TB8-05051

RAD File / Dossier de la SAR : TB8-05051 TB8-05052 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision May 15, 2019 Date de la décision Panel David Lowe Tribunal Counsel for the persons who are the subject of the appeal John Gravel Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the Principal Appellant) and XXXX XXXX XXXX (the Female Appellant), citizens of Hungary, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have not submitted new evidence in support of this appeal. The Appellants are not requesting an oral hearing. The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The Appellants identified as ethnic Roma citizens of Hungary who have faced discrimination at nearly every step of their lives, such discrimination rising to the level of persecution. For complete details, see the Basis of Claim (BOC) forms.1 RPD's Reasons [3] In its reasons, the RPD found the Appellants' desire to live in Canada was not motivated by fear but by a wish to seek a better life for themselves and, while the Panel sympathized with that motive, the Panel found that the motive was not a ground for refugee protection. The Appellants' motives to live in Canada must be dealt with under immigration law and not refugee law. For greater details, please see the Reasons and Decision2 of the RPD. [4] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellants are Convention refugees. Appellant's Issues [5] The Appellants raise three issues at the RAD: (a) The RPD Member incorrectly assessed the Appellants' credibility, specifically as it relates to subjective fear and internal flight alternative (IFA); (b) The RPD Member incorrectly assessed state protection; and (c) The Appellants should be found to be Convention refugee or persons in need of protection. ANALYSIS Determinative Issue [6] The determinative issues in this appeal are the Appellants' credibility and state protection. Standard of Review [7] For questions of fact, law, and mixed fact and law, I have applied the standard of correctness, as per Huruglica.3 ARGUMENTS Credibility [8] Counsel argues that the Panel erred in assessing the Appellants' credibility. Counsel argues that the Panel came to its conclusions bases on the Panel's beliefs that the Appellants have simply not been trying hard enough to find work. Counsel argues that the Panel's findings concerning credibility as well as forward-looking risk and IFAs all contain this underlying assumption.4 [9] Counsel argues that the Panel's assumption that the Appellants did not try hard enough to find the employment they wanted, flies in the face of what is known about the widespread and serious human rights violation that Roma face in Hungary which is demonstrated by the objective evidence. [10] Counsel argues that the Panel's credibility finding and conclusions are internally inconsistent. Counsel argues that, within the decision, the Panel's negative inference on credibility can be categorized as related to: (1) efforts to find employment; and (2) alleged discrepancies between the assaults that the Appellants suffered reported in the BOCs and at the hearing, when compared to the notes taken at the port of entry (POE). [11] Counsel argues that the Panel drew a negative inference when assuming that there was "nothing in evidence that would indicate to the Panel that this claimant made any serious efforts to obtain more satisfying and lucrative employment in a city other than XXXX".5 [12] Counsel argues that the Panel's assumption is misguided and presumes that the Appellants could "pull themselves up by their own bootstraps", which is a presumption that does not consider the systemic poverty, discrimination and racism which Roma face in Hungary. [13] Counsel argues that the Member accepted: (a) The Appellants had the minimum grade XXXX education, with some casual work experience in XXXX and XXXX; (b) The Appellants were Roma residing in XXXX, Hungary; (c) The Appellants had worked in the XXXX work-for-welfare program; and (d) The Principal Appellant had had trouble finding work, even as a XXXX. [14] Counsel argues that the Panel notes in several places in her decision the reality of social exclusion facing Roma and which the Appellants themselves faced. Unfortunately, the Panel never makes the connection between the serious systemic discrimination they face, due to their Roma ethnicity, with their alleged lack of effort and difficulties in finding employment. [15] Counsel argues that the Panel's syllogism is fatally flawed, as the Panel drew a negative inference based on the belief that the Principal Appellant had not tried hard enough to find work. [16] However, Counsel argues, throughout the decision, the Panel notes the social exclusion, the segregation and social difficulties and human rights problems (including discrimination in employment) faced by the Appellants. While on the other hand, the Panel concludes that the Appellants were responsible for their own problems in finding work over the years. Counsel argues that this is internally inconsistent. [17] Counsel also argues that the objective evidence contradicts the Panel's finding. The Panel had accepted that the Principal Appellant had participated in the XXXX program which targets the poorest of the poor to provide them with new skills, while allowing them to continue collecting social assistance. Accessing this program takes effort on the part of the worker (the Principal Appellant). That efforts indicates a commitment by the Principal Appellant to improve his employment possibilities and therefore contradicts the Panel's conclusion that the Appellants did not try hard enough to better their employment situation. [18] Counsel argues that, even if the Member's assumption about complacency is well-founded-an odious approach, indeed-in paragraph 23 of the Reasons, the Member even addresses that "anti-immigrant and anti-welfare prejudice is prevalent across Central and Eastern Europe". The Member also quotes studies demonstrating Hungarians' prejudicial attitudes towards Roma, where Hungarians have stated that "the Roma population's problems would end 'when they started working"'. The conclusions contradict the basis for the findings. [19] Having independently analyzed this issue, I must concur with Counsel that the Panel's findings in this matter are internally inconsistent. It is an error for the Panel, on the one hand, to recognize the systemic discrimination and human rights violations perpetrated against Roma, in general, and these Appellants, in particular, and then to assess blame the Appellants for not trying hard enough to find suitable employment. As Counsel has argued, the employment findings are a central element to the claim and should be over-turned. I concur. Internal Flight Alternative (IFA) [20] Counsel argues that the Panel erred in finding that the Appellants should have relocated to Budapest before coming to Canada, in order to find suitable work.6 This is essentially designating an IFA for the Appellants. [21] The Panel has cited Rasaratnarn7 and Thirunavukkarasu8 in regard to the two-pronged test to identify a suitable IFA. The Appellants testified that they would not be safe in Budapest, as the situation for Roma is the same all over Hungary. The Panel found that Budapest is a viable IFA, as there was nothing to indicate that the Appellants could not find adequate employment in Budapest with better income and more adequate housing. The Panel reasoned that, in a city with a population in excess of 3 million in the metropolitan area, the Appellants should be able to find employment in XXXX for the Principal Appellant and, as the Female Appellant had indicated at the hearing that she has experience in the XXXX XXXX sector and would like to manage a XXXX, she should be able to find work at a XXXX in Budapest. [22] Counsel argues that the Panel has erred in her assessment of the IFA. In the first place, the Panel's conclusion on Budapest is based nearly completely on a subjective basis; whereas, the case law clearly states that the second prong of the IFA test is an objective assessment. Counsel argues that the Panel failed to assess the IFA in light of objective evidence. In support of Counsel's contention, Counsel states that, where there is overwhelming evidence and some of the Panel's own findings demonstrate that the problems faced by Roma are systemic, there is no evidentiary basis for the finding of the Panel that the Appellants would have a better go of it in Budapest. [23] Further, Counsel argues the Panel's finding that the Appellants could find employment in XXXX and XXXX XXXX in Budapest is unsupported due to the Panel's failure to cite evidence to that effect. The Panel's failure to explain the finding, citing evidence in support of the finding, renders that finding as speculative. [24] Counsel argues that the objective evidence includes the United States, Department of State Report that states: Roma remained the largest ethnic minority. According to the 2011 census, approximately 315,000 persons (3 percent of the population) identified themselves as Roma. Unofficial estimates varied widely and suggested the actual figure was between 500,000 and 800,000 persons. Human rights NGOs continued to report that Roma suffered social exclusion and discrimination in almost all fields of life, particularly in employment, education, housing, prisons, and access to public places, such as restaurants and bars.9 [Counsel's Emphasis] [25] Counsel argues that, while the Member's IFA finding noted that Budapest is statistically a large city, therefore the Appellants could go and work there; it is submitted that this is largely irrelevant. The Member ignores the objective evidence put before her that, overall, unemployment among Roma reaches 80% in some case, and for Roma women, the number is 90%. [26] Lastly, Counsel argues that the Panel incorrectly determined Budapest was a viable IFA because she failed to consider the Appellants' difficulties in multiple areas other than serious discrimination in employment. The Member ignored their Budapest IFA in view of accessing housing-a key element in securing stable full-time employment as well as the prospective fear the Appellant held about harassing incidents and anti-Roma hate speech and violence. [27] Moreover, the Member's IFA ignored objective evidence demonstrating that, in terms of non-employment persecution, Roma do not have it any better in any part of Hungary, given that it is widespread and systemic. [28] Therefore, it becomes clear that the negative inference about the Appellants' personal efforts is unfounded. In part, Hungarian society at large is the persecutor, as they view the Appellants as Roma. It is due to their ethnicity that they face severe discrimination in employment, housing, violence, health, and other important areas of their lives. [29] I concur with Counsel regarding the objective evidence in support of the Appellants' contention that Budapest is not a viable IFA and fails the second prong of the IFA test. [30] The Panel's Reasons support the Appellants. In paragraphs 22-24 of the Reasons and Decision, the Panel cites evidence of the systemic abuse of the Roma in Hungary, yet comes to the conclusion that such discrimination and violation of basic human rights makes life for Roma in Hungary "less than perfect", "simply being a Roma does not by definition make the claimant a refugee." [31] Simply being a Roma may, in fact, not by definition make the claimant a refugee; however, being a Roma in Hungary, where, as the Panel writes in her Reasons and Decision: The panel refers to the documentary evidence which supports the contention that members of the Roma community are subject to discrimination and/or other human rights violations. The section states that Human Rights NGO's have consistently reported that the Roma in Hungary are discriminated against in almost all fields of life, particularly in education, health care, housing, employment and access to public places and public life. According to the data from the Hungarian Government, 70% to 80% of Roma live below the poverty line. Poverty is a major factor that affects educational outcomes for Romani children. As a result of geographical isolation in poor rural communities and settlements, many Roma live far from good schools and cannot afford public transportation, books or other educational expenses. Poverty, limited education and isolation in Ghetto type settlements are also linked to factors that perpetuate segregation and discrimination and contribute to unequal health care and other services.10 [32] As neither the United Nations High Commissioner for Refugees (UNHCR) nor Canada have fully or clearly defined persecution, I turn my mind to the Cambridge English Dictionary, which defines persecution as "unfair or cruel treatment over a long period of time because of race, religion, or political beliefs." Of course, I am aware that there are actually five grounds of persecution as far as refugee law is concerned; however, in this particular case, this definition suffices as the reason for the persecution is that of race. [33] The Immigration and Refugee Board (IRB) cites Chan11 in which it was re-iterated that "the essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way." Mr. Justice La Forest also said: These basic human rights are not to be considered from the subjective perspective of one country ... By very definition, such rights transcend subjective and parochial perspectives and extend beyond national boundaries. This does not mean, however, that recourse to the municipal law [i.e. domestic or internal law] of the admitting nation may not be made. For such municipal law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights. ...12 [34] In my determination of what constitutes "basic human rights", I turn my mind to the international instruments, which may define those rights. In this case, I am mindful of the Universal Declaration of Human Rights, as follows: Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. 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 the Declaration and against any incitement to such discrimination. Article 21.2 Everyone has the right of 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 favorable 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 favorable 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 stages. 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. [35] When I consider the Universal Declaration of Human Rights, I find that the Appellants have been deprived over the many years of the rights as expressed in subsections 21, 23, 25 and 26. [36] As the Panel has failed to adduce evidence in support of her contention that the Appellants would be able to obtain the work necessary to support them, in Budapest, and the Panel has, in fact, adduced evidence which supports the Appellants contention that they are being persecuted by the deprivation of basic human rights, which are both serious and long term, I find that the viability of the IFA (in Budapest) has not been confirmed by the evidence. As such, I must concur with Counsel that a viable IFA does not exist in Hungary for these Appellants. Summary [37] As I have found that the Panel erred in the first part by being internally inconsistent, thereby negating her findings and that the Panel erred in her assessment of the IFA, it is further my finding that there is more than a mere chance that, upon return to Hungary, these Appellants would face a risk of persecution. Disposition [38] The RAD has found that the RPD's decision will not stand. CONCLUSION [39] 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 May 15, 2019 Date 1 Exhibit RPD-1, RPD Record, at pp. 12-37. 2 Exhibit RPD-1, RPD Record, at pp. 3-11, RPD's Reasons and Decision. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Exhibit RPD-1, RPD Record, at pp. 5-8, Reasons and Decision, at para. 6, and following and para 17. 5 Exhibit RPD-1, RPD Record, at p. 5, RPD's Reasons and Decision, at para. 6. 6 Exhibit RPD-1, RPD Record, at pp. 8-9, Reasons and Decision, at paras. 14-20. 7 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1 F.C. 706 (C.A.). 8 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993; [1994] 1 F.C. 589 (C.A.). 9 Exhibit RPD-1, RPD Record, National Documentation Package for Hungary (August 31, 2017), item 2.1, United States, Department of State, "Hungary: Country Reports on Human Rights Practices for 2016", at p. 52, at para. 3. 10 Exhibit RPD-1, RPD Record, at p. 10, RPD's Reasons and Decision, at para. 22. 11 Chan, Kwong Hung v. M.E.I., [1995] 3 S.C.R. 593, La Forest, L'Heureux-Dubé, Sopinka, Gonthier (dissenting), Cory, Iacobucci and Major, October 19, 1995, at para. 70. 12 Ibid., Chan, Kwong Hung v. M.E.I., [1995] 3 S.C.R. 593, at para. 71. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-05051 TB8-05052 RAD.25.02 (April 04, 2019) Disponible en français 11 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