Varga v. Canada (Citizenship and Immigration)

Varga v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2020-01-22
Neutral citation
2020 FC 102
File numbers
IMM-515-19
Decision Content
Date: 20200122
Docket: IMM-515-19
Citation: 2020 FC 102
Ottawa, Ontario, January 22, 2020
PRESENT: Mr. Justice Russell
BETWEEN:
NIKOLETTA VARGA, ATTILA BALOGH AND ATTILA PATRIK BALOGH
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada [RPD], dated January 4, 2019 [Decision], denying the Applicants’ refugee and person in need of protection claims under ss 96 and 97 of the IRPA.
II. BACKGROUND
[2] The Applicants, Nikoletta Varga, Attila Balogh and their son Attila Patrik Balogh, are Roma citizens of Hungary. Ms. Varga and her son arrived in Canada on April 3, 2012, a few months after Mr. Balogh, who arrived on December 30, 2011. The Applicants allege to have a well-founded fear of persecution in Hungary due to their Roma ethnicity.
A. Nikoletta Varga
[3] Upon first arriving in Canada, Ms. Varga was detained and interviewed in Montreal at the port of entry by the Canadian Border Service Agency [CBSA]. The interviewing officer’s notes indicate that Ms. Varga claimed that she was entering Canada for 30 days to visit and stay with a friend, Fauriss Kabeya, and that she was not afraid to return to Hungary as she had no problems there despite being Roma. When contacted, Fauriss Kabeya denied inviting Ms. Varga to stay with him.
[4] A few days later, on April 13, 2012, Ms. Varga submitted a refugee claim in which she noted in Box 42 that she is afraid to return to her country due to “Racist Hungarian Guards and Skinheads.” At Box 43, she indicated that she came to Canada because:
[…] I was persecuted. I have been abused and was 17 weeks pregnant and had a miscarriage. I don’t want to go back and would rather die. I fear for the life of my child.
[5] In her refugee claim, Ms. Varga also states that her common-law partner, Mr. Attila Balogh, currently lives in Canada.
[6] Ms. Varga subsequently completed her Personal Information Form [PIF] on April 23, 2012. In her PIF, she confirms, once again, that she is Roma and states that she is claiming refugee status on racial, political, and social grounds. Attached to the PIF is a two-page narrative where she asserts that: (1) she has generally suffered discrimination since childhood due to her ethnicity; (2) she was attacked by a group of Hungarian nationalists on September 29, 1998, who left her unconscious and caused her to suffer a miscarriage; and (3) she was attacked by a group of Hungarian Guardists outside her brother’s apartment building on August 25, 2009. She later amended her PIF to state that she was raped during this attack in 2009.
[7] Firstly, Ms. Varga alleges that, just like her parents, she has suffered discrimination her entire life. As a child, she notes that she was forced to leave primary school because she was ridiculed by her classmates and ignored by her teachers. As an adult, she states that discrimination is a part of her daily life as she is regularly refused employment due to her ethnicity and, if fortunate enough to obtain employment, is forced to work under discriminatory conditions. Ms. Varga notes as an example that, when she worked as a kitchen help, she was forbidden to enter the area where food was prepared.
[8] Secondly, Ms. Varga alleges that she was attacked by a group of Hungarian nationalists on September 29, 1998, causing her to miscarry the seventeen-week fetus she was carrying. She provided a medical report from the Josa Andras Hospital Gynecology Department stating that: (1) she claimed that an unknown perpetrator assaulted her; (2) visible signs and examinations supported this; and (3) a spontaneous abortion was induced. The report notes that Ms. Varga was admitted on September 29, 1998 (the same day as the alleged incident) and that the surgical procedure took place on that day. However, it does not indicate when Ms. Varga was released from the hospital. The report indicates that it was forwarded to the relevant police authorities.
[9] Ms. Varga provided an additional medical report from the Josa Andras Hospital Neurology Department detailing her four-day hospital stay from October 22, 1998, to October 27, 1998. This report reiterates Ms. Varga’s claim that she was attacked and suffered a miscarriage as a result. The report also outlines the head injuries sustained by Ms. Varga as a result of this attack and notes that she was unconscious for ten seconds following the attack.
[10] Despite the fact that the September 29, 1998 report was forwarded to the authorities, no police response was provided. Ms. Varga testified that she went to the police with her mother to file a report following the attack but was rebuffed.
[11] Thirdly, Ms. Varga asserts that she was attacked and raped by Hungarian Guardists on August 25, 2009, while taking out the garbage at her brother’s apartment during a party. Ms. Varga asserts that the weather conditions were dusky and it took approximately 15-20 minutes for someone to come to her aid. She alleges that she screamed for help at first but her mouth was quickly covered by the assailants. Following this incident, her brother and Mr. Balogh heard her screams and found her in a fetal position. Ms. Varga asserts that she did not tell Mr. Balogh that she had been raped. She testified that her mother went to the police station to report the incident but the police refused to act.
[12] Ms. Varga provided five letters authored by three individuals supporting her claim that she was assaulted and raped in 2009. In particular, the letter by Erzsbet Balogh, Ms. Varga’s sister-in-law, states that she noticed through the window of the apartment five men attacking a “gypsy girl.” As they went to the aid of the screaming woman, they noticed that it was Ms. Varga.
[13] Following the attack in 2009, Ms. Varga claims to have undergone psychiatric treatment in Hungary until 2012. She provided a medical letter signed by Dr. Alshahsoh Akeef in 2017 confirming this, and noting that Ms. Varga:
has been suffering from anxiety, restlessness, adjustment disorder, disorder in finding her identity in addition to being decompensated physically as a result of being raped by Hungarian skinhead boys in August 2009 and received psychiatric treatment until she was in Hungary, March 2012.
[14] Ms. Varga claims she continued to seek psychiatric treatment following her arrival in Canada. She provided several medical reports to support this claim, including:
A letter from her general physician, Dr. Zaki, confirming that she has been under his care for the last five years due to severe depression and trauma and that “it [would] be safer and better for the well-being of [Ms. Varga] if [s]he remain[ed] in the country”;
A 2013 consultation report signed by Dr. Balci from the Centre for Addiction and Mental Health, which notes she exhibited symptoms of post-traumatic stress disorder [PTSD] and major depressive disorder;
A 2017 consultation report from Dr. Abraham of the Centre for Addiction and Mental Health diagnosing her with “major depressive disorder” and PTSD; and
A 2018 letter signed by a counselor at the Canadian Centre for Victims of Torture confirming that they have been assisting Ms. Varga with trauma counselling resulting from the incidents in Hungary.
B. Attila Balogh
[15] Nearly a month after arriving to Canada, Mr. Balogh filed a refugee claim on January 28, 2012. In this claim he notes, at Box 42, that he is “afraid of the Gardistas and other Hungarians who hate gypsies.” He also states at Box 43 that:
I fled Hungary after facing years of persecution based on my race or membership in a social group as a gypsy. I was physically abused by the Gardistas, threatened with death by people who sent anonymous letters, deprived of work and held back in school. All of this because I am a gypsy. My wife went to the police once but we were ignored. I am afraid of the police and they will not help.
[16] Mr. Balogh subsequently completed his PIF on February 2, 2012, in which he confirms, once again, that he is Roma and states that he is claiming refugee status on racial, national, and social grounds.
[17] At the hearing before the RPD, Mr. Balogh asserted that he: (1) received several threatening letters addressed to him from anonymous persecutors; (2) was attacked by a group of Hungarian Guardists in 2010 while walking home; and (3) was attacked and urinated on by a group of Hungarian Guardists in the fall of 2011. He also submitted a police report detailing that his sister’s home was vandalized by an unknown perpetrator who painted a swastika on her wall and wrote, “You Gypsies, you will die.”
[18] Firstly, Mr. Balogh alleges he received six to ten anonymous letters addressed to him, and threatening to harm him and his family for being Roma. Following his departure for Canada, he states that the letters were subsequently sent to his mother’s home until approximately 2016.
[19] Secondly, Mr. Balogh claims that a group of Hungarian Guardists attacked him in 2010, uttering racial slurs at him and stomping on his hand during the incident. Mr. Balogh testified that he did not file a police report because his doctor advised him not to since the police would not believe him.
[20] Thirdly, Mr. Balogh testified that he was again attacked by a group of Hungarian Guardists in 2011. He alleges that they grabbed him, threw him to the ground, and began kicking him. He notes that they subsequently made him strip and urinated on him. Mr. Balogh stated that he went with Ms. Varga to the police to file a report but they were ridiculed and turned away by the police.
[21] Finally, Mr. Balogh alleges that Hungarian nationalists went to his sister’s home, kicked out her family, and vandalized their home. The graffiti included a swastika as well as writing which said, “You Gypsies, you will die.” The Applicants provided a police report filed by Mr. Balogh’s sister confirming the graffiti and stated that the unknown perpetrator entered the empty home unlawfully by forcing the door. The report indicates that the investigation into an “offence against property” was terminated because the identity of the perpetrator could not be determined.
C. Attila Patrik Balogh
[22] Finally, the Applicants claim that their son, Attila Patrik Balogh, faced persecution at school because he was Roma. They claim that he was held back and misdiagnosed as having an “intelligence level of the mild mental retardation zone” due to his ethnicity. They assert that this is not the case and that he was not allowed to participate in class.
III. DECISION UNDER REVIEW
[23] On January 4, 2019, the RPD found that the Applicants did not qualify as refugees or persons in need of protection under ss 96 and 97 of the IRPA. The RPD found that the Applicants had failed to “credibly establish their allegations of persecution and lack of state protection” in Hungary.
A. Credibility and Well-founded Fear
[24] The RPD found the vast majority of the Applicants’ claims not credible.
[25] Regarding Ms. Varga’s claims, the RPD believed that she was Roma and has suffered general discrimination in Hungary. However, the RPD found that she had not credibly demonstrated that the discrimination she suffered rose to the level of persecution. Specifically, the RPD found Ms. Varga’s claims not to be credible due to: (1) the inconsistencies arising from her statements at the port of entry; (2) the insufficiency of the medical reports regarding her mental health, their lack of impartiality, and Ms. Varga’s gap in treatment; (3) the omissions in the hospital reports regarding the 1998 incident and the lack of follow-up by the police at the hospital; and (4) the inconsistencies and plausibility issues concerning the 2009 incident.
[26] First, the RPD asserts that Ms. Varga stated in her refugee claim at Box 42 that “I am not afraid of anyone, I just want to let you know that there are no resources to live there.” The RPD noted she also indicated at Box 43 that:
Because in my country nothing exists, there is no food, there are no jobs, […] I cannot work. How can I feed my family? I don’t have shelter, I don’t have a house and I don’t have food. That is why I am here. I cannot support my family at all.
[27] The RPD also noted that Ms. Varga stated to the interviewing officer at the port of entry that she was not afraid of returning to Hungary and that she was in Canada to visit a friend, Fauriss Kabeya, who denied having invited her to stay with him.
[28] The RPD noted that these statements are in direct contradiction with her PIF which says that she is claiming refugee and person in need of protection status as a result of the persecution she has experienced in Hungary due to her ethnicity; notably the violent incidents in 1998 and 2009.
[29] Given that Ms. Varga simply denied making the statements at Box 42 and Box 43 of her refugee claim, and stated that she did not remember her answers at the port of entry interview, the RPD found her refugee and person in need claims not to be credible. The RPD highlights that the interviewing officer would not have been able to contact Fauriss Kabeya had Ms. Varga not provided his name and phone number. The RPD also stated that, given Ms. Varga’s recall of other elements of the port of entry interview, it is unlikely that she did not remember making these statements. Consequently, the RPD found that, on a balance of probabilities, Ms. Varga does not have a well-founded fear of persecution and has instead come to Canada for economic reasons.
[30] Secondly, the RPD raised several issues with the sufficiency and credibility of the medical reports provided by the Applicants detailing Ms. Varga’s mental health since 2009. The RPD found that the letter from Dr. Akeef, who Ms. Varga claims provided her psychological treatment in Hungary, was not reliable as it did not indicate his area of practice nor how many times he saw Ms. Varga. The RPD also found that the medical reports by Dr. Balci and Dr. Abraham of the Centre for Addiction and Mental Health were not convincing as they only saw Ms. Varga twice and the contents of the reports are largely based on the information she provided. The RPD also notes that the letter from Dr. Zaki, Ms. Varga’s general physician, had crossed “that intangible line between medical care and advocacy” as it states that it would be better for her well-being if she remained in Canada.
[31] For these reasons, the RPD stated that it gave less weight to the medical evidence concerning Ms. Varga’s mental health than it otherwise would have. With this in mind, the RPD found that the medical documentation did not demonstrate that the alleged incidents took place. Moreover, the RPD noted that the three years it took Ms. Varga to seek the assistance of the Canadian Centre for Victims of Torture following the referral by Dr. Balci in 2013 undermines her claims.
[32] Thirdly, the RPD found that the omissions in the September 29, 1998 hospital report, as well as Ms. Varga’s testimony that the police did not attend the hospital to speak with her, undermined the credibility of her claim that she was beaten by Hungarian nationalists and had a miscarriage as a result. The RPD stated that it is reasonable to expect the September 29, 1998 hospital report to mention that Ms. Varga had been transported by ambulance in an unconscious state and it is implausible, as per the RPD’s specialized expertise, that the police would not have gone to the hospital to speak with Ms. Varga.
[33] Fourthly, the RPD found Ms. Varga’s claim that she was attacked and raped by Hungarian Guardists to be inconsistent and implausible. In this regard, the RPD expressed four main concerns. First, it found it to be implausible that it took 15-20 minutes for someone to come to her aid when she would have been in close proximity to her brother’s apartment building. Second, the RPD noted that Ms. Varga provided contradictory accounts as to whether she screamed for help during the incident. Though she noted in her PIF that she screamed for help during the attack, and provided several letters from witnesses who heard her screams, she testified at the hearing when asked why it took so long for someone to come to her aid that her mouth was covered for most of the incident. Third, the RPD noted several issues with the letter provided by Ms. Varga’s sister who stated that she heard screams and saw through the window five men attacking a “gypsy girl.” The RPD found it implausible that her sister does not refer to Ms. Varga by name, and would likely have recognized Ms. Varga’s voice when hearing her screams for help. Moreover, given the dusky weather conditions and the black clothing worn by the attackers, the sister would likely not have been able to see five men attacking Ms. Varga from the window. Fourth, regarding the claim that Ms. Varga did not disclose to Mr. Balogh that she had been raped, the RPD found that it was “not plausible that [Mr. Balogh] would have gone to her attendance, found her in the fetal position, and not come to know, if not immediately, that she had been raped.” In light of these issues, the RPD rejected Ms. Varga’s claim that she was attacked and raped by Hungarian Guardists.
[34] Regarding Mr. Balogh’s claims, the RPD acknowledged that he was Roma and has suffered general discrimination in Hungary. However, it found three of the incidents claimed by Mr. Balogh not to be credible, and found that the fourth, despite being credible, did not rise to the level of persecution.
[35] Firstly, the RPD found that Mr. Balogh’s claim that he received threatening letters in Hungary, which are now being sent to his mother following his move to Canada, was not credible as the letters were likely produced for the “sole purpose of bolstering his claim for refugee protection.” This is because Mr. Balogh testified that he did not know who wrote them, despite the fact that the letter writer(s) addressed him by name and knew him well enough to send the letters to his mother’s home following his departure.
[36] Secondly, the RPD deemed not credible Mr. Balogh’s claim that he was a victim of a racially-motivated attack by a group of Hungarian Guardists in 2010. The RPD found that, as per its specialized expertise, it is unlikely that the doctor attending to his injuries would have advised him not to file a police report. Instead, the RPD notes that “medical personnel are required to notify the police” and that “reporting is not usually left to the patient.”
[37] Thirdly, the RPD did not find credible Mr. Balogh’s claim that his sister was kicked out of her home by Hungarian nationalists, who then proceeded to vandalize it by painting a swastika on the wall. Although Mr. Balogh provided a police report with pictures, the RPD noted that the report contradicts his account as it appears that the home was empty and locked at the time of the vandalism.
[38] Fourthly, the RPD found credible Mr. Balogh’s claim that he was attacked and urinated on by a group of men in the fall of 2011, and subsequently ridiculed by the police when attempting to file a police report. However, the RPD found that it was not “persuaded that the police refusing to take [Mr. Balogh]’s statement, while discriminatory, raises the act of discrimination to one of persecution.” This is because Mr. Balogh had other avenues of redress at his disposal, such as the many oversight bodies mandated to investigate complaints against the police.
[39] Finally, regarding Attila Patrik Balogh, Ms. Varga and Mr. Balogh’s son, the RPD found that insufficient credible evidence was presented to demonstrate that the school’s assessment of his learning abilities was racially motivated.
B. State Protection
[40] The RPD then proceeded to address the Applicants’ argument that state protection was not, and would not, be available to them should they return to Hungary.
[41] The RPD came to the conclusion that the Applicants had not rebutted the presumption that state protection is available to them in Hungary. Besides finding the vast majority of the Applicants’ claims were not credible, the RPD grounded this finding in Mr. Balogh’s failure to exhaust the avenues of redress at his disposal when the police refused to take his statement following the 2011 incident, which the RPD found to be a random attack.
[42] The RPD noted that local failures by authorities to provide protection do not equate to a failure of the state as a whole to protect its citizens. In fact, the RPD cites Justice Annis’ decision in Mudrak v Canada (Citizenship and Immigration), 2015 FC 188 [Mudrak] where he notes that there is an obligation to complain to the applicable oversight agencies if the police do not provide adequate assistance. Therefore, since the Applicants did not avail themselves of all the resources available to them domestically in this case, they cannot qualify as refugees.
[43] Moreover, the RPD went on to consider Hungary’s general ability to protect persons like the Applicants. As noted by the RPD, pursuant to s 96 of the IRPA, “personal targeting or past persecution is not required in order to establish a risk. Rather, persecution can be established by examining the situation of similarly situated individuals” citing Balogh v Canada (Citizenship and Immigration), 2016 FC 426 at para 19.
[44] Following its analysis of the protection available to Roma in Hungary, the RPD concluded that “protection is operationally adequate.” Citing a BBC report in the National Documentation Package [NDP], which acknowledged that the Roma are still discriminated against in Hungary and that some police officers continue to hold anti-Roma attitudes, the RPD held that the dissolution of the Hungarian Guard in 2013 as well as the political shift by the right-wing Jobbik Party has significantly reduced the threat to Roma in Hungary. Beyond these actors, the RPD further noted that:
There is no documented evidence before the panel to suggest, or to establish, that other nationalist or right-wing groups have been targeting Roma today as they were in the years leading up to the claimants’ departure, or that these groups are supported by the State.
[45] The RPD was of the opinion that the Applicants had failed to discharge their onus to provide clear and compelling evidence of Hungary’s inability or unwillingness to protect them pursuant to the presumption of state protection as recognized by the Supreme Court of Canada in Canada (Attorney General) v Ward, [1993] 2 SCR 689 at 724-725. The RPD further specified that there is a heavy onus in cases such as the present where a refugee claimant alleges a failure of state protection in a “functioning democracy” such as Hungary, citing Camacho v Canada (Citizenship and Immigration), 2007 FC 830 at para 10.
IV. ISSUES
[46] The issues to be determined in the present matter are the following:
Did the RPD err in its assessment of the credibility of the Applicants’ claims?
Did the RPD err in its analysis of the adequacy of the state protection available to the Applicants in Hungary?
V. STANDARD OF REVIEW
[47] This application was argued prior to the Supreme Court of Canada’s recent decisions in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] and Bell Canada v Canada (Attorney General), 2019 SCC 66. This Court’s judgment was taken under reserve. The parties’ submissions on the standard of review were therefore made under the Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] framework. However, given the circumstances in this matter, and the Supreme Court of Canada’s instructions in Vavilov at para 144, this Court found that it was not necessary to ask the parties to make additional submissions on the standard of review. I have applied the Vavilov framework in my consideration of the application and it does not change the applicable standards of review in this case nor my conclusions.
[48] In Vavilov, at paras 23-32, the majority sought to simplify how a court selects the standard of review applicable to the issues before it. The majority did away with the contextual and categorical approach taken in Dunsmuir in favour of instating a presumption that the reasonableness standard applies. However, the majority noted that this presumption can be set aside on the basis of (1) clear legislative intent to prescribe a different standard of review (Vavilov, at paras 33-52), and (2) certain scenarios where the rule of law requires the application of the standard of correctness, such as constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies (Vavilov, at paras 53-64).
[49] There was no disagreement between the parties that the applicable standard of review in this matter was the standard of reasonableness.
[50] There is nothing to rebut the presumption that the standard of reasonableness applies in this case. The application of the standard of reasonableness to these issues is also consistent with the existing jurisprudence prior to the Supreme Court of Canada’s decision in Vavilov. See Haastrup v Canada (Citizenship and Immigration), 2018 FC 711 at para 9; Aissa v Canada (Citizenship and Immigration), 2014 FC 1156 at para 56 concerning the review of a decision-maker’s credibility finding, and see Pava v Canada (Citizenship and Immigration), 2019 FC 1239 at para 22; Canada (Citizenship and Immigration) v Neubauer, 2015 FC 260 at para 11 concerning the review of a decision-maker’s assessment of state protection.
[51] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with whether it “bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para 99). Reasonableness is a single standard of review that varies and “takes its colour from the context” (Vavilov, at para 89 citing Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59). These contextual constraints “dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt” (Vavilov, at para 90). Put in another way, the Court should intervene only when “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov, at para 100). The Supreme Court of Canada lists two types of fundamental flaws that make a decision unreasonable: (1) a failure of rationality internal to the decision-maker’s reasoning process; and (2) untenability “in light of the relevant factual and legal constraints that bear on it” (Vavilov, at para 101).
VI. STATUTORY PROVISIONS
[52] The following statutory provisions of the IRPA are relevant to this application for judicial review:
Convention refugee
Définition de réfugié
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,
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) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
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 ;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Person in need of protection
Personne à protéger
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
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) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
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) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(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) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(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) the risk is not caused by the inability of that country to provide adequate health or medical care
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
VII. ARGUMENTS
A. Applicants
[53] The Applicants submit that the RPD unreasonably assessed: (1) their credibility claims by misstating and ignoring key evidence; and (2) the adequacy of the state protection available to them in Hungary by preferring general evidence over the specific evidence at bar and by finding that Hungary is a fully functional democracy. For these reasons, they submit that this Court should allow this judicial review and remit their case back for redetermination.
(1) Credibility of the Applicants’ Claims
[54] The Applicants argue that the RPD unreasonably assessed the evidence at hand when evaluating the credibility of their claims. Notably, they argue that the RPD: (1) misstated Ms. Varga’s statements at Box 42 and Box 43 of her refugee claim; (2) improperly rejected and ignored the psychological evidence at hand; (3) unreasonably assessed the medical reports concerning the 1998 incident; (4) unreasonably grounded its rejection of the 2009 incident on peripheral and circumstantial plausibility findings; and (5) failed to fully assess the evidence concerning the racial motivations behind the vandalization of the home of Mr. Balogh’s sister.
[55] Firstly, the Applicants argue that the RPD “completely misstated” Ms. Varga’s answers at Box 42 and 43 of her refugee claim. Indeed, the RPD claims that Ms. Varga stated at Box 42 that “I am not afraid of anyone, I just want to let you know that there are no resources to live there,” and at Box 43 that she is here because “[...] in my country nothing exists there is no food, there are no jobs […] I cannot work […].” The Applicants point out that this is mentioned nowhere in Ms. Varga’s refugee claim. In fact, they note at Box 42 that she is afraid to return to her country due to “Racist Hungarian Guards and Skinheads” and at Box 43, that she came to Canada because:
[…] I was persecuted. I have been abused and was 17 weeks pregnant and had a miscarriage. I don’t want to go back and would rather die. I fear for the life of my child.
[56] The Applicants submit that this misstatement of the evidence alone justifies allowing this judicial review since this perceived inconsistency was a fundamental ground in the Decision concerning the credibility of the Applicants’ claims. The Applicants cite in support of their position this Court’s decision in Cuevas Cornejo v Canada (Minister of Citizenship and Immigration), 2006 FC 1184 at para 6.
[57] Secondly, the Applicants argue that the RPD improperly rejected and ignored the abundance of psychological evidence at hand in this case. The Applicants state that it was improper for the RPD to ground its rejection of the psychological evidence largely on the basis that the trauma history came from Ms. Varga herself, as this is inconsistent with this Court’s jurisprudence. See BC v Canada (Minister of Citizenship and Immigration), 2003 FC 826 at para 19. Moreover, the Applicants argue that the RPD erred by disregarding the psychological evidence largely for formalistic reasons; notably the report by Dr. Akeef which the RPD disregarded because it failed to clearly note his area of practice. The Applicants state that it is self-evident that Dr. Akeef administered the psychiatric treatment referred to in his report. Finally, the Applicants argue that the abundance of psychological evidence overwhelmingly shows that Ms. Varga suffers from PTSD and severe depression as a result of the alleged persecution in Hungary.
[58] Thirdly, the Applicants argue that the RPD unreasonably found that the Applicants’ claims concerning the violent attack on Ms. Varga in 1998 were implausible by focusing on what was not in the reports rather than what was. They argue that it is unreasonable for the RPD to completely ignore the fact that the reports confirm Ms. Varga’s account of the 1998 incident and to, instead, arbitrarily focus on the fact that the reports do not mention that Ms. Varga was unconscious and transported by ambulance. The Applicants say that this failure to acknowledge the evidence that corroborates their claims is unreasonable. They submit that this Court has held that a failure to acknowledge vital and important evidence constitutes a reviewable error, citing Johal v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 1760 at para 10.
[59] Fourthly, the Applicants argue that the RPD unreasonably grounded its rejection of the 2009 incident on peripheral and circumstantial plausibility findings, notably the time it took for someone to come to Ms. Varga’s aid and whether or not she screamed for help. The Applicants argue that the letters provided were not afforded proper weight, given the fact that they clearly corroborate Ms. Varga’s account of the 2009 incident.
[60] The Applicants also say that the RPD failed to fully assess the evidence concerning the racial motivation behind the vandalization of Mr. Balogh’s sister’s home. Though it is clear that the vandalization was a racially motivated hate crime, given the swastika and writing stating “[y]ou Gypsies, you will die,” the police report simply classified it as a property crime and refused to investigate the matter further. As such, the Applicants argue that the RPD acted unreasonably by focusing on whether the house was inhabited or not, instead of the racial motivations behind the crime and the failure of the police to further investigate. This makes the RPD’s credibility finding with regard to the vandalization incident unreasonable.
(2) State Protection Analysis
[61] The Applicants submit that the RPD’s analysis of the adequacy of the state protection available to them was unreasonable given the systematic failure of the police to aid and protect them in this case. The RPD improperly focused on general evidence to assess whether the state protection in Hungary is sufficient to protect the Applicants from persecution, while ignoring specific evidence in this case directly contradicting its findings. In any event, the Applicants also submit that the RPD based its finding that adequate state protection exists in Hungary on the fact that Hungary is a fully functional democracy, which the Applicants state is an unreasonable conclusion given the overwhelming contradictory evidence.
[62] Firstly, the Applicants say that they presented several instances where the police refused to assist them for discriminatory reasons. The Applicants point to the police’s ridicule of Mr. Balogh and their refusal to assist him following the 2011 incident where he was attacked and urinated on by Hungarian Guardists, which was accepted as credible by the RPD. This is direct evidence of the inadequacy of state protection available to them in Hungary and this Court has been clear that state efforts to ameliorate discrimination, such as oversight bodies, are not sufficient to establish the likelihood of state protection when the evidence demonstrates a pattern of unwilling or problematic state protection. See Elcock (Milkson) v Canada (Minister of Citizenship and Immigration), [1999] 175 FTR 116 at para 15.
[63] Moreover, the Applicants submit that the police report concerning the vandalism of the home of Mr. Balogh’s sister - in which the police classified the vandalism as a property crime rather than a hate crime and refused to further investigate the matter - is further proof of inadequate state protection in Hungary. In fact, the Applicants note that it is entirely consistent with item 4.3 of the NDP, which recognizes that hate crimes against the Roma are rarely prosecuted.
[64] As such, the Applicants state that the RPD’s assessment of the state protection available to them is unreasonable as it fails to properly address the critical specific evidence at hand, which contradicts the RPD’s findings grounded in more generalized evidence about the state of affairs in Hungary.
[65] Finally, the Applicants argue that the RPD’s finding that adequate state protection is available to them in Hungary because that country is a fully functional democracy is flawed. The Applicants argue that the evidence in the NDP, when taken as a whole, clearly demonstrates that democratic norms and the rule of law are not strong in Hungary. The Applicants cite the fact that the European Union has sanctioned Hungary for a regression in the rule of law, the lack of free and fair elections, the state’s restriction of media and political speech, and inefficacy in protecting and fostering the Roma. Moreover, the Applicants cite the findings of the European Court of Human Rights and the Venice Commission to the effect that Hungary’s non-compliance with its obligations under international law has risen significantly in recent years.
B. Respondent
[66] The Respondent argues that the RPD’s findings concerning the credibility of the Applicants’ claims and the adequacy of the state protection in Hungary are reasonable and are owed considerable deference by this Court.
(1) Credibility of the Applicants’ Claims
[67] The Respondent notes that the inconsistencies and implausibilities in the Applicants’ claims could not be overcome by the medical evidence of Ms. Varga’s psychological treatment. In essence, the Respondent argues that, once the main incidents in the Applicants’ claims were found not to be credible, there was no substance left to support Ms. Varga’s psychological diagnosis.
[68] Though the Respondent acknowl