Federal Court Decisions

Date: 20020125

Docket: IMM-5846-00

Neutral citation: 2002 FCT 91

Ottawa, Ontario, this 25th day of January, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                     TAMAS SZABO

TAMASNE SZABO

KITTI CYNTHIA SZABO

GABORNE LAZLO

CRISTOPHER MARK LAZLO

SARLOTT ZSALKIN BENCSIK

SANDOR SZABO

EDIT VIDA SZUCS

RENATI TABORI

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review brought pursuant to subsection 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision of the Convention Refugee Determination Division (the "CRDD") dated October 12, 2000. In a split decision, board member Alexis Singer found Tamas Szabo Sr. and Tamasne Szabo (the "principal claimants") to be Convention refugees and the remaining nine claimants (the "applicants") not to be Convention refugees. Board member James C. Simeon found none of the claimants to be Convention refugees.

[2]                 The applicants seek an order setting aside the above decision and referring the matter back for determination in accordance with such directions as the Court considers appropriate.

Background Facts

[3]                 A family of eleven people brought refugee claims alleging a well-founded fear of persecution in Hungary on the basis of their Roma ethnicity. Their claims were heard together on July 13, 2000 by board members Alexis Singer and James C. Simeon. In its reasons for decision dated October 12, 2000, the CRDD properly identified the claimants as follows:

These are the reasons for the decision of the Refugee Division in the claims of Tamas Szabo, 56 years old (the principal male claimant), his wife, Tamàsne Szabò, 52 years old (the principal female claimant), and their children and grandchildren, Sandor Szabo, 34 years old, Edit Vida Szucs, 28 years old, Renata Tabori, 6 years old, Gaborne Laszlo, 32 years old, Cristopher Mark Laszlo, 6 years-old, Sarlott Zsaklin Bencsik, 2 years old, Tamas Szabo, 25 years old, Tamasne Szabo, 24 years old, and Kitti Cynthia Szabo, 2 years old, to be Convention refugees.

[4]                 The claimants' Personal Information Form (PIF), attached as exhibit "A" to the affidavit of Sandor Szabo, was relied upon by all of the claimants at their hearing. The PIF indicates the claimants operated a family business composed of a restaurant and grocery store. The CRDD recounted what happened to the claimants in its reasons:

The claimants allege a well-founded fear of persecution in Hungary from the so­-called "money collectors" or "extortionists," an organized criminal element, and the Hungarian police. The claimants allege that their problems began in 1995 when certain police officers, including Beczi Janos, came into the restaurant owned by the claimants and demanded 500,000 Florints [sic] allegedly owed by Sandor Szabo for a Porsche. The principal female claimant was present with one of her daughters (Gaborne Laszlo), a cook and a clerk; there were also several patrons in the restaurant at the time. Sandor Szabo was not at the restaurant at the time. The principal female claimant called the police so the two men left, only to return later with another man; this third man threatened her and her staff. When she asked one of her staff to call the police again, the three men said they could get a policeman and left. They returned with five men, one of whom again demanded that she pay 500,000 florints [sic], pulled out handcuffs when she asked why she should but refused to show their ID as policemen. At this point the principal male claimant returned and after some verbal abuse, the five men arrested the two principal claimants in front of their patrons and everyone else who had now gathered around to see what was happening. The claimants allege that they were treated very badly by the police; aside from being treated very roughly physically, they were not given the principal male claimant's heart medication for hours after he was due to take it even though it was in the station. Their lawyers were also denied access to them for several hours; it was only through the persistence of the lawyers that the police finally acknowledged that the principal claimants were being held so their release could be arranged.

[5]                 Thereafter, a complaint was filed against police officer Beczi Janos and his accomplice by the principal claimants. The claimants alleged that the police tried to intimidate them in order to withdraw the complaint. From this point, the CRDD continues as follows:

Nonetheless, the claimants state that in the spring of 1996, a hearing took place at the Military Court to determine whether charges should be laid against the policemen in question. The claimants state that after "the evidence was presented the Court laid charges against the policemen." However, the claimants further allege, as follows:

Our initial relief as a result of the laying of charges has turned to frustration and fear as there still has not been a trial and the policemen remain free to continue their harassment against us. For example, the policemen and their friends would ring our doorbell in the middle of the night and scream racist remarks at us. Sometimes they would vandalize our home and business. We reported these incidents to the authorities, but were told that without independent witnesses there was nothing they could do.

The claimants alleged that due to the harassment they experienced at the hands of the police they were forced to close their restaurant and relocate their grocery store to another marketplace in a different district. However, they allege that the police followed them to their new location and continued to harass them.

[6]                 The claimants presented a number of documents at the hearing in support of their claim.

[7]                 Issue

Did the CRDD make a reviewable error?

[8]                 Analysis and Decision

The applicants submitted that since one board member found that the principal applicants were Convention refugees the member should have found that the applicants in the present application were also Convention refugees as all of the claims for refugee status were based basically on the same factual situation. The applicants also submitted that there was not an Internal Flight Alternative ("IFA") for them in Hungary. The member found that there was no IFA for the principal applicants.

[9]                 A review of the facts contained in the file show that the principal applicants and the applicants in this application were affected by the same incident, namely, the intrusion into their restaurant by persons looking for the applicant, Sandor Szabo who allegedly owed money in relation to the purchase of a Porsche automobile. The persons who entered the restaurant included policemen, some of whom the applicants filed complaints against which led to charges being laid against the officers. These charges have never been finally dealt with. At the time of the entries into the restaurant, racist remarks were allegedly directed at some of the applicants. As well, after the charges were laid against the police officers, the applicants were allegedly harassed by the police (ringing the doorbell in the middle of the night and screaming racist remarks).

[10]            There were allegations that the applicants' homes and business were vandalized. The applicants alleged that due to the harassment of the police, they had to close their restaurant and relocate their grocery store into another market place in a different district. The restaurant and store were operated as a family business.

[11]            The applicants stated that they would receive the same treatment in any part of Hungary.

[12]            The board member who found that the principal applicants were Convention refugees in the course of her decision found that the principal applicants did not have an IFA within Hungary, but found that the other applicants did have an IFA within Hungary. The board member also noted that there was widespread discrimination against Roma in Hungary, including the access to police by Roma. There is no doubt that the applicants can rely on the persecution of similarly situated people in order to make their claim for Convention refugee status (see Salibian v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 165 (F.C.A.)). It would appear to me the fact that the principal applicants and the applicants ran a family business together and this business was targeted, that this should be considered in the assessment of whether or not the applicants are Convention refugees. From a review of the decision, I cannot find that this factor was considered by the board members in coming to their actual decisions. Therefore, this is an unreasonable decision and it must be set aside.

[13]            The decisions of the board members with respect to the applicants named in this application are set aside and the matter is remitted to a different panel of the board for redetermination.

[14]            The parties shall have one week from the date of this decision to submit any proposed serious question of general importance, pursuant to section 83 of the Act, for my consideration.

ORDER

[15]            IT IS ORDERED that the decisions of the board members with respect to the applicants named in this application be set aside and the matter is remitted to a different panel of the board for redetermination.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

January 25, 2002