TB7-01838

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 : TB7-01838 TB7-01839 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 7, 2017 Date de la décision Panel S.S. KULAR Tribunal Counsel for the person(s) who is(are)the subject of the appeal John W Grice Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the principal Appellant) and his wife XXXX XXXX (the female Appellant), both citizens of Hungary, are appealing a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. [2] The Appellants ask the Refugee Appeal Division (RAD) to set aside the decision of the RPD and determine the Appellants to be Convention refugees or persons in need of protection. In the alternative, the Appellants ask the RAD to send the matter back to the RPD for redetermination by a differently constituted panel. [3] The Appellants are not relying on new evidence pursuant to section 110(4) of the Immigration and Refugee Protection Act (IRPA or Act).1 The Appellants are not requesting an oral hearing, pursuant to section 110(6) of the IRPA. [4] The Minister is not intervening in the appeal. DETERMINATION [5] Pursuant to subsection 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for redetermination by a differently constituted panel. The appeal is allowed. BACKGROUND/ALLEGATIONS [6] The Appellants are Roma by ethnicity. The Appellants alleged that they suffered a number of incidents of discrimination in Hungary. The Appellants alleged that what they suffered in Hungary amounted to persecution. They alleged that the police do not help Roma, and as such they have no state protection upon return to Hungary. [7] Both Appellants rely on a single Basis of Claim (BoC) form narrative2 which sets out the details regarding their alleged situation upon return to Hungary. Both Appellants testified at the RPD and provided additional details in support of their claims. [8] The Appellants' claims were heard on November 29, 2016. In a decision of January 4, 2017, the RPD rejected their claims. [9] The RPD found that the Appellants have not faced discrimination amounting to persecution in Hungary and would not face persecution if they were to return to Hungary. [10] The Appellants submit that the RPD erred by not assessing if the discrimination that the Appellants suffered cumulatively amounted to persecution. The Appellants submit that the RPD did not consider the documentary evidence which establishes widespread discrimination against Roma in Hungary amounting to persecution on cumulative grounds. Role of the RAD [11] The Canadian jurisprudence provides 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. On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica3 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, in the context of the legislation. "Wrong" means "not true", "incorrect" or "mistaken", all of which "definitively points to the standard of correctness."4 [12] 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.5 [13] 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."6 [14] 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.7 [15] 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, that the matter will be referred back to the RPD for redetermination. [16] 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. [17] 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, and the Appellant's submissions. MERITS OF THE APPEAL [18] The RPD found that the Appellants have not faced discrimination amounting to persecution in Hungary. The RPD considered the Appellants' experiences in Hungary relating to education, housing, employment, and medical services. The RPD referred to the Appellants' allegations relating to anti-Roma political rhetoric in Hungary, the Appellants' fear of Guardists, and the general discrimination that these Appellants faced in public places. [19] Relating to education, the RPD wrote: [10] The claimants both allege discrimination in education. The male claimant completed secondary school and was trained as a mason, He experienced bulling in school and was ignored by teachers. He was also suspected of theft due to his ethnicity. The panel finds the male claimant experienced discrimination is [sic] school. However, he was not denied a basic education and in fact completed secondary school. [11] The female claimant alleges bullying in school. Though unfortunate, the panel finds that the actions of children are not discriminatory. The female claimant completed grade 8 however was unable to advance in her education due to low test scores. The female claimant had access to basic education. There is no evidence before me that the female claimant was denied advancement due to ethnicity and not ability. The panel finds that the female claimant did not experience discrimination in education.8 [20] Regarding housing, the RPD wrote: [12] The claimants lived in XXXX, Hungary. The claimants state that they rent their house from the city, it is one and a half rooms, no running water and an outside toilet. The panel finds the claimants were not denied housing due to their ethnicity.9 [21] Regarding employment, the RPD wrote: [13] The male claimant testified that he tried to find work in XXXX as a landscaper and was unable to find work. The panel asked him why and he stated because people did not have money to hire landscapers. The claimant testified that he worked as a landscaper in municipal parks as a form of payment for rent. The panel does not find that male claimant's lack of employment is discriminatory nor is the requirement to work for accommodation. [14] The female claimant alleges she was unable to find a job in Hungary. After completing her education, the female claimant stayed home and cared for her brothers. Recently she attempted to find work as a cleaner. The panel finds there is insufficient evidence to conclude that the female claimant's lack of employment is related to her ethnicity.10 [22] Regarding medical services, the RPD wrote: [15] The female claimant alleges that because she is pregnant she is at risk of a lack of medical care. Though the documents before the panel indicate that pregnant Roma women are segregated in the healthcare system, the panel finds this practice is discriminatory and not persecutory. [16] In their BOC narrative, the claimants allege that [sic] had to wait up to an hour to see a doctor and that non-Romas were seen before them. Though the claimants go on to say that this could be related to the ability to pay and not ethnicity. The panel finds a one hour wait to see a doctor and preferential access to healthcare based on ability to pay is not discriminatory.11 [23] The RPD wrote that treatment of Roma by racist groups although troubling is not discrimination. [24] The RPD concluded: [21] The panel finds that the discrimination experienced by these claimants does not threaten their fundamental rights but rather affects the quality of their existence in Hungary. The panel finds that in this case, the claimants experienced discrimination regarding education, some possible future discrimination in healthcare and at some private establishments which does not reach the level of persecution. The panel finds that the claimants did not adduce evidence that their fundamental human rights were violated or would be violated in the future.12 [25] Based on the evidence submitted/adduced in this case, the RAD finds that there were no credibility issues with the Appellants' allegations of mistreatment that they incurred and that they fear upon return to Hungary due to their Roma ethnicity. [26] In its own independent assessment of the totality of the evidence submitted/adduced in this case, the RAD finds the RPD's "Reasons for Decision" to be problematic. [27] The RAD finds that the RPD did not engage in a fulsome analysis of the Appellants' situation and circumstances as Roma in Hungary. The Appellants alleged to have suffered discrimination in all areas of their lives. They also feared continued discrimination in all areas of their lives upon return to Hungary. The RAD finds that the RPD only considered the discrimination that these Appellants experienced in the past. The RPD did not assess their allegations of ongoing discrimination; moreover, the RPD did not assess the discrimination and the physical abuse and violence these Appellants feared on a cumulative basis. Further, the RPD did not consider these Appellants' alleged fear of persecution in the context of discrimination that Roma as a group incur in Hungary. The Appellants submitted numerous documents at the RPD showing the situation of Roma in Hungary.13 The RPD makes no reference to any of those documents. Moreover, the Appellants submitted narratives at the RPD of their immediate family members who have been accepted as Convention refugees in Canada; the RPD dismissed those documents stating that the attached "narratives were unsigned."14 [28] The RPD found that the Appellants did not adduce evidence to establish that their fundamental rights were violated or would be violated in the future. The RAD is unclear as to what the RPD meant to communicate in this respect. The RAD finds that the RPD's reasons are not transparent. The RPD does not clarify how and why persistent widespread institutional discrimination against Roma in Hungary, spanning across education, housing, employment, and medical services, does not infringe upon any basic human fundamental rights. The RAD finds that the RPD erred as the RPD's analysis is inadequate in this respect. [29] The Appellants' counsel had submitted at the RPD detailed written submissions;15 the submissions included references to the Appellants' country documents16 and the National Documentation Package,17 and cited relevant jurisprudence in support of the Appellants' allegations of persecution upon return to Hungary due to their Roma ethnicity. The RAD finds that the RPD does not appear to have paid any consideration to any of the above in making its determination of these Appellants' claims for refugee protection. [30] In summary, in consideration of the totality of evidence available at the RAD and the Appellant's particular personal situation and circumstances, the RAD cannot not concur with the RPD for the following reasons. [31] The RPD erred by basing its findings relating to persecution solely on the basis of discrimination that these Appellants incurred in the past in Hungary. The RAD is aware that past persecution can be a relevant consideration; however, the Case law establishes that claimants do not have to establish that they have been persecuted in the past.18 [32] The RPD did not consider the discrimination, the physical abuse and violence that these Appellants incurred and that they fear upon return to Hungary on a cumulative basis. [33] The RPD did not consider the Appellants' situation and circumstances as Roma in the context of the country conditions in Hungary today. [34] Moreover, the RAD finds that the RPD did not assess the relevance and probative value of the situation and circumstances of their immediate family members who had been accepted as Convention refugees in Canada. In this respect, the RAD is aware that the RPD panel is not bound by the decisions of others; regardless, it is incumbent on the RPD to assess the Appellants' claims in the context of similarly-situated persons. [35] Based on the totality of the evidence submitted/adduced in this case, the RAD finds that Roma in Hungary are discriminated in all aspects of their lives, and are subjected to physical abuse and violence at the hands of racist Hungarians. In such circumstances, if these Appellants as Roma have no recourse to obtain state protection against the alleged physical abuse and violence, and no recourse to seek remedies against the alleged discrimination, they are deemed to have established their claims for refugee protection. [36] The RAD finds that the RPD did not engage in any analysis of the availability of state protection, or the availability of recourse to seek remedies against discrimination for Roma, particularly for these Appellants in their particular situation and circumstances. The RPD wrote: "Since the panel has found that the experiences of the claimants do not amount to persecution, state protection is moot."19 The RAD disagrees. The RAD finds that it was incumbent on the RPD to consider whether these Appellants would receive adequate state protection if they were to need it for their alleged fear of physical abuse and violence at the hands of racist Hungarians. Regarding discrimination versus persecution, it was also incumbent on the RPD to assess whether the persecution feared by these Appellants would be mitigated to the level of discrimination because these Appellants as Roma have recourse to seek operational remedies against discrimination. [37] Based on the above analysis, the RAD cannot confirm the RPD's conclusion that the Appellants have not established a serious possibility of persecution on a Convention ground, or, on a balance of probabilities, that they would be personally subjected to a risk to life or a risk of cruel and unusual treatment or punishment, or a danger of torture, upon return to Hungary. [38] The Appellants ask the RAD to set aside the decision of the RPD and determine the Appellants to be Convention refugees or persons in need of protection. In the alternative, the Appellants ask the RAD to send the matter back to the RPD for redetermination by a differently constituted panel. DISPOSITION AND REMEDY [39] Section 111(1) of the IRPA allows the RAD to: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter back to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.20 [40] The RAD cannot confirm the RPD's determination, and cannot substitute its own decision to that of the RPD. The RAD cannot make the determination regarding the Appellants' claims for refugee protection on the merits without rehearing the Appellants' entire evidence which the RAD cannot do under the circumstances of this case. [41] The RAD refers the matter back to the RPD for redetermination by a differently constituted panel. The appeal is allowed. Disposition [42] Pursuant to subsection 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for redetermination by a differently constituted panel. [43] Accordingly, this appeal is allowed. (signed) "S.S. KULAR" S.S. KULAR June 7, 2017 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit RPD-1, RPD's Record, exhibit 2. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Huruglica, supra, footnote 3, at para. 64. 5 Huruglica, supra, footnote 3, at para. 103. 6 Huruglica, supra, footnote 3, at para. 69. 7 Huruglica, supra, footnote 3, at para. 70. 8 Exhibit P-2, Appellant's Record, at pp. 4-5, paras. 10-11. 9 Exhibit P-2, Appellant's Record, at p. 5, para. 12. 10 Exhibit P-2, Appellant's Record, at p. 5, paras. 13-14. 11 Exhibit P-2, Appellant's Record, at p. 5, paras. 15-16. 12 Exhibit P-2, Appellant's Record, at p. 6, para. 21. 13 Exhibit RPD-1, RPD's Record, exhibits 5, 6, and 7. 14 Exhibit P-2, Appellant's Record, at p. 4, para. 8. 15 Exhibit RPD-1, RPD's Record, exhibit 8. 16 Exhibit RPD-1, RPD's Record, exhibits 5, 6, and 7. 17 Exhibit RPD-1, RPD's Record, exhibit 4. 18 Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.), at 258. 19 Exhibit P-2, Appellant's Record, at p. 6, para. 22. 20 Section 111(1), Immigration and Refugee Protection Act (S.C. 2001, c. 27). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-01838 TB7-01839