2023 RLLR 79
Citation: 2023 RLLR 79
Tribunal: Refugee Protection Division
Date of Decision: December 19, 2023
Panel: Michael Fleming
Counsel for the Claimant(s): Peter R. Neill
Country: Hungary
RPD Number: TC3-14970
Associated RPD Number(s): TC3-14972
ATIP Number: A-2023-01721
ATIP Pages: N/A
REASONS FOR DECISION
[1] This is the decision in the refugee claim of XXXX XXXX, (the principal claimant), who claims to be a citizen of Hungary and is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“IRPA”).
[2] This is a joint claim under Rule 55(1) which includes the following claimants: XXXX XXXX, (the associate claimant) who is the intimate partner of the principal claimant, and who claims to be a citizen of Hungary and is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“IRPA”).
ALLEGATIONS
[3] The claimants’ allegations are fully set out in their Basis of Claim form and in their testimony. The claimants each allege that they are a citizen of Hungary and each fears persecution at the hands of nationalist Hungarians and the state due to each of the claimants being of the Roma ethnicity.
DETERMINATION
[4] Having considered the totality of the evidence, the panel finds each of the claimants to be a Convention refugee on that grounds that each faces a serious possibility of persecution based on the Convention ground of race; that being the claimants are of the Roma ethnicity.
ANALYSIS
Identity
[5] On a balance of probabilities, the panel finds each of the claimants has established their personal identity and is a national of Hungary, based on the specific passport in their name included in Exhibit 1[1].
Nexus
[6] The panel finds that there is a nexus between what the claimants fear and one of the five Convention grounds, namely race; that being the claimants are of the Roma ethnicity. The claim is therefore assessed under s. 96.
Credibility
[7] The panel is mindful that there is a presumption of truthfulness; when a claimant swears to the truth of their allegations, the allegations are presumed to be true unless there is reason to doubt their truthfulness.
[8] The panel finds no reason to rebut the presumption of truthfulness. Each of the claimants testified in a straight-forward manner. Each answered promptly and without undue hesitation. Their testimony was consistent with the information in their Basis of Claim. They provided a set of documents that corroborated their claim and explained the relevance of each document as the documents were referenced. There were no significant discrepancies, omissions or inconsistencies in their evidence.
The Circumstances supporting the Serious Possibility of Persecution,
[9] The panel finds the claimants have each established on a balance of probabilities that they are of the Roma ethnicity based on the following evidence.
[10] The claimants each testified they are of the Roma ethnicity. When the principal claimant was asked how anyone would know he was Roma, he testified that he had a name that would be known to Hungarians as a Roma name, that he had Roma features “the way I look and the color of my skin”. The associate claimant testified to similar facts when asked the same questions. The claimants each submitted a letter from a ROMA NGO which confirmed their identification as being of “Roma/Gypsy origin”. The letters were issued on the letterhead of the Roma National Self-Government of Miskolic. The letters were stamped and signed by an identifiable person. The claimants each testified that they went to the government office and requested the letters and that the letters were issued because they (the claimants) were known to the issuing authority.
[11] The panel refers to and relies on the NDP for Hungry[2] which includes a report[3] that identifies the “Roma Minority Self-Government Miskolic” as an agency that “supports the Roma population in Miskolc, for example, by filling out forms and giving advice, and provides assistance, including with administrative procedures and with job-searching”. The panel having confirmed that the agency exists and for the purpose that it has been referred to (the issuance of documents) and having no reason to doubt the authenticity of the submitted letters gives them full weight in assessing the credibility of the claimants’ testimony that they are each of the Roma ethnicity. The panel having found the claimants to be credible and reliable finds that their evidence establishes that on a balance of probabilities they are of the Roma ethnicity.
A Finding that Subjective Fear is established – Principal Claimant
[12] The panel finds the claimants have each established a subjective fear of persecution due to their being of the Roma ethnicity based on the following evidence.
[13] The principal claimant testified of being identifiable as a member of the Roma ethnicity as early as public school and being treated differently in school because of that distinction. He testified that he was segregated while in school in that he (and the other Roma students) was seated separately from the non-Roma students, he associated only with the other Roma students, and he testified to being bullied by the non-Roma students.
[14] The principal claimant testified he believes he was denied employment based on his Roma ethnicity. He wrote in his narrative that he was unable to get full-time work and when asked in the hearing he testified he approached many companies looking for employment, but he believes that as soon as he was recognized as being of the Roma ethnicity the employers would no longer be interested in hiring him. He was asked if he considered moving to another location in his country to find employment to which he responded that he believed the response would be the same where-ever he lived in Hungary.
[15] The principal claimant testified he was assaulted twice, (once in 2018 and once in 2022) by men in black clothes, a style of dress that in his experience he associates with nationalist youth who hold anti-Roma views. In the 2018 episode he was on a streetcar when he was approached by 5 or 6 men who directed foul language at him and spat on him. When he fled the streetcar to escape from them, they pursued him, knocking him to the ground and assaulting him until a gathering of witnesses caused them to leave, Afte the assault the principal claimant discovered that he had acquired a cut to his leg without knowing how it happened.
[16] The principal claimant testified that he and the associate claimant were assaulted while walking home in XXXX 2020. He stated that the attackers were males in black clothing who knocked them to the ground. The associate claimant began to scream which got the attention of some nearby people. This attention caused the attackers to flee while threatening further harm to the claimants.
A Finding that Subjective Fear is established – Associate Claimant
[17] The associate claimant testified about the assault in XXXX 2020 that involved both of them. The panel found her testimony to be consistent with the principal claimant and there were no discrepancies. When testifying to the assault she included that the attackers spat on her and used foul language, calling her names.
[18] The associate claimant testified she was more successful with her education than the principal claimant had been. She was able to complete XXXX XXXX qualifying her to do XXXX and XXXX XXXX XXXX. She testified she was unable to get work in that field in spite of her qualifications, believing that when prospective employers realized she was Roma they were no longer interested in hiring her. She testified she spent a year and a half applying in different places in her hometown for work. She testified when asked that like the principal claimant she did not leave her hometown to search for work believing she would face the same outcomes where-ever she went.
[19] The panel having found each of the claimants to be credible and reliable finds they have established on a balance of probabilities that they face a serious possibility of persecution based on their race as part of the Roma ethnicity. The panel gives full weight to their testimony that they have been assaulted because of their race and they have been denied employment because of their race. The panel finds the claimants have each established a subjective fear of persecution due to their being of the Roma ethnicity.
The grounds for an Objective Basis.
[20] The panel refers to and relies on the NDP for Hungary[4] for the objective evidence relating to the claimants’ fear of persecution. The panel finds the NDP to be credible and reliable because it is prepared by professional researchers and journalists from identified sources of information. It is also current and updated frequently. The panel gives full weight to the information of the NDP when assessing the credibility and reliability of the claimant’s subjective fear of persecution.
[21] The panel refers to tab 13.5[5] which reports on the situation and treatment of the Roma people in Hungary. This report states that Roma face widespread discrimination as well as societal exclusion or segregation, and that Roma are subject to violence. Of significance to the claimants’ situation the report states that the unemployment rate for Roma people is three to five times higher than it is for the non-Roma of Hungary. The report goes on to detail the discrimination and unfair practises targeting the Roma people caried out by the authorities in the areas of law enforcement, access to justice, employment, housing, health care and education. The panel finds this report provides the objective basis for the claimant’s subjective fear of prosecution.
Well-Founded Fear of Persecution
[22] The objective basis for the claimant’s subjective fear of persecution on the Convention ground of race has been established on a balance of probabilities. Based on this, the panel finds that that each of the claimants has a well-founded fear of persecution in Hungary.
State Protection
[23] Refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protection of their home state. The onus is on the refugee claimant to approach the state for protection, in situations where state protection might be reasonably forthcoming.[6] In the absence of a compelling explanation, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim, at least where the state is a functioning democracy with a willingness and the apparatus necessary to provide a measure of protection to its citizens.
[24] The panel finds there is objective evidence to support the claimant’s belief that state protection is not available to them. Returning to the cited report (tab 13.5) the panel notes “there is a lack of trust between the police and Roma communities because of the perception by “[m]any” Roma that the police are unreliable when the victim of the crime is of Roma descent and because of the “over-polic[ing]” of administrative offences (like unpaid fines) when the perpetrator is of Roma descent,” and further “Roma individuals were fearful of coming forward to police when a violent act was committed against them as “not only [would the police] neglect the report,” but the assailant would “take revenge and the police would still not defend them.” In section 2.3 of the report it is stated “MRG reports that racist violence and hate speech against Roma in Hungary “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.” Based on a review of the objective evidence, and the principal claimant’s own personal experiences, the panel finds that adequate state protection will not be available to the claimants if they were to return to Hungary.
Internal Flight Alternative
[25] On the totality of the evidence, the panel finds that there is not a viable internal flight alternative (IFA) for the claimants in Hungary.
[26] The test to be applied in determining whether there is a viable internal flight alternative is two-pronged. Firstly, the panel must be satisfied, on a balance of probabilities, that each of the claimants would not face a serious possibility of persecution in the IFA location, or on a balance of probabilities be personally subjected to a risk to their life or a risk of cruel and unusual treatment or punishment. Secondly, the conditions in the proposed IFA location must be such that it would not be objectively unreasonable under the circumstances, including those particular to the claimant, for them to seek refuge there. Both prongs must be satisfied for a finding that the claimant has an IFA.
[27] The panel finds that the claimants have established that on a balance of probabilities their agents of persecution are the nationalist anti-Roma factions of Hungarian society, assisted by the discriminatory actions or lack of actions by the police. As each of these agents of persecution can be found country-wide the panel finds the claimants would face a serious possibility of persecution and/or be personally subjected to a risk to their life, a danger of torture or a risk of cruel and unusual treatment, if they were to return to Hungary and attempted to relocate to an internal flight alternative..
CONCLUSION
[28] Having considered the totality of the evidence, the panel finds each of the claimants to be a Convention refugee on the grounds that each faces a serious possibility of persecution based on the Convention ground of race that is being a member of the Roma ethnicity.
This claim is therefore accepted.
(signed) M. Fleming
December 19, 2023
[1] CLOD Claim referral information from CBSA/IRCC
[2] CLOD item 3
[3] National Documentation Package, Hungary, 29 September 2023, tab 13.3: Community support organizations that assist Roma in Miskolc in accessing social services, including healthcare, education, housing, employment assistance and social protection programs (2016-December 2017). Immigration and Refugee Board of Canada. 16 January 2018. HUN106041.E.
[4] CLOD item 3 National Documentation Package For Hungary – September 29, 2023 Version
[5] National Documentation Package, Hungary, 29 September 2023, tab 13.5: Situation and treatment of Roma, including ability to access housing, employment, education, and healthcare; state protection; impact of COVID-19 (2019–July 2021). Immigration and Refugee Board of Canada. 17 August 2021. HUN200705.E.
[6] Ward, Patrick Francis v. M.C.I. (F.C.T.D., no. IMM-504-96), Heald, December 19, 1996. Reported: Ward v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm. L.R. (2d) 102 (F.C.T.D.); Ward, Patrick Francis v. M.C.I. (F.C.T.D., no. IMM-15-97), Joyal, January 24, 1997, footnote 9.