2024 RLLR 108

Citation: 2024 RLLR 108
Tribunal: Refugee Protection Division
Date of Decision: July 18, 2024
Panel: Alexander Olson
Counsel for the Claimant(s): Iuliana Duna
Country: Romania, Hungary
RPD Number: VC3-17646
Associated RPD Number(s): N/A
ATIP Number: A-2025-00611
ATIP Pages: N/A

REASONS FOR DECISION

[1] This is the decision of the Refugee Protection Division of the Immigration and Refugee Board (IRB) in the claim for protection made by XXXX XXXX XXXX, who claims to be a citizen of Romania and Hungary, and who is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the IRPA).[1]

ALLEGATIONS

[2] The claimant is a 32-year-old citizen of Romania and Hungary whose allegations, as set out in his Basis of Claim (BOC) form[2] and during his testimony at the hearing, can be summarized as follows.

[3] The claimant fears persecution from Romanian and Hungarian authorities, society, and members of their community as a result of his race as a member of the Roma ethnic group. He has never lived in Hungary.

[4] The claimant faced discrimination and harassment since he as a child due to his Roma ethnicity.

[5] The claimant left Romania on XXXX XXXX, 2023 and arrived in Canada the XXXX XXXX. He made his refugee claim in Canada on December 28, 2023.

DETERMINATION

[6] I find that the claimant faces a serious possibility of persecution if he returns to Romania or Hungary for reason of his race, namely as a Roma man in Hungary or Romania. I find that the claimant is a Convention refugee pursuant to s. 96 of the IRPA.

ANALYSIS

Identity

[7] I had concerns with the claimant’s identity. These concerns arose in the hearing when I asked him how he obtained his Hungarian passport, given that he had stated he had never left Romania. The claimant responded that his grandmother was Hungarian and so he was able to obtain a Hungarian passport. I then asked the claimant how he obtained the passport. He did not answer and looked somewhere off camera. I asked the claimant again and he said he had been to Hungary and had gotten the document there. I then asked him when he went to Hungary. At this point in the hearing his counsel interjected and it was communicated that the claimant wanted to go to the washroom. After the claimant returned from the washroom, I gave him multiple opportunities to explain how he obtained his passport, to which he did not provide satisfactory answers, usually providing evasive or vague responses. I returned to the topic later in the hearing. Ultimately, he said he went to Hungary for XXXX XXXX with a friend and could not provide further information as to how he got the Hungarian passport.

[8] Having nothing else to establish his identity beyond this passport, I notified the Minister under Rule 27(3) that I had concerns about the claimant’s identity document. The Minister responded, informing the RPD that they were investigating the matter of the claimant’s identity. On June 21, the Minister notified the RPD that the claimant’s Hungarian passport is legitimate and that the document’s holder is the claimant. The Minister stated that they were not intervening as their investigation was concluded.

[9] On a balance of probabilities, I find that the claimant has established their personal and national identity as a citizen of Hungary, by the documentary evidence on file, including a certified true copy of their Hungarian passport, which can be found in exhibit 1, and which the Minister determined to be genuine.

[10] The claimant also testified that he grew up in Romania and that his parents are Romanian and that he has Romanian citizenship. I note, as per NDP tab 1.3, that Romanian citizenship is granted when a person has one parent who is a Romanian citizen. Further, in a post-hearing submission, counsel provided a copy of the claimant’s Romanian national identification and birth certificate.[3] Given the facts that the claimant was born in Romania, grew up there, has a national identity card and birth certificate, and had two parents from Romania (as per his BOC),[4] I find, on a balance of probabilities, that the claimant is a Romanian citizen. Therefore, both Hungary and Romania are countries of reference for this claim.

Nexus

[11] In order to satisfy the definition of a “Convention refugee” found in section 96 of the IRPA, a claimant must establish that he or she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group or political opinion. I find that there is a nexus between the harms that the claimant fears and the Convention ground of race, due to the claimant’s Romani ethnicity. This claim will therefore be assessed pursuant to section 96 of IRPA.

Credibility and Findings of Fact

[12] Testimony provided under oath is presumed to be truthful unless there is reason to doubt its veracity.[5] The presumption of truthfulness does not apply to inferences or speculation.

[13] The claimant was not effusive in testimony, was often vague, and, concerning how he obtained his passport, was evasive. He required questions to be rephrased numerous times as well. However, I am mindful that he is uneducated and distrustful of authority figures. Therefore, I do not find that his difficulty with providing certain details impugns his credibility. There were no relevant inconsistencies or contradictions in his testimony. Nor did I find any relevant inconsistencies or contradictions between the claimant’s testimony and the documentary evidence on file. Nor did the claimant embellish or exaggerate in his testimony. Overall, I found him to be a credible witness with respect to his experiences as a Roma individual in Romania.

[14] In support of his claim, the claimant submitted documentary evidence including, but not limited to: numerous country condition articles and reports; a declaration from one XXXX (with accompanying identification), stating that he is also a member of the Romani ethnic group, is friend’s with the claimant, and experienced discrimination with him.

[15] The claimant testified that he is of the Romani ethnic group. He testified that he can be recognized in Romania by his accent and traditional clothing. I asked him how else his ethnicity can be recognized, to which he responded that he often lived in conditions where he couldn’t keep his clothes clean and that he had little schooling. On a balance of probabilities, I accept that the claimant has established his Roma ethnicity.

[16] The claimant testified that he experienced significant discrimination from society in general in Romania. He described his experiences in school in which teachers told him to go home and shower. He also spoke about discrimination in the labour market, stating that he struggled to get jobs and would be laughed at. The claimant also testified that he was denied access to a hospital when he was unwell on his birthday. I note that this particular story aligned with what was submitted in his letter of support from XXXX. He further testified to experiencing harassment from security at supermarkets.

[17] I asked the claimant if he ever interacted with the police. He replied that he tried to report the harassment he experienced in the supermarket to police and that they responded by telling him to go home.

[18] Considering the foregoing, I find that the claimant has established his central allegations of pervasive discrimination, as well as his Roma identity, on a balance of probabilities and has established that he has a subjective fear of returning to Romania or Hungary.

Well-Founded Fear of Persecution

[19] When assessing a claim for refugee protection I must look at whether claimants have a well-founded fear of persecution, which involves both a subjective fear element and a forward-facing objective basis for that fear. Based on all the evidence before me, I find, on a balance of probabilities, that there is a serious possibility of persecution if the claimant returned to Hungary or Romania.

Hungary

[20] Objective evidence the National Documentation Package (hereafter, NDP) tab 2.1 states that violence and discrimination against the Roma ethnic group remains an issue in Hungary.[6] NDP tab 13.5 also notes that much of the violence against the Roma in Hungary is enabled by politicians’ hate speech against the Roma.[7] Police also target this ethnic group via racial profiling and frequently fine Roma individuals for minor infractions.[8]

[21] Another Response to Information Request (RIR), specifically NDP tab 13.14, notes that right-wing nationalists further exacerbate anti-Roma sentiment in Hungary.[9] While this violence is less widespread than in previous years, such political extremists continue to intimidate Roma individuals and gatherings and propagate anti-Roma hate speech.

[22] The U.S. Department of State report also notes that the Roma, despite being Hungary’s largest minority, continue to largely live in segregation. And while the country’s laws prohibit the segregation of Romani children in school, this segregation continues to occur in practice.[10] Further, these children are often misdiagnosed as having intellectual disabilities.[11]

[23] According to an RIR in NDP tab 13.5, a report on the situation of the Roma in Hungary indicates that is pervasive societal discrimination against the Roma there which impacts their access to housing, jobs, and healthcare.[12] With respect to housing, one report noted that Roma in Hungary often live in segregated communities and that 29 percent of their domiciles lacked running water and 43 percent lacked indoor washrooms.[13]

[24] In summary, considering the objective evidence, I am satisfied that, based on the claimant’s race, if the claimant was to arrive in Hungary, there is a serious possibility that he would be subjected to treatment amounting to persecution at the hands of police and society in general. Based on all the evidence before me, I find that the claimant has established that he faces a serious possibility of persecution on account of his race in Hungary.

Romania

[25] With respect to the claimant’s well-founded fear in Romania, I find the following.

[26] Objective evidence the National Documentation Package (hereafter, NDP) tab 2.1 states that there were reports that police harassed and beat Romani individuals.[14] Further, judicial officials, prosecutors, police, and lawyers generally held a negative view of the Romani, and many lawyers even refused to defend them in court.[15]

[27] NGOs and observers also reported that many Roma continue to face discrimination, being denied service by businesses, and suffering from few employment prospects, poor access to government services, inadequate housing, poor access to health care, and a high school dropout rate, and many women had difficulty accessing reproductive health services due to discrimination.[16] With respect to housing, many Roma have lived in informal housing, which has also made it hard for them to obtain proper identification documents, further compounding difficulty in accessing social services and health care.[17]

[28] According to NDP tab 13.4, the European Commission Against Racism and Intolerance, negative perceptions of Roma is common in Romanian society. One survey, conducted by the EU Agency for Fundamental Rights, found that seven out of ten Romanians do not trust Roma and two out of three believe Roma are dangerous.[18]

[29] In summary, considering the objective evidence, I am satisfied that, based on the claimant’s race, if the claimant was to arrive in Romania, there is a serious possibility that he would be subjected to treatment amounting to persecution at the hands of police and society in general. Based on all the evidence before me, I find that the claimant has established that he faces a serious possibility of persecution on account of his race in Romania.

State Protection

[30] States must be presumed capable of protecting their citizens, except in situations where the state is in complete breakdown. To rebut this presumption, the onus is on the claimants to establish, on a balance of probabilities and through clear and convincing evidence, that their state’s protection is inadequate. I note that the more democratic a state, the harder it is to displace this presumption.[19] In the claimants’ case, I find that the presumption has been rebutted.

Hungary

[31] With respect to state protection in Hungary, I find that state actors, such as police, generally hold anti-Roma views and do not provide adequate protection to this ethnic group.

[32] One RIR demonstrates that police take little action to prevent or investigate anti-Roma hate crimes.[20] The same source also notes that police in Hungary are generally hostile to the Romani community.

[33] Given the objective evidence which indicates that the Roma are faced with continued hostility from the police and police ineffectiveness with respect to hate crimes against Roma, I find that state protection would not be forthcoming for the claimant. Therefore, I find that the presumption of state protection from Hungary has been rebutted in this case.

Romania

[34] With respect to state protection in Romania, I find the following.

[35] As examined above, many state actors, particularly police, abuse Roma. Further, many judges and prosecutors have a negative stance towards Roma and many defence lawyers will not defend them.

[36] According to the Balkan Investigative Reporting Network, Bucharest-based lawyers note that the courts generally side with police against Roma plaintiffs and that prosecutors often did not pursue cases against police who had allegedly abused Roma. Consequently, according to the Inspector at the Romanian Institute for Human Rights, 44 cases concerning police committing police brutality against Roma did not result in convictions.[21]

[37] In light of the country conditions evidence regarding the availability of state protection to those who are similarly situated, I find that the claimant has rebutted the presumption of adequate state protection in Romania.

Internal Flight Alternative

[38] I have also considered whether the claimant has an internal flight alternative in Hungary or Romanian, and I have concluded that he does not.

[39] The IFA test has two prongs. For the first prong, I must be satisfied that there is no serious possibility the claimant would be persecuted or that the claimant would be personally subjected, on a balance of probabilities, to a danger of torture or to a risk to life or a risk of cruel and unusual treatment or punishment in the IFA. For the second prong, I must be satisfied that the conditions in the IFA are such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for him to seek refuge there.

Hungary

[40] I find that the claimant does not have a viable IFA in the rest of Hungary because he would face a serious possibility of persecution from Hungarian society in general and from Hungarian police and state actors. I find that the claimant would not be able to relocate within Hungary to a place where he would not face discrimination amounting to persecution as a Roma person. For this reason, I find that the claimant does not have a safe internal flight alternative in Hungary and thus the IFA fails on the first prong.

Romania

[41] I find that the claimant does not have a viable IFA in the rest of Romania because he would face a serious possibility of persecution from Romanian society in general and from Romanian police and state actors. I find that the claimant would not be able to relocate within Romania to a place where he would not face discrimination amounting to persecution as a Roma person. For this reason, I find that the claimant does not have a safe internal flight alternative in Romania and thus the IFA fails on the first prong.

[42] Therefore, there is no viable IFA.

CONCLUSION

[43] I find that the claimant is a refugee pursuant to s. 96 of the IRPA and I accept their claim.

——— REASONS CONCLUDED ———

[1] Immigration and Refugee Protection Act, S.C. 2001.

[2] See Exhibit 2.

[3] See exhibit 5.

[4] See exhibit 2.

[5] Maldonado [1980] 2.F.C. 302 (C.A.)

[6] National Documentation Package, Hungary, 31 May 2024, tab 2.1: Hungary. Country Reports on Human Rights Practices for 2023. United States. Department of State. 22 April 2024.

[7] National Documentation Package, Hungary, 31 May 2024, 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.

[8] Ibid.

[9] National Documentation Package, Hungary, 31 May 2024, tab 13.14: ​Extremist violence against Roma; structure of and connections between extremist organizations; response by authorities and state protection available for Roma victims of violence (2018-August 2019). Immigration and Refugee Board of Canada. 29 August 2019. HUN106347.E.

[10] Ibid.

[11] Ibid.

[12] National Documentation Package, Hungary, 31 May 2024, 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.

[13] Ibid.

[14] National Documentation Package, Romania, 31 May 2024, tab 2.1: Romania. Country Reports on Human Rights Practices for 2023.​. United States. Department of State. 22 April 2024.

[15] Ibid.

[16] Ibid.

[17] National Documentation Package, Romania, 31 May 2024, tab 13.4: ​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. 11 August 2021. ROU200706.E.

[18] Ibid.

[19] Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689.

[20] National Documentation Package, Hungary, 31 May 2024, tab 10.1: ​Police response to complaints lodged by Roma citizens; procedures to lodge a complaint against a police officer; alternate complaint mechanisms for human rights violations, including complaints submitted through the Roma Police Officer’s… Immigration and Refugee Board of Canada. 17 August 2018. HUN106145.E.

[21] National Documentation Package, Romania, 31 May 2024, tab 13.4: ​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. 11 August 2021. ROU200706.E.