Digests

Horvath v. Canada (Minister of Citizenship and Immigration)

IMM-4335-99

2001 FCT 398, MacKay J.

27/4/01

9 pp.

Application for judicial review of CRDD decision applicants, citizens of Hungary members of same family, not Convention refugees--Claims based on well-founded fear of persecution by reason of membership in Roma ethnic group: discriminatory mistreatments in Hungary, attacks by skinheads, fears for children in education and employment--Application allowed--CRDD committed error by failing to discuss evidence upon which conclusion based that applicants had internal flight alternative within Hungary and by failing to assess that evidence in terms of test established in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.)--Moreover, having made no adequate assessment itself of possible IFA, panel then comments that applicants have not provided reasons to establish that IFA would not be reasonable in their circumstances--Unless evidence supports proper finding of IFA, no reason for applicant to establish proposed IFA not reasonable--Furthermore, finding of absence of well-founded fear of persecution not supported on bases relied upon by CRDD--Panel's finding based on emphasis on fair appearance of applicants, from which panel infers applicants not easily identifiable as Roma, ignoring documentary evidence concerning variety of factors other than appearance which, in Hungary, may be used to identify Roma--Panel also ignored uncontradicted evidence adult claimants victims of discrimination, harassment and personal attack because known or perceived to be Roma--Panel's emphasis on personal appearance of applicants, in absence of discussion of evidence of other relevant factors, clearly misplaced--In large part, panel's ultimate finding of lack of well-founded fear of persecution based on subordinate findings based on reliance upon selective portions of documentary evidence--Although failure to refer to specific documents not implying documents ignored, where panel makes no reference to documentary evidence of generally acceptable sources which contradict portions on which panel relies, difficult to conclude panel did consider all relevant evidence--CRDD also in error in failing to consider whether cumulative effect of what panel consistently accepted as discriminatory treatment in virtually all of areas of concern to lives of applicants provided basis for well-founded fear of persecution: Retnem v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 53 (F.C.A.), UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.