MB6-06245

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 : MB6-06245 MB6-06246 MB6-06247 MB6-06248 Private Proceeding/Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision April 27, 2018 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the Appellant(s) Me Émilie Le-Huy Conseil(s) du (de la/des)Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre Revised by I. Bourgeau on April 23, 2018 REASONS AND DECISION INTRODUCTION [1] This is an appeal filed by XXXX XXXX XXXX, XXXX XXXX and minor children XXXX XXXX XXXX and XXXX XXXX, citizens of Hungary, relating to a Refugee Protection Division (RPD) decision made on September 22, 2016, which rejected their refugee protection claim. [2] The appellants are asking the Refugee Appeal Division (RAD) to reverse the determination, and they submit that the RPD made an error in concluding that the refugee protection claimants were not credible. They are also asking that the decision be set aside and their file referred to the RPD for redetermination. [3] The appellants are not presenting any new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), nor are they requesting a hearing before the RAD, as outlined in subsection 110(6) of the same Act. [4] The Minister's representative did not intervene on appeal. DETERMINATION [5] Under subsection 111(1) of the IRPA, the RAD confirms the impugned decision, namely, that XXXX XXXX XXXX, XXXX XXXX and the children XXXX XXXX XXXX and XXXX XXXX are not "Convention refugees" or "persons in need of protection" under sections 96 and 97 of the IRPA. [6] The appeal is dismissed. ALLEGED FACTS [7] According to the written account filed in the Basis of Claim Form (BOC Form), the appellants indicate that XXXX XXXX XXXX is in a common-law relationship with a Romani partner. Ms. XXXX former spouse learned that she was living with XXXX XXXX, who is Romanichal. Their lives have not been peaceful since then, and they are being harassed. Mr. XXXX received threats that he was to leave the marital home. [8] Several times, during the night, they were awoken by noise and bottles being thrown at their residence, which shattered several tiles in one instance. These incidents were perpetrated by Ms. XXXX former spouse and his cronies. The appellants called in one complaint to the police, and patrols were deployed in their neighbourhood. [9] They left Hungary on XXXX XXXX, 2016, and indicated their intention to claim protection in Canada two days later. IMPUGNED DECISION [10] The RPD rejected their refugee protection claims after having concluded that they were not "Convention refugees" or "persons in need of protection" because they are not credible. In addition, it looked at the aspect of persecution or harassment, namely, ethnic background and membership in the family group, and addressed the possibility of state protection. The RPD concluded that the appellants did not rebut the presumption of state protection. APPELLANTS' ARGUMENT [11] The appellants claim that the decision should be set aside and their appeal allowed. They also claim that the RPD based its decision on inaccurate findings of fact and did not consider all of the evidence provided. SCOPE OF THE APPEAL [12] For questions of fact, law, and mixed fact and law, the RAD has applied the standard of correctness as per Huruglica.1 In assessing issues involving credibility of oral testimony, the RAD may apply the standard of reasonableness, modified for the RAD's context, in those situations where the RPD enjoys a meaningful advantage in making credibility findings, as per the decision in X (Re).2 [13] I proceeded with an independent analysis of the evidence on the record so that I could form my own opinion on this refugee protection claim and to decide whether the RPD's decision is correct. ANALYSIS [14] Having reviewed the evidence on the record, both testimonial and documentary, the RAD comes to the same conclusion as that of the RPD, namely that the appellants experienced discrimination from Ms. XXXX former spouse and they are not credible. Even if they were credible, the RAD is of the opinion that this is a case of harassment or incidents that do not constitute persecution. It should also note that state protection was a possibility and the appellants did not make every effort to claim police protection. [15] The appellants state that the RPD member made an error in his findings of fact, which they claim were capricious and perverse. [16] The principal appellant stated that she has been threatened by her former spouse since XXXX 2015. During his visits, he insulted, harassed and threatened them in many ways. When asked to specify the threats, the appellant answered that when he telephoned for news about the child, it turned into insults and swearing. This situation was repeated during visits to the couple's home. The appellant's former spouse reportedly travelled from the capital city to Baja, which is 170 kilometres away, to insult and threaten the family on four occasions. [17] The appellants called the police only once to report the situation, in XXXX 2016. The police promptly increased their patrols in the appellant's neighbourhood. [18] The appellants' memorandum states that harassment and psychological abuse are associated with persecution. The RPD concluded in paragraph 29 of its decision that there was no evidence of persecution or of risk under sections 96 and 97 of the IRPA. The RAD does not share the RPD's opinion on this topic. When the psychological abuse, harassment, and more is inflicted on a person living in a common-law relationship, it falls under the definition of the social group of family pursuant to section 96 of the IRPA. [19] On the night of XXXX XXXX, 2016, the former spouse reportedly came to their residence accompanied by others, and they yelled, played loud music from their car, and threw beer bottles, which broke some windows in the house. This is the key event of the four described by the appellants on the record. However, it is a paradox because the appellants did not call in a complaint against the former spouse or the others who caused damage to their property. [20] When asked about their reaction to the incident, they stated that they did not call the police. Their testimony on this matter is effectively as follows: [translation] "since I already called after the second incident and I would only get the same response, there's no point." Contrary to their interpretation, the family received police help after the first call. Since this incident is much more serious and could have caused injury to the residents, including their own child, the RAD cannot explain this behaviour. I therefore find that the appellants are not credible relating to the most serious incident described in their written account. They were helped by the authorities after their call. The event on XXXX XXXX should have been reported as was the previous one, especially considering the seriousness of the act committed. [21] The RAD does not understand and did not receive adequate explanations, and the appellants' behaviour is inconsistent with that of individuals who fear for their lives. I find that the appellants are not credible in this regard. In addition, given that the appellants reported an incident and received police patrols in their neighbourhood, I am of the opinion that the local authorities follow up with the reports they receive. What remains unexplained is why the appellants did not report the incident on XXXX XXXX. [22] In the case under review, I note no action on the part of the principal appellant, except for the single call to the police to obtain protection. The appellant's explanations for not requesting further police protection are insufficient. The same can be said of the male claimant, Mr. XXXX, who confirmed that he did not file a complaint against the former spouse. As explanation, he stated that [translation] "things will improve and they will leave us alone." He added that the family decided to leave the country instead of making a complaint. These explanations are not satisfactory to the RAD because I am of the opinion that individuals should ask for protection in their own country and exhaust all available options before requesting protection abroad. The couple had already been given protection in their neighbourhood, which is a positive step. It stands to reason that the Hungarian state is able to protect its citizens. [23] The RAD can only arrive at the same conclusion as the RPD, namely that the appellants are not credible in their subjective fear and that they did not make use of the means given to them to obtain protection from the appellant's former spouse. [24] Despite the fact that it is not contested by the male appellant, the RAD agrees that what he alleged before the RPD as a fear of general discrimination in Hungary because he is Romani constitutes discrimination as opposed to prosecution. The RAD concludes that the RPD did not err on this point. [25] For the reasons stated in this decision, the RAD is of the opinion that the RPD rendered the correct decision. REMEDY [26] For these reasons, the RAD confirms the RPD's determination, namely that XXXX XXXX XXXX, XXXX XXXX and the children XXXX XXXX XXXX and XXXX XXXX are not "Convention refugees" or "persons in need of protection" under sections 96 and 97 of the IRPA. [27] The appeal is dismissed. Michel Jobin Me Michel Jobin April 27, 2018 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93. 2 X(Re), 2017 CanLII 33034 (CA IRB). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB6-06245 MB6-06246, MB6-06247, MB6-06248 7