragraph 30:
…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.
[65] This jurisprudence was applied by the Federal Court in Flores v Canada (Minister of Citizenship and Immigration), 2008 FC 723 at paragraphs 8-11:
The applicants argued in their written submissions that the legal test for a finding of state protection was whether that protection was effective, citing Carrillo v. Canada (Minister of Citizenship and Immigration), 2007 FC 320, [2008] 1 F.C.R. 3. In the interim between the filing of the representations and the hearing, that decision had been overturned by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Carrillo, 2008 FCA 94, [2008] F.C.J. No. 399 which confirmed that the test is adequacy rather than effectiveness per se.
The applicants contend, nonetheless, that it remains an error for an RPD panel to fail to consider whether the mea