TB8-12579

RAD File / Dossier de la SAR : TB8-12579 TB8-12580 TB8-12581 TB8-12582 TB8-12583 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 18, 2019 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal Cemone Morlese Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (the principal appellant), born XXXX XXXX, 1974, XXXX XXXX (the appellant), born XXXX XXXX, 1975, XXXX XXXX (the female appellant), born XXXX XXXX XXXX 1996, XXXX XXXX, born XXXX XXXX XXXX 2003, and XXXX XXXX, born XXXX XXXX, 2005 (the minor appellants). All appellants are citizens of Hungary who seek refugee protection, pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The principal appellant was designated the representative of the minor appellants. The panel heard these claims jointly, pursuant to Rule 55 of the Refugee Protection Division Rules, and the Refugee Appeal Division (RAD) will maintain that designation. [3] The RPD found that the appellants were neither Convention Refugees nor persons in need of protection. [4] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the appellants are Convention refugees. ANALYSIS Determinative Issue [5] The determinative issue in this appeal is the availability and accessibility of state protection for these appellants. Standard of Review [6] For questions of fact, law, and mixed fact and law, I have applied the standard of correctness, as per Huruglica.1 The Issues (1) Did the panel fail to provide adequate reasons? (2) Did the panel erroneously conclude state protection is available for Roma persons in Hungary? (3) Did the panel err in the assessment of discrimination on a cumulative basis? (4) Did the panel err in the assessment of past persecution vs. future risk? (5) Did the panel err in failing to consider the positive refugee claim from family members? (6) Did the panel fail to conduct a separate section 97 analysis? (7) Should the RAD find the appellants to be Convention refugees or persons in need of protection? Arguments [7] Counsel argues that the panel erred in its conclusion that there is adequate state protection for Roma in Hungary. [8] The panel wrote 44 of its 58 paragraphs on the issue of state protection and concluded that the appellants had failed to rebut the presumption that adequate state protection exists in Hungary. [9] In the National Documentation Package (NDP) for Hungary, under the headline "1.1 Treatment by Authorities", the following is written: 1.1 Treatment by Authorities According to sources, anti-Roma prejudice is present among police officers in Hungary (NEKI et al. 2014, 14; HHC 2015, 7), and Roma are subject to ethnic profiling by the police (ibid.; CFCF et al. Sept. 2015, 8). Sources report that, according to local NGOs, Roma were disproportionately penalized by the police for petty offences, such as those relating to the use of bicycles (ibid.; US 13 Apr. 2016, 44-45), or illegal collection of firewood (ibid., 44). According to an article published by Romea, a Czech news portal covering Roma-related topics (Romea n.d.), in fall of 2015 the Roma Press Center (RPC), a Hungarian news agency that reports on Roma issues (RPC n.d.), collected accounts of approximately 50 incidents in which "disproportionately high" fines were imposed on Roma for "absurd" misdemeanors (Romea 27 Apr. 2016). Sources indicate that those who fail to pay such misdemeanor fines on time can be sentenced to prison (ibid.; CFCF et al. Sept. 2015, 8) or to community service (Romea 27 Apr. 2016). Country Reports 2015 cites information provided by Hungarian NGOs as stating that police "usually ignored" similar offences when they were committed by non-Roma (US 13 Apr. 2016, 44). In their report submitted in September 2015 to the UN Universal Periodic Review for Hungary, the Chance for Children Foundation (CFCF), the European Roma Rights Centre (ERRC), and the Legal Defense Bureau for National and Ethnic Minorities (NEKI) state that such behaviour by the police "indicates ethnic disproportionality that could not be reasonably justified and was based on ethnic profiling, a form of racial discrimination" (CFCF et al. Sept. 2015, 8). Human Rights Watch notes that in September 2015, Hungary's Equal Treatment Authority (ETA) found this practice to be "discriminatory" (Human Rights Watch 2016, 259). According to the CFCF et al., the Hungarian police refused to review the fining practices of the concerned departments (Sept. 2015, 8). A report by the Hungarian Helsinki Committee (HHC) [2] states that in August 2014, the chief of the Hungarian police rejected a proposal by six NGOs to establish a working group on ethnic profiling, claiming that "ethnic profiling is not present in the sanctioning practice of the police" (HHC 2015, 7-8). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. Sources report that in September 2015, a court in Eger ruled that the police failed to protect Roma inhabitants of the village of Gyöngyöspata from extremist groups that organized marches in the village in 2011 [3] (US 13 Apr. 2016, 7; AI 2016, 181). Sources note that the court found that the police not only failed to protect Roma during the march, but later imposed misdemeanor charges against members of the minority community (US 13 Apr. 2016, 7; HCLU Jan. 2016, 20). The Hungarian Civil Liberties Union (HCLU) [4], which filed the lawsuit, states that the ruling represents "a very important achievement, as this is the first Hungarian court ruling that deems the practice of the police against the Roma to be discriminatory, and therefore unlawful" (ibid., 21). Sources note that the verdict on the case is not final (ibid.; US 13 Apr. 2016, 7), remaining open for an appeal (ibid.). Sources further report that in October 2015, the European Court of Human Rights found that Hungary discriminated against a Roma man when the police failed to investigate a 2012 racist attack against him in Szeged (AI 2016, 181; ERRC 27 Oct. 2015). For information on police treatment of Roma prior to July 2015, see Response to Information Request HUN105197 of July 2015.2 [10] This document from the Board's own NDP is a condemnation of the Hungarian police in regard to attitudes among the force members toward Roma, in general. [11] In regard to state protection in Hungary, Amnesty International has the following to say: ... "Roma continued to be ... inadequately protected against hate crimes" (AI 2016, 179). In correspondence with the Research Directorate, the Head of the HCLU's Roma Program, which provides legal assistance to Roma victims of hate crimes, stated that based on HCLU's experience in the Heves and Borsod-Abaúj-Zemplén counties, the police response to hate crimes committed against Roma was "generally not adequate" (HCLU 18 July 2016). The same source noted that the racist motivation was only taken into account after HCLU's intervention in the cases. In consequence of ignorance of the racist motive, the cases are usually not dealt with by the county police office which would be competent to investigate hate crimes. Our clients did not get protection from police even when members of well-known right-wing paramilitary organizations were threatening and harassing them for weeks and they reported this on a daily basis to the police. (ibid.)"3 [12] In yet another document, the following is written regarding Roma and police in Hungary: Racist violence against Roma remains one of the most pressing issues in the country. Between January 2009 and September 2013 there were more than 100 cases of alleged hate-motivated violence targeting Roma and/or their property. Roma are often also subjected to hate speech. Although according to the data protection law it is illegal to record data on ethnic origin or religion, the European Commission against Racism and Intolerance (ECRI) has reported that more than 60 per cent of hate speech incidents are directed against Roma. Many cases of hate speech are committed by 'ordinary' civilians, but extremist, xenophobic groups have become very visible in recent years. Cyberhate poses a particular challenge and Hungary has still not ratified the Additional Protocol to the Convention on Cybercrime. These problems have been sustained by the continued hostility Roma face from police forces and officials, reflected in persistent discriminatory practices including ethnic profiling and fines for even the most minor infractions. This also extends to a failure to protect when Roma community members from attack: the Hungarian courts have ruled, for example, that the police directly discriminated against Roma during a major incident in Gyöngyöspata in 2011 when they neglected to protect Roma from far-right paramilitary groups who marched repeatedly through the community, intimidating and harassing its Roma residents.4 [13] Counsel argues that the NDP along with documents provided by the appellants confirms that there is no adequate state protection for Roma in Hungary. [14] I concur with counsel. Counsel also turns my attention to the following: The Advisory Committee recalls that in its previous Opinion it observed with regret that racially motivated abuse by members of the police force continued to be reported. In particular, representatives of Roma and civil society were reportedly falling victim of racist attitudes and police brutality. Regrettably such occurrences continue to plague the law enforcement agencies. ...5 And, in another document: ECRI is concerned that by not responding to intolerant discourse, the authorities are complicit in legitimizing it and aggravating intolerance towards vulnerable groups in the general population. This, together with the effective impossibility of taking any legal action against hate speech, as observed above, has led to a climate of impunity where public figures are able to air their personal views without any consequences. The result is that derogatory remarks about Roma, Jews, LGBT persons, asylum seekers and refugees have become commonplace. In ECRI's view, there is an urgent need for the Hungarian authorities to address these alarming trends. It reminds them that freedom of expression is not absolute and that they should play a key role in publicly condemning speech that incites discrimination or hostility.6 And, in another document: According to sources, anti-Roma prejudice is present among police officers in Hungary (NEKI et al. 2014, 14; HHC 2015, 7), and Roma are subject to ethnic profiling by the police (ibid.; CFCF et al. Sept. 2015, 8). Sources report that, according to local NGOs, Roma were disproportionately penalized by the police for petty offences, such as those relating to the use of bicycles (ibid.; US 13 Apr. 2016, 44-45), or illegal collection of firewood (ibid., 44). ... [...] According to a 2016 report on Hungary by Amnesty International (AI), "Roma continued to be ... inadequately protected against hate crimes" (AI 2016, 179). ...7 And, in another document: Last week the European Court ruled that the police had failed to protect Roma that day and that Hungarian authorities had failed to take sufficient action when investigating the "hateful and abusive" speeches given at the rally. The court also found that the perpetrators of the crimes "remained virtually without legal consequences", which it said could have been perceived by the public as the state's legitimization or tolerance of such abuse.8 And, in another document: The state's response to violence against Roma has been feeble. Police regularly treat hate crimes as ordinary crimes without considering the hate motive. For example, when assailants broke into the house of a Romani family in Eger in 2015, assaulting the family and shouting "Filthy Gypsy, you will die", the crime was recorded by the police as merely "illegal entry" [emphasis added]9 And, in another document: According to sources, the police in Hungary lack both the resources and awareness of the proper procedures for investigating and responding to hate crimes (AI 6 Aug. 2013; Council of Europe 16 Dec. 2014, para. 85). The Commissioner for Human Rights of the Council of Europe's report states that there is a high workload and turnover among those few who are trained in hate crime investigation, and that some public prosecutors are under pressure to "deliver results" and as such, "may prefer pressing charges in respect of basic crimes as they are easier to substantiate" (ibid.) ... The report further states that"[ d]espite these positive steps" the authorities are often criticized for not identifying and effectively responding to hate crimes, including "not investigating possible racial motivation" (ibid., para. 85).10 [15] As counsel had put it, the foregoing clearly establishes that there is a major failure of state protection for Roma in Hungary. The panel did err in its assessment of state protection. [16] State protection is a determinative issue, and it is my finding that the appellants have successfully rebutted the presumption of state protection, for Roma, in Hungary. [17] Counsel argues that the panel erred in its assessment of persecution vs. discrimination when the panel failed to consider evidence and by failing to conduct a cumulative determination of the harassing and discriminatory acts that the appellants faced. [18] For guidance in this issue, I turn my mind to the United Nations High Commissioner for Refugees Handbook (UNHCR Handbook). The UNHCR is the primary authority on refugees in the world. The Handbook speaks about persecution as follows: (b) Persecution 51. There is no universally accepted definition of "persecution", and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights - for the same reasons - would also constitute persecution.11 [19] After reading this part of the Handbook, I next must consider what constitutes "human rights". For this, I turn my mind to the Universal Declaration of Human Rights (UDHR). I will cite only those articles here which I find to be relevant. Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 27 2. Everyone has the right to equal access to public service in his country. Article 23 1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to equal pay for equal work. 3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 4. Everyone has the right to form and to join trade unions for the protection of his interests. Article 25 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Article 26 1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental states. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. 3. Parents have a prior right to choose the kind of education that shall be given to their children. [20] It is only after studying the UNHCR Handbook and the UDHR that I am able to see more clearly whether the discrimination suffered by these appellants does amount to persecution. [21] The UDHR lists a number of "rights" that all people must enjoy. These are basic human rights and include a right to education, to healthcare, to housing and to employment, all of which, to one degree or another, are being blocked to these appellants. These are basic human rights as defined by the United Nations. According to the UNHCR Handbook, cited above and quoted, if these appellants have been deprived of these basic human rights, that deprivation amounts to persecution. [22] It is my finding that these appellants have been deprived of the basic human rights as listed above and that there is more than a mere possibility that such deprivation, amounting to persecution, will continue should they return to Hungary. Summary [23] The appellants have convinced me that they have suffered discrimination amounting to persecution and that state protection does not exist for them in Hungary. Disposition [24] The RAD has found that the RPD's decision will not stand. CONCLUSION [25] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the appellants are Convention refugees. (signed) "David Lowe" David Lowe March 18, 2019 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 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Hungary (April 30, 2018), item 13.6, Immigration and Refugee Board (IRB), Response to Information Request (RIR) HUN105587.E, August 19, 2016. 3 Ibid., NDP for Hungary (April 30, 2018), item 13.6, RIR HUN105587.E. 4 Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Hungary : Roma, January 2018, available at: https://www.refworld.org/docid/49749d143c.html. 5 Council of Europe, Advisory Committee On The Framework Convention For The Protection Of National Minorities, Strasbourg, 18 September 2017, https://rm.coe.int/1680648f59 6 Exhibit RPD-1, RPD Record, NDP for Hungary (April 30, 2018), item 2.11, European Commission against Racism and Intolerance, "ECRI Report on Hungary (fifth monitoring cycle)", June 9, 2015 7 Supra, footnote 2, NDP for Hungary (April 30, 2018), item 13.6. 8 Amnesty International, available at: https://www.amnesty.org/en/latest/news/2017/01/a-drop-of-hope-in-the-sea-of-fear-tackling-hate-crimes-against-roma-in-hungary/ 9 Amnesty International, A drop of hope in the sea of fear: Tackling hate crimes against Roma in Hungary, January 25, 2017, available at: https://www.refworld.org/docid/5889f01a4.html 10 Exhibit RPD-1, RPD Record, NDP for Hungary (April 30, 2018), item 10.2, IRB, RIR 105587.E, July 17, 2015. 11 Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, reissued Geneva, December 2011. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-12579 TB8-12580 TB8-12581 TB8-12582 TB8-12583 RAD.25.02 (September 18, 2018) 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 (September 18, 2018) Disponible en français