Date: 20010927
Docket: IMM-1855-00
Neutral citation: 2001 FCT 1057
Ottawa, Ontario, this 27th day of September, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ATTILA BUJDOSO
ILONA BUJDOSO
MELINDA BUJDOSO
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O'KEEFE J.
[1] This is an application for judicial review under section 82.1 of the Immigration Act R.S.C. c. I-2 of the decision dated February 29, 2000 by a two member panel of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board"), wherein the Board determined that the applicants are not Convention refugees.
[2] The applicants seek an order quashing the decision of the Board, sending the matter back for a new hearing.
Background Facts
[3] The applicants are husband, wife and minor dependant (at the time of application) who are all citizens of Hungary. The applicants arrived in Canada from Hungary on October 13, 1998, claiming to be Convention refugees with a well founded fear of persecution in Hungary on the basis of Roma ethnicity.
[4] The applicants' claim for refugee status was heard on September 28, 1999 and the decision of the Board was dated February 29, 2000.
Issue
[5] Did the Board commit a reviewable error?
Law
[6] Subsection 2(1) of the Immigration Act, supra defines "Convention refugee" as follows:
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"Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
« réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
Analysis and Decision
[7] The applicants have submitted that the Board made various reviewable errors respecting their applications. These alleged errors include the embellishing of evidence by the applicant, Melinda Bujdoso, the imposition of too high a standard of proof in relation to the applicants' claims, particularly the applicant, Ilona Bujdoso, the imposition of too high a standard with respect to state protection and the failure to consider relevant evidence with respect to similarly situated persons.
[8] I have reviewed the testimony of the minor applicant, Melinda Bujdoso and I am of the view that there was no real basis to find that this witness was not credible. The Board found that this witness was not credible because it felt that she embellished her testimony as she gave incidents of being attacked in her oral testimony and only one incident in her PIF narrative. From a review of the remainder of her testimony, I believe that the Board made an error in finding this witness not credible.
[9] The Board in this case believed the other claimants' testimony, hence the Court need only deal with whether or not the applicants' fear of persecution is well founded. The claimants testified that they did not approach the police in Hungary as they believed that the police would not help them because they are Roma.
[10] The Board stated that it preferred the documentary evidence to that of the applicants with respect to the availability of state protection. The Board quotes from the documentary evidence with respect to the efforts of the Hungarian authorities to improve the relationship between the Romas and the police, but it made no reference to the documentary evidence relating to the poor relationships that still existed between the police and the Roma population. For example, the board referred to U.S. Department of State "Hungary Country Report on Human Rights Practices for 1998", in the decision, to establish that there were only two reported cases of skinhead attacks in 1998. However, the immediately preceding sentence in that report and the rest of the paragraph reads:
Widespread popular prejudice against Roma continues. Police commonly abuse them (see Section 1.c.). The Helsinki Committee recorded two cases of skinhead assaults during the year (one against a group of Roma, the other against an Asian student). According to press reports, a Sudanese man was attached in Budapest by four skinheads in December. The attackers were arrested and the case is under investigation. Foreigners of color reported harassment by police and at border control checkpoints. The Martin Luther King Organization (MLKO) which documents assaults on nonwhites, recorded two such incidents in 1998, a decrease in the number of assaults. However, MLKO sources believe that many cases go unreported.
Section 1.c. reads in part as follows:
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
No known incidents of torture occurred. Policy abuses continued, including harassment, use of excessive force, and beatings of suspects. Police also continued to harass and physically abuse Roma and foreign nationals. A total of 114 police officers were accused of physical abuse in 1997. The figure for the first half of 1998 was slighly higher, with 60 officers accused of abuse. Between 10 and 15 percent of these cases result in prosecution and conviction. Punishment included fines, probation, and the imposition of suspended sentences. In 1997 the Budapest central district court sentenced four police officers to 1 to 2 ½ years in prison for the exceptionally severe beating of a detainee under interrogation. The appeals court suspended the sentences, and three out of the four officers continue to serve as police officers. According to a report by the Hungarian Helsinki Committee, persons detained by police complain of abuse, but very few file official complaints because they do not expect positive results and fear that the complaint may affect their cases adversely.
. . .
The police and Interior Ministry are working to change the police's authoritarian image, and human rights organizations report that police are generally more cooperative with outside monitoring of police behavior. These efforts are hampered, however, by low salaries and a lack of physical resources. A 1997 study by the ombudsman's office, which investigates constitutional violations in the public sector, condemned police occupation but noted that it was unsurprising that it existed, given police officers' low pay and poor working conditions. The ombudsman found that working conditions in the vast majority of police officers were unsuitable.
Police frequently harass residents, charging questionable fines for erroneous traffic violations to earn petty cash. Police showed indifference towards foreigners who have been victims of street crime.
It is not necessary that the Board refer to every piece of evidence that it considered, but I am of the view that the Board should have indicated that it reviewed this aspect of the documentary evidence because it goes to the very issue as to whether or not state protection was available to the applicants in this case and whether they should have sought this protection if available. I am of the view that the Board made a reviewable error of law in failing to indicate in some way that it considered this evidence.
[11] The application for judicial review is allowed and the matter is referred to a different panel for reconsideration.
[12] Neither party wished to certify a serious question of general importance.
ORDER
[13] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel for reconsideration.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
September 27, 2001