Harsanyi v. Canada (Minister of Citizenship and Immigration)

Date: 20040310

Docket: IMM-1616-03

Citation: 2004 FC 358

Ottawa, Ontario, this 10^th day of March 2004

Present:          THE HONOURABLE MR. JUSTICE O'REILLY                        

BETWEEN:

                                                            ZSOLT HARSANYI

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                       Respondent

                                    REASONS FOR JUDGMENT AND JUDGMENT

[1]                Mr. Zsolt Harsanyi came to Canada from Hungary in April 2000. He claimed refugee status on the basis of the mistreatment he received in Hungary as a gay male. He recounted numerous incidents of threats and violence.

[2]                A panel of the Immigration and Refugee Board dismissed Mr. Harsanyi's claim because it was not satisfied that the treatment of homosexuals in Hungary amounted to persecution, as opposed to simple discrimination. Mr. Harsanyi argues that the Board made serious errors in its analysis of the circumstances of gays in Hungary. He asks me to order a new hearing.

[3]                I find that the Board erred in its treatment of the evidence and will allow this application for judicial review.

I. Issue

Did the Board err in its handling of the evidence regarding the treatment of gays in Hungary?

[4]                The Board reviewed a considerable amount of evidence of the overall circumstances of gays and lesbians in Hungary. It noted that gay marriages have been legal since 1996, common law same-sex couples are entitled to social and pension benefits, and advocacy groups operate freely and effectively. Gay and lesbian events and festivals seem to be thriving.

[5]                On the other hand, the Board noted some instances of differential treatment of gays and lesbians in the areas of employment, adoption laws and the age of consent to sexual activity. As mentioned, it found these differences to amount to discrimination, not persecution.

[6]                As for violence against gays, the Board noted that the principal human rights reports on Hungary make no mention of this problem. It felt that "if violence against gays was a significant problem, it would be included in these reports". It concluded that "violence against gays is not a significant or widespread problem in Hungary". Accordingly, it found that Mr. Harsanyi's experiences were isolated events and that there was no objective basis on which he should fear persecution.

[7]                The respondent argues that the Board considered a full range of the relevant documentary evidence, including a report from the Hatter Society for Gays and Lesbians in Hungary and the Labrisz Lesbian Association. This report, referred to as the "Hatter Report", stated that there was a "disturbingly high incidence" of homophobic hate crimes in Hungary. Further, it noted that the police themselves were involved in homophobic harassment of persons believed to be gay. Still, after citing this Report, the Board went on to conclude that violence against gays was not prevalent. The respondent submits that the Board's conclusion was open to it on the evidence and that there is no basis for disturbing its decision.

[8]                However, Mr. Harsanyi points out that the Board overlooked persuasive evidence that homophobic violence is a serious problem in Hungary. For example, one study stated that 12% of gay men reported incidents of violent assaults. The Hatter Report itself outlined numerous incidents of gay-bashing. There was no evidence contradicting these reports, only silence in some general surveys of human rights in Hungary. The Board gave no indication why it did not find the documentary evidence favouring Mr. Harsanyi's claim reliable.

[9]                In my view, the Board had an obligation at least to refer to the documentary evidence that supported the foundation of Mr. Harsanyi's claim and explain why it discounted it. As Evans J. explained in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, "the more important the documentary evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact 'without regard to the evidence'". (Citing Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). The documentary evidence tendered by Mr. Harsanyi reinforced the essence of his claim and merited some consideration by the Board.

[10]            Having found that there was no basis for Mr. Harsanyi's fear of persecution, the Board did not deal directly with the issue whether there was state protection available in Hungary for persons who are victims of homophobic violence. One may infer, however, since the Board characterized Hungary as a fairly tolerant country, that it believed that state protection would likely be forthcoming.

[11]            However, given my conclusion that another panel must review the documentary evidence, I do not need to say anything more about the issue of state protection. It will be for the new panel to address this issue and analyze the relevant evidence.

II. Disposition

[12]            A full hearing is not required as the issues requiring redetermination can be addressed by reviewing the existing evidence. Accordingly, I will order that the issues of Mr. Harsanyi's fear of harm and the availability of state protection be redetermined by a different panel of the Board, based on the existing record.

                                                                  JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.          The application for judicial review is allowed. The issues of Mr. Harsanyi's fear of harm and the availability of state protection are returned for redetermination before a different panel of the Immigration and Refugee Board, based on the existing record.

2.          No question of general importance is stated.