Date: 20030929
Docket: IMM-5244-02
Citation: 2003 FC 1113
Ottawa, Ontario, this 29th day of September, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ATILLA BALINT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Attila Balint came to Canada from Romania in the summer of 2000. He immediately claimed refugee status, saying that the Romanian police had beaten him twice because of his Roma ethnicity. A panel of the Immigration and Refugee Board heard and dismissed his claim. Mr. Balint argues that the Board made serious errors and asks, by way of this application for judicial review, for a new hearing before a different panel.
[2] The Board doubted much of Mr. Balint's testimony and felt he should have tried harder to get state authorities or others to protect him. Mr. Balint challenges the grounds on which the Board impugned his credibility and suggests that it imposed on him unrealistic expectations. Not all of his arguments are well founded. Still, I find that the Board made a number of errors on two central issues and will order that Mr. Balint have a new hearing.
I. Police Assaults
[3] At the crux of Mr. Balint's claim was his accusation against the police. He said that in February 2000 the police stopped him, questioned him and beat him severely. He went to the police chief to complain, which caused the same officers to accost him a second time two months later. The officers warned him against making any more complaints and extended their threats of further violence to Mr. Balint's family as well. When he received a summons in July 2000 to appear at the police station, he feared another reprisal for having lodged his complaint. He decided to leave Romania and seek refuge in Canada.
[4] The Board was troubled by some of the evidence surrounding the first beating. Mr. Balint testified that the police had assaulted him violently and left him by the side of the road. After an hour, he managed to drive himself home. The Board wondered how the victim of such an attack could operate a car.
[5] Mr. Balint said he did not seek medical treatment until two days later. He explained that his injuries were simply bruises, but he wanted to have a medical report when he filed his complaint against the police. The Board found that Mr. Balint's behaviour was "inconsistent with someone who alleges to having had a severe beating and having to lay on the ground for an hour as a result of such a beating". The Board had the benefit of two medical reports - one for each assault - that confirmed Mr. Balint's injuries.
[6] The Board also concluded that the first beating was a "random act". When the police stopped Mr. Balint, they did not identify him as a Roma, according to the Board. It was only after Mr. Balint informed them that he was returning from a Roma Conference that they decided to beat him up.
[7] On the basis of these concerns, in addition to some other quite minor inconsistencies, the Board decided that Mr. Balint was not a credible claimant. In respect of the first assault, the Board appears to have concluded that it did actually happen but doubted whether it was as serious as Mr. Balint made out. The Board did not question Mr. Balint's testimony regarding the second assault. Accordingly, even on the Board's view of the evidence, Mr. Balint was assaulted by police solely because of his Roma ethnicity and sustained injuries confirmed by a medical report. Further, when he complained about this incident, the police assaulted him again and threatened him and his family repeatedly.
[8] In my view, the Board should have considered whether that evidence could sustain Mr. Balint's claim, even though it doubted other aspects of it.
II. State Protection
[9] Mr. Balint complained to the Chief of Police after the first beating. When that resulted in a second assault, he decided not to go back. He did not try to get help from other organizations because their mandates did not include police matters. He was unfamiliar with the Democratic Union of Roma in Romania ("DURR"), a group committed to protecting the rights of Roma people. He was only vaguely aware of the Ombudsman's office.
[10] The Board characterized Mr. Balint's single attempt to obtain state protection as "feeble at best". It felt that Mr. Balint, as a leader in his community, could have done more and certainly should have known about the agencies who often assist Roma people. It also felt he should have asked his friend Sandor Csurkuly, a Roma activist, for help. The Board reviewed a considerable body of documentary evidence that indicated that Romania is taking many steps toward improving the overall circumstances of its Roma population.
[11] There was no evidence before the Board that the DURR or the Ombudsman had an office in Targu Mures, the town where Mr. Balint lived. Still, the Board was entitled to conclude that Mr. Balint should have known more about them.
[12] The Board felt that Mr. Balint should have responded to the summons he received from the police in July 2000. It suggested to Mr. Balint that the summons might have marked the beginning of the police chief's investigation into his complaint. In its reasons, the Board said that Mr. Balint agreed that this was a possibility. I have reviewed the record and find no such concession on Mr. Balint's part. He acknowledged that the summons might have been connected to his complaint, but he believed it would have resulted in a second reprisal for having made the complaint in the first place, not a remedy against the aggressors.
[13] As mentioned, Mr. Balint had shown that the police beat him because of his Roma ethnicity. When he tried to obtain state protection, the police beat him again, warned him against making any more complaints and threatened him and his family. The Board's discussion of state protection does not disclose any effective recourse that might have been available to Mr. Balint to protect himself and his family in these circumstances. The Board did not identify any agency or office that could have actually helped him. The documentary evidence revealed that police violence against Romas was an ongoing problem. While Romania was making some effort to deal with this issue, it was not always able to bring perpetrators to justice. Further complaints, whether to the police chief or other bodies, might well have resulted in further punishment, just as Mr. Balint feared.
[14] In my view, the Board should have considered whether Mr. Balint's failure to make another attempt to obtain state protection was justified by his fear of further mistreatment.
[15] Accordingly, I must allow this application for judicial review and order a new hearing before a different panel. Counsel for Mr. Balint requested an opportunity to propose two questions of general importance - one about the legal test for state protection, and the other related to the distinction between discrimination and persecution. Given the basis on which I have decided Mr. Balint's application for judicial review, neither question is suitable for certification.
JUDGMENT
IT IS HEREBY ADJUDGED that:
1. The application for judicial review is allowed;
2. A new hearing before a different panel is ordered;
3. No questions certified.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5244-02
STYLE OF CAUSE: ATILLA BALINT
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JULY 29, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY : THE HON. MR. JUSTICE O'REILLY
DATED: MONDAY, SEPTEMBER 29, 2003
APPEARANCES: Mr. Rocco Galati
FOR THE APPLICANT
Ms. Alexis Singer
FOR THE RESPONDENT
SOLICITORS OF RECORD: Galati Rodrigues Azevedo
& Associates
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT