SZABRINA GOMAN Applicant v. THE MINISTER OF CITIZENSHIP AND, 2012 FC 643

Date: 20120525 Docket: IMM-8475-11 Citation: 2012 FC 643 Toronto, Ontario , May 25, 2012 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: SZABRINA GOMAN Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] Ms. Szabrina Goman (the “Applicant”) seeks judicial review of the decision made by the Immigration and Refugee Board, Refugee Protection Division (the “Board”) on October 27, 2011. The Board found that the Applicant was not a Convention refugee nor a person in need of protection pursuant to

section 96 and subsection 97(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 (the “Act”). [ 2 ] The Applicant is a citizen of Hungary and is of Roma ethnicity. She claims to fear persecution at the hands of racist criminals, specifically the neo-Nazi organization known as the Hungarian Guards. [ 3 ] The Applicant testified about an incident that occurred in February 2009 where her boyfriend, a member of the Hungarian Guards, tried to induce her to take drugs.

When she refused, he beat her senseless. [ 4 ] The Applicant also testified about an incident that occurred in May 2009 when she was kidnapped by her ex-boyfriend and his friends, and kept captive for some weeks while they pressured her to engage in prostitution for them. On an occasion when the group had her in a public area she managed to escape and run to a group of men who protected her until the police arrived.

Although the police drove her home, the Applicant did not submit a report to the police because she believed they would not help her. [ 5 ] The Applicant left Hungary on July 9, 2009, arriving in Canada on the same day. She submitted her claim for refugee protection on July 14, 2009. [ 6 ] The Board made negative credibility findings and dismissed the totality of the Applicant’s evidence. It proceeded to address

the issue of state protection and concluded that the Applicant, having failed to file a police report, had not rebutted the presumption thatstate protection was available to her. [7] The Board’s credibility findings are reviewable on the standard of reasonableness; see the decision in Aguebor v Canada(Minister of Employment and Immigration) (1993), 160 NR 315 (FCA) at para 4.

The finding as to state protection, involving a questionof mixed fact and law, is also reviewable on the standard of reasonableness; see the decision in Velez v Canada (Minister of Citizenshipand Immigration), 2010 FC 1114 at paras 9-10. [8] The Applicant argues that the Board’s credibility findings are unreasonable and demonstrate a microscopic evaluation of herevidence.

She also submits that the Board misapplied the test for state protection, as set out in Canada (Attorney General) v Ward, (SCC), [1993] 2 SCR 689, by requiring her to risk her life seeking the ineffective protection of a state, in order to show thatthe protection is ineffective.

She also argues that the Board improperly ignored documentary evidence that demonstrates the inability ofthe state to protect members of the Roma population, in particular evidence as to the way Roma and Roma women are treated by thepolice. [9] For his part, the Minister of Citizenship and Immigration (the “Respondent”) submits that the credibility findings arereasonable in light of the evidence, and that the state protection finding is likewise reasonable and based on the proper legal test. [10] It is not necessary for me to deal with the arguments respecting the Board’s credibility findings since I am not satisfied thatthe conclusion on state protection is reasonable. [11] The Board’s reasons are long but in my opinion, its treatment of the state protection issue is largely “boilerplate”.

The Boarddoes not address the specific circumstances of the Applicant, rather it made general statements, as illustrated by paragraph 25 of thereasons: I found the claimant’s responses regarding the effectiveness of state protection were not persuasive, since they were not credible andwere largely unsubstantiated and were not consistent with the documentary evidence.

I prefer the documentary evidence over theclaimant’s testimony since they are drawn from a wide range of publically [sic] accessible documents, from reliable nongovernment andgovernment organizations. [12] In my opinion, the Board erred in saying that the Applicant’s evidence as to the “effectiveness” of state protection did notcorrespond with the documentary evidence. The record shows documentary evidence that supports the Applicant’s evidence; for examplesee United States, Department of State, "Country Reports on Human Rights Practices, 2010 - Hungary" (April 8, 2011) at page 26.

TheBoard gave no reasonable explanation as to why it rejected the documentary evidence relied on by the Applicant. [13] It is well-known and accepted that a decision-maker does not have to refer to all evidence upon which it relies but at the sametime, when there is relevant contradictory evidence that is unacknowledged by the decision-maker, a reviewing Court may conclude thatthe Board ignored or misapprehended key facts and came to an erroneous decision; see the decision in Cepeda-Gutierrez v Canada(Minister of Citizenship and Immigration) (1998), (FC), 157 FTR 35 at para 17. [14] In the result, the Application for judicial review is allowed, the decision of the Board is quashed and the matter remitted to adifferently constituted Panel of the Board for re-determination.

There is no question for certification arising. JUDGMENT THIS COURT’S JUDGMENT is that the Application for judicial review is allowed, the decision of the Board is quashed and thematter remitted to a differently constituted Panel of the Board for re-determination. There is no question for certification arising. “E. Heneghan” Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-8475-11 STYLE OF CAUSE: SZABRINA GOMAN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto , Ontario DATE OF HEARING: May 23, 2012 REASONS FOR JUDGMENT AND JUDGMENT: HENEGHAN J. DATED: May 25 2012 APPEARANCES : Rocco Galati FOR THE APPLICANT Peter Engel FOR THE RESPONDENT SOLICITORS OF RECORD : ROCCO GALATI LAW FIRM PROFESSIONAL CORPORATION Toronto, Ontario FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Toronto , Ontario FOR THE RESPONDENT