TB5-08143

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-08143 TB5-08144 TB5-08145 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 4, 2015 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal John W Grice Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (principal Appellant), his spouse, XXXX XXXX XXXX (secondary Appellant) and their minor daughter, XXXX XXXX XXXX (minor Appellant), collectively referred to as "the Appellants", appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. The principal Appellant is the designated representative for the minor Appellant. The Appellants have submitted new evidence in support of their appeal; however, they do not request an oral hearing. They ask the Refugee Appeal Division (RAD) to allow the appeal and find them to be Convention refugees. In the alternative, the Appellants ask the RAD allow the appeal and refer the matter to a different member of the RPD for a redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. Background [3] The Appellants alleged before the RPD that, upon return to Hungary, they will be harmed by racists and would not have access to proper housing, healthcare, employment, education and services due to their Romani ethnicity. They also alleged that they would not be able to frequent certain places. [4] The Appellants' claims for refugee protection were heard on June 15, 2015. By a decision of July 17, 2015, the RPD rejected the claims. The RPD found that the Appellants experienced discrimination in Hungary that does not reach the level of persecution. It further found that adequate state protection is available to the Appellants in Hungary. [5] The Appellants submit that the RPD committed errors in its analysis of whether the treatment they feared amounted to persecution under section 96 of the IRPA. They further submit that the RPD committed errors in its assessment of whether state protection was available to them. ANALYSIS Role of the RAD [6] What is the role of the RAD in considering an appeal against a decision of the RPD? The Appellants submit that the RAD should follow the standard of intervention set out in Huruglica.1 The RAD acknowledges that in Huruglica the Court considered the appropriate relationship between the RAD and the RPD. It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellant's refugee claim. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of the IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.2 [7] Justice Phelan stated the following in Huruglica: Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.3 In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error."4 [8] Considering the recent jurisprudence, including the Court's decision in Huruglica, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellants' refugee claims, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD will substitute its own determination. Admissibility of Evidence Submitted on Appeal [9] Section 110(4) of the IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It is for the Appellants to make full and detailed submissions in their Memorandum of Argument about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to them.5 [10] The Appellants have tendered one document as proposed new evidence in support of their appeal. The document is a report by Nils Muiznieks, Commissioner for Human Rights, Council of Europe, following his visit to Hungary in July 2014. 6 It is indicated on the document that it was produced on December 16, 2014. [11] The Appellants indicate that the document proposed as new evidence is item 2.11 of the Immigration and Refugee Board's National Documentation Package (NDP) on Hungary, dated July 31, 2015. They ask the RAD to consider the document pursuant to subsection 110(4) of the IRPA, as the NDP in which it is contained in was released after their hearing. [12] The RAD notes that while the document proposed as new evidence was included in the Board's NDP for Hungary dated July 31, 2015, the document itself is dated December 16, 2014, seven months prior to the rejection of the claims. The RAD also notes that the document was issued by the Council of Europe's Commissioner for Human Rights, a reputable human rights organization, and is accessible on their website, the details of which are contained in the document.7 [13] The RAD finds that the document does not meet the test for new evidence. It did not arise after the rejection of Appellants' claims and was reasonably available at the time of the rejection. The Appellants could reasonably have been expected in the circumstances to have presented the document prior to the rejection of their claims. Since the document does not meet the test for new evidence it will not be accepted as new evidence in this appeal. Findings, arguments and assessment Discrimination and Persecution [14] The RPD noted that there was insufficient persuasive evidence adduced to lead it to conclude that the Appellants' basic human rights such as employment, health care, housing and social services were denied in Hungary. It found that the discrimination experienced by the Appellants does not threaten their fundamental rights but rather affects the quality of their existence in their home country. It found that the Appellants experienced discrimination but did not reach a level of persecution. [15] The Appellants argue that the RPD failed to appreciate the cumulative nature of the discrimination they faced and fails to explain how their experiences do not amount to persecution. They further argue that the RPD ignored incidents subsequent to the incident of physical violence. The Appellants maintain that Roma ethnicity was a factor in XXXX decision to demolish the numbered streets area. They contend that the evidence shows that only those with a valid current contract receive compensation, contrary to the RPD's assertion that all evicted would be relocated properly. The Appellants maintain that the eviction was one of the most important events on which they based their claim for refugee protection. They submit that the RPD misapprehended the evidence and thus failed to consider the eviction in the analysis of whether they had faced discrimination amounting to persecution. [16] The RAD notes that state protection is the determinative issue assessed by the RPD in these claims and is analysed below. The RPD found that state protection is available to the Appellants in Hungary and this finding is fatal to their claims under both section 96 and section 97 of the IRPA. As state protection is determinative, there is no need to deal with the issue of whether the RPD erred by not assessing the mistreatment experienced cumulatively. State protection [17] The RPD acknowledged the evidence of the Appellants' experience in Hungary. It also acknowledged the documentary evidence on the situation for Roma in Hungary. The RPD found that the Appellants would not face persecution in the areas of health, housing, employment or discrimination if they returned to Hungary. [18] The RPD noted the success of Professor XXXX XXXX a Roma citizen of Hungary. It found that his success in education and employment means that not all Roma face persecution or even discrimination in Hungary. The RPD noted documentary evidence indicating that there were 61 attacks against Roma citizens or their property in Hungary between January 2008 and September 2012. Based on this statistic, it found that racial violence is neither sustained nor systemic. The RPD noted that in 2009 the Equal Treatment Authority (ETA) accepted 1,087 complaints, ordered employers to stop their illegal activities in 51 cases and issued fines in 19 instances. It reasoned that these results would logically be obtained by investigation of individual complaints. It concluded that an agency that exists to monitor the enforcement of anti-discrimination laws would accept the secondary Appellant's complaint if she had reported to this agency. [19] The RPD determined from the documentary evidence that the attitude of some Hungarian people, including some in positions of authority, toward the Roma is discriminatory and prejudicial. It acknowledged that the effect of the above has been to marginalize the Roma people, who are generally under-employed, under-educated, frequently live in substandard housing, and are now subject to violence from radical elements who are gaining support from the general public to some extent. The RPD noted documentary evidence indicating that the European Union has found progress in these fields in Hungary. [20] The RPD noted the Appellants' testimony that their families were evicted from their homes. It found that the Appellants did not establish that the evictions were based on a Convention ground such as race or ethnicity. It noted that the XXXX government was criticized for its eviction notices to those in the numbered streets slum, to make way for a municipal sports stadium. However, it also noted that the material on this matter is mixed and found that the evictions are complicated by issues of ownership, leasehold rights, and unregistered occupants who overcrowd premises, but that all evicted would be relocated properly. [21] The RPD found that the Appellants have not rebutted the presumption that adequate state protection exists in Hungary in their particular circumstances. It noted that the documentary evidence relating to government efforts to protect the Roma is mixed. However, it found that the principal Appellant had not demonstrated that state protection in Hungary would not be forthcoming so that he need not have approached the authorities at all or that he need not have sought help from people higher in authority or with other mechanisms, such as the Minorities Ombudsman's Office or the Independent Police Complaints Board. The RPD interpreted the case law on the matter to mean that as long as Hungary was making serious efforts to provide or increase protection for individuals then the individuals must seek state protection. It found that in this case state protection would be available for the Appellants and, although in need of improvement, is adequate. [22] The RPD noted that there is no evidence of a complete breakdown of the state apparatus in Hungary. It noted that the evidence is that the state is making a serious effort to ensure state protection is available to the Roma. It further noted that there is no evidence of past personal experience that would lead the Appellants to believe that state protection would not be adequate or reasonably available to them. The RPD found that state protection is available to the Appellants in Hungary and this finding is fatal to their claims under both section 96 and section 97 of the IRPA. [23] The Appellants submit that the RPD erred by not considering the evictions in XXXX as a form of racial discrimination and by ignoring evidence that Hungary is not actually providing alternate housing to all those evicted. They argue that the RPD failed to consider the fact that in this regard, the state is not protecting the Appellants and indeed, is party to the discrimination. [24] The Appellants further submit that the RPD erred in the overreliance on efforts to integrate the Roma and the failure to consider whether efforts have given rise to an actual improvement on the ground. They argue that the RPD goes on at length about efforts made by Hungary, such as legislative changes and government programs; the vast majority of the analysis contains no mention of results. The Appellants refer to case law indicating that the RPD must consider whether those efforts have translated into actual protection. They argue that the RPD's decision with respect to state protection is more descriptive in nature that it is analytical; it describes state efforts intended to address discrimination, persecution and protection of the Roma but undertakes no real analysis of the operational adequacy or success of those efforts. The Appellants contend that the rare mentions of effectiveness in the RPD's reasons actually suggest that efforts were not effective. [25] The Appellants submit that there was objective, reliable evidence before the RPD which showed that despite any efforts, discrimination against the Roma was widespread and getting worse, not better. They further submit that the RPD ignores salient, directly contradictory evidence which showed that The Roma Police Officers Association is not a source of adequate protection. They submit that the RPD considers the Independent Police Board (ICPB) to be a source of state protection for them, while failing to address documentary evidence showing that the vast majority of complaints submitted to this organization are ignored by police and do not result in action being taken. They argue that the RPD's analysis on the effectiveness of the ETA appears to suggest just the opposite of his conclusion. They further argue that in assessing attacks against Roma citizens of Hungary, the RPD ignored documentary evidence which indicated that there is severe underreporting of racial violence, police unwillingness to register complaints of racially-motivated crimes, and a systemic failure on the part of the state to monitor racially motivated violence. The Appellants contend that the RPD erred in its state protection analysis. [26] The RAD finds that the RPD did not err when considering the evictions in XXXX. The RAD also finds that the RPD did not ignore evidence about Hungary not providing alternate housing to all those evicted. The evidence8 is clear that Hungary started a country wide-program of slum elimination in 2012. It is also clear that the numbered streets neighbourhood of XXXX, comprised mainly of Roma inhabitants, was targeted for demolition. Different rules apply to properties that are owned or leased, and whether the lease is in good standing, or has expired or been breached. The local government must offer to purchase properties owned by residents or provide them with an alternative comparable property and there is judicial recourse where an agreement cannot be reached on an offer. Residents with fixed-term leases that have not expired are offered alternative properties in other locations. Only those with indefinite-term leases would be offered money or flats elsewhere. Those with a valid current contract and no housing debt would be eligible for compensation. [27] The conditions and compensation for eviction and expropriation in XXXX, noted above, are reasonable. Western democratic governments are entitled to take private property and evict tenants from public property for a purpose deemed to be in the public interest, with the appropriate compensation for legal stakeholders. The municipality of XXXX targeted the numbered streets area after it approved a plan to dismantle the city's slums for safety reasons and to further urban development. The fact that many Roma resided in the numbered streets area of XXXX does not mean that the municipality targeted the area due to the composition of its residents. The city of XXXX clearly stated its reasons and the RAD finds them reasonable. There are many examples of the same type of practice around the world, including Canada. The evidence suggests that the legal stakeholders in the numbered streets area were offered appropriate compensation. The Appellants in this case were staying with relatives in the numbered streets area of XXXX when they were evicted. It is unclear if the relatives owned or rented their property and if they were offered compensation by the municipality. No credible evidence was presented to indicate that any of the Appellants had a legal stake in their accommodation while they were residing with relatives. Nonetheless, the principal and secondary Appellants were either working on occasion or receiving social assistance before they left Hungary. It would be reasonable to expect them to be able to obtain and pay for their own accommodation or request social housing. [28] The RAD also finds that the RPD did not err in its state protection analysis. It analysed and assessed the evidence and made well-reasoned findings. The documentary evidence in the record contains information on the situation of the Roma in Hungary, the problems the Roma face in Hungary, and the efforts of the state in improving the situation and rectifying the problems. It is difficult to assess the effectiveness of certain measures intended to improve the situation for the Roma and rectify the problems that exist in part because Hungary prohibits keeping records based on ethnicity. The RAD finds that the documents contain very little in the way of empirical data or opinions of state security experts as to either whether state protection is adequate or operationally adequate in Hungary. [29] It is important to reiterate some of the state protection principles as set out by the Courts. To rebut the presumption of state protection, a refugee claimant must provide "clear and convincing" evidence of the state's inability to protect its citizens.9 A refugee claimant who alleges that state protection is inadequate must persuade the Board that the evidence establishes that the state protection is, in fact, inadequate. The evidence that state protection is inadequate must not only be reliable and probative, it must also satisfy the Board, on a balance of probabilities, that state protection is inadequate.10 Where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that the state's efforts are not always successful will not rebut the presumption of state protection.11 A refugee claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.12 Doubting the effectiveness of the protection offered by the state when one has not really tested it does not rebut the existence of a presumption of state protection.13 [30] Refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protection of their home state. The onus is on the refugee claimant to approach the state for protection in situations where state protection might be reasonably forthcoming.14 In the absence of a compelling explanation, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim, at least where the state is a functioning democracy with a willingness and the apparatus necessary to provide a measure of protection to its citizens.15 [31] The refugee claimant's burden of proof is directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the refugee claimant must have done to exhaust all courses of action open to them.16 In a functioning democracy, a refugee claimant will have a heavy burden when attempting to show that they should not have been required to exhaust all of the recourses available to them domestically before claiming refugee status.17 [32] A refugee claimant must show that they have taken all reasonable steps in the circumstances to seek protection, taking into account the context of the country of origin, the steps taken and the refugee claimant's interactions with the authorities.18 Local failures by authorities to provide protection do not mean that the state as a whole fails to protect its citizens, unless the failures form part of a broader pattern of the state's inability or refusal to provide protection.19 No government is expected to guarantee perfect protection to all of its citizens at all times, and the fact that a state is not always successful in protecting its citizens is not enough to justify a claim, especially where a state is in effective control of its territory, has military, police and civil authorities in place and is making serious efforts to protect its citizens.20 Less than perfect protection is not a basis to determine that a state is either unwilling or unable to offer reasonable protection.21 [33] The RAD acknowledges the documentary evidence indicating that the Roma face discrimination in Hungary. Human rights NGOs continued to report that Roma suffered discrimination in almost all fields of life, particularly in employment, education, housing, penal institutions and access to public places, such as restaurants and bars.22 The RAD also acknowledges the documentary evidence regarding Hungary's efforts to combat discrimination and close the gap between Roma and non-Roma in access to education, employment, healthcare and housing.23 This is clear evidence that Hungary has implemented sustained measures to improve the situation of the Roma and rectify the problems they encounter. The principal and secondary Appellants engaged the state in order to obtain their education, healthcare, employment, social assistance and the help of police. Although the Appellants maintain that there were deficiencies in everything they received from the state, the fact remains that they obtained the necessary services and were not deprived of fundamental entitlements one would expect in a western democracy. The documentary evidence suggests that this will only improve over time. [34] The RAD finds that the Appellants in this case have not provided clear and convincing evidence, on a balance of probabilities, that state protection in Hungary is inadequate. If the Appellants were to return to Hungary and encounter problems, the RAD is not persuaded that the authorities would not investigate all of their complaints. The RAD is also not persuaded that, if a criminal act was committed against the Appellants or their property in Hungary, the perpetrators would not be arrested and prosecuted if there was sufficient evidence. If the Appellants were to be dissatisfied with the response of the authorities to their complaints, documentary evidence indicates that recourse would be available to them. [35] The documentary evidence noted below indicates that police arrest and prosecute the perpetrators of crimes, including crimes committed against Roma and other ethnic minorities and their property. If the Appellants were to be dissatisfied with the response of the authorities to their complaints, documentary evidence noted below indicates that recourse would be available to them. For example, the Independent Police Complaints Board (IPCB) investigates violations and omissions by the police. If the Appellants were to return to Hungary and encounter problems in education, employment, healthcare, housing or access to business establishments, the documentary evidence indicates that recourse would be available to them. Furthermore, the documentary evidence indicates that there are a number of organizations and agencies that assist Hungarians of Romani ethnicity in obtaining the appropriate services and protections from the government and the authorities. [36] The RAD acknowledges that there is information in the documentation to indicate that Roma and other ethnic minorities face discrimination in Hungary. However, weighted against this is persuasive evidence that indicates Hungary candidly acknowledges this problem and has made significant efforts to address the discrimination and problems that exist. There is also persuasive evidence that Hungary's efforts have been effective. [37] The preponderance of the objective evidence regarding current country conditions suggests that, although not perfect, there is adequate state protection in Hungary for victims of crime, including crimes committed against Roma, that Hungary is making serious efforts to address the problems of criminality, and that the police are both willing and able to protect victims. Police corruption and deficiencies, although existing and noted, are not systemic. In canvassing the documentary evidence the RAD is of the view that, as a whole, the issues of corruption and deficiencies are being addressed by the state of Hungary. [38] The U.S. Department of State Human Rights report for Hungary indicates that among the most important human rights problems during 2013 were societal discrimination and exclusion of the Roma, and anti-Semitism. Discrimination continued to significantly limit Roma access to education, employment, health care, and social services.24 Also indicated in the same report is that the government generally took steps to prosecute and punish officials who committed abuses, whether in the security services or elsewhere in the government. In the first eight months of 2012, the Ministry of Interior found 2,816 police officers responsible for breaches of discipline, 115 guilty of petty offenses, 88 guilty of criminal offenses, and 13 unfit for duty. During the same period, courts sentenced two police officers to prison terms, gave suspended sentences to 24, fined 289, and dismissed 13. During the same period, courts also convicted 36 officers of corruption and placed 28 officers on probation. Victims of lesser police abuses may complain to either the alleged violators' unit or the Independent Police Complaints Board, which investigate violations and omissions by police that affect fundamental rights.25 [39] On August 4, 2013, the Budapest Vicinity Tribunal rendered verdicts in the case of four individuals charged with the racially motivated murders of six Roma in 2008 and 2009. The tribunal found three of the four perpetrators guilty of premeditated murder and other charges, and sentenced them to life in prison with no possibility of parole. It found the fourth suspect, who cooperated with police during the investigation, guilty as an accomplice to the murders and gave him a 13-year sentence. In a statement, Human Resources Minister Zoltan Balog announced that the verdict "proves that perpetrators of racist crimes cannot escape the full rigor of the law." 26 [40] Effectiveness of protection mechanisms is also noted in April 2011, where the issuance of a police order put an end to the marching of vigilante groups in small Roma communities. As of April 2012, vigilante groups had waned as a result of government actions, and Roma communities ceased to exist in a continued state of fear.27 This is a positive sign of the effectiveness of government and police actions. [41] Also noted in the documents is that Hungary has one of the most advanced anti-discrimination laws and a system for minority protection in the Central and Eastern European region. A number of mechanisms have been developed to ensure that minority groups enjoy civil and political rights.28 [42] Authorities have made efforts to curtail abuse by the police by increasing the recruitment of Roma police officers, providing training in human rights and setting up, in 2008, the Independent Police Complaint Committee (IPCC) responsible for receiving complaints against misbehaviour of the police. However, according to the resolution, racially motivated abuse allegedly committed by members of the police force continues to be reported. Discriminatory behaviour on the part of the police seems to be, in general, a problem.29 [43] There is also a complaints office at the National Police headquarters. Police action, or inaction, can be challenged in the civil courts; victims can file lawsuits for damages to remedy personal rights violations. There is no single independent institution in Hungary to investigate corruption cases, but there are a number of governmental departments mandated to fight different types of corruption. The Defence Service of Law Enforcement Agencies, which falls under the Ministry of Justice and Law Enforcement, investigates if a member of law enforcement is involved in a corruption case; citizens can turn to them with information. High-level corruption and organized crime cases are under the jurisdiction of the Central Investigation Department of the National Office of the Prosecutor.30 [44] The Report on the Implementation of the EU Framework for National Roma31 outlines key steps Hungary has taken since 2011 in the areas of education, employment, health, housing, anti-discrimination and funding with respect to the Roma. The following are steps taken in each area. Education [45] A broad range of measures to ensure equal access to quality education for the disadvantaged (integrated pedagogical system, Sure Start houses, scholarship programs, etc.). School centralization including harmonization of curriculum, centralized textbook publishing, professional services, financing and aspects of human resource management. Reduction of mandatory age limit in compulsory education (to the age of 16) accompanied with shortening of vocational cycle and the introduction of a dual system. Planned introduction of compulsory pre-school attendance from age three with measures to encourage participation, including cash incentives and the extension of Sure Start Children Centres. Employment [46] A wide range of mainstream actions aimed at increasing the employability of disadvantaged groups with due consideration to gender aspects, for example Roma mentors in Public Employment Services. Health [47] Healthcare measures aimed at reducing inequalities, including preventive health care. Special focus on early childhood development (screening tests), youth and Roma women. Incentives for pediatricians, general practitioners to fill empty practices in most disadvantaged regions. Training of healthcare professionals. Awareness-rising campaigns among Roma. Housing [48] Systematic and integrated approach with the long-term objective of desegregation. In the Programme Trust and Work as well as in the Complex estate programme housing interventions complementary to employment, training, health care and social work activities. Additional pilot housing measures launched. Anti-discrimination [49] Financial support to municipalities provided under the condition that they observe the principles of equal treatment and long term desegregation. Amendment of the penal law related to violence against the members of ethnic communities. A range of measures have been launched to contribute to the empowerment of Roma (such as the establishment of the Roma Public Life Academy of Politics, promoting Roma journalists). Funding [50] Roma inclusion has been supported by national and EU funds under various types of mainstream measures, including social inclusion measures. Main support has been provided via: European Regional Development Fund: Housing supported by € 8.6 million + €3.46 Million (Operation Programme housing projects) = € 12.06 million EUR. In the 2007-2013 financial period, Hungary has allocated 8,8 % (~€ 319 million) of its total ESF budget for integrating disadvantaged people. [51] While there is evidence that there is some discriminatory behaviour by police toward the Roma community, especially where they are suspected of committing a crime, there is also evidence of active steps taken to change the attitude of the police toward minorities, including training in basic human rights, tolerance and on how to deal with cases involving minority groups. There is also evidence of the successful prosecution of state authorities who abuse their positions, even the police.32 This is an important hallmark of a functioning democracy where those in state positions are held accountable for their illegal or unjust actions. [52] Quite telling about the current situation in Hungary is the United States Department of State 2014 Crime and Safety report. The report states that Hungary enjoys a relatively stable security environment but saw an increase in violent political unrest between September 2006 and July 2009. Since August 2009, this violent political unrest has significantly subsided. Small, factional fringe element groups of neo-Nazis, skinheads, and other far-right wing extremists are present ... Their activities, particularly rallies and demonstrations, are strictly limited and monitored by police.33 [53] The documentary evidence, some of which is noted above demonstrates that Hungary has made significant efforts to provide better protection for all its citizens, including Roma and other ethnic minorities. The evidence also demonstrates that Hungary is serious about curbing crime and corruption. Although not perfect, the effectiveness of many of the measures Hungary has taken in recent years is also evident in this documentation. The above noted evidence also demonstrates that police investigate crimes committed against Roma and their property and that the perpetrators are charged and prosecuted when there is sufficient evidence. [54] The RAD has considered the documentary evidence presented by the Appellants. In the Statutory Declaration by Aladar Horvath,34 with respect to state protection for Roma, the author indicates that the prosecutor rejected the police reports made by Roma. He also indicates that police acted brutally against a Roma woman on January 1, 2010. He provides one example of a prosecutor rejecting a police report involving Roma and little information regarding the police actions against a Roma woman on January 1, 2010. However, the author provides insufficient information to make a clear assessment on the actions of the authorities in each of the examples intended to support his assertions. The author also indicates that there are bodies in Hungary that may appear to be able to assist Roma in terms of police misconduct and societal discrimination but in practice they do not offer protection. However, he fails to provide sufficient empirical data to support his statement. As such, the RAD gives little weight to this evidence. [55] The European Roma Rights Centre report Attacks against Roma in Hungary: January 2008 - July 201135 contains a synopsis of 50 attacks against Roma and/or their property in Hungary between January 2008 and July 2011. Some of the accounts include an indication that police were investigating or that some Roma were arrested following the incidents. Details regarding such issues as precipitating factors, the actions of police following the incidents, police investigations and the arrests and prosecution of the perpetrators, if any, are lacking from the report. The RAD gives little weight to this evidence as a clear assessment of the incidents and the police response could not be gleaned from the report. [56] The Amnesty International (AI) report Violent Attacks Against Roma in Hungary36 states that research into some of the nine attacks and other reported incidents in 2008 and 2009 indicates that the Hungarian authorities failed to identify and respond effectively to violence against Roma in Hungary, including by not investigating possible racial motivation. However, in the same AI report, according to the police, there were nine attacks against Romani communities in 2008 and 2009 which bore similar characteristics. The perpetrators used Molotov cocktails and firearms; there were usually two people shooting from very close range using shotguns. Although the victims of the attacks lived in various places across the country, their houses were mostly located on the peripheries of settlements close to motorways. The police reacted by taking several measures within a programme that was supposed to enhance community safety. Initially, the measures were taken in counties where the attacks were carried out. In April 2009 they were extended to vulnerable settlements where police believed similar attacks could be expected. These areas were patrolled at night and in early morning hours. [57] Also reported in the same AI report is the following: ...Victims of this series of violent attacks against Roma in Hungary in 2008-2009 included a couple in their forties, an elderly man, a father and his four-year-old boy, and a single mother with a 13-year old girl, all living in villages throughout the country. The police grouped these nine attacks and investigated them as a series of organized crimes against Roma. The investigation was led by the National Bureau of Investigation (NBI). Other crimes carried out against members of the Romani community during the same period of time were grouped under 'sporadic, unorganized attacks' and were not investigated by the NBI. In November 2008, the police created a special investigation unit with the NBI consisting of 50 members, established specifically to investigate the series of attacks. The unit was strengthened in April 2009 to 100 members. On 21 August 2009 NBI officers arrested four people in Debrecen - the suspected perpetrators of the series of organized crimes. In late June 2010, the police announced that they had completed the investigation and concluded that the four suspects should be charged on the grounds of multiple coordinated homicide, robbery and abuse of weapons as well as vandalism. Of the four, three are charged on the basis of DNA and weapons analysis; the fourth individual is being treated as an accomplice. In September 2010 the Pest County Prosecutor submitted the indictment in the case of the series of attacks against Roma. Under the indictment, three men are now reportedly being charged with multiple homicide for 'base reasons'. The fourth suspect is being charged for giving assistance to the crime of pre-meditated multiple homicide.37 [58] Although the AI report indicates that Hungarian authorities failed to identify and respond effectively to violence against Roma in Hungary, the examples given in the same report suggests that the authorities did not fail to identify and respond effectively to violence against Roma in Hungary. For example, in one situation, police reacted by taking several measures within a programme that was supposed to enhance community safety and extended the measures to other vulnerable settlements. These areas were patrolled at night and in early morning hours. Another example is the filing of criminal charges on the grounds of multiple coordinated homicides, robbery, abuse of weapons and vandalism against four suspects after police completed an investigation. It is clear from these examples that the authorities acted appropriately and reasonably to the incidents. Not only did the authorities bring the perpetrators of certain crimes to justice but they also exercised crime prevention in vulnerable areas. [59] The Appellants point to some of the local failures in Hungary; however, local failures by authorities to provide protection do not mean that the state as a whole fails to protect its citizens, unless the failures form part of a broader pattern of the state's inability or refusal to provide protection,38 and there is no persuasive evidence of this broader pattern in the objective evidence before the RAD, even when viewed in its totality. The Appellant's own evidence confirms active police investigations in many parts of Hungary. There is mixed evidence within all the documents. While terrible acts of violence have been perpetrated in Hungary, the evidence indicates active investigations and prosecution of crimes in Hungary, between Roma and non-Roma alike. [60] In the Harvard School of Public Health report Accelerating Patterns of Anti-Roma Violence in Hungary39 it is indicated that, in the previous five years, the establishment of vigilante groups and hate crimes against Roma and other minority groups has characterized a climate of increasing social and economic exclusion. Also indicated in the report is that, over the previous year, violent attacks against Roma have declined, only to be replaced by right wing policies and legislation. It indicates in the report that despite the adoption of European Union anti-discrimination regulations and laws, extremist organizations, private individuals, and state officials in Hungary continue to widely and openly discriminate against Roma at an alarming rate and through a variety of methods. Also indicated is that there are four elected Roma in the Hungarian Parliament, one Roma-held seat (supported by the Fidesz government) in the European Parliament, and, since 1993, the Roma along with other minority groups have been permitted to form self-government at local and national levels to address educational and cultural issues. [61] While many of the reports, articles and other items contained in evidence describe the problems Roma face in Hungary and throughout Europe, accounts of Hungary and the European Union's efforts and successes in improving the situation of Roma are often contained in the same documents. Information on Hungary's efforts and successes in policing, prosecuting the perpetrators of hate crimes and providing better protection for the Roma are also contained in many of these documents. This reflects Hungary's commitment to address the problems encountered by Roma and to eradicate violence and discrimination against this group. Some of the documents comment on the safeguards in place to protect Hungary and its membership in the European Union. The safeguards also ensure that Hungary abides by the European Union's democratic principles of good governance, rule of law, and human and civil rights. The legislation and other measures taken by the Hungarian government to protect Roma citizens reinforces the presumption of adequate state protection. [62] Although some critics dispute the effectiveness of the measures that Hungary has taken to provide protection to its citizens, including Roma, certain crime and sentencing rates in Hungary suggest that protection from the state, in general, has been more than adequate and very effective in Hungary. For example, the UN Office on Drugs and Crime notes in their 2011 Global Study on Homicide that, according to criminal justice sources, the homicide rate in Hungary, calculated based on UN population estimates, was 1.4 in 2009, compared to Canada's rate of 1.8 that same year; public health sources list a different rate for Hungary in 2009 at 1.2. The report also added that 5% of homicides were committed with the use of firearms in 2009, a decrease from 8.2% the previous year; in Canada the same rate was at 32% in 2009.40 In 2009, out of 111,736 criminal offenders, 86,901 were sentenced; in 2010, out of 122,529 criminal offenders, 89,343 were sentenced;41 reflecting a high conviction rate of approximately 77% and 73% respectively. [63] The statistics above show that certain crime rates in Hungary are similar, if not lower, than those in Canada. For instance, in 2009 the homicide rate in Hungary was lower than the homicide rate in Canada. The statistics also show a substantial conviction rate. This is a reflection of many positive factors, including effective laws, good policing and an effective judiciary. As stated in Smirnov "...this Court should not impose on other states a standard of 'effective' protection that police forces in our own country, regrettably, sometimes only aspire to."42 [64] In the circumstances of this case, having considered the totality of the evidence, including a recording of the RPD hearing, the RAD finds that the Appellants have failed to rebut the presumption of state protection with clear and convincing evidence. Therefore, the RAD is not persuaded that the state of Hungary would not be reasonably forthcoming with adequate protection for the Appellants should they seek it. CONCLUSION [65] After reviewing all the evidence in the record the RAD has reached the same conclusion as the RPD. The RAD concurs with the RPD that the Appellants have failed to rebut the presumption of state protection and they have adequate state protection available to them in Hungary. The RAD finds that the Appellants are neither Convention refugees nor persons in need of protection. [66] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division and dismisses the appeal. (signed) "M. Pettinella" M. Pettinella November 4, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, para. 45. 3 Huruglica, para. 54. 4 Huruglica, para. 55. 5 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 6 Exhibit P-2, Appellants' Record, at pp. 190-233. 7 Exhibit P-2, Appellants' Record, at p. 233. 8 Exhibit P-2, Appellants' Record, at pp. 113-124. 9 Canada (Attorney General) v. Ward, [1993] S.C.R. 689. 10 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.). 11 Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). 12 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 13 Ramirez, Leticia Lizet Del Rio v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008; 2008 FC 1214. 14 Canada (Attorney General) v. Ward, [1993] S.C.R. 689. 15 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 16 Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.). 17 Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171. 18 Peralta, Gloria Del Carmen v. M.C.I. (F.C.T.D., no. IMM-5451-01), Heneghan, September 20, 2002. 19 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 20 Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). 21 Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 22 Exhibit RPD-1, RPD's Record, at p. 239. 23 Exhibit RPD-1, RPD's Record, at pp. 293, 337-340. 24 Exhibit RPD-1, RPD's Record, at p. 190. 25 Exhibit RPD-1, RPD's Record, at pp. 190, 197. 26 Exhibit RPD-1, RPD's Record, at pp. 239. 27 Exhibit RPD-1, RPD's Record, at pp. 171-189, National Documentation Package for Hungary, (27 June 2014), item 13.7. 28 Exhibit RPD-1, RPD's Record, at p. 378. 29 Exhibit RPD-1, RPD's Record, at pp. 171-189, National Documentation Package for Hungary (27 June 2014), item 10.4. 30 Exhibit RPD-1, RPD's Record, at pp. 171-189, National Documentation Package for Hungary (27 June 2014), item 10.2. 31 Exhibit RPD-1, RPD's Record, at pp. 171-189, National Documentation Package for Hungary (27 June 2014), item 13.4. 32 Exhibit RPD-1, RPD's Record, at pp. 190-247. 33 Exhibit RPD-1, RPD's Record, at pp. 171-189, National Documentation Package for Hungary, 27 June 2014, item 7.3. 34 Exhibit RPD-1, RPD's Record, at pp. 587-596. 35 Exhibit RPD-1, RPD's Record, at pp. 611-637. 36 Exhibit RPD-1, RPD's Record, at pp. 387-431. 37 Exhibit C-6, at p. 213. 38 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 39 Exhibit RPD-1, RPD's Record, at pp. 648-693. 40 Exhibit RPD-1, RPD's Record, at pp. 171-189, National Documentation Package for Hungary (27 June 2014), item 7.2. 41 Exhibit RPD-1, RPD's Record, at pp. 171-189, National Documentation Package for Hungary, (27 June 2014), item 7.2. 42 Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780 (T.D.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08143 TB5-08144 TB5-08145