TB8-09536

RAD File / Dossier de la SAR : TB8-09536 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 13, 2019 Date de la décision Panel James Sloan Tribunal Counsel for the person who is the subject of the appeal David Vago Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX fears that if she is returned to Hungary, her country of nationality, she will be persecuted or otherwise harmed due to her Roma ethnicity. While in Hungary, she claims that she was discriminated against in housing, education, work, and health care, and bullied by other children due to her Roma ethnicity. [2] The Appellant also fears her alcoholic father, who habitually abused her, her mother and her siblings and spent the family's money on alcohol, leaving them starving. When the Appellant was 17 years old, she was thrown out of the family home by her father and she was forced to sleep at a friend's; she later returned. Neighbours would call the police when the Appellant's father became abusive, but they only came sporadically and often after several hours had passed. If the police did arrive, they would say that they could do nothing until they saw blood. [3] The Appellant left Hungary in XXXX 2017, when she was 18 years old. [4] She appeared before the Refugee Protection Division (RPD) on March 9, 2018 and her claim was rejected on March 28, 2018 because she was unable to disprove the presumption that she would be protected by the state upon her return to Hungary. She now appeals to the Refugee Appeal Division (RAD). [5] For the reasons that follow, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. DETERMINATIVE ISSUE [6] The determinative issue in this case is the existence of state protection for Roma in Hungary. STANDARD OF REVIEW [7] In my independent 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 [8] The RPD found that the Appellant had not disproved the presumption of state protection in Hungary. In making this finding, it considered her particular situation and its impact on her ability to seek state protection, as well as the general availability of state protection for Roma in Hungary. [9] The Appellant contests the RPD's assessment of state protection on the following bases: 1. it did not adequately take into consideration her mental health or her age and wrongly expected that she would have sought state protection for the harm she suffered in Hungary when she was a minor; 2. it did not take into account Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guidelines)3 or consider state protection in a gender-related context; 3. it assessed the objective documentation on state protection without having regard to its effectiveness at the operational level and in a selective manner; and 4. it referred to avenues of recourse beyond the police without explaining how they would result in adequate state protection. 1. Is the Appellant's profile such that she would be able to seek state protection? [10] The RPD noted a medical report from Hungary in 2014, at which time the Appellant would have been 14 years of age, that indicated that the Appellant was "slightly mentally challenged" and that her reading and writing skills were significantly delayed. Nevertheless, the RPD noted that she had the ability to use a keyboard by the time she arrived in Canada (she typed a message for a border security official) and the ability to travel unaccompanied. The RPD also considered a psychotherapist's report which, inter alia, said that the Appellant had short-term memory problems due to trauma. Nevertheless, the RPD found that she did not have any significant difficulties with her ability to testify: although she was just 18 years old at the time of the hearing, she was able to articulate her thoughts. It concluded that it was not unreasonable for her to seek state protection should it be required. [11] The Appellant argues that the RPD's analysis was in error because it did not have adequate regard to the trauma she had suffered or her young age in assessing her ability or obligation to seek state protection. In particular, she argues that the RPD's consideration of the psychotherapist's report was selective and that the RPD did not consider the psychotherapist's statement that the Appellant exhibited symptoms consistent with Post-Traumatic Stress Disorder (PTSD). Moreover, she argues that the RPD erred because it "rejected her claim because it found that after the police failed to act against her father, she did not seek avenues of redress from various administrative bodies in Hungary."4 a) Obligation to seek redress for past harm [12] The focus of the RPD appeared to be the Appellant's ability to seek out state protection upon return to Hungary as an adult in relation to any harm that may occur in the future; it appeared to recognize that the Appellant's age meant that there was no expectation that she would have sought protection when she was harmed as a minor. However, the Appellant argues that, later in the Decision, the RPD faulted the Appellant for not having sought state protection in the past, when she was a child. As noted by the Appellant: "At one point, the RPD recognized that the applicant's [sic] status as a minor vitiated the requirement that she personally seek out the protection of the state, but later in its decision, the RPD appeared to backtrack on this finding."5 [13] I agree with the Appellant that the RPD did fault the Appellant for her non-action as a child. This is clear from its finding: "There is no evidence before the panel that the claimant or the mother took any steps to seek redress when the police failed to intervene."6 This is confirmed by preceding paragraphs in the Decision, where the RPD posits the following statements of the law: "in a democratic state a claimant has an obligation to make efforts to seek his or her state's protection unless it would be unreasonable to expect him or her to do so"7 and "doubting the effectiveness of the protection offered by the state when one has not tested it does not rebut the existence of a presumption of state protection."8 The RPD's reference to jurisprudence regarding the need to make efforts to seek state protection-and the impact of the failure to do so-makes clear that it considers the Appellant to have been remiss not to have done so, despite her young age. [14] I agree with the Appellant that the expectation that a minor would seek state protection, if any, is of a different nature that that imposed upon an adult. In this case, I find that the Appellant is not to be faulted for inaction in the past as part of an assessment of whether or not she is likely to be afforded state protection as an adult upon her return to Hungary. I will now turn to the question of whether the Appellant's ability to pursue state protection upon her return to Hungary, should it be required, would be impeded by her age and mental health issues. b) Impact of her age and mental health on her future ability to seek state protection [15] As to the 2014 report, I find it to be of very little value in this assessment. It was, after all, discussing the Appellant's ability to be educated, e.g. to read and write, at the age of 14.9 While I accept that she had serious learning disabilities at age 14, there is nothing to indicate that those disabilities continue. As the RPD rightly noted, the fact that she is able to use a keyboard indicates that she has made progress in relation to her reading and writing skills. Moreover, the fact that she travelled to Canada on her own shows that she possesses the ability and confidence to successfully navigate international borders and deal with airline personnel and customs authorities. [16] As to the psychotherapist's report, this is of limited value, given that was based on a single assessment of 60-90 minutes. Moreover, while the report speaks of possible PTSD, it does not give any indication that this would impede the Appellant's ability to claim state protection if required when returned to Hungary. [17] As to the Appellant's age, I find that this is not an issue going forward, as she is no longer a minor. At the time of writing, she is 20 years of age. [18] I note that I have listened to the recording and find that the Appellant, while perhaps a bit withdrawn,10 was able to answer the questions clearly and coherently. [19] Finally, I note that counsel for the Appellant has not made a request to have the Appellant designated as a vulnerable person, as per the Chairperson's Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB (Guideline on Vulnerable Persons).11 The Guideline on Vulnerable Persons defines vulnerable people as "individuals whose ability to present their cases before the IRB is severely impaired"12 and provides a variety of procedural accommodations which the Immigration and Refugee Board (Board) may apply. The Guideline provides that where a person wishes to be identified as a vulnerable person, it generally falls to his or her counsel to make an application under the Rules of the relevant division (i.e. RPD or RAD) and that, wherever it is reasonably possible, the vulnerability must be supported by independent and in-depth assessment of the person in the form of a medical, psychiatric, psychological, or other expert report, filed with the Board's Registry. While the fact that the Appellant's counsel has not requested such a designation-and, indeed, dissuaded the RPD from affording her a type of accommodation13-would not appear to preclude the Appellant from relying on her status as a vulnerable person as an explanation of her inability to seek state protection in the future, such a claim would have been more convincing had it been made before the RPD and supported by the in-depth assessment discussed. [20] In sum, I find that the Appellant is in a position to seek state protection upon her return to Hungary should she need it. 2. Gender considerations [21] The Appellant argues that while the RPD mentioned the Gender Guidelines, it is questionable whether it considered them. In particular, she argues that the RPD ignored the Gender Guidelines in its state protection analysis.14 In addition, she argues that the RPD erred by not considering objective evidence indicating a failure of state protection in relation to gender-based persecution. [22] The Gender Guidelines are relevant where the harm claimed is gender-based.15 The Appellant argues, in her Legal Memorandum, that "she fears persecution on the grounds of her gender..."16 and that documentation dealing with gender and domestic violence "is highly relevant evidence given that the Appellant was a minor female who was abused by her father."17 However there is no evidence that the violence inflicted upon her by her father had any connection to her gender. To the contrary, the Appellant made clear that all of her siblings, one of whom is male,18 "were going through all of the problems in the household with my father."19 Nor does the Appellant give any indication that the discrimination and harassment she suffered due to her Roma ethnicity was gender-based. I find the Gender Guidelines not to be applicable. [23] She also argues that the RPD erred by not considering objective evidence, in particular two documents in the National Documentation Package (NDP):20 a report dealing with domestic violence in Roma communities21 and a report regarding the lack of protection from domestic violence in Hungary.22 She argues that the first document is "on point with the relevant state protection circumstances concerning the Hungarian Roma Appellant"23 and that the second uses a phrase ("unless blood flows") that is similar to the phrase used by the police in the context of her father's abuse of her mother ("they would say that they wouldn't do anything until they don't see that there was blood."24). I find that the articles on domestic violence could be relevant to the Appellant's past domestic abuse at the hands of her father; however, they would only relevant to her future if the evidence shows a serious possibility that her father will abuse her domestically if she returns. Given that this has not been shown to be the case and given the fact that she is now 20 years of age and independent of her father, I can see no basis upon which the documents would be relevant. 3. The RPD's assessment of the objective documentation [24] The RPD found that the situation for Roma in Hungary was mixed. It found that they suffer social exclusion and discrimination in all walks of life, particularly in employment, education, housing, prisons and access to public places. At the same time, however, it found that there had been many improvements, including the following: a) Housing. The creation of the Equal Treatment Authority (ETA), which is empowered to issue legally binding decisions. In 2015, it fined the municipality of Miskolc for housing discrimination against Roma and ordered the municipality to cease discrimination. b) Social inclusion. The creation of a special government programme devised to support the social inclusion of disadvantaged women, particularly Roma women, between 18 and 55 years of age. The RPD gave the example of the programme having succeeded in fully integrating Roma women into the staff of an elderly persons home. c) Education and training. During the 2015-2016 school year the Sure Start programme, which focusses on disadvantaged, mostly Romani children and provides intervention programmes for pre-kindergarten children and parenting advice, reached over 2,500 children and parents. The RPD also noted that between 2015 and 2017, the government had provided EU funds for "9,000 elementary and secondary school children and 2,285 vocational school students who declared themselves to be Roma",25 as well as for 128 Romani who were socially disadvantaged higher education students. The RPD noted the existence of 171 afterschool centres providing tutoring for some 3,500 students, most of whom were Romani. In addition, it noted that eleven Romani special colleges had been established in Hungary, which provided housing and tutoring for approximately 296 Romani students. d) Employment. While acknowledging that unemployment among Roma remains disproportionately high, the RPD referred to efforts by the government to rectify this: as of September 2015, over 300,000 people participated in public employment, 20% of whom were Roma. From 2012-2016, over 45,000 Roma were enrolled in a government programme aimed at enhancing their employability. Some 12 percent of the enrollees found employment within six months of graduation. e) Racism. The RPD discussed the formation and work of the Roma Coordination Council-though it did not indicate whether the Council was successful in its work. f) Hate crimes. The RPD noted that the criminal code punishes violent crimes based on, inter alia, ethnic grounds and that a special unit within the police addresses hate crimes. It noted the developments in this area have been commended by numerous non-governmental organizations. g) Discrimination against Roma by the police. The RPD gave the example of a court case in which the police were found to have failed to protect the Roma residents and to have fined them excessively. The RPD noted that in the first nine months of 2014, over 5,000 police officers were found responsible for breaches of discipline and other offences. The RPD also noted that certain complaint mechanisms exist where there is abuse of power by police authorities: a report may be filed with the competent Prosecutorial Investigation Office and complaints may be brought to the Independent Police Complaints Board (ICPB). [25] First, the Appellant argues that the RPD, in its analysis regarding the treatment of Roma in Hungary, "failed to consider whether these government actions were effective at the operational level."26 In advancing this argument, she argues that the RPD mischaracterized a report prepared by the Board, which discusses a specialized police unit set up to combat hate crimes.27 She argues that the Board's report, contrary to the RPD's findings, found that anti-Roma prejudice was present among police officers in Hungary, that Roma are subject to ethnic profiling, and that they were disproportionately penalized for petty offences. As regards the effectiveness of the unit, she argues that the Board's report shows that Roma were inadequately protected against hate crimes, that the police response to hate crimes against Roma was generally inadequate, and that hate crimes were not always recognized and investigated as such. Second, she argues that the RPD erred by not considering the entire record before it. [26] As is clear from my summary of the RPD's findings above, it did have regard to the effectiveness of the measures taken by Hungary to assist its Roma population. For example, it did not merely consider the existence of the ETA; it considered that it had exercised its authority to issue fines. Similarly, it gave examples of how improvement efforts in relation to social justice, education and training, were successful in achieving their goals. Having said that, I agree with the Appellant that in its discussion of the measures taken by the state to combat hate crimes against Roma (briefly discussed at paragraph 24(f) above) the RPD did not focus adequately on the effectiveness of the measures. When I weigh this aspect of the RPD's analysis against its overall analysis as summarized above, I find that the RPD did, generally speaking, pay adequate attention to the effectiveness of the measures taken in Hungary to improve the situation of Roma. [27] Second, I do not accept that the RPD was selective in its analysis of the objective documentation or that it ignored evidence that was before it. The Appellant is correct that the RPD did not make reference to all of the objective documentation, including some that makes clear that the treatment of Roma in Hungary continues to be problematic. However, I find that it had regard to the objective documentation as a whole. This is clear from its finding that problems remain: "The panel acknowledges that right wing groups do exist in Hungary and there is evidence of discrimination and racism [at] senior levels in the government."28 Later, it noted "that the complaints mechanism for dealing with racist and related abuse by police officers [in Hungary] is limited."29 The RPD did not state that all of the efforts taken by the Hungarian government to remedy discrimination against Roma have been successful; instead, it arrived at a finding that, despite the existing problems, improvements have been made such that sufficient state protection is available. d) Did the RPD err in considering avenues of recourse beyond the police? [28] The Appellant argues that the RPD's reference to the ETA (see paragraph 24(a) above) and the ICPB (see paragraph 24(g) above) was misplaced because the Federal Court has found that those entities may not be invoked as alternatives to the police without explaining how they will result in adequate protection. While it is true that the Federal Court has found these entities could not be relied upon as alternatives to the police without such an explanation, the RPD did not invoke these entitles as alternatives to the police. Instead, the RPD held that state protection will, on a balance of probabilities, be available from the police. These entities were referred to as measures designed to complement the police and ensure its successful functioning. As to the effectiveness of the assistance provided by the two entities, this was something the RPD had regard to, as evidenced by the examples given (see above in paragraph 24). [29] I find that the reference by the RPD to the ETA and the ICPB in the context of its overall analysis, does not amount to an error. 5. Has the Appellant rebutted the presumption of state protection? [30] Hungary is a democratic country-albeit one with problems-and the presumption of state protection is relatively strong. Having reviewed the documentary evidence, I agree with the RPD's analysis as to why the Appellant has not, by clear and convincing evidence, rebutted the presumption that adequate state protection exists for Roma in Hungary. While matters are not perfect in Hungary, I find that sufficient state protection exists there. CONCLUSION [31] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "James Sloan" James Sloan September 13, 2019 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 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 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to subsection 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act ("Gender Guidelines"). 4 Exhibit P-2, Appellant's Record, at p. 24, Legal Memorandum, at para 17. 5 Ibid., at p. 24-25, para 17. 6 Ibid., at p. 31, para 34. The quoted passage is from the Reasons and Decision, at para 39. 7 Exhibit RPD-1, RPD Record, at p. 13, Reasons and Decision, at para 36. 8 Ibid., at p. 14, para 38. 9 Ibid., Exhibit 5, at p. 104. 10 Early in the hearing, the RPD offered the Appellant the opportunity to be questioned by her counsel first. Her counsel, describing her as just a little bit withdrawn, suggested that the RPD continue as normal. (Recording of the hearing, at minute 26). 11 Immigration and Refugee Board of Canada, Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB, Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: December 15, 2006. Amended: December 15, 2012. 12 Ibid., at para. 2.1. 13 See endnote 10, supra. 14 "Decision-makers should consider evidence indicating a failure of state protection if the state or its agents in the claimant's country of origin are unwilling or unable to provide adequate protection from gender-related persecution." (Gender Guidelines, supra footnote 3, at s. C2.) 15 As the Gender Guidelines make clear: "Obviously, not all claims brought forward by women are specifically gender-related." (Ibid., s. A). 16 Exhibit P-2, Appellant's Record, at p. 21, Legal Memorandum, at para 7. 17 Ibid., at p. 31, para 33. 18 Exhibit RPD-1, RPD Record, at p. 24, Exhibit 2, Basis of Claim (BOC) form, at para 5. 19 Ibid., at p. 27, Exhibit 2, BOC narrative, at para 6. 20 Aside from a general reference to nine articles in a section of the National Documentation Package (NDP) for Hungary (April 30, 2018) entitled "Gender, Domestic Violence and Children", with no supporting argumentation (other than as regards items 5.2 and 5.8). I note that, while I will address the Appellant's arguments that are based upon documents in the April 30, 2018 NDP for Hungary by reference to that NDP, I have also had regard to the current NDP for Hungary (March 29, 2019) in my analysis herein. 21 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Hungary (April 30, 2018), item 5.2. 22 Ibid., item 5.8. 23 Exhibit P-2, Appellant's Record, at p. 31, Legal Memorandum, at para 33. 24 Exhibit RPD-1, RPD Record, at p. 27, Exhibit 2, Basis of Claim narrative, at para 6. 25 Exhibit RPD-1, RPD Record, at p. 8, Reasons and Decision, at para 20, relying on NDP for Hungary (April 30, 2018), item 5.1. 26 Exhibit P-2, Appellant's Record, at p. 27, Legal Memorandum, at para 25. 27 NDP for Hungary (April 30, 2018), item 13.6. 28 Exhibit RPD-1, RPD Record, at p. 11, Reasons and Decision, at para 26. 29 Ibid., at p. 12, para 30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-09536 RAD.25.02 (April 04, 2019) Disponible en français 3 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