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![]() IN CAMERA T97-04226 Claimant(s): XXXXXXXXXXXXX Date(s) of Hearing: 6 October 1998, 2, 3, November 1998, 16, 17 November, 1998, 18, 19, 20 November 1998, 23, 24 November 1998 Place(s) of Hearing: Date of Decision: 20 January 1999 CORAM: V. Bubrin, Barbara Berger For the Claimant: Peter Wuebbolt, Barrister and Solicitor Refugee Claim Officer: Hilda Cukavac Designated Representative: XXXXXX XXXXXX Minister's Counsel: Don Collison These are the reasons for the decision of the Refugee Division regarding the claims of XXXX XXXXX (the principal claimant), his brother-in-law, XXXXXX XXXXXXXX, his son XXXX XXXXX (the minor claimant) and his common-law wife, XXXXXXX XXXXXXXX (the female claimant) to be Convention refugees pursuant to section 2(1) of the Immigration Act.1 The principal claimant was designated to represent the minor claimant. The proceedings were interpreted into the Hungarian and English languages. The claimants were represented by Peter Wuebbolt, Barrister and Solicitor. The Minister's Representative was Don Collison, who took part in these proceedings pursuant to section 69.1(5)(a)(ii) of the Act for the purpose of presenting evidence.2 The panel was assisted by Hilda Cukavac, Refugee Claim Officer (RCO). Also present as observers at various times in the proceedings were members of the staff from the Research Directorate of the Immigration and Refugee Board (DIRB). The claimants are citizens of Hungary. The principal claimant bases his well-founded fear of persecution on the ground of race, i.e. his Roma ethnicity, while the other three claimants, who are of mixed Hungarian and Romany background, base their claims on the additional ground of membership in a particular social group, namely that of family. The evidence adduced included the Personal Information Forms (PIFs) of the claimants,3 the oral testimony of the principal claimant and claimant XXXXXX XXXXXXXX, documentary evidence presented by counsel on behalf of the claimants,4 the documentary evidence presented by the Minister's Representative,5 and the RCO.6 The female and the minor claimant relied on the narrative and testimony of the principal claimant. Appearing as witnesses called by counsel were: Orest Subtelny, professor of history and political science at Toronto's York University, specializing in national minority-majority relations in Central and East Europe and the countries of the former Soviet Union; and Ian Hancock, professor in the Department of Linguistics and English at the University of Texas at Austin, specializing in Roma culture, history and Roma-related human rights issues. (Mr. Hancock testified by telephone conference). Appearing as witnesses called by the Minister's Representative were: Jeno Kaltenbach, Parliamentary Commissioner (Ombudsman) for National and Ethnic Minority Rights in Hungary; Lipot Holtzl, Deputy Secretary of State at the Ministry of Justice, Hungary, responsible for bilateral and multilateral international relations, "approximation" of Hungarian legislation with the legislation of the European Union and the Hungarian Government representative in proceedings of the European Court of Human Rights; Florian Farkas, President of the Hungarian National Roma Self-Government and President of the Hungarian Roma organization "Lungo drom"; and Andras Biro, journalist, Chairman of the Board of the European Roma Rights Centre, Chairman of NEKI (Legal Defence Bureau for National and Ethnic Minorities), Chairman of the Board of the "Otherness" Foundation, former Director of "Autonomia Foundation", a non-governmental organization (NGO) which provides small-scale credit to Hungarian Roma for income-generating projects, and member of several other European and Hungarian Roma rights and advocacy organizations. Pursuant to subsection 68(3) of the Act, the Refugee Division, is not bound by any legal or technical rules of evidence. For this reason none of the witnesses was qualified as an expert in the formal sense of the word. The panel did, however, recognize that all six possessed expert knowledge in their respective fields, derived from their studies and research (witnesses Subtelny and Hancock), from work experience in state and NGOs (witnesses Kaltenbach, Holtzl, Biro, and Farkas) as well as direct involvement in Roma community initiatives and Hungarian Roma organizations, including the National Roma Minority Self-Government (witness Farkas). BACKGROUND The principal claimant comes from a family of Roma musicians from Budapest. He is identifiable as a Rom by his darker complexion, his last name, which he claims to be typically Roma, and by the occupation of his parents and grandparents: the family boasts of a long line of gifted violinists, leaders and players in orchestras playing Gypsy music.7 In April 1989 the principal claimant's father and mother were in Canada on a temporary work permit as musicians. They returned to Hungary in March 1991 as their temporary work permit could no longer be extended. Because of his own musical talent, in public school in Hungary, the principal claimant was enrolled in specialized music classes. To avoid problems associated with being a Rom, on the recommendation of his father, the principal claimant broke from the family tradition and took up the piano instead of the violin. The principal claimant alleged that during his school years, particularly in the early grades, he was maltreated by both teachers and fellow students. He testified that the Roma children tended to be separated from the Hungarian children by seating arrangements, with the Roma children usually sitting in the back of the class. In his music class, where there was one other Roma student, the principal claimant alleged that his musical talent was resented by the teachers, although this does not appear to have prevented him from completing grade twelve education. In high-school, the principal claimant also studied cooking. On completing high school, he worked in the restaurant "XXXXXX" as a cook and then he was recruited into the military service. The principal claimant also testified that his family moved often from one district of Budapest to another as they experienced problems with unfriendly neighbours, particularly in areas of the city where Roma were in the minority. In 1994 or 1995 the principal claimant's parents were the victims of on attack on a highway, when they were robbed as well as insulted and humiliated by two young men. When the perpetrators of the crime were brought to court for sentencing, all they had to pay was for a broken car window. Currently, the principal claimant's father owns a one-bedroom apartment in the predominantly Roma District XXXX of Budapest, having sold his previous property in District XX for profit. On a scale of 1-5, the principal claimant described his father's present economic situation in Hungary as 2-3, with 5 being at the upper end of the scale. In addition to his apartment, he owns a car and continues to work as a musician. When the need arose, the father helped the principal claimant and his family financially. The principal claimant's mother died in XXXXXX 1998, when the principal claimant was already in Canada. According to the information the principal claimant received from his father, when his mother fell ill, the ambulance took two hours to arrive, in the hospital she had to wait for treatment even though the attending doctor said that she was in "bad shape", and the father was asked to pay "under the table" for treatment that should have been free. Though the principal claimant admitted that it was not unusual for patients to have to wait in Hungarian hospitals, he maintained that medical treatment was not applied equally and that Roma patients would be treated after ethnic Hungarian patients. The principal claimant also alleged that he was persecuted and discriminated against in the army in 1985-86. In his PIF he said that he was beaten and tortured with anti-Gypsy taunts. In oral testimony, however, he said that he wasn't actually beaten but kicked during training and was the victim of pranks from other soldiers. He said that he did not have time to notice whether other, non-Roma recruits were also kicked during training. He also said that he and the other Roma recruits were given less food and different food from the others. For example, when chicken was served, ethnic Hungarian soldiers would get the drum stick, while he got the back. In the army the principal claimant apparently suffered a nervous breakdown and on the recommendation of the army psychiatrist, he was discharged after some 5 months of the 18-month mandatory service as unfit for military service for medical reasons. The principal claimant testified that he continued to be treated by the army psychiatrist for some 6 months after his discharge. Because the restaurant where he worked in 1985 closed, after his five month military service the principal claimant found work with a management training company as a driver (he testified that the entry in his PIF that he worked as a manager from 1990-1993 was incorrect). He also worked as a cab driver and sold chips in the market. In August 1993 the principal claimant left Hungary and traveled to the U.S.A. allegedly in search of peace and safety for himself and his family. He testified that he could not lead a normal life in Hungary because of his Roma background. He was accompanied by his first wife, XXXXXX XXXXXXX, a woman of Hungarian and Jewish origin, and the minor claimant. After the principal claimant's wife returned to Hungary (the two were divorced in April 1995 with the custody of the minor claimant awarded to the principal claimant), the principal claimant attempted to regularize his status in the U.S. by entering into a marriage of convenience with XXXXXX XXXXXX, a Hungarian Rom and an American citizen. This arrangement, however, did not work out. After the marriage of convenience broke down and XXXXXX XXXXXX apparently disappeared, the principal claimant and the minor claimant remained in the U.S. illegally as the temporary status the principal claimant had gained elapsed and could not be renewed. In January 1996, the principal claimant and the minor claimant were joined in the U.S. by the female claimant, the principal claimant's present common-law spouse. Anticipating that they would be deported to Hungary, in December 1996 the three claimants attempted to enter Canada as visitors, but were refused entry. With their Hungarian passports confiscated by the U.S. immigration authorities, the claimants received letters of permission by the Hungarian consulate and returned to Hungary in the same month of December 1996. The claimants did not make refugee claims in the U.S. at any time during their stay nor did they do so at the Canadian border when they attempted to enter as visitors. The claimants remained in Hungary until May XX, 1997, when they made their way to Canada, this time accompanied also by the female claimant's brother, XXXXXX. Claimant XXXXXX had received a visa to travel to the U.S. in January 1997, but since he no longer had anyone to visit there, he remained in Hungary until the departure to Canada. During the five or so months in Hungary, the minor claimant, who was eight at that time, did not attend school as the principal claimant alleged that he was concerned for his safety though he did not specify in what way. However, he also stated that he wanted to enroll the minor claimant into a private school, but could not afford it. Knowing that he would be leaving Hungary soon, the principal claimant apparently could not enroll the minor claimant in school temporarily. The principal claimant also said he had difficulty finding temporary employment because of his Roma background. In XXXXXXXX 1997 the principal claimant was allegedly attacked by a group of skinheads when he was escorting a Roma friend from a café having celebrated his (the principal claimant's) name-day. The principal claimant was allegedly refused treatment at the hospital he attended after the attack because he was a Rom. When he went to complain to the police, he was accused of probably causing trouble at the hospital and therefore chased away. He is not aware of any follow-up to his complaint about the skinhead attack or the way he was refused treatment at the hospital. The principal claimant fears returning to Hungary on the basis of what he describes in his PIF "a lifetime of being unwelcome and persecuted" in his home country on account of his Roma origin. The principal claimant also expressed concern about the future of the minor claimant. Even though he does not look Roma, he fears that should it be discovered that the minor claimant is of part-Roma origin, he too would be discriminated against and persecuted. As for the female claimant, who like her brother XXXXXX and the principal claimant's son, does not look Roma, the principal claimant alleged that because of her part-Roma origin she was among the first to be laid off from work when the company she worked for was on the brink of bankruptcy. Although he could not substantiate this allegation, he speculated that perhaps the company looked into her documents and came across the female claimant's mother's name, XXXXXXXX, which, though not a typical Roma name, may be recognized as such. No other information regarding the female claimant was provided. The story of claimant XXXXXX is that he too suffered persecution at school as a result of being mistreated by Hungarian teachers and students. According to his PIF, nationalist groups in Hungary are now attempting, with the government's help, to "purify" the Hungarian nation. In the predominantly Roma districts of Budapest, he alleged that anti-Roma graffiti is common and Roma homes are vandalized and burned. When this happened to a neighbour of his in January 1997, the claimant made arrangements to get out of the country by obtaining a U.S. visa. In April 1997, one of his friend's homes was apparently vandalized and the friend went missing. In May 1997, the claimant too was allegedly approached by skinheads in District XXXX where he lived and was warned that if he did not leave Hungary the same would happen to him as with his friend who disappeared. The claimant alleged that when Roma try to get protection from the authorities, it is to no avail, even though he does not appear to have had such an experience himself. He testified that he did not leave Hungary in January 1997 because he hoped things would improve. By May 1997, however, the situation allegedly got worse. He fears that if he returned to Hungary today he would be killed by skinheads and would be subjected to the same kind of persecution as before. ANALYSIS The claimants' Roma identity Considering the above-noted basis of the claimants' fear of persecution, it is necessary first to address the issue of their Roma or part-Roma identity. According to the evidence before us, in Hungary there is no official registration of citizens regarding their race or ethnicity. It is, therefore, entirely up to each individual to consider him or herself as Romany, Hungarian, Jewish, or anything else.8 In general there is agreement that many Roma can be distinguished from non-Roma by the dark colour of the skin, eyes and hair, though there are also fair-skinned, blue-eyed Roma in Hungary.9 This was confirmed by witnesses Hancock and Biro, though witness Farkas maintained that that fair and blue-eyed Roma are rare. A number of first and family names can also be identified as typically Roma.10 Linguistically, Hungary's largest Roma group, the Romungro, are largely assimilated and speak Hungarian, but the smaller Vlach Roma still speak Lovari, and the Beash Roma speak an archaic version of Romanian.11 Of the estimated 500,000 to 800,000 Hungarian Roma population, only some 150,000 speak a variation of Romani as their mother tongue. Notwithstanding the linguistic assimilation, the documentary evidence and witnesses Hancock and Farkas suggest that Roma in Hungary can also be identified by their accent, vocabulary and grammatical construction.12 This, however, is also a distinguishable feature of rural Hungarians and other nationalities in general.13 Other identifying characteristics include customs and colourful clothing, particularly among rural and the poorer Roma,14 and musical ability (the violin, cymbal and the bass are instruments typically played by Roma). According to witness Hancock, knowing where a person lives can also be an identifier. The majority of Hungary's Roma (60% - 75%) live in villages and small towns, with the largest concentration in the eastern and south-western parts of Hungary.15 They are housed in particular parts of town and many in segregated housing. According to witnesses Biro and Farkas, Budapest's 80,000100,000 Roma are #noteargely concentrated in District XXXX. The evidence suggests that the Roma are more likely to be integrated in urban areas than in smaller towns and villages.16 Witness Subtelny maintained that urban Roma also tend to have more education. The level of discrimination is said to be proportionate to the level of integration: the well-integrated Roma, whether fair-skinned or not, reportedly face much less discrimination than do the less integrated ones.17 Applying this information to the claimants before us, we find that only two of these identifying features apply to them directly, namely their District XXXX address, and, in the case of the principal claimant, his name, which is also the name of the minor claimant. As for their physical appearance, only the principal claimant appears to fit the above description, though only to a point. He himself testified that one would have to look more deeply into his life rather than at him physically to be able to determine that he is a Rom. The other claimants do not have any discernible Roma physical, i.e. colour features. The principal claimant admitted that if he and the other claimants went into an area where non-Roma go, they would not be recognized as Roma. While musical background of the principal claimant's father and grandfather may have been an identifying factor for them, it no longer is for the principal claimant who studied the piano on the recommendation of his father. Also, he is not a musician, but a chef by profession. The other two adult claimants also worked in jobs which are not traditionally Roma, the female claimant as a secretary in an office and claimant XXXXXX as a baker and a decorator. All three adult claimants attained grade twelve education. The panel accepts that the principal claimant is a Rom and the other three claimants are partly of Roma origin, but we are also of the opinion that they belong to the group of socially integrated or assimilated Roma. This will have to be kept in mind when we turn to our analysis of the present situation of Roma in Hungary. Credibility of the claimants' allegations In the panel's opinion, the claimants grossly exaggerated the severity or seriousness of their past problems in Hungary and the principal claimant and claimant XXXXXX lacked in credibility in their accounts of physical attacks by skinheads prior to their leaving Hungary in May 1997. Also, the principal claimant would resort to speculation when endeavouring to substantiate allegations of discrimination or mistreatment experienced by himself or other members of his family. The following are some examples of these findings. In his PIF the principal claimant alleged that in school, he and other Roma students were segregated from other children, but in oral testimony it was established that though a Rom, he was enrolled in a music program on the recognition of his musical skills and the wishes of his father. While the principal claimant maintained that he was "undervalued", he was also only one of two Roms in the music class of some 29 students. In fact, what emerged from his oral testimony was that some of his classmates were the children of Hungarian military officers, among the most privileged members of society in Hungary under communism. The principal claimant would also have us believe that he had to endure daily abuse in school, but when it came to specifics, his testimony lapsed into generalities, suggesting that what he was describing was not at all his personal experience. When asked to explain how he was abused by his teachers, the principal claimant stated that he was hit on the palm of his hand ("strapped") and recalled that on one occasion in which he had forgotten something, his teacher berated him that only Gypsy children forget things at home. In his PIF the principal claimant also alleged that "we [Roma] were housed in 'Gypsy' ghettoes", yet it would appear that after he got married to his first wife, the principal claimant lived in his own apartment in District XXXXX of Budapest18 and his father also owned his own apartment which he sold in one district for profit and voluntarily moved to predominantly Roma District XXXX. It would appear that while the family may have experienced problems with non-Roma neighbours, they were able to live in different areas of Budapest by choice, rather than by forced "ghettoization", as the claimant would have us believe. The alleged experience of "torture" in the army turned out to be taunts, while "beatings" were kicks during training. In any event, after some five months the claimant was released from the army having suffered a nervous breakdown, to which he was predisposed even before joining the army. He continued to be treated by the army psychiatrist for some six months after his release. While the principal claimant alleged difficulty in finding employment following his release from the army, as the restaurant where he worked before as a cook had closed down, it would appear from his evidence that he had one form of employment or another until his departure to the U.S. in August 1993. In the panel's opinion, the claimant's rather sweeping statement in his PIF that after the fall of communism in Hungary in 1990 "Nazis, skinheads with Government collusion tortured and persecuted us Romas and other minorities," was neither reflective of the claimant's personal experience nor supported by the documentary evidence. As we shall see in more detail below, while the Roma population of Hungary, particularly the unskilled and uneducated Roma of rural Hungary, experienced great economic hardship and depravation after the collapse of large state enterprises and the introduction of privatization and market economy, and became a favourite target of flare-ups of violent skinhead attacks in the late 1980's and early 1990's, post-communist Hungary also saw a revival of Roma culture and became a period of emergence of a great number of Roma cultural and human rights organizations, newspapers, magazines and radio and TV programs, many of which were and continue to be supported by the Hungarian Government. The principal claimant's own single experience of a skinhead attack was not credible. Apart from his inability to testify about the event with a reasonable degree of believable detail, his account was contradictory and implausible. In his PIF the principal claimant alleged that he and his friend were attacked by four skinheads. In oral testimony the number of attackers was three. When asked to explain, the principal claimant adjusted his testimony, in our opinion, unpersuasively, that the fourth was present on the scene but was not involved in the beating. The panel also found it implausible that the alleged attackers would have recognized the principal claimant and his friend as Romas considering that the attack allegedly occurred in the winter month of February at 9:00 9:30 at night and the skin#noteeads approached the victims from behind. Examples of the principal claimant resorting to speculation in his testimony include his conclusion that his common-law wife was let go from work in 1995 perhaps because it was discovered that her mother was a Rom, based on her mother's maiden name which may have been perceived a Roma name. No other information to substantiate the allegation was provided. Similarly the principal claimant resorted to vagueness when he suggested that the culprit in the attack on his parents was given only a monetary fine because he must have had some kind of a "connection." The principal claimant did not know whether the issue that his parents were attacked because they were Roma came up in court. The principal claimant also resorted to speculation in explaining the poor medical treatment his mother received just before she died in 1998. He testified that in Hungary they blame the cutbacks in medical and other services on Roma. When asked to explain who he meant by "they", he stated that he did not know, and that he wasn't even sure that it was being said openly, but that whoever understands politics should know that it is the smallest nationality groups and those with the lowest education that end up being blamed. The panel is of the opinion that little weight can be given to such vague and nondescript testimony in establishing that the events described by the principal claimant actually took place, and if they did, that the injurious treatment or provision of poor service was racially motivated. For his part, claimant XXXXXX alleged in his PIF that during school he suffered "great persecution", but in oral testimony he failed to provide credible or trustworthy information to substantiate this and other allegations of "various incidents." The claimant was particularly vague in describing how he was approached by skinheads in May 1997. He stated that he was coming from District XXXX in Budapest, that there was no wall separating that part of the city but that everyone knows that that's the area where Roma live, and that he was probably followed by the skinheads. From such a nondescript and sparse account of an incident that allegedly precipitated the claimant's departure from Hungary, we can only conclude that the incident described in his PIF is a fabrication. The claimant's testimony of the circumstances in which his best friend disappeared too was lacking in detail and was simply unpersuasive. The claimant's contention that he did not leave Hungary as soon as he obtained an American visa because he was expecting things to improve in Hungary was weak. When asked whether there were any indications that this might be the case, he could not suggest any, but instead changed the subject by stating that leaving is not a simple thing as one needs money. Only a few months later, however, he was able to raise sufficient funds from his mother and by selling some of his personal belongings to be able to finance his trip to Canada with his sister and the principal claimant. The panel rejects the credibility of the claimant's contention that he was prompted to leave Hungary by personal experiences of persecution or discrimination or by similar experiences of his friends. Setting aside those episodes in the claimants' testimony which were found not to be credible or trustworthy, the panel is of the opinion that the problems which the claimants personally experienced in Hungary did not amount to persecution, either individually or cumulatively. Failure to claim in the U.S. and re-availment of Hungary's protection The evidence that the principal and minor claimant spent some three-and-a-half years in the U.S., and the female claimant some eleven months without claiming refugee status in that country, and that in December 1996 they returned to Hungary, after failing to gain entry into Canada, leads the panel to question whether their conduct was consistent with a well-founded fear of persecution. In other words, does this behaviour point to a lack of subjective fear? According to the Federal Court decision of Huerta:19 The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take in account in assessing both the statements and the actions and deeds of a claimant. Essentially, the same principle was applied in Ilie20 to a situation in which the claimant failed to seek protection in countries, which are signatories to the Convention, where the claimant resided or sojourned, or through which the claimant traveled. With respect to re-availment of protection, it was held in Kanji21 that if the claimant gives reasons why he or she returned to his or her country, clearly states that he or she did not re-avail of the protection of that country and asserts not to have lost his or her subjective fear, absent an adverse finding of credibility, the Board would err in finding, on the basis of purely circumstantial evidence of such returns, that the claimant had re-availed himself of protection and did not have subjective fear. It was the principal claimant's evidence that he left Hungary in 1993 to avoid discrimination and persecution, to find a place of safety for himself and his family and to secure a better future for the minor claimant. If this was indeed the motivation for leaving Hungary, one would expect a more concerted effort on the part of the principal claimant to secure legal status in the U.S. Instead, he chose the dubious route of a marriage of convenience, which was, in our opinion, a much less reliable way of ensuring non-refoulement then applying for Convention refugee status.. His explanation that he did not have the money to pay for legal advice, that he did not know if it was possible to make a refugee claim, and that he received negative responses to his inquiries about remaining in the U.S. after his marriage of convenience fell through, was not persuasive. The claimant worked in the U.S. and was able to pay XXXXXX XXXXXX $300 per month for ten months to maintain his marriage of convenience. Moreover, he proved to be resourceful in other situations, e.g. on one occasion he assisted a friend in Bermuda by bringing to him documents so that he could return to the U.S. He was able to bring the female claimant, his future common-law spouse, to join him and the minor claimant in the U.S. Considering that the three claimants in question remained in the U.S. illegally for a for a significant period of time (some six months) after the principal claimant's temporary green card had expired and as the female claimant too overstayed her visit, we draw a negative inference from the claimants' lack of any meaningful action to claim refugee status in the U.S. The above negative inference is further reinforced by their failure to claim refugee status at the Canadian border in December 1996. Once again, the principal claimant's explanation that he did not know the procedure for making a refugee claim did not have the ring of truth, in view of the already mentioned reasons for leaving Hungary, as well as his testimony that he decided to try to settle permanently in Canada while he was still in the U.S. Counsel's argument in his submissions that as a Rom the principal claimant has problems trusting authorities, is, in our opinion, a poor explanation for the claimants' failure to advance a refugee claim in the U.S. or on their first attempt to come to Canada, particularly if they were seeking refuge from persecution, as they alleged. Regarding the claimants' return to Hungary and the issue of re-availment, the principal claimant stated that they did not fear that they would be mistreated instantly on arrival to Hungary, but that it was the experience of living there as Roma that they feared. While this explanation as such does not lead us to dismiss the presence of a subjective fear, when considered in conjunction with the claimants' failure to claim refugee status in the U.S. and on their first contact with Canadian officials, the panel concludes that theirs was a behaviour inconsistent with a well founded fear of persecution. As for claimant XXXXXX's delay in leaving, though his explanation for not travelling to the U.S. upon obtaining a visa in XXXXXXX 1997 was weak and he probably had not given it serious thought, we conclude that since he was not escaping Hungary on account of any immediate threat of harm but rather for an alleged fear of discrimination, no negative inference can reasonably be drawn on that account. Notwithstanding the above-noted findings regarding subjective fear and negative inferences the panel draws from the conduct of three of the four claimants before us, we are mindful that determinations need to be made on the totality of the evidence presented. Moreover, in Yusuf22 we are told that rejecting a claim because of the absence of subjective fear in the presence of an objective basis for that fear may be "doubtful": I find it hard to see in what circumstances it could be said that a person who, we must not forget, is by definition claiming refugee status could be right in fearing persecution and still be rejected because he is said that fear does not actually exist in his conscience. This is particularly so since we have accepted as credible and trustworthy the claimants' claim that they are of Roma, or part Roma background, which constitutes the basis of their claim. What also needs to be recognized is that evidence of past persecution, is not a determining factor in the assessment of refugee claims. Although such evidence can properly be the foundation of a present fear,23 there is no requirement to show past persecution to substantiate a refugee claim. The Convention refugee definition is forward-looking and the fear of persecution is to be assessed at the time of the examination of the claim to refugee status.24 Moreover, a claim may not be dismissed solely because the claimant has not been personally targeted for persecution.25 A fear of persecution may be well-founded because of the experiences of a group of persons with which the claimant is associated or based on the experiences of similarly situated persons: If persons like the applicant may face serious harm for which the state is accountable, and if that risk is grounded in their civil or political status, then she is properly considered to be a Convention refugee.26To succeed, refugee claimants must establish a link between themselves and persecution for a Convention reason. In other words, they must be targeted for persecution in some way, either personally or collectively.27 (emphasis added) In these circumstances, therefore, the claimants' fear must be also assessed objectively in light of the situation in the country of which the claimants are nationals to determine whether it is well-founded,28 that is, to determine if there is a valid basis for that fear.29 The assessment of the objective basis of the claimants' fear of persecution Legal parameters Before discussing the situation of Roma in Hungary, we shall first summarize the legal parameters of what constitutes persecution within the meaning of the Convention refugee definition and the necessary differentiation between discrimination and persecution. As the establishment of a well-founded fear of persecution also takes into account the availability of state protection, the parameters for this too will be first set out. To be considered persecution, the anticipated mistreatment or harm must be serious.30 In determining the whether a particular harm qualifies as "serious", one must examine: 1) what interest of the claimant might be harmed; and 2) to what extent the subsistence, enjoyment, expression or exercise of that interest might be compromised. In Ward31 the Supreme Court of Canada equates the notion of a serious compromising interest with a key denial of a core human right:
The requirement that the harm be serious has led to a distinction between persecution and discrimination or harassment, with persecution being characterized by the greater seriousness of the mistreatment it involves.32 Even so, acts of harassment, none amounting to persecution individually, may cumulatively constitute persecution.33 What distinguishes discrimination from persecution is the degree of seriousness of harm.34 A second criterion is that inflicting of harm occurs with repetition or persistence, or in a systematic way.35 We are further guided on the issue of discrimination and instances in which it may amount to persecution by the U.N.H.C.R. Handbook:36
On the issue of state protection, we read in Ward:
One standard of protection that a country needs to offer its citizens is " adequate though not necessa#noteily perfect", as suggested in the Federal Court of Appeal decision Zalzali.37 In Villafranca,38 the focus is on "serious effort": No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all its citizens at all times. Thus, it is not enough for a claimant to show that his government has not always been effective at protecting persons in his particular situation [ ]where a state is in effect#noteve control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection. Although the panel is aware of yet another, seemingly conflicting standard, namely that of "effective protection, as found in the Federal Court of Appeal decision of Mendivil39 and such Federal Court Trial Division decisions as Bobrik,40 this apparent difference will not be a serious impediment to the panel's ability to arrive at specific findings in the determination of these particular claims. The situation of Roma in Hungary There is concurrence in the documentary evidence and in the testimony of the witnesses that Roma suffer marginalization and are generally absent from political, academic, commercial and social life of the country. They are among the poorest segments of Hungarian society. There is also general agreement that anti-Roma prejudice in Hungary is widespread and there is a tendency toward segregation and deprivation. According to Farkas, discrimination is present practically everywhere. He also maintains that there is not one Hungarian Rom who has not been a victim of discrimination. After World War II, well over 80% Roma lived in the countryside in isolated settlements in very poor conditions. Communist industrialization brought many into towns or cities and relocated Roma closer to centers of villages. To this day, the majority of Roma still live in villages, though very few in isolated settlements. Urbanized Roma live in the worst housing projects, while in the country they tend to live in so-called "Gypsy rows" or separately in Roma predominant villages. According to a 1992-93 survey, Roma housing was "strongly segregated" with 60% Roma living in neighbourhoods inhabited almost entirely or mainly by other Roma.41 Evictions of Roma from "illegal" and unsafe housing is common throughout the country, but when it comes to re-location, there is strong opposition from non-Roma neighbours or offers of substandard, even inhumane housing alternatives, such as the offer of Szekesfehervar town officials to house Roma families to prefabricated containers previously used by SFOR troops.42 A common complaint to the Ombudsman for National and Ethnic Minorities is from Roma families who are threatened with eviction from flats which they occupy without legal title. In the absence of alternative accommodation, the prospect becomes homelessness.43 After the collapse of communism and the closing of large state enterprises which depended on unskilled labour, Roma workers were the first to be let go and remain on the fringes in the transition to the emerging market economy. Inordinately high unemployment prevails in Roma communities, well in excess of national and regional levels. According to Biro, in some communities 65% 70% Roma males are unemployed and depend on the state (social security) for survival. High unemployment is particularly pronounced in small towns and villages. According to the Ombudsman when it comes to employment programs, Roma unemployed are not aware or hardly aware of their rights or opportunities for such employment, as those who live in the country's more isolated regions and who need these opportunities the most, do not hear about them.44 According to witness Biro, the economic and employment situation of Roma in urban centers is better, though not in the formal economy but in the so-called "grey" and "black market" economy. The term "better" was qualified as in relation to other Roma, not in comparison to the majority society. Witness Koltenbach testified that in cases of allegations of discrimination in the hiring process, the onus is on the employer to prove that race or ethnicity were not the reasons for the person not being hired. According to the documentary evidence, there are 80,000 Roma children in public education, 500-600 in secondary schools and some 300 attend college or university.45 One source states that an overwhelming majority fail to finish primary school, but another states that 75% Roma pupils finish primary school, but less that 1% study in regular secondary schools, college or university.46 Of the 800 primary schools in Hungary, some 132 have segregated classes and schools with a high concentration of Roma children have below average staff and equipment.47 Although Romany culture is being introduced in some curricula, this is happening slowly. In June 1997 in the town of Tiszavasvari a separate grade 8 graduation was held for Roma and non-Roma children, allegedly for "health" reasons. The Ombudsman found the action to have been discriminatory and the leader of the Romani Civil Rights Organization contemplated a civil suit on behalf of the children against the town's mayor.48 The generally acknowledged drop-out rate of Roma from schools is explained by witness Hancock as hopelessness: "I have heard people say, why should I encourage my children to go to school when they are still not going to get a decent job in society because they are Roma." Notwithstanding this comment, we note from other sources evidence of openings of Roma-specific vocational programs and apprentice schools, alternative schools and the operation since 1994 of Gandhi Gymnasium and Dormitory in Pecs, which is a six-grade academic secondary school whose 95% of students are Roma, and five of whose teachers are of Roma background.49 Witness Farkas testified that there are some 80100 teachers of Roma #note origin at all levels in Hungary today, which he characterized as very insignificant. Roma also tend to be over-represented in jails, social care homes and institutions for the mentally disabled, though no official statistics exist. The relations between Roma and the police are also strained as police mistreatment of suspected criminals and detainees is high in general and particularly pronounced in the treatment of Roma. Witness Subtelny sees as a major difficulty the relationship between Roma and local authorities, especially the police. Police misconduct is said to take place every day, but the public is informed of the more conspicuous cases only.50 In July 1997, the Government banned the use of benzedin, a chemical substance smeared on the skin of some suspects because of dubious benefit to criminal investigation; in high dozes, the substance can cause cancer. The substance was reportedly used in several cases involving Roma suspects in Nograd in 1995. When the investigation in one such case did not satisfy one of the victims, he took his complaint to NEKI which in turn submitted a complaint on the victim's behalf to the European Commission of Human Rights.51 These events also appear to have spurred on the Romapolice pilot proj#notect in 1996, through which police training in Roma culture was initiated in that region, together with conflict management and outreach to the Roma community. Supported by the Hungarian National Police Headquarters, Roma youth interested in joining the police force were given scholarships enabling them to continue their education and attaining the necessary qualifications to pursue policing as a career.52 According to witness Farkas there are today in Hungary some 30-50 police officers of Roma background and some 35 in the police academy. Other examples of police mistreatment of suspected Roma criminals can be found in the reports of the European Roma Rights Center,53 NEKI (White Booklet 1997)54 and the Ombudsman's Annual Report for 1997.55 The last source shows that 33 of the 318 received complaints were against the police, though not all by Roma complainants. According to witness Biro, the government has not made the issue of Roma a priority, although the issue of minorities in general seems to have received considerable attention. This seems to be the criticism of another observer who is critical of the government's policy of cultural guarantees, perhaps higher on the agenda of the other 12 official minority groups, rather than guarantees of decent standard of living for Roma. The situation of Roma in Hungary has been described as serious though not acute by Martin Kovats, recently a Research Fellow at the School of Slavonic and Eastern European Studies at the University of London.56 This opinion is echoed by the Stefan Berglund, head of the UNHCR office in Budapest.57 In our opinion, this is a balanced assessment borne out by the preponderance of the evidence before us. While it appears that much still needs to be done to dispel the stereotype views of employers, landlords and society at large, and to improve the situation of Roma in education and social services, several significant legislative and institutional measures have been introduced to address these concerns and to provide protection for national minorities in Hungary in general and the Roma in particular. According to a written statement by witness Biro,58 the Roma of Hungary are muc#note better off than other Roma in the region, as the Hungarian government has introduced legislation and created institutions which are to protect Roma rights and deal with their problems. Legislative and institutional measures Hungary is a parliamentary democracy, with a freely elected legislative assembly and governed by a rule of law. The Government generally respects human rights and civil liberties of its citizens.59 The Hungarian Constitution, amended in 1989, forbids discrimination and establishes that "the national and ethnic minorities in the Republic of Hungary participate in the power of people and constitute components of the state."60 Since 1997, Hungary has ratified a number of international and European agreements that affect minority rights, including the International Convention on the Elimination of all Forms of Racial Discrimination (UN 1997) and Recommendation 1201 of the Council of Europe's Parliamentary Assembly, which provides for the recognition of collective rights for minorities.61 In 1993 the Hungarian Government adopted Law LXVII on the Rights of National and Ethnic Minorities, which ensures individual and collective rights for the 13 officially recognized minority groups living in Hungary, including Roma, and explicitly provides for the establishment of minority self-governing bodies, at both the local and national levels.62 As a result of the December 1994 general local self-government elections and November 1995 by-elections, 792 local minority self-governments were established, of which 477 were Roma. At the same time the National Roma Minority Self Government body was formed through which some 53 representatives, under the leadership of a president (the current president is witness Florian Farkas) operate as a network for regional offices.63 We shall return to the issue of Minority Self-Governments (MSG) below. Inroads, though very modest, also appear to be made in Roma representation in Parliament: in 1994 two Roma were sitting in the Hungarian Parliament and in 1998, one. At the local level, according to witness Farkas, in October 1998, two Roma were voted into the office of Mayor and several hundred as members of local MSGs.64 According to Farkas, in 1998, the number of Roma MSG across Hungary increased to some 850. Currently, there is a proposal before Parliament to amend the Electoral Law by adding 13 seats to the 386-seat body for members of Hungary's minorities.65 In 1996, the Hungarian Parliament introduced an amendment to the criminal code to allow more effective prosecution of those who commit crimes against individuals because of their national, ethnic or religious affiliation.66 According to a report of the Ombudsman, there are crimes being tried currently as racially motivated under Section 156 of the Hungarian Penal Code,67 and the racial motivation clauses in Hungarian laws are said to be used effectively, though more encouragement is needed for local courts to implement and use these clauses.68 Other Penal Code provisions related to minorities include Section 174/B (Violence Against a Member of a National, Ethnic, Racial or Religious Group), Section 269 (Incitement Against a Community), Section 155 (Genocide) and Section 157 (Apartheid).69 According to the testimony of witness Holtzl, anti-discrimination clauses are also found in different areas of administrative law, including education, health and employment. Parliamentary Commissioner for National and Ethnic Minority Rights (Ombudsman) In conjunction with the 1993 Act on the Rights of National and Ethnic Minorities the Hungarian Parliament enacted the Act on the Ombudsman.70 In 1995 the present incumbent, witness Jeno Kaltenbach, was appointed for a six-year term as the first Ombudsman for National and Ethnic Minorities, within an Ombudsman "system," consisting of four separate sections. The role and function of this office is as follows: Any citizen whose constitutional rights have in any manner been infringed upon by an authority or public service administrative organ, or by the decision, sentence or verdict thereof, or further, by failure of any of the above to take the necessary measures, and similarly, in case a direct risk of any of the above circumstances arises, may apply to the Ombudsman, provided at the same time that the plaintiff has exhausted all of the available forms of legal remedy, or in cases where no legal remedy is available to the plaintiff. In order to terminate anomalies connected to the constitutional rights of citizens, the Ombudsman may act ex officio.71 Since the office's establishment in 1995, more than two thirds of complaints were made by Roma. According to the Ombudsman's 1997 Annual Report72 some 63% of the 352 filed and investigated complaints were from members of the Roma community pertaining to requests for remedies against discrimination by the police, the local governments and educational institutions. In the documentary evidence and from the oral testimony of witness Kaltenbach, several examples of the Ombudsman's own initiatives to redress and remedy prevailing problems in education and employment emerged. Thus, for example the Ombudsman called for clearer sanctions against discrimination and segregation in the schools in the law for public education,73 and launched an investigation following the appearance in a Budapest newspaper of a job advertisement seeking "white and non-alcoholic" employees. A proposal for appropriate amendments to the labour law prohibiting such advertisements will be made and announced at a press conference upon witness Kaltenbach's return to Hungary. The Ombudsman also intervened and reported on the frequent attempts by local mayors to move Roma out of certain towns or to prevent them from moving into towns.74 The Ombudsman was also involved in the much-publicized Szekesfehervar "ghetto-affair", finding the town mayor and officials to have acted against the law in an attempt to re-house thirteen Roma families, occupying a decrepit building on Radio Street 11, into pre-fabricated containers previously used by SFOR troops (a detailed chronicle of this three-year affair is provided in the above-noted Phralipe: Gypsy Literary and Public Review). According to witness Kaltenbach, most of his proposals regarding findings of unlawful and discriminatory decisions are acted upon. As part of his efforts to educate and change public attitudes to human and minority rights, the Ombudsman often appears in print and electronic media and his office broadcasts a special TV program based on complaints received. The Ombudsman also acts as a mediator in disputes between local government officials and MSG representatives. The Ombudsman cooperates with non-governmental organizations, such as NEKI, Roma Civic Rights Organization, Martin Luther King Association, Roma Press Centre and the European Roma Rights Centre, by referring complaints for service and legal representation. The most frequent criticism of the Ombudsman is that he lacks the authority to enforce his recommendations and that his official role is limited to investigating. He also lacks jurisdiction over the judiciary. While this is undeniably true (to the best of the panel's knowledge, this is a common characteristic of all Ombudsmen and Ombudsmen-like organizations throughout the democratic world, including Canada), there is no doubt that in Hungary the Ombudsman wields moral authority and as a creature of legislation can be considered as part of the Government's efforts to provide a system for remedying social problems and providing protection to minority individuals and groups with legitimate grievances. We do not have evidence that all the complaints made by Roma citizens are resolved to the complainants' satisfaction, but there is evidence of a trend of effectiveness the Ombudsman's efforts in addressing Roma complaints. Measures of the judiciary and curbing police abuses The evidence before us confirms that avenues are available to Roma to seek redress and pursue judicial appeals when they have been racially victimized or discriminated against. In addition to the already mentioned office of the Ombudsman, according to the information provided by witnesses Holtzl and Kaltenbach, there is also, as part of Hungary's Ombudsman "system", the office of the Ombudsman for Human Rights, and several legal defense bureaus (e.g., NEKI), civil rights organizations (e.g. the Foundation for Civil Rights of Roma), a Legal Aid Office for Minorities, and other national and international Roma and human rights organizations.75 Legal defense organizations, such as NEKI, are reported to have scored a number of successes in prosecuting Roma cases, including the 1997 fining of a pub owner who refused a Rom, Gyula Goman, entrance to his establishment.76 Although the protection as such needs to emanate from the state, there is no doubt that these and other non-governmental organizations provide valuable service as well as legal representation on behalf of Roma before the Hungarian judiciary and administrative bodies. What is particularly valuable is that the awareness of these offices is growing and, according to NEKI executive director, "people know there is somewhere they can turn to with their problems."77 Witness Holtzl acknowledged that the area in which the government continues to lag is in communicating its initiatives and as well as procedural and legal remedies to the Roma community, where awareness of such possibilities is still very low. The revised mid-term measures will, according to Holtzl, contain a special section on communication strategies to make people aware of successful cases and available avenues of redress. In the course of their testimonies, witnesses Kaltenbach and Holtzl also testified that at the present there are cases being tried as racially motivated under paragraphs #156 and #174B of the Hungarian #noteenal Cod#note and that these clauses are being used effectively in the Hungarian judicial system. Witness Holtzl testified that skinheads, for example, can be charged under paragraph 174B and, on the basis of a document released by the National Police Headquarters, Crime Prevention Department,78 37 such cases were handled by the police and first instance courts, two of which are still in progress. The number of reported skinhead attacks is not shown in the evidence before us. Witness Holtzl also explained that it is sufficient that a crime is perpetrated against a minority group member for these provisions to be considered. If they are not considered by the prosecutor (the prosecutor's office is independent body, apart from the Ministry of Justice), there exists the possibility of initiating alternative individual charges at the first instance court level. Witness Holtzl also testified that mechanisms exist for appellants, after they have reached the appeal or second instance level of the Hungarian justice system, to take their complaints to the European Human Rights Commission. The Government of Hungary cooperates with the Commission's investigations. To date there were some 300 complaints against Hungary, of which 200 were deemed inadmissible because they concerned infractions before Hungary signed the Convention. Only the Sarkozi (a Rom) complaint has been concluded in which the complaint of unjust conviction was dismissed, though it was found that the opening of the complainant's mail while he was in detention was contrary to the Convention. Another case involving a Rom by the name of Farkas who suffered police abuse while in detention, has not yet been concluded. There are examples of government and police efforts to improve police-Roma relations by such means as anti-discrimination programs of the Ministry of the Interior, training courses, introduction of a new text-book on minority-police relations, and pilot projects, such as the one mentioned earlier in Nograd County.79 In reading these reports, however, we note that though they are long on praiseworthy objectives, they are short on reporting of any measurable results and success rates of these initiatives. The documentary evidence also provides several examples of instances where police officers have been fired for mistreating Roma suspects.80 In 1995 some 164 police officers were accused of physical abuse and in the first half of 1997 some 19 police officers were convicted of using excessive force. In February 1997, three policemen were fined for physically assaulting a Roma entrepreneur.81 Although the documentary evidence contains other examples of measures taken against the police,82 not all are helpful for the purposes of our analysis as they do not indicate whether the incidents which prompted these disciplinary measures against police officers involved Roma individuals. Though Roma are still reluctant to avail themselves of police protection as they believe that their complaints will not be taken seriously, according to one source, they will usually seek police assistance in more serious cases.83 In the opinion of witness Biro, the majority of abuses are experienced by people who are less educated, less conscious of their rights, because those who are conscious of their rights, do find ways to defend themselves. Witness Hancock reiterated the same point, indicating that because of education and other socio-economic factors, many Roma don't know how to approach the establishment to seek legal redress. He also pointed out that not all lawyers are well-disposed to taking on Romany cases and because of history, there is a "pre-expectation" on the part of Roma of non-response from the authorities. According to the Human Rights Watch Report 1997, although police abuses and discrimination against Roma continued to be frequent, Roma victims appeared increasingly willing to seek remedies through the judicial process.84 The large number of cases reported by and represented by NEKI, though no doubt also a sign of local racism, unfulfilled state promises, and the law's incapability of limiting systematic discrimination, as suggested in the White Booklet's Introduction by Istvan Szikinger,85 NEKI's own statistics86 suggest that victims of racist violence and discrimination are not holding back from reporting and seeking redress. According to witness Biro, because of increasing bad publicity (not unlike the situation of the police in France and Los Angeles) there is a hopeful development that police are starting to act with more caution with Roma. In consideration of all this, the panel is of the opinion that while the "crisis of confidence" in the authorities still appears to persist, there are sufficient examples of successful remedies and redress measures to conclude that in most cases it is reasonable to expect that a Roma victim of violence and discrimination, particularly if they are of a more serious nature, would be able to find out of redress possibilities and would endeavour to pursue these. Other Government initiatives In perusing the documentary information and the testimony of the witnesses, the panel has learned of several other Government initiatives, both national and international, dealing with Roma rights issues, as well as coordinating bodies and public foundations, too many to enumerate here, involved in education, housing and economic development.87 Through these, university and secondary school scholarships are awarded for Roma students, teacher sensitization and training is being sponsored, Roma and other minority institutions supported, experimental housing for disadvantaged Roma families funded, and work projects initiated. Of particular interest are the Government's so-called "mid-term" measures introduced in July 1997. This package, comprising education, employment, social issues and health care, regional, anti-discrimination and media programs across Government ministries, was put together in consultation with and co-operation of Roma communities, taking into account ideas and proposals of their representatives. Following the election of the new Government in May 1998, the measures were to be reviewed for modification by November 30, 1998 and placed under the supervision of a new Inter-ministerial Committee on Matters Relating to Roma, with the participating ministries and departments represented, according to witness Holtzl, by personnel at the Deputy Secretary of State level. The Government is also involved in the support of pro-Roma NGOs, such as NEKI (through the Public Foundation for Roma in Hungary),88 the National Gypsy Legal Aid Network,89 the Self-Reliance Foundation, which, according to witness Biro, has to date helped some 450 Roma employment projects with interest-free loans, and other organizations. Minority Self Government One of the most important outcomes of the 1993 Law LXVII on the Rights of National and Ethnic Minorities was the formation on the so-called Minority Self-Governments (MSG) for Hungary's 13 recognized minorities, including Roma. The MSGs are funded from the central budget and receive logistical support from local governments to which they are affiliated as parallel legal entities. MSGs are elected bodies with authority over the cultural, linguistic and educational concerns of the respective minorities.90 MSGs can run economic enterprises, manage institutions, such as cultural centers, and provide input on the curricula for minority education and on programming for minority television and radio. Local MSGs also have a veto over the appointment of heads of minority institutions. In short, local MSGs are designed to represent and protect the regional and national interests of the minorities they represent.91 Unlike the MSGs of the other groups, whose focus tends to be on language and culture,92 the Roma MSGs have the additional tasks related to social, health and employment questions. Nationally, the MSGs are the responsibility of the Office of the National and Ethnic Minorities, which recently introduced a series of regional and local courses for MSG representatives to give them legal and administrative knowledge to be able to properly fulfil their functions. As noted above, the National Roma MSG acts as a networking body for the local Roma MSGs. The national body also organized initiatives of its own, such as the "Gypsy Solidarity Fund" which supports Roma youth's higher education,93 and coordinates a government subsidized housing construction program, which, according to witness Farkas, will provide housing for some 250 Roma families by the end of 1998. Florian Farkas, the witness with the most direct experience in Roma MSGs, explained the MSG election process and illustrated examples of initiatives a local MSG might undertake. He testified that local MSGs have the voting and veto power at local municipalities on matters pertaining to Roma. Local MSGs can stop school principals from creating special or so-called "Gypsy" classes or eliminate or dissolve such classes if they have been created without the knowledge of the local MSG. As president, he intervened in the attempted evictions of Roma families in several communities and, together with his supporters, successfully campaigned at election time and defeated three incumbent mayors who treated Roma in such discriminatory actions. As National Roma MSG president, witness Farkas was present in Hajduhajhaz following the incident where a teacher (she is now in custody) stabbed four Roma pupils and other teachers who tried to restrain her. He participated in putting together a team of experts to assist the community in coping with the trauma. Through the organization "Lungo drom", which runs Roma candidates in local MSG elections, training was organized for some 600 school teachers, and, under the auspices of the National Roma MSG has secured funding for Roma educational programs from foreign and Hungarian government sources. According to witness Farkas, the expectations of local Roma MSGs are higher than they have the authority to deliver and the expectation of speedy results is often also problematic. The most frequent criticism of the MSG system in general and the Roma MSGs in particular is that they are inadequately funded (although witness Farkas testified that funding has at least kept up with inflation), that they have no real legal power and that they are run almost exclusively by "Lungo drom" thereby not representing the diversity of the Hungarian Roma community. According to witness Biro, the Roma MSGs have diminished the role of Roma NGOs (there are some 240 registered such Roma organizations),94 but he acknowledged that MSGs give visibility to Roma communities, give Roma an opportunity to learn to deal with local problems and to raise funds for local community projects. From all of the above, the panel arrives at the opinion that while the MSG system is not what everyone expected, it is a structure successfully used to eliminate discriminatory local practices and to respond to Roma community needs at the local level. It is also our opinion that if the Roma communities are losing confidence and trust in the local MSGs, as some of the opinions would have us believe, one would have expected that the number of such elected bodies would have dropped following the last local elections. The opposite appears to have happened: witness Farkas testified that the number of Roma local MSGs almost doubled, increasing from 477 in 1995 to some 850 in 1998. Skinhead violence and extremist political groups The preponderant view in the documentary evidence is that skinhead violence is not a significant problem in Hungary today. It is reported that there are fewer than 1,000 skinheads in the country, with the largest concentration in the town of Eger and some in Budapest, though they are a mobile group and Hungary is a small country.95 The situation has changed since the unsettled times around 1989-90 and there has been an increased vigilance on the part of the law enforcement officers in policing skinhead and neo-nazi groups at the direction of the Ministry of Interior. The estimated number of skinheads at that time was 3,0005,000.96 Although there is a difference of opinion as to whether skinhead attacks against Roma and foreigners (visible minorities in particular) peaked in 1992-93 or 1995, and whether it was a predominantly an urban or rural problem (the view that it was the latter predominates), there is consensus that such attacks and skinhead activity in general have waned significantly. Only witness Hancock believes that the present situation is a "low" in a pattern of lows and flare-ups of skinhead attacks and he does not accept that the problem will not resurface again soon. Witness Farkas describes the problem as "insignificant" and testified that over the past year or two one hardly hears of skinheads attacks in Hungary any more. He attributes the changed situation to the visibility of the Roma community in organizations such as the local MSGs throughout the country. According to witness Biro, another source of violence seems to be on the rise and that is an increasing sense of aggression among Roma youth in cities. Violence reportedly also occurs between non-Roma and Roma youths. The evidence also shows that there is a significant track record in the Hungarian judiciary in prosecuting perpetrators of skinhead violence. According to Dr. Andras Vaskuti, Chief Judge, Budapest Court of Justice, legislation is in place providing for sentences of up to five years in "simple" cases and up to 8 years for "qualified" cases (e.g. where a weapon is used) in racially motivated attacks. In the second major case over which Dr. Vaskuti presided, he ruled that there had been premeditated malicious assault and imposed a stiff sentence without parole for both the perpetrators and accessories. The Supreme Court of Hungary upheld the ruling on appeal, but reduced the sentences. According to Dr. Vaskuti, if one takes the number of skinhead attacks in the early 1990s as 100%, at the present it is down to 2%3%. According to his statem#notent, skinhead violence in Hungary has never resulted in a death.97 It is interesting to note that in the National Police Headquarters list of 37 cases, attacks on foreigners were just as prevalent as on Roma. Not one of the crimes or attacks which occurred in Budapest was in District XXXX. As for political parties with extremist agendas, we note that in 1993 Istvan Csurka, the leader of the Life and Justice Party, was expelled from the Hungarian Democratic Forum (the socialist liberal coalition, in power from 1994-1998) for his explicit anti-Semitism.98 Although the Party gained entrance into Parliament in the May 1998 elections, it is not involved in defining Government policy. Assessment of the effectiveness of Government measures We have ascertained that there are critical and skeptical voices in assessing the effectiveness of the Government's legislative and socio-economic initiatives of concern to Roma. The Human Rights Watch/Helsinki Report, for example, calls the Roma Program Commission in Parliament, the public foundation and other initiatives as "not unambiguously positive" having produced to date few concrete programs or results.99 In its statement on the occasion of entrance into NATO of the Czech Republic, Hungary and Poland, the European Roma Rights Center states that "The idyllic image presented by Hungarian legislation and the proclamations of the government is tainted only by the real conditions in which Hungarian Roma continue to live."100 Witness Hancock commented that the government initiatives in the areas of employment and education (such as the Gandhi high school for Roma), are a step in the right direction, but that in his opinion they are not working well and that literacy and other skills aren't enough to reverse "a deteriorating situation" (he later explained that by "deteriorating" he meant a situation which was not improving). According to witness Hancock in assessing the situation of Roma in Hungary one must make "a clear distinction between the laws of the country and the attitude of the people" and that while Hungary is ahead of its neighbours ideologically, the racism directed at Roma is rooted in European history. Laws may change at a certain time in history, but the attitude of the population doesn't change on the day the law comes into effect. Witness Subtelny's view is that the Hungarian Government's policies toward minorities in general and Roma in particular are formulated by the Hungarian Government "looking to what Europe has to say, rather than from the point of view that Hungarian society demands such." He calls Hungary's democratization as "imposed" rather than an "organic development" and that its process is being pushed very quickly by external factors, that is, Hungary's desire to be accepted in the European community. It has also been suggested that the Hungarian national and ethnic minority policy, particularly the 1993 Minority Law, which includes "very few substantial guarantees," was drafted primarily as a model law for neighbouring countries, those with large Hungarian minorities101 rather than, by inference, out of concern for the welfare of its own minorities. We have no doubt that the above criticisms are not baseless and are, to some extent, justified. Among the Government initiatives mentioned above and discussed in the documentary evidence there may indeed be those which are merely symbolic, introduced for motives rooted in political expediency. However, it is also possible that with the size of the Roma problem, which persisted over so many years, in fact over the centuries, according to witness Hancock, coupled with a challenging period of economic and political transition, it is not immediately discernible that these legal measures and initiatives are having the desired impact. While the coming of democracy in Hungary in 1990 has not translated into economic benefits for the Roma, as witness Subtelny pointed out and witness Biro illustrated, in our opinion it would not be correct nor fair to conclude that the Hungarian Government, whatever its motivations, has skirted its responsibility towards Roma, in the implementation of legislation, enforcement of its laws and its introduction of initiatives to address the rights and socio-economic concerns of its Roma minority. Based on our interpretation of the evidence before us, the measures introduced are significant. Given their number, scope and cost, we see in these measures a serious effort addressing a serious problem, even though we agree that the results are not necessarily immediately discernible nor do they meet all the Roma community needs sufficiently. Weighing of the evidence In assessing the evidence before us, the panel preferred the evidence from documentary sources and the witnesses to the claimants' testimony. The former two came from a variety of independent, well-informed and objective sources, whereas the claimant's testimony was not as nearly well-informed, often lacked in credibility or trustworthiness, and in many instances was based on exaggeration, speculation and conjecture. With respect to the testimony of the witnesses, although the panel found them all to be well-informed, forthright and generally very helpful, we assigned greater weight to information of witnesses which was more current and emanated from "on the ground" experience particularly when it came to the assessment of specific measures and Roma-related initiatives. Thus, while we found the information provided by witnesses Subtelny and Hancock well-informed and enlightening with respect to the general situation of Roma in Hungary and the historical roots for many of today's problems, regarding the situation of Roma in Hungary today, we preferred the testimony of witnesses Farkas on the issue of Roma MSGs and Biro on the effectiveness of NGOs (Roma and pro-Roma alike) in creating the awareness of remedies available to members of the Roma minority. We also placed greater weight on the information regarding the legislative changes and government funding as provided by witness Holtzl, than on the information on the same subject from the other witnesses. We placed significant weight on the information provided by witness Koltenbach, who as Ombudsman is directly involved in investigating complaints and recommending remedies, including legislative provisions to right the wrongs established in the course of his investigations. As evidenced by his testimony and the Annual Report, witness Kaltenbach was very critical of the Government, but also demonstrated how the legislative measures and new institutional structures can work positively in the defense of human rights of the Roma minority. Where there was apparent divergence in factual information, such as the witnesses' testimony regarding the number of MSGs and the activities of skinheads, we preferred the more current information as found in the documentary evidence, as well as the information provided by the four witnesses from Hungary who had more up to date information. Regarding the question of the situation of skinhead violence in Hungary and whether it can be expected to flare up again, we preferred the testimonies of witnesses Biro, Kaltenbach, and Farkas, along with the most recent and prevailing documentary evidence that the skinheads are on the wane, to witness Hancock's opinion that it is not a fad and that skinhead violence will flare up again. We find the former opinion more reliable than the latter as it is from individuals who live in Hungary and deal with the issue both professionally and are in a better position to directly assess the current situation. FINDINGS AND CONCLUSION Based on the evidence before it and in light of applicable jurisprudence cited earlier, the panel concludes that the claimants have not established that there is a reasonable chance or a serious possibility that they would be persecuted on account of their Roma or part-Roma background if they returned to Hungary. The principal claimant's and claimant XXXXXX's testimony about incidents of skinhead attacks and confrontations were found not to be credible and their fear of such attacks in the future has not been shown to have a valid or an objective basis. The documentary evidence and the evidence of all but one of the witnesses clearly shows that while skinhead attacks were more frequent up to 1995, at the present they are not a serious concern. Even the witness who testified that he believed that there will be flare up of skinhead activity in the future, had no information to show that the problem is a serious one today. We next turn to the claimants' fear of discrimination. The evidence shows that in many respects this concern is justified. As witness Farkas testified, it is no great honour to be a "Gypsy" in Hungary with a sense of inherited fear and experiences of negative treatment in all spheres of life. According to witness Biro, Hungarian society has a huge democratic "deficit" with no sense of multiculturalism where prejudices and stereotypes abound. However, witness Biro also maintains that the progress being made in such areas as education and awareness of rights, though slow, is irreversible, barring any international tragedy or unlikely reversal to the old system. The question is, does this fear of discrimination amount to a fear of persecution? In our opinion it does not. The claimants have not demonstrated, nor does the evidence support that the harm which the claimants fear on returning to Hungary is serious, and that they will be denied core human rights, that is, denied human dignity in a key way. The claimants' evidence does not show that they will be seriously restricted to earn a livelihood (though they may experience hardship in seeking employment), nor that they will be denied access to education or services normally available to Hungarian citizens, let alone the right to life, thought, conscience, religion, recognition as persons, and freedom from torture, arbitrary arrest, and freedom of movement or residence. Neither does the evidence substantiate that the discrimination the claimants fear bears the characteristic of repetition and persistence, i.e. that it is sustained or systematic. In our opinion, the discrimination the claimants fear, either individually or cumulatively, does not amount to persecution. What the claimants fear, in our opinion, is differences in treatment and possibly less favourable treatment along the lines of UNHCR Handbook's paragraph 54, but not serious discriminatory or other offensive acts which are knowingly tolerated by the Hungarian authorities as contemplated by paragraph 65. In our consideration of the evidence before us, particularly as it pertains to the situation of Roma in Hungary, the panel has taken great care to differentiate between societal prejudice and poor, even inferior social and economic conditions of Roma, from the claimants' alleged fear of serious harm amounting to persecution requiring international (Canada's) protection. In our opinion, there is an abundance of evidence in support of the former, but insufficient evidence to justify the need for the latter. Notwithstanding the regrettable situation of the Roma in Hungary, the purpose of Canada's refugee determination process is not to right another country's historical wrongs, nor to provide better employment and educational opportunities and a higher standard of living: all those are Hungary's responsibility. Our role is to determine the need for protection for those individuals who have a well-founded fear of persecution. That is not to say that there are no instances in Hungary today in which the levels of discrimination against Roma would not amount to persecution. In our opinion, however, these would be rare and exceptional. We find that it is certainly not the case in the circumstances of the claimants before us. Even if we had found that the fear of discrimination which the claimants fear on returning to Hungary was serious, that is, even if we had found that the claimants feared "actions which deny human dignity in any key way" and that they were being denied core human rights in a sustained or systematic way",102 we would still find that their fear of persecution is not well-founded. This is because, in our opinion, they have not rebutted the presumption that the Hungary is able to afford them protection. Nor have they provided a reasonable explanation as to why they are unwilling to seek Hungary's protection and that if they were to seek it that such protection would not be reasonably forthcoming. The principal claimant's statement at the end of the hearing on behalf of all four claimants that they cannot expect assistance from the Hungarian government or the police, was in our opinion, an insufficient explanation to meet the evidentiary test postulated in Ward: "clear and convincing confirmation of a state's inability to protect." From the documentary evidence before us, we have ascertained that the Hungarian government is making a concerted effort to improve the situation of its Roma minority. In terms of the issue of protection, which is of particular importance for an analysis, we find that what the evidence reflects is that the government is making a "serious effort to protect its citizens" as contemplated in Villafranca. We have also ascertained that through the adoption of legislation, examples of successfully prosecuted cases, disciplinary measures taken against abusive police personnel, and the establishment of an Ombudsman for national and ethnic minorities, the protection being offered to Roma and other minorities can be described as effective. While the question of access to remedies and awareness of rights may vary from region to region and from one section of Roma society to another, depending on the level of education and geographic location, based on the evidence before us, we conclude that notwithstanding the historical mistrust and lack of confidence in the authorities, it would be indeed rare that a Rom in Hungary would not be able to find out about remedies open to him or her if they had reason to believe that they are being persecuted. Even though the government seems to be lacking in effectively disseminating such information to its citizens, the number of local Roma MSGs and Roma and pro-Roma NGOs, would also be possible sources of information for a person in such a situation. In any event, this would certainly not be the case with the claimants before us whose background and circumstances suggest that they are well integrated into the majority Hungarian society and would have little problem, if any, to find out about measures available to them to obtain protection if and when needed, if they chose to do so. Though not proper sources of protection themselves, the NGOs can and do serve as catalysts of access to remedies if and when necessary. Many in fact have a considerably successful track record of assisting Roma in accessing protection through information, advocacy, and legal challenges and representations, both at the national and international (i.e. European) levels. In this regard we accept the argument of the Minister's Representative that ignorance of one's rights, procedures of law and other available protection measures and institutions, such as the ones which exist in Hungary today, cannot be mistaken for the state's inability or unwillingness to protect. The question of protection is, after all, not a subjective but an objective part of the Convention refugee definition's test. DETERMINATION Having regard for all of the information before us and for all of the above reasons, the Refugee Division determines that XXXX XXXXX, XXXXXX XXXXXXX, XXXX XXXXX [the minor claimant] and XXXXXXX XXXXXXXX are not Convention refugees. "V. Bubrin" Concurred in by: "Barbara Berger" DATED at Toronto this 20th day of January, 1999. ![]()
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