TB8-14205

RAD File / Dossier de la SAR : TB8-14205 TB8-14206 / TB8-14207 / TB8-14208 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 27, 2020 Date de la décision Panel James Sloan Tribunal Counsel for the persons who are the subject of the appeal John W Grice Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellants, a Roma family from Hungary consisting of XXXX XXXX (the male Appellant), XXXX XXXX (the female Appellant), and their two children, claim to fear discrimination in education, employment, housing, health care, and by the general public. They also fear right-wing extremist groups that are anti-Roma. [2] Because of their fears, they left Hungary for Canada, arriving here on XXXX XXXX XXXX 2017. [3] The Refugee Protection Division (RPD) of the Immigration and Refugee Board (Board), in a decision dated May 22, 2018, rejected their claim. [4] I have reviewed the claim and confirm the decision of the RPD that the Appellants are not Convention refugees or persons in need of protection. DETERMINATIVE ISSUES [5] The determinative issues in this case are credibility and state protection. STANDARD OF REVIEW [6] In my review of the RPD's decision, I will apply a standard of correctness.1 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.2 ANALYSIS [7] The RPD found that the Appellants lacked general credibility and that they had not rebutted the presumption of state protection. [8] The Appellants argue that the RPD erred 1) in its credibility findings; 2) in finding that state protection was available to them; 3) in failing to undertake a forward-looking assessment of whether there was a serious possibility that they would be persecuted upon return to Hungary; and, 4) by not conducting a separate analysis under section 97 of the Immigration and Refugee Protection Act (IRPA). 1. Credibility findings [9] The RPD found that the Appellants were Hungarian nationals of Roma ethnicity. It found, however, that the Appellants were generally lacking in credibility on the following bases: a) the male Appellant's testimony regarding why he did not register his address at one of their homes contradicted his Basis of Claim (BOC) narrative; b) the male Appellant's testimony about the condition of the home where he lived with his parents was inconsistent; c) the adult Appellants' evidence that their home lacked electricity was contradicted by the female Appellant; and d) the male Appellant's testimony about the state threatening to take the minor Appellants was omitted from the joint BOC narrative and was an embellishment. [10] The Appellants argued that the RPD's credibility findings were in error. a) General legal principles and general arguments [11] The Appellants set out a number of general legal principles relating to the role of the RPD in making credibility findings. The positing of these legal principles, and the jurisprudence upon which they are based, in isolation and with no linkage to the instant case, is of little assistance. My task is to consider arguments and it falls to the Appellants, pursuant to Refugee Appeal Division (RAD) Rule 3(3)(g), to provide "full and detailed submissions regarding...the errors that are the grounds of the appeal [and] where the errors are located...."3 Where arguments based on these legal principles are made later in the Legal Memorandum I will, of course, consider them. However, in the absence of arguments as to how the Appellants believe the various legal principles have been breached by the RPD, I will not comment on these principles further. [12] The Appellants make a general argument (apparently applicable to all of the RPD's findings involving embellishment) that what the RPD called embellishments were, in fact, additional details that were in harmony with the claim. If this argument is not accepted, they argue that the RPD erred because it did not meet its obligation to "look past the embellishments and consider the remaining evidence."4 Second, they make a general argument that the credibility findings are microscopic and reflective of the RPD's zeal to find contradictions in the adult Appellants' testimony. They do not refer to any particular finding; rather, they argue that this is true with all of the negative credibility findings. And, while they posit quotations from no fewer than nine Federal Court cases, they offer no detailed argumentation. With the exception of a reference to the RPD's general conclusion that the Appellants had not provided sufficient credible or trustworthy evidence with respect to the central elements of their claim, they do not refer to where in the RPD decision these alleged errors were made. Nor do they provide argumentation as to how the RPD made the general errors they claim it did. Consequently, I am not in a position to address these general arguments. b) Reason for failure to register his address [13] The RPD noted that the male Appellant's testimony was that he was not able to register one of his addresses because the owner refused to allow them to register as they were Roma. When the RPD noted that he had given a different reason for his failure to register in the Appellants' joint BOC narrative-that the owner did not want to pay taxes-he amended his testimony to indicate that it was for both reasons. Noting that the alleged discrimination (including in housing) was at the very heart of their claim, the RPD found the testimony was an embellishment. [14] The Appellants argue first, that it was unreasonable for the RPD to have found this to be an embellishment; after all, the BOC narrative is not expected to be a recitation of "every single thing that had ever happened" to him.5 Second, they argue that discrimination against Roma is well-documented in the objective documentation. Third, they argue this discrimination was "implicitly mentioned" in the BOC narrative. [15] I agree with the RPD that this is an embellishment. Discrimination against the Appellants, including discrimination in housing, is indeed at the heart of their claim for refugee protection. An example of being denied housing based on their ethnicity would have been an extremely important element in making out their claim and, had it been true, it would have likely been included in the BOC narrative. The Appellants are not, of course, expected to include every single thing that ever happened to them in their BOC; however, they are expected to include the reason for their claim, including the information that supports their claim to have been discriminated against. I note that they declared that the BOC form was "complete, true and correct" and they were assisted by highly experienced counsel in preparing it. [16] The argument that the male Appellant's testimony about being unable to register his address because he was Roma was not an embellishment because it is well-documented that such discrimination occurs in Hungary misses the point. The RPD did not find that the discrimination could not have occurred; merely that in this case, because it was omitted from the BOC narrative (and another reason altogether was given for the non-registration there), it was likely that the claim that the non-registration was due to discrimination was an embellishment. [17] Finally, the argument that the discrimination in housing was implicitly mentioned in his BOC narrative is unclear. No reference to where in the document the implicit mention is made; nor is it clear how the other references to housing problems-that focus on the condition of the Appellants' housing-in any way imply that the non-registration of their address was linked to their Roma ethnicity. c) Description of the male Appellant's father's home [18] The RPD noted that the male Appellant's testimony was that his father's home was made of mud. The interpreter clarified that the male Appellant may have meant that the home was made of mud and grass. When the RPD Member showed the male Appellant an internet image of the home at the address he had provided he denied it was his home; rather his home was attached to the home shown on the internet. [19] The Appellants argue that the wording used by the male Appellant-which the interpreter said could have been mud and grass-was tantamount to a mud brick home. And the home shown on the internet was in fact mud brick. [20] I accept that the male Appellant's testimony could have been referring to a mud brick and, therefore afford him the benefit of the doubt. I will not have regard to this finding in my overall credibility finding below. c) Electricity in the home [21] The RPD noted that both adult Appellants testified that there was no electricity in the home. However, the female Appellant also testified that they had an electric heater to heat their home. When this ostensible contradiction was pointed out to the female Appellant, she testified that they had had electricity at one point but no longer did. [22] The Appellants note that there is nothing contradictory about their having had electricity and then losing it. Indeed, they point to their BOC narrative, where they state that they "could not afford the electricity bills during the winter months."6 [23] I agree with the Appellants: there was no contradiction in the female Appellant's testimony. I will not have regard to this in assessing the Appellants' overall credibility below. d) Claims of the children being taken from them [24] The RPD noted that, in their BOC narrative, the Appellants claimed that they feared that their children could be taken away as they do not have a stable home. However, in his testimony the male Appellant drew a rather more detailed picture. He testified that state officials had visited his parents' home multiple times and, on one occasion, demanded that they make certain changes, including the addition of an indoor toilet. He could not recall when the visits occurred. When the RPD asked him if there were specific threats to remove the children, the male Appellant first said that he could not recall, but then stated that they had made such a threat. When the RPD asked why the information was omitted from their BOC narrative, the male Appellant said he had just remembered it at the hearing. The RPD did not accept this explanation and found the claims to be an embellishment. [25] The Appellants argue that the male Appellant did not embellish his claim. They note that he mentioned in the joint BOC narrative that the adult Appellants feared their children would be taken from them. Case law makes clear that claimants are not expected to include every single detail of every single thing that ever happened to them in their BOC narrative. [26] I agree with the RPD that the male Appellant's testimony in this regard was an embellishment. That there was mention of their fear of having their children taken from them in the BOC is clear. However, there is a world of difference between fearing their removal and having been threatened with their removal by the authorities. This is not something that any parent would easily forget; as such, I reject the male Appellant's explanation that he only recalled it the hearing. [27] As to the argument that they had no obligation include every single detail of their lives in their BOC narrative, this is misplaced. A threat by the authorities to remove one's children is not a minor detail. Had this evidence been included in their BOC narrative, it would have provided an alarming example of the consequences of the discrimination they claim to have suffered in Hungary. If such threats had occurred, the Appellants-who were represented by experienced counsel-would not have merely made mention of their fear of having their children taken from them in their BOC. I find the male Appellant's claims to have been visited by the authorities and to have been threatened with the removal of the minor Appellants to be misrepresentations. These misrepresentations seriously undermine the male Appellant's credibility and the credibility of their joint claim. Conclusion on the Appellants' general credibility [28] Having considered the credibility problems of the male Appellant and having regard to the supporting documents, I find that the claim is, overall, lacking in credibility. I find that the discrimination the Appellants claim to have suffered in the past in Hungary did not occur in the way that was described. Consequently, I do not need to consider whether that past discrimination and violence amounted to persecution or whether that past treatment provides a basis upon which to find that there is a serious possibility of persecution in the future. [29] I note that I endorse the RPD's finding that the Appellants are of Roma ethnicity. 2. State protection [30] The Appellants make the following arguments in relation to the RPD's analysis of state protection for Roma in Hungary: a. They argue that the RPD was selective in its assessment of the objective evidence-indeed, they argue that it ignored it "in its totality".7 They also argue that it ignored the evidence that they submitted to the RPD in support of their claim. They make their argument almost exclusively8 in reliance on a Council of Europe report from 2016.9 The report indicates as follows: many Roma live in segregated communities; Roma neighbourhoods have been bulldozed without adequate preparation or consultation; social workers have inspected Roma homes "with a clearly impact threat to 'non-cooperative' Roma families of taking children into care on any number of pretexts"; Roma employed as public workers were paid less and lacked legal arrangements that protect other workers; there was abuse and police brutality against Roma by members of the police force; the number of complaints received by the authorities regarding discrimination experienced by Roma has increased; and openly anti-Roma Jobbik-led local governments have tightened the rules for social housing for Roma. They argue that this illustrates the lack of state protection for Roma-especially when the actors (the police, the employers of public workers and the Jobbik party) are, in effect, part of the state. I have reviewed the objective documentation-both that in the National Documentation Package (NDP)10 and that submitted to the RPD by the Appellants. Because I have found the Appellants not to be credible, I have not considered the testimony of the Appellants regarding the forward-looking harm they claim to fear. As such, in deciding on the issue of state protection, I will look only at the forward-looking claims of similarly situated people. I do not agree that the RPD was selective in its analysis or ignored documentation. The RPD acknowledged the problems for Roma in Hungary: "There is a high rate of unemployment; they face discrimination in housing, employment, health and education."11 It also noted the existence of racism. Having said this, it noted that the Hungarian government had taken a number of steps to protect Roma (and other minorities); to involve Roma in the state security apparatus; to better pursue hate crimes; to establish liaison officers between the police and the Roma community; to facilitate the social inclusion of Roma; and to combat discrimination in medical care, housing, education, and employment. While acknowledging that not all of these measures were successful, it concluded that state protection measures were sufficiently available and effective. It found that the Appellants had not provided clear and convincing evidence to show that state protection was lacking. The Council of Europe report referred to by the Appellants in their Memorandum does not, when combined with the other evidence, lead me to conclude that state protection is unavailable. The Appellants argue that the report shows that relationship between the police and the Roma community has deteriorated to the point that it would likely be futile or dangerous to be in touch with the police there. I do not agree. While racism among police officers continues to exist, the measures being taken to combat it have had some success. The Appellants have not proven that anti-Roma discrimination among police officers is at such a level that persecution is being carried out by the state itself. Nor is it clear from the report that because the Jobbik party has power in some local governments, Roma will not receive adequate state protection. The evidence does not support a finding that the Jobbik party is sufficiently powerful that it may be said to be acting on behalf of the state in a widespread way. b. While the Appellants conceded that membership in a group was not a sufficient basis for a finding that someone was a Convention refugee,12 they invoked cases where the Federal Court has found that there Roma had been persecuted due to those claimants' particular circumstances. Here, however, there has been no evidence that the Appellants have particular characteristics that would make them more vulnerable than other Roma to discrimination leading to persecution. In Balogh, the Court put it this way: "The applicant has a burden of establishing a link between the general documentary evidence and the applicant's specific circumstances." [citations omitted]13 c. The Appellants argue that the RPD got the test for state protection wrong: the correct test is operational adequacy. I find that the test the RPD applied was somewhat confusing. At one stage in its decision, the RPD noted that a claimant was required "to show with credible and trustworthy evidence that state protection relevant to his/her personal circumstances would not reasonably be forthcoming at the operational level."14 [emphasis added] Later, however, the RPD held that the proper test for state protection was adequacy, not operational adequacy.15 The case law makes clear that, in analysing the availability of state protection, regard must be had not just to measures planned or taken to remedy problems but to their effectiveness. Despite the confusion regarding the test it would apply, the RPD's analysis did look at the effectiveness of state protection for Roma in Hungary. For example, it did not just consider a programme establishing officers to liaise between Roma and the police. It noted the results of the programme-in that case they were mixed. In considering to the Equal Treatment Authority (an entity to protect minorities) it noted that discrimination complaints had been successful in 40 cases. d. The Appellants argue that the RPD erred by blaming the Appellants for not having sought state protection, despite their fear of the police-whether real or imagined. I agree that in this case, where the RPD did not accept that the claimed past discrimination had occurred due to its finding regarding credibility, there can be no expectation that the Appellants would have sought state protection. I have not considered this in my state protection analysis. [31] Based on my analysis of the documentation, I agree with the RPD. The documentation makes clear that discrimination exists for Roma in the areas touched on by the RPD; however, at the same time effective steps are being taken to combat this. In view of this, and in view of Hungary's status as a democratic state, I find that the Appellants have not rebutted the presumption of state protection. 3. Did the RPD err by failing to engage in a forward-looking analysis? [32] The Appellants are correct: to establish a risk of persecution, the Appellants did not need to show that they had been persecuted in the past. Rather, the RPD must consider the Appellants' particular circumstance and the objective documentation to determine if they face a serious possibility of persecution in the future. As the Federal Court held in Olah: "personal targeting or past persecution is not required in order to establish a risk for [the] purposes of s 96. Rather persecution can be established by examining the situation of similarly situated individuals...".16 [33] However, contrary to the Appellants' claim, the RPD did not ignore their forward-looking risk. As is clear from its analysis, it did consider the Appellants' forward-looking risk as part of its state protection analysis. [34] Moreover, because the RPD found that state protection existed for Roma in Hungary, it did not need to consider the possibility of future persecution. As the Supreme Court of Canada held in Ward, relying on the scholarship of Professor Hathaway, for treatment to amount to persecution, it must be a "sustained or systematic violation of basic human rights demonstrative of a failure of state protection."17 As such, in a case such as this one where the Appellants have not rebutted the presumption of state protection, the definition of persecution cannot be met. 4. Was the RPD obliged to engage in a section 97 analysis? [35] In the Sellan case, the Federal Court of Appeal considered whether, where there is relevant objective evidence that may support a claim for protection but where the RPD does not find the claimant's subjective evidence credible except as to identity, the RPD is required to assess that objective evidence under subsection 97(1).18 It held that: ....where the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim. The claimant bears the onus of demonstrating there was such evidence.19 [36] Here, the RPD made a general credibility finding in relation to the Appellants. As such, it fell to the RPD to look to whether the Appellants had, to use the words of the Federal Court of Appeal, met their "onus of demonstrating" that there was "independent and credible" objective documentary evidence capable of supporting a positive disposition of the subsection 97(1) claim. I can find no basis upon which the RPD could have found evidence capable of supporting a positive disposition of the claim under subsection 97(1). As such, I find that the RPD's disposition of the matter pursuant to its section 96 analysis was sufficient to dispose of the entire claim. CONCLUSION [37] I confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeal is dismissed. (signed) "James Sloan" James Sloan January 27, 2020 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Ibid., at paras 69-74. See also Rosas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 3 Refugee Appeal Division Rules (SOR/2012-257), Rule 3(3)(g). 4 Exhibit P-2, Appellants' Record, at p. 45, para 40. 5 Ibid., at p. 46, para 43. 6 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 32, para 5. 7 Exhibit P-2, Appellants' Record, at p. 32, para 7. 8 At paragraph 16 of their Memorandum (Ibid., at p. 36) the Appellants refer to a finding of the European Court of Human Rights, which is discussed in the European Council's report (Exhibit RPD-1, RPD Record, Exhibit 10, at p. 381). 9 Ibid., Exhibit 8, at pp. 291-338. 10 The Appellants relied on the NDP for Hungary dated April 30, 2018 at their hearing and I have had regard to that version of the NDP. I have also considered the current NDP in assessing forward-looking risk in accordance with the Board's Policy on National Documentation Packages in Refugee Determination Proceedings, June 5, 2019 (https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx), at s. 5(II). 11 Exhibit RPD-1, RPD Record, at p. 12, para 32. 12 Exhibit P-2, Appellants' Record, at pp. 31-32, para 6. 13 Balogh v Canada (Citizenship and Immigration), 2016 FC 426 (CanLII), at para 19. 14 Exhibit RPD-1, RPD Record, at p. 8, para 19. 15 Ibid., at p. 10, para 24. 16 Olah v. Canada (Citizenship and Immigration), 2017 FC 921, at para 14. In making this statement, the Court relied on Saliban v Canada (Employment and Immigration), 205 FC 1128 (CanLII) at para 10 and Fi v. Canada (Employment and Immigration), 2006 FC 1125 (CanLII) at para 14. 17 Canada (Attorney General) v. Ward, [1993] 2 SCR 869. 18 The certified question in that case was "where there is relevant objective evidence that may support a claim for protection, but where the Refugee Protection Division does not find the claimant's subjective evidence credibly except as to identity, is the Refugee Protection Division required to assess that objective evidence under s. 97 of the Immigration and Refugee Protection Act?" (Canada (Citizenship and Immigration) v Sellan, 2008 FCA 381 (CanLII), at para 2). 19 Ibid., at para 3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-14205 TB8-14206 / TB8-14207 / TB8-14208 RAD.25.02 (April 04, 2019) Disponible en français 2 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.25.02 (April 04, 2019) Disponible en français