TB6-07088

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 : TB6-07088 TB6-07089 TB6-07090 TB6-07091 TB6-07092 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 9, 2016 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jack Davis Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX(principal Appellant) and his wife XXXX XXXX XXXX, and their three minor children XXXX XXXX XXXX, XXXX XXXX and XXXX XXXX, all citizens of Hungary, are appealing the decision of the Refugee Protection Division (RPD), denying their claims for refugee protection. [2] The Appellants have not submitted new evidence pursuant to section 110(4) and they are not requesting an oral hearing pursuant to section 110(6) of the Immigration and Refugee Protection Act (IRPA or Act). [3] The Appellants are asking the Refugee Appeal Division (RAD) to find the Appellants to be Convention refugees or persons in need of protection, or in the alternative, they are asking the RAD to refer the matter back to the RPD for redetermination. BACKGROUND/ALLEGATIONS [4] The Appellants alleged that they experienced discrimination in Hungary because of their Roma ethnicity. They also fear violence at the hands of extremist segments of the society, including the XXXX and the XXXX supported by the XXXX political party. They alleged that they cannot return to Hungary because of a lack of state protection for Roma. [5] The Appellants came to Canada on February 12, 2016, and filed their claims for refugee protection. Their claims were heard at the RPD on May 5, 2016. In a decision of May 17, 2016, the RPD rejected their claims. [6] The RPD found that the Appellants' experiences do not amount to persecution. Since the RPD concluded that the Appellants were not persecuted, the RPD did not find it necessary to assess the availability/unavailability of state protection for these Appellants in their particular situation and circumstances. The RPD concluded that the Appellants are neither Convention refugees, nor persons in need of protection. The Appellants submit that the RPD erred by applying an incorrect test by relying on past persecution as a basis for its findings, by failing to consider discrimination on a cumulative basis, and by providing bald conclusions with no supporting reasoning. ROLE OF THE RAD [7] The Canadian jurisprudence provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of the RPD, a first-level administrative tribunal. [8] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica1 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law which involve no issue of credibility of oral evidence. The Court held that the task of the RAD is to determine whether or not the RPD was wrong in law, fact or in mixed fact and law, and in the context of the legislation. "Wrong" means "not true", "incorrect" or "mistaken", all of which "definitively points to the standard of correctness." [9] In closing, Justice Gauthier wrote: I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.2 [10] Regarding the credibility of the oral evidence heard by the RPD, Justice Gauthier stated that the provisions of the IRPA, particularly with respect to paragraph 111(2)(b) concerning the question of when the RAD may refer a matter back to the RPD for redetermination, does acknowledge the fact that: "[In] some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD."3 [11] Further, in a conclusion that may be obiter in the circumstances of Huruglica where the credibility of oral evidence was not an issue, the FCA found: This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.4 [12] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the RPD erred in its determination. The RAD will determine the appeal either by confirming the RPD's decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD, the matter will be referred back to the RPD for redetermination. The RAD will afford deference to the credibility findings of the RPD or to other findings only where the RPD has a particular advantage in reaching its conclusions. The extent of this deference will be assessed on a case-by-case basis, and that being dependent upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. [13] In conducting its own independent assessment and making the determination in this appeal, the RAD considered the entirety of the evidence submitted/adduced in this case, including the recording of the RPD's proceedings, the Appellant's Appeal Record, and the Appellant's further submissions.5 DETERMINATIVE ISSUES [14] The RAD accepts that Roma face discrimination in all areas of their lives. The RAD, however, finds that the discrimination that Roma face in Hungary does not amount to persecution. Moreover, the RAD finds that if the Appellants were to face discrimination upon return to Hungary they have avenues to seek remedies. The RAD finds that the government of Hungary has enacted legislation, developed infrastructure to enforce the laws, and put in place agencies for seeking redress if citizens, including Roma, are denied state protection or if their complaints are not taken seriously. ANALYSIS Discrimination versus persecution, cumulative aspects, and similarly-situated persons [15] The RAD accepts that the Appellants are Roma. The RAD also accepts that Roma face segregation, discrimination in many areas of their lives, and harassment and violence at the hands of racist Hungarians. [16] The RPD considered that the Appellants are Roma, and assessed whether or not they would face discrimination or persecution upon return to Hungary. The RPD concluded that what the Appellants faced/suffered in Hungary amounted to discrimination, and not persecution. Therefore, the RPD concluded that the Appellants are not Convention refugees, nor persons in need of Canada's protection. [17] The Appellants submit that the RPD articulated the wrong test by making its findings based solely only on what they experienced in the past. In reviewing the RPD's reasons, the RAD finds that the RPD found that what the Appellants fear upon return to Hungary is discrimination, not persecution; the RAD finds the RPD's this finding is clearly only based on what the Appellants experienced in the past in Hungary. The RAD finds that the RPD did not consider the Appellants' profile as Roma and the discrimination that similarly-situated persons face in Hungary. In this respect, the RAD further finds that the RPD did not incorporate in its reasoning the cumulative aspects of what the Appellants experienced in Hungary. The RAD accepts the Appellants' submissions that the RPD erred by articulating an incorrect test, i.e., basing conclusions on the discrimination that they feared only on what they had experienced, not what they would face as Roma upon return, and that the RPD did not consider the cumulative aspects of the discrimination that the Appellants experienced. [18] The RAD conducted its own analysis based on the facts, and the totality of the evidence submitted/adduced in this case. [19] In reviewing the documentary evidence, the RAD finds that the government of Hungary is actively engaged in improving the situation of its minorities, including Roma. Pertaining to Hungary's anti-discrimination laws: In their March 2010 submission to the United Nations (UN) Human Rights Committee, the European Roma Rights Centre (ERRC), the Chance for Children Foundation (CFCF), a Hungarian organization founded in 2003 to combat discrimination against Roma and socially deprived children in public education, and the Hungarian Helsinki Committee (HHC), a non-profit organization that monitors the enforcement of human rights, state 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. However, the central government's general failure to maintain strong and effective control mechanisms over rights violations takes its toll on Hungary's largest minority, the Roma."6 [20] The Appellants alleged that they suffered and fear, upon return, discrimination amounting to persecution due to their Roma ethnicity. [21] The RAD finds that the documentary evidence shows that Roma face segregation, discrimination in many areas of their lives, and that Roma also face harassment and violence at the hands of racist Hungarians and the extremist right-wing groups. Education [22] The Appellants alleged that Roma are treated as slow learners and therefore it is believed that Roma cannot be taught. The evidence, however, shows that the principal Appellant has completed eight years of formal schooling. Thereafter, the principal Appellant attended trade school and trained to be a XXXX. The female Appellant has completed eight years of formal schooling. [23] The RAD acknowledges the disparity in education levels between Roma and non-Roma in Hungary. According to a national survey published in 2011 by the National Family and Social Policy Institute, 70 percent of Roma had eight years of education or less, while 26 percent earned some kind of vocational qualification. Only 5 percent of Romani students completed secondary school, and only 1 percent held a college or university degree.7 [24] The documentary evidence, however, also shows several improvements relating to the situation of minorities, including the Roma in Hungary. A substantial reform of education, which included "[r]enewal of pedagogical methods, revision of legislation on education concerning multiple disadvantages and financial incentives," began in 2003. According to the Minorities Ombudsman, through the Roma Integration Policy, the Hungarian government provides financial support for schools that have special programs for integration of disadvantaged students, including Roma, non-native, and disabled children. A report of the working group on the UN Universal Periodic Review states that in order to fight segregation and decrease school dropout rates, Hungary implemented several programmes in 1,800 education institutions; the budget assigned for this purpose was about US$ 40 million. Similarly, the Hungarian government indicates that by 2010, those programs "covered almost 300,000 pupils and reached approximately 13,000 teachers in 1,800 schools." Hungary's Social Renewal Operation Programme (SROP) 2007-2013, co-financed by the European Union, includes the Promotion of Implementation of Equal Opportunities Programmes that are designed to improve the situation of children with multiple disadvantages. For example, SROP co-ordinates and supports programs related to the development of methodological documents, teacher training courses, and extracurricular activities that encourage opportunities of informal learning. The Open Society Foundations (OSF), an international organization that works to build democracies with accountable governments and implements initiatives at the local level in its study on Roma integration strategies, points out that the SROP project is a positive policy example.8 [25] The evidence also shows that: During the 2013-14 school year, the government provided scholarships worth 1.8 billion forints ($6.9 million) for 10,830 socially disadvantaged elementary and secondary school children, including 6,367 who declared themselves Roma; 400 million forint ($1.5 million) for 3,033 socially disadvantaged vocational school students, including 1,630 Romani students; and 200 million forint ($772,000) for 917 socially disadvantaged higher education students, including 268 Romani students. There were eight Romani special colleges in eight cities across the country sponsored by the government using EU funds, five of which were operated by Christian denominations and three were managed by universities. The special colleges provided housing and tutoring for Romani students enrolled in higher educational institutions. Approximately 230 Romani students participated in the network of special colleges supported by the government and the EU with 1.45 billion forint ($5.6 million) since 2012.9 [26] Further, it is reported that: During the 2014-15 school year, the government continued to operate Sure Start Children Centers that provided early intervention programs for disadvantaged, mostly Romani children below kindergarten age and parenting advice for their parents. There were 112 such centers that reached 12,000 children and their parents. The government provided scholarships for socially disadvantaged students, including 5,668 elementary and secondary school children and 858 vocational school students who declared themselves to be Roma. It also provided scholarships for socially disadvantaged higher education students, including 132 Roma. There were 178 "Tanoda" afterschool centers around the country providing tutoring and extracurricular activities for disadvantaged, mostly Romani children. During the year the Tanoda network assisted approximately 5,000 disadvantaged students. There were eight Romani special colleges across the country sponsored by the government using EU funds, five of which were operated by Christian denominations and three managed by universities. The special colleges provided housing and tutoring for approximately 235 Romani students enrolled in higher educational institutions.10 [27] The RAD accepts that Roma incur some frustrating and unpleasant incidents during their schooling; however, the RAD finds no significant evidence to conclude that Roma cannot pursue higher education opportunities if they so desire. The documentary evidence does not establish that Roma are being denied outright the opportunity to get an education, at any level. Employment [28] The principal Appellant alleged that he was unable to find work as a XXXX because of his Roma ethnicity. The principal Appellant alleged that he travelled to different places, even to construction sites to find work. The principal Appellant alleged that he was always told that he was a lousy Roma and was never given work. The RAD finds that the documentary evidence shows that Roma face more difficulty in obtaining skilled jobs and steady work than ethnic Hungarians. [29] Relating to discrimination, the documentary evidence shows that Roma are exposed to poverty, unemployment, and segregation. That is why the adoption of the EU Framework for National Roma Integration Strategies up to 2020 was one of the priority areas for the Hungarian Presidency of the Council of the European Union in 2011. The Framework provides a unique opportunity to make a real difference in the lives of Roma people throughout Europe and requested member states to adopt before the end of 2011 their National Roma Integration Strategies which determine the medium-term challenges and targets of the social and labour market integration of the Roma, as well as the necessary interventions, over a period of 10 years. On 30 November 2011 Hungary sent its National Social Inclusion Strategy 2011-2020 (NSIS) as the first one to the European Commission. The Strategy is complex: it lays down an immediate action plan, and also assigns long term tasks. In addition, it systemizes all those areas and actors which deal with inclusion policies such as state measures, specified programmes, institutions and other actors. The aim of the Strategy and its Action Plan for the period of 2012- 2014 is to improve the social and living conditions of people living in extreme poverty. The two special target groups are the Roma and children. Both documents deal with child well-being, education, employment, health, housing as well as involvement, awareness-raising and fight against discrimination. A framework agreement with the National Roma Self-Government which designates concrete numerical targets for Roma in the most important fields is annexed to the Strategy.11 [30] Regarding the government's employment-related programs, the documentary evidence shows that: 387,069 people participated in public employment programs in 2013, with most of them having no more than primary school education, among them an estimated number of 77,000 Roma (20%). 27.6% managed to find a job within 180 days after leaving public employment. Living allowance is given to those participating in Eu-funded training programs. In order to facilitate access to the labour market, decentralised employment programmes, EQUAL ESF funded programmes (Social Renewal Operational Programme) and public employment programmes have been launched. Moreover, support programmes were also started with the contribution of the National Public Foundation for Employment. In addition, employment of the Roma is promoted by grants supporting job creation projects, as well as by training subsidies.12 [31] The principal Appellant alleged that he was working for the XXXX through their program to fulfil the mandatory minimum 2 month period per year of work necessary to collect social assistance. He alleged that the work involved XXXX XXXX, XXXX XXXX, XXXX XXXX or XXXX XXXX. He added that this was the only work he could get because he is Roma. [32] The RAD is aware that discriminatory practices continue to exist at all levels; however, the documentary evidence shows that the conditions in the country are not such that the Roma population is subject to persecution. Opportunities exist for Roma to obtain education, and find gainful work. The RAD finds these Appellants to be resourceful; they have been able to come to Canada and start a new life away from their own community and in a country with different culture and official languages. Thus, the RAD finds it reasonable to expect these Appellants to continue to be resourceful in their own country as well. [33] The RAD finds that there is insufficient evidence to establish that these Appellants would not be able to find any work to support themselves in Hungary upon return. Medical [34] The Appellants alleged that Roma are treated rudely, segregated and placed in areas for Roma only. The Appellants alleged that their daughter may have had a stroke because she was not monitored during her birth. The Appellants alleged they had been turned away from a newer clinic with improved facilities because they are Roma. They also had to wait longer to be seen by the doctor because they are Roma. [35] The documentary evidence shows that medical staff in public hospitals have subjected Roma patients to differential treatment.13 In consideration of the documents in evidence, the RAD accepts that Roma face discrimination; however, the RAD finds that there is insufficient evidence on record to establish that Roma are denied essential medical services. Housing [36] The documentary evidence notes that residential segregation of Roma is evident in Hungary. Even when not formally segregated, Roma continue to live in substandard conditions.14 It is reported that "300,000 seriously disadvantaged persons, mainly Roma, lived in approximately 1,663 settlements that lacked basic infrastructure and were often located on the outskirts of cities."15 [37] The Appellants alleged that they lived in a house that had no indoor toilet, no running water, and no heating. The documentary evidence shows that Roma live in segregated communities, with substandard living conditions. [38] Despite these problems with segregation and living conditions: The law establishes cultural autonomy for nationalities (replacing the term "minorities") and recognizes the right to foster and enrich historic traditions, language, culture, and educational rights as well as to establish and operate institutions and maintain international contacts. The law stipulates that any municipality with 30 residents belonging to a registered ethnic group may form a "nationality self-government" to organize activities and manage cultural, educational, and linguistic affairs. The president of each nationality self-government has the right to attend and speak at local government assemblies.16 [39] It is also reported, however, that the "government continued the settlement rehabilitation program worth eight billion forint ($31 million) to improve the living conditions of residents living in segregated settlements. The government program involved 55 settlements accommodating more than 4,000 persons."17 [40] Further, it is noted that in order to apply for EU and government funds for urban rehabilitation and public education projects, municipal authorities must attach a desegregation plan outlining planned actions to eradicate segregation in housing and public education.18 The government continued implementing the National Social Inclusion Strategy 2011-20 and adopted a new action plan (2015-17).19 The law provides for 13 national minorities, including the Roma, to vote for a national minority list in parliamentary elections; the Romani minority had a spokesperson in parliament.20 The law establishes cultural autonomy for nationalities (replacing the term "minorities") and recognizes the right to foster and enrich historic traditions, language, culture, and educational rights as well as to establish and operate institutions and maintain international contacts. The law stipulates that any municipality with 30 residents belonging to a registered ethnic group may form a "nationality self-government" to organize activities and manage cultural, educational, and linguistic affairs. The president of each nationality self-government body has the right to attend and speak at local council sessions.21 [41] The RAD finds that the above-mentioned government measures/programs are demonstrative of the existence of infrastructure to operationally enhance opportunities for Roma in Hungary. [42] Although the documentary evidence shows that Roma are discriminated in all spheres of life, the RAD also finds that general documentary evidence about the situation of Roma in Hungary is not sufficient to make the determination that Roma are persecuted.22 The RPD found that the discrimination experienced by the Appellants in school, at work, and in accessing social services, does not rise to the level of persecution. The RPD reached this conclusion when it considered that the Appellants' fundamental human rights had not been denied, but rather their quality of existence had been affected. [43] The Appellants submit that the RPD did not consider the cumulative aspects of discrimination. The Appellants submit that they would face discrimination amounting to persecution upon return to Hungary. The Appellants submit that the evidence on record shows that the situation of Roma minority in Hungary is not merely a problem regarding quality of life, but is in fact a violation of fundamental human rights. The Appellants alleged that the RPD articulated an incorrect test by articulating that they would not face persecution upon return to Hungary because their past experiences as Roma do not amount to persecution. The RAD considers the Appellants' submissions relating to the cumulative aspects of the discrimination, and their allegation that the RPD articulated an incorrect test by articulating that they would not face persecution upon return to Hungary because their past experiences as Roma do not amount to persecution. [44] Persecution is not defined by the Convention. However, persecution can mean sustained or systematic violation of basic human rights demonstrating a failure of state protection.23 Case law has stated that to be considered persecution, the mistreatment suffered or anticipated must be serious24 and occur with repetition or exercise of that right might be affected. In other words, the legal question to be determined is: does the persecution alleged by the claimant threaten his or her basic human rights in a fundamental way?25 [45] The Federal Court of Appeal in the case of Sagharichi26 stated: It is true the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is for the Board to draw the conclusion in a practical, factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein. [46] Having examined the evidence in this case the RAD finds that the discrimination experienced and/or feared by these Appellants does not threaten their fundamental rights but rather affects the quality of their existence in their home country. The RAD finds that what these Appellants experienced and fear upon return amounts to discrimination and that it does not reach the level of persecution. [47] The RAD finds that Roma in Hungary, as a group, face discrimination and that the same evidence does not establish that Roma, as a group, face persecution. However, having said this, the RAD considers that state protection is the determinative issue with respect to Roma ethnicity in these claims. The RAD finds that state protection is available to the Appellants in Hungary. State Protection [48] The RAD finds that the evidence in this case shows that the Appellants made no significant efforts to seek protection in their own country before seeking it internationally. The responsibility to provide international protection only becomes engaged when national or state protection is unavailable to the claimant/Appellant. It reinforces the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant.27 For this reason, James Hathaway refers to the refugee scheme as "surrogate or substitute protection", activated only upon failure of national protection.28 [49] Except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting a claimant/Appellant. [50] The presumption of state protection was articulated by the Supreme Court of Canada in the Ward decision where the Court stated: The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.29 [51] The Court has established that the onus is on the Appellants to produce clear and convincing evidence that the state cannot provide protection. The Court has held that the evidence that state protection is inadequate must not only be reliable but also probative; it must also satisfy the RAD, on a balance of probabilities, that state protection is inadequate.30 An Appellant'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 Appellant must have done to exhaust all courses of action open to them.31 In a functioning democracy, an Appellant will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status.32 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.33 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.34 Less than perfect protection is not a basis to determine that a state is either unwilling or unable to offer reasonable protection.35 [52] The RAD considers the totality of the country documentation in evidence, including documents submitted by the Appellants' Counsel and the National Documentation Packages, and acknowledges that the evidence is mixed. The RAD recognizes that the Roma minority population experience discrimination in many aspects of their daily lives and sometimes violence and abuse at the hands of some residents of the country, including some police officers. The RAD also acknowledges the rise in anti-Roma sentiment throughout Hungary and a corresponding rise in the popularity of the XXXX, a right-wing political party. [53] The RAD, however, also finds that the ongoing efforts of the Hungarian government to address problems that Roma face are producing some positive results at both legislative and operational levels. The RAD examines the government's actions to improve the quality of life for Roma, including programs to enhance education, employment, healthcare and housing, especially by launching key legal, policy and institutional measures. 36 [54] The RAD also considers the issue of "corruption" and acknowledges it as a problem in the country. However, the documentary evidence also shows that there are steps being taken to prosecute officials and individuals when such abuse occurs.37 The Hungarian authorities have also taken action against extremist organizations, successfully banning the Hungarian Guard Association, and initiating processes for banning the Civil Guard Association on the grounds that their anti-Roma activities threaten public order.38 The RAD notes that Roma victims very often face discriminatory treatment by the police. The documentation, however, is mixed in this regard; it is noted that police do intervene to protect the Roma community.39 [55] The RAD is, however, of the view that it would have been reasonable in the circumstances for the Appellants to have approached the police to obtain protection rather than assuming that they would not get help. Moreover, the RAD notes that even if their attempts to obtain protection would have failed, the Appellants could have sought other mechanisms to complain about the police behaviour (e.g. the Independent Police Complaints Body, or the Roma police officers association).40 [56] The RAD examines the state protection principles as set out by the Courts. The onus is on the Appellants to rebut the presumption of state protection with "clear and convincing" evidence of the state's inability to protect its citizens.41 The Appellants themselves must satisfy the Board that the state protection is, in fact, inadequate, on a balance of probabilities.42 A refugee claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.43 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.44 The onus is on the refugee claimant to approach the state for protection in situations where state protection might be reasonably forthcoming.45 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.46 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.47 [57] 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 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 charged, arrested and prosecuted if there was sufficient evidence. Further, if the Appellants were to be dissatisfied with the response of the authorities to their complaints, the documentary evidence indicates that recourse to seek redress would be available to them. [58] The RAD refers to the U.S. Department of State human rights reports for Hungary which indicate societal discrimination and exclusion of the Roma and anti-Semitism.48 However, in the same reports, there are indications that the government prosecutes and punishes officials who commit abuses, whether in the security services or elsewhere in the government. The RAD notes that "in the first nine months of the year, the Ministry of Interior held 4,370 police officers responsible for breaches of discipline, 556 guilty of petty offenses, 297 guilty of criminal offenses, and 14 unfit for duty. During the same period, courts sentenced four police officers to prison terms, gave suspended sentences to 16, fined 115, and dismissed 20. During the same period, courts convicted 15 officers of corruption and placed 31 officers on probation."49 In a resolution adopted by the Committee of Ministers of the Council of Europe regarding the implementation of the Framework Convention for the Protection of National Minorities for Hungary, it is noted that the Hungarian "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."50 Programs for Roma police The Ombudsman for minority rights indicated that the National Police Headquarters from "time to time passes action plans on better co-operation with the Roma community" (Hungary 19 Sept. 2011). The initiatives include providing grants, numbering from ten to fifteen, for "talented Roma pupils," as well as "a set of county co-operation contracts with local communities, Roma self-governments," and "children and school programs" which, for example, organize public days for informing the public and Roma about law enforcement (ibid.). The HHC is of the opinion that when it comes to programs for Roma to become involved with the Police, "the number of [a]ffected Roma people is extremely low, [and] the intensity and effectiveness of the programs are questionable" (HHC 15 Sept. 2011). However, the HHC also indicated that, based on their research on Roma-police relations, one of the main goals of the police is to recruit Roma youth into the police force (ibid.). One way for the police to do this was to issue a "call for proposals" for Roma high school students, with the program allowing for selected Roma students to receive a monthly scholarship that varies between 11 and 22 US dollars, based on "their achievement at school" (ibid.). In its Third Report submitted to the Council of Europe in 2009 concerning the Framework Convention for the Protection of National Minorities, the government of Hungary noted that a scholarship program for "talented Roma secondary school students" pursuing police careers has been active since 2000, sponsored by the Ministry of the Interior, Ministry of Justice, and the ORFK (Hungary 4 June 2009). The Vice President of the Phralipe Independent Roma Association indicated that to her knowledge, scholarship programs for police schools cover only half the year, and then it becomes a "question [of] who is able to remain in the police school" (15 Sept. 2011). The Ministry of the Interior reported that on 28 March 2011 "the Budapest Police Headquarters (BRFK) held an open day for the Roma-Gypsy under-privileged youth, who are interested in police career," which included presentations by employees from the BRFK's Department for Crime Prevention and representatives of secondary vocational schools for Police (Hungary 28 Mar. 2011). This day was organized with the help of Budapest's Gypsy Self-government, whose Chair "underlined the importance of the cooperation with the police" (ibid.). Corroborating this information, the Ombudsman indicated that on 28 March 2011 the Capital Police Station, along with the Crime Prevention Department and the Capital Roma self-government, organized "a public day for pupils to present the operation of law enforcement" (Hungary 19 Sept. 2011). The Ministry of the Interior also announced in March 2011 that there would be a police "preparatory camp" for Roma applicants in July 2011 (Hungary 28 Mar. 2011). The HHC report notes that annual summer camps are often organized by regional police for young children coming from a "poor" environment (15 Sept. 2011). There is also an annual summer camp for Roma high school students lasting for five days in which they learn about law enforcement and requirements to enter the Police College (HHC 15 Sept. 2011). Forty students attended the camp in 2011 (HHC 15 Sept. 2011).51 [59] The RAD finds that the authorities have had some success in curtailing abuse by the police by increasing the recruitment of Roma police officers, providing training in human rights and in 2008, setting up the IPCC, responsible for receiving complaints against misbehaviour of the police.52 Nevertheless, the RAD acknowledges racially motivated abuse allegedly committed by members of the police force continues to be reported. Submitting a complaint against a police officer The Parliamentary Commissioner for the Rights of National and Ethnic Minorities, also referred to as the Minorities Ombudsman, noted in correspondence with the Research Directorate that the Police Act of 1994 allows for a complaint against the "unlawful action" of a police officer to be submitted to the local captain of the police, with a higher ranking captain having the option to appeal the decision (Hungary 19 Sept. 2011). The resulting decision can be reviewed by the court (ibid.). In correspondence with the Research Directorate, the HHC similarly noted that the Police Act allows for any individual who has his or her "fundamental" rights violated by the police to "file a complaint with the police unit responsible" for the violation (15 Sept. 2011). The HHC further informed the Research Directorate that "complaints shall be submitted within 30 days of the alleged violation by the concerned person or his/her representative. (Complaints may also be represented by human rights NGOs or foundations, minority self-governments or certain law professors.) The complaint is decided on in an administrative procedure by the head of the respective police unit within 30 days after receiving the complaint." (HHC 15 Sept. 2011) The HHC noted that this "first instance decision" can be appealed "on any ground" to the "superior of the concerned police unit" (ibid.). The appeal must be filed "within 15 days after the delivery of the first instance decision, which shall forward the appeal and all the documents concerning the case to the superior unit within eight days after the appeal deadline, unless the unit which decided on the complaint withdraws the decision, refuses it without in-merit examination, or amends, corrects or supplements it in accordance with the appeal. If the appeal is forwarded to it, the superior body shall deliver a reasoned decision, affirming, modifying or annulling the first instance decision." (ibid.) The subsequent "second instance decision may be challenged before the court by the complainant" (ibid.). However, the court "may not change the decision: it may only send the case back to the police and order a new procedure (however, the police are obliged to follow the guidelines set by the court in the new procedure)" (ibid.)....53 According to Hungary's UN submission, the Complaints Body is "independent" of the government to ensure that the rights of citizens are protected (ibid. 16 Feb. 2011, para. 70). The HHC also notes that the Complaints Body is "functionally external to the police authorities, and [that] its budget is included into the budget line of the Office of the Hungarian Parliament" (HHC 15 Sept. 2011). The five members of the Complaints Body are lawyers chosen by Parliament to serve a six-year term (Hungary 16 Feb. 2011, para. 70). According to the HHC, the members cannot be re-elected, and they must all be "lawyers with outstanding experience in the field of fundamental rights protection" (HHC 15 Sept. 2011). The HHC stated that to file a complaint with the Complaints Body, it has to be "filed within eight days of the alleged violation by the concerned person, who may also be represented by human rights NGOs or foundations, minority self-governments or certain law professors. Anonymous complaints or complaints arriving from someone acting on behalf of the victim without a proper authorization are rejected automatically." (ibid.) According to Hungary's report to the UN, the National Police Commissioner (also translated as the National Chief of Police and Chief Police Captain) is required to submit monthly reports to the Complaints Body about "complaints submitted to the Police" (Hungary 16 Feb. 2011, para. 70). If the Complaints Body finds that a citizen's "fundamental rights" have been seriously violated, it sends its decision to the Police Commissioner (ibid.; HHC 15 Sept. 2011), "who shall deliver a resolution within 30 days" (Hungary 16 Feb. 2011, para. 70). Although the Police Commissioner "delivers the decision on the individual complaint," he can only deviate from the Complaint Body's recommendation on "the basis of detailed argumentation" (HHC 15 Sept. 2011). The Police Commissioner's decision can be submitted to court for judicial review (ibid.; Hungary 16 Feb. 2011, para. 70; ibid. 19 Sept. 2011), as can decisions made by the Complaints Body (ibid.). The Minorities Ombudsman said that although the Police Commissioner can accept or refuse a decision from the Complaints Body, "[i]n practice," he "neglect[s]" 90 percent of the Complaints Body's decisions (ibid.). If the Complaints Body determines either that there has been no violation of fundamental rights or that the violation was not "substantial," the complaint is forwarded to the police unit of the officer who committed the violation, unless the complainant does not allow it, in which case the case is "terminated" (HHC 15 Sept. 2011). If the complaint does not fall under the mandate of the Complaints Body, it is forwarded to the appropriate authority (ibid.). The Complaints Body will "[r]eject the complaint if the competent authority may not be established, or the complaint is filed after the deadline" (ibid.). In a March 2011 ERRC report on anti-Roma violence in Hungary, which looked at 22 cases of violence against Roma, the organization noted that "[p]olice misconduct and procedural errors were documented during the investigation of one of the violent crimes against Roma, as raised by NGOs and later confirmed by the Independent Police Complaint [Body] and by the Head of Police. Misconduct by the National Security Service was also revealed." (ERRC Mar. 2011, 19) The HHC indicates that in 2009 the Complaints Body issued 457 decisions on 737 complaints and that, of those 457 decisions, 59 were considered "severe" violations of fundamental rights and sent to the National Police Commissioner for adjudication (HHC 15 Sept. 2011). The Police Commissioner fully agreed with the Complaints Body in 11 of the 59 cases and partly agreed in 26 (ibid.). In 2010, the Complaints Body received 531 complaints and delivered 428 decisions, out of which 166 cases were considered "severe" violations of fundamental rights (ibid.). These cases were also sent to the Police Commissioner, who fully agreed with 14 of the Complaint Body's decisions and partly agreed with 4 others (ibid.). Complaint mechanisms The Minorities Ombudsman indicated that there is a general lack of information about appropriate forums through which victims of human rights violations can submit their complaints (Hungary 19 Sept. 2011). He further stated that the main mechanisms for submitting human rights violations are only located in Budapest (ibid.). For many settlements, the only available mechanism is something called a "minor-offence authority," which can be local municipal clerks, the police, or the tax office (ibid.). These authorities deal with minor "unlawful behaviour," such as the refusal to provide service or the delivery of poor service in retail outlets, and their decisions can be contested in court (ibid.). In addition, the Minorities Ombudsman pointed out that the majority of the Roma live in poor towns and small villages in rural areas of Hungary, making it difficult for them to find legal aid, whether from legal experts or NGOs that are working in cities. He noted that although the country has no specific complaints mechanisms for Roma whose human rights are violated, their anti-discrimination legal network was "integrated into the free legal aid system inside county/capital governmental administration offices in 2010". 54 [60] Regarding the government's actions to specifically address issues faced by the Roma population, the documentary evidence demonstrates: At its meeting held on 29 January 2013, the Government decided on the establishment of the Roma Affairs Council (CET), which elevates the cause of inclusion to the highest level. The main task of the body is to identify proposals concerning the strategic directions of inclusion and Roma policy and to keep track of their implementation. The establishment of CET allows the evaluation of the implementation of the measures taken as part of a direct dialogue at the highest level of the government structure and in response to direct feedback with the involvement of the ministers and stakeholders concerned, while it also creates a forum for identifying further measures necessary for promoting the inclusion of Roma. The Council makes recommendations with respect to the Government's social inclusion and Roma policy, monitors the attainment of the targets in the framework agreement between the Government and the National Roma Self-Government, and reviews the reports prepared by ministers involved in the implementation of the framework agreement and the National Roma Self-Government. The Council is chaired by the Prime Minister and co-chaired by the President of the National Roma Self-Government. Other members include the Minister of Human Resources, the Minister for Internal Affairs, the Minister for National Economy and the Minister of State leading the Prime Minister's Office. The Council meets at least quarterly. The Anti-Segregation Roundtable was established in June 2013. Both governmental and civil parties are involved. It aims to review the current issues of educational integration and segregation, to discuss the competencies of churches, civil sector as well as of state and local actors, to review current professional standards and, where relevant, to propose new ones. There is ad hoc local cooperation between Roma civil society organisations and local governments based on local programmes and topics. The State Secretariat for Social Inclusion does not seek to oversee these relations but enhances their ongoing development, inter alia, by providing grants for the operation of civil organisations and training programmes with a view to helping the representation of local Roma communities.55 [61] Hungary has put in place independent authorities specifically entrusted with the fight against racism. For example: The Equal Treatment Authority (hereafter the Authority) was established by the Act on Equal Treatment and Promotion of Equal Opportunities (the Act) and has been functioning since February 2005. Following legislative amendments in 2011 and 2013, the Authority is now an autonomous administrative body; it is independent and cannot be instructed in the performance of its duties; and its budget constitutes a separate title within the budget chapter of Parliament. The Authority is headed by its president, who is appointed by the President of Hungary for a term of nine years. The vice-president is appointed by the Authority's president for an indefinite period. Civil servants and other employees of the Authority are also appointed by its president. The Authority is a quasi-judicial body whose main task is to make legally binding decisions in cases of alleged violation of the Act either at the request of an injured party or ex officio. If it establishes a violation, a number of remedies are available, including the imposition of fines ranging from 50 000 to six million HUF (around 160 to 19 000 Euros). The proceedings are entirely free of charge. ECRI is pleased to note that the structure and powers of the Authority are now in line with the principles set out in its GRP No. 2 on specialised bodies to combat racism, xenophobia, antisemitism and intolerance at national level and the key components of its GPR No. 7. ECRI concludes with satisfaction that the general legal framework for a national specialised body is complete. Moreover, ECRI welcomes the creation of a network of equal treatment consultants across the country; there are 20 in total, one in each of Hungary's 19 counties and one in Budapest. They offer advice free of charge, record all complaints and assist victims of discrimination in compiling submissions and forwarding them to the Authority. They are responsible for assisting local authorities in preparing local equal opportunity plans, as required under the Act, as well as raising awareness of non-discrimination requirements and disseminating information concerning equal treatment.56 [62] The ETA reportedly received 1,500 complaints of discrimination in 2010, and launched proceedings in 377 cases.57 [63] The RAD finds that the government has enacted legislation, and put in place many tactical initiatives across several departments and they are producing results on the ground. Education Obligatory pre-school attendance from age 3 will be introduced in the 2014-15 school year. Enrolment rate of Roma children in pre-school has risen and is now high at 79%. Measures to encourage participation, including cash incentives and the extension of sure Start Children Centres have been initiated and offer a range of services, which include childhood development, parental counselling, and educational programs for children and their parents in the most disadvantaged micro-regions, primary in localities with ghetto and segregated areas.58 Employment Actions are being taken, aimed at increasing the employability of disadvantaged groups with emphasis on gender, and increasing the number of Roma teachers, and mentors in Public Employment Services.59 Medical [64] Measures are being taken to reduce inequalities, including preventive health care. As well, there is a special focus on early childhood development (e.g. screening tests) of youth and Roma women. There are incentives for pediatricians, general practitioners to fill empty practices in most disadvantaged regions. Training of healthcare professionals and awareness-rising campaigns among Roma have been initiated.60 Housing [65] "European Regional Development Fund (ERDF) supports integrated housing projects for Roma and other marginalised communities."61 [66] The documentary evidence shows that Hungary enjoys a relatively stable security environment. Small, factional fringe element groups of neo-Nazis, skinheads, and other far-right wing extremists are present though. Their activities, particularly rallies and demonstrations, are strictly limited and monitored by police.62 [67] The RAD finds that the documentary evidence as noted above demonstrates that Hungary continues to provide protection for all its citizens, including Roma and other ethnic minorities. Although not perfect, the RAD finds that the evidence demonstrates that Hungary's progressively evolving measures/actions to provide protection for its citizens, including Roma, are actually having an impact operationally on the ground. The evidence also demonstrates that police do investigate crimes against Roma and that perpetrators are being held responsible when there is sufficient evidence. [68] The RAD finds, after a thorough review of all of the evidence, acknowledging the situation is not perfect, that state protection would be reasonably forthcoming if the Appellants were to diligently seek it upon return to Hungary today. The RAD also takes guidance from the Federal Court that each claim must be decided on its own merits. In other words, it is not reasonable to state that all Roma cannot be afforded state protection. [69] In Dinok,63 the Court stated that the RPD reflected in its analysis laws against abuses by the police, but went on to look at the evidence of how many disciplinary charges were prosecuted against members of the police force. Although acknowledging what was stated in Hercegi64 and in Konya65, Madam Justice Snider explained the flaw with this argument. ...Each case will be decided on the basis of the facts and arguments before the court. In the course of analysis, a judge may express views of what the documentary evidence tends to show. However, these judicial comments cannot be elevated to factual findings. Only the Board is able to make such findings. [70] In Novak,66 the Federal Court addressed the situation of victims of domestic abuse in Hungary. It noted the efforts and actions undertaken by Hungary to address the situation of these victims which would have made it reasonable for the Appellant to at least attempt to seek protection, however, she failed to do so. ...it was therefore open to the RPD, in my view, to conclude that the evidence on the ineffectiveness of state protection for victims of domestic violence in Hungary was not convincing and that Ms. Novak had failed to rebut the presumption of state protection, by failing to provide a reasonable explanation s to why this was not done. [71] In Mudrak,67 the Court states: ....It is incorrect to, in effect, reverse the presumption of adequate state protection, in a democratic society when a country enacts legislation, or when there is evidence of increasing acts of violence, thereby requiring the Board to demonstrate the operational adequacy of measures taken to prevent incidents of persecution in its reasons. ...Nor should the fact that a democratic government enacting legislation and putting other measures in place to combat persecution, somehow be seen as an admission of a failure of state protection. ...extensive and substantial legislation and other measures being undertaken should be treated as evidence supporting the democratic foundations of the country, thereby enhancing the presumption of adequate state protection as opposed to requiring the Board to demonstrate operational adequacy. [72] Based on the foregoing analysis, the RAD finds that state protection measures taken by the authorities in Hungary have translated into operational success on the ground. The RAD finds that these Appellants, in their particular situation and circumstances, would receive, although not perfect, adequate state protection upon return. [73] Despite the above, the RAD acknowledges that the quality of existence for the Roma is not what it should be, but the evidence nonetheless shows that their existence is not threatened by the state. It is noted that the progress in combating racism is not as rapid, and there have been set-backs and obstacles, but the RAD finds that the commitment of the state to continue the battle is not in question. The RAD finds it unreasonable to expect that the state measures should have prevented or eliminated all racism or acts of violence related to race. Based on the totality of the documentary evidence, however, the RAD finds Hungary is not only making serious efforts to turn around the endemic racism that has historically been present in Hungarian society, including in the police force, rather it has enacted legislation, has infrastructure and a functioning police force in place, allocates funding, and there are numerous examples that, if complaints are made, authorities do take action. The documentary evidence demonstrates that it is reasonable to expect authorities to take action when complaints are made, and that there are organizations in place to ensure that the police are held accountable. [74] The Appellant's counsel has, as he should, disclosed numerous country documents68 at the RPD in support of the Appellants' allegations. The Appellant's counsel has also submitted written submissions at the RPD, quoting several of the documents in support of the arguments therein.69 In reviewing the totality of the evidence on record, the RAD finds that although the evidence is mixed, there are several objective documents in the Board's country documentation showing positive results of several government programs to legislate action against broad forms of discrimination against the minorities, including the Roma.70 The RAD finds that, in the circumstances particular to this case, the Appellants have not established a serious possibility of persecution, or that they would, on a balance of probabilities, be personally subjected to a risk to life or to a risk of cruel and unusual treatment or punishment, or to a danger of torture upon return to Hungary on a singular or cumulative basis. [75] The RAD concludes that the Appellants have not rebutted the presumption of state protection upon return to Hungary. Therefore, the RAD concurs with the RPD's determination that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to sections 96 and 97(1) of the IRPA. DISPOSITION [76] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to sections 96 and 97 of the IRPA. The appeal is dismissed. (signed) "S.S. Kular" S.S. Kular September 9, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Ibid., at para. 103. 3 Ibid., at para. 69. 4 Ibid., at para. 70. 5 Exhibit P-3, Appellants' Supplementary Memorandum of Argument, received at the Board on July 20, 2016. 6 Exhibit RAD-1, RAD's Record, National Documentation Package (NDP) for Hungary (April 29, 2016), item 10.5. 7 Exhibit RPD-1, RPD's Record, exhibit 7, NDP for Hungary (July 31, 2015), item 2.1. 8 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 13.5. 9 Exhibit RPD-1, RPD's Record, exhibit 7, NDP for Hungary (July 31, 2015), item 2.1. 10 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 2.1. 11 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 2.8. 12 Ibid. 13 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 13.8. 14 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), items 13.6 and 13.8. 15 Exhibit RPD-1, RPD's Record, exhibit 7, NDP for Hungary (July 31, 2015), item 2.1. 16 Ibid. 17 Ibid. 18 Exhibit RPD-1, RPD's Record, exhibit 7, NDP for Hungary (July 31, 2015), item 2.1; and Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 2.1. 19 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 2.1. 20 Ibid. 21 Ibid. 22 Nagy, Renata v. M.C.I. (F.C., no. IMM-8361-12), Russell, June 11, 2013, 2013 FC 640. 23 James C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991) pp.104-105, cited with approval in Canada (Attorney General) v. Ward (1993) 3 F.C. 675 (C.A.). 24 Sagharichi, Mojgan v. M.E.I. (F.C.A., no. A-169-91), Isaac, Marceau, MacDonald, August 5, 1993. Reported: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.). 25 Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593; affirming Chan v. (Canada Minister of Employment and Immigration), [1993] 3 F.C. 675 (C.A.). 26 Sagharichi, Mojgan v. M.E.I. (F.C.A., no. A-169-91), Isaac, Marceau, MacDonald, August 5, 1993. Reported: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.). 27 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 28 James C. Hathaway, The Law of Refugee Status (1991), at p. 135. 29 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at paragraphs 724 and 725. 30 Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.). 31 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.), at 536. 32 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, para. 46. 33 Zhuravlvev, Anatoliy v. M.C.I. (F.C.T.D., no. IMM-3603-99), Pelletier, April 14, 2000. Reported: Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 34 M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Marceau, Hugessen, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). 35 Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 36 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), items 2.1, 2.3, 13.2, 13.3, 13.6, and 13.8. 37 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), items 2.1, 10.2, 10.4, and 10.5. 38 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 13.10. 39 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 10.5. 40 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), items 10.1 and 10.5. 41 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 42 Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C., no. IMM-822-06), O'Reilly, March 26, 2007, 2007 FC 320. Reported: Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 1 F.C.R. 3 (F.C.); Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.). 43 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 44 Rio Ramirez, Leticia Lizet Del v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008, 2008 FC 1214. 45 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 46 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 47 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.). 48 Exhibit RPD-1, RPD's Record, exhibit 7, NDP for Hungary (July 31, 2015), item 2.1; and Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 2.1. 49 Exhibit RPD-1, RPD's Record, exhibit 7, NDP for Hungary (July 31, 2015), item 2.1. 50 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 10.4, p. 3. 51 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 10.4, pp. 9-10. 52 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 10.3. 53 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 10.5, pp. 3-4. 54 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 10.5, pp. 5-7. 55 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 13.17. 56 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 13.19. 57 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 13.6, p. 5. 58 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 13.15. 59 Ibid. 60 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), items 13.14, 13.15, and 13.16. 61 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 13.15, p. 2. 62 Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016), item 7.3. 63 Dinok, Andras v. M.C.I. (F.C., no. IMM-6085-13), Boswell, December 12, 2014, 2014 FC 1199. 64 Hercegi, Jozsef v. M.C.I. (F.C., no. IMM-4225-11), Hughes, February 22, 2012, 2012 FC 250. 65 Konya, Klaudia v. M.C.I. (F.C., no. IMM-8808-12), Snider, September 25, 2013, 2013 FC 975. 66 Novak v. Canada (Citizenship and Immigration) IMM-1280-14 FC 9. 67 Mudrak, Zsolt Jozsef v. M.C.I. (F.C., no. IMM-3582-13), Annis, February 18, 2015, 2015 FC 188. 68 Exhibit RPD-1, RPD's Record, exhibits 8 and 11. 69 Exhibit RPD-1, RPD's Record, exhibit 9. 70 Exhibit RPD-1, RPD's Record, exhibit 7, NDP for Hungary (July 31, 2015); Exhibit RAD-1, RAD's Record, NDP for Hungary (April 29, 2016). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB6-07088 TB6-07089 TB6-07090 TB6-07091 TB6-07092 RAD File No. / N° de dossier de la SAR : TB6-07088 TB6-07089 TB6-07090 TB6-07091 TB6-07092