Balla v. Canada (Minister of Citizenship and Immigration), 2003 FC 1436

Date: 20031209

Docket: IMM-3414-02

Citation: 2003 FC 1436

Ottawa, Ontario, this 9th day of December, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                    ZOLTAN BALLA

ZOLTANNE BALLA

KRISZTIAN BALLA

TAMAS BALLA

ZOLTAN BALLA

RENATA PALINKAS

                                                                                                                                                      Applicants

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Immigration and Refugee Board (Convention Refugee Determination Division) (the "Board"), dated May 28, 2002, wherein it was determined that the applicants were not Convention refugees.

[2]                 The applicants request an order setting aside the decision of the Board.

Background

Introduction

[3]                 The applicants are Zoltanne Balla (the female applicant), her spouse Zoltan Balla (the male applicant), their son, Zoltan Balla, his common-law spouse, Renata Palinkas, and the twin minor sons of the male and female applicants, Krisztian Balla and Tamas Balla. They are all citizens of Hungary. The female applicant and her three sons claim a well-founded fear of persecution on the basis of their Romani ethnicity. The male applicant and Renata Palinkas are ethnic Hungarians and claim a well-founded fear of persecution on the basis of their membership in a particular social group - family, through their association with their Roma spouses.

[4]                 The female applicant alleges that she was subject to discrimination by ethnic Hungarians in her school days and faced constant insults and degradations.    In October 1999, she and her family were not allowed to attend a festival organized by ethnic Hungarians. She was told that the event was exclusively for ethnic Hungarians and an argument ensued between her brother, his friend and the ethnic Hungarians. During the fight, the brother and his friend were beaten and injured. The family did not call the police since they did not know who the assailants were. In their opinion, the police would refuse to commence any investigation without proper details and descriptions of the attackers. In addition, they were afraid to complain to the police.

[5]                 The day after the attack, the female applicant and her family approached the Romani representative and complained about the attack. The Romani representative made a promise that he would ensure that such events would not occur again. The applicants did not follow up on this matter.

[6]                 At school, the teachers often beat the female applicant's children, and she was not allowed to attend parent/teacher interviews. The female applicant was not admitted to places of entertainment. Unable to tolerate the situation any longer, the female applicant left for Canada with her family. Her spouse and sons have adopted her narrative. Renata Palinkas alleges in addition to the information in the female applicant's PIF that her parents have threatened to disown her if she does not stop seeing Zoltan Balla, the son. In her PIF, she states she realized only how badly the Roma community are treated when she started living with her boyfriend's family.

Reasons of the Immigration and Refugee Board (Refugee Convention Determination Division)

[7]                 A hearing was held on March 12, 2002. By reasons dated May 28, 2002 the Board determined the applicants not to be Convention refugees.

[8]                 The Board reviewed the incidents of discrimination the applicants had faced in Hungary. The Board found that the applicants had faced mistreatments amounting to discrimination, but that these acts of discrimination did not amount to persecution when considered singularly or cumulatively.

[9]                 The Board found the applicants failed to provide clear and convincing proof of Hungary's inability to protect them should such protection be required, if not directly by the police, then by the network of government and government sponsored organizations that are active throughout the country.

[10]            The Board found the applicants never tried to seek help from either the Office of the Ombudsman, or various non-governmental organizations, and had approached the Romani representative in their village on only one occasion. They applicants are now aware of additional avenues of assistance and the Board found there was no evidence to indicate there are barriers preventing them from utilizing such avenues upon their return to Hungary. With respect to mistreatment by the police, the minor applicant's school authorities, periods of unemployment and harassment from the general public, the Board found that adequate state protection would be available.

[11]            In short, although the Board found that there was a serious possibility of discrimination in employment and schooling, the Board found that there was not a serious possibility of persecution, on any Convention ground, should the applicants return to Hungary. The Board also found that adequate state protection would be available to them. As such, the applicants were determined not to be Convention refugees.

[12]            This is the judicial review of the decision of the Board.

Applicants' Submissions

[13]            The applicants submit that having determined them to be victims of discrimination, the Board erred in law by failing to assess whether the discrimination cumulatively amounted to persecution. It is submitted that the Board failed to consider the impact of other documented acts of persecution upon other Roma in assessing the applicants' fear of persecution.

[14]            The applicants submit the Board failed to recognize the essential role that employment and education play in the modern environment and thereby minimized the effect that their systematic denial has on individuals' basic human rights.

[15]            The applicants submit the Board erred in finding the government's budget to fund measures for the improvement of the situation of Roma to be significant. It is submitted that such funding is inadequate to have any demonstrative impact. It is also submitted that most of the programs cited by the Board were budget proposals and have not been evaluated to see if the programs were ever implemented.

[16]            The applicants submit that the Board erred in applying too onerous a burden on the applicants to find state protection in Hungary. It is submitted that if the Board accepts that assistance may take years to receive, if it is received at all, then for practical purposes it should have determined that state protection from various organizations is not available.

[17]            The applicants submit they have established each component of the Convention refugee definition as follows:

1.          They are citizens of Hungary and no other country and the Board accepted their nationality and ethnicity;

2.          They cannot seek the protection of Hungarian authorities as it is thoroughly documented in evidence before the Board that the police commit acts of persecution against the Roma on the basis of their ethnicity and that they frequently refuse to extend assistance to them;

3.          They are subjectively fearful and there was corroborating evidence providing an objective basis for that fear;

4.          Their fears are linked to their ethnicity and membership in particular social group; and

5.          Their fears are well-founded throughout Hungary based on the country condition documentation before the Board and there has not been a cessation of risk faced by the applicants.

Respondent's Submissions

[18]            The respondent submits it was open to the Board to find that the impugned acts did not amount to persecution when considered singularly or cumulatively. It is submitted that it was open to the Board to conclude that the applicants may have faced discriminatory, but not persecutory conduct. It is submitted that this finding by the Board is subject to significant deference.

[19]            The respondent submits it was open to the Board to find that the applicants did not provide clear and convincing proof of the state's inability to protect. It is submitted that the Board engaged in an extensive review of the documentary evidence regarding state protection.

[20]            The respondent submits that the applicants have not shown that the Board's findings are patently unreasonable.

Issues

[21]            The applicants articulate the issues as follows:

1.          Did the Board err in law by failing to consider the totality of the evidence before it and arrive at erroneous findings of fact in a capricious and perverse manner? Specifically, did the Board err in arriving at an erroneous finding of fact in a capricious and perverse manner without regard to the totality of the evidence by:

(a)         failing to consider all the material evidence before it;

(b)         disregarding the risks faced by the applicants in remaining in or returning to Hungary;

(c)         disregarding or misinterpreting the applicants' evidence regarding their fear of remaining in or returning to Hungary;

(d)         misinterpreting case law and the definition of Convention refugee;

(e)         misinterpreting country condition documents and erroneously applying their contents to the applicants' circumstances;

(f)          relying on irrelevant considerations and misconstruing relevant evidence; and

(g)         failing to consider the country documentation before it regarding the human rights violations committed in Hungary. In particular, did the Board fail to properly assess the risks faced in Hungary by the applicants?

[22]            The respondent articulates the issue as follows:

1.          Did the Board err in finding the applicants did not have a well-founded fear of persecution?

Relevant Statutory Provision

[23]            Subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, states:

Analysis and Decision

[24]            Although I will address the issue as stated by the respondent in these Reasons, I will address the applicants' arguments under this issue.

[25]            Did the Board err in finding the applicants did not have a well-founded fear of persecution?

As noted by the respondent, the Board reviewed the incidents the applicants had faced in Hungary:

1.          The Board found that the refusal of admission to the festival amounted to discrimination and not persecution. When three men beat the female applicant's brother and friend with pieces of wood, the Board found this to be an isolated incident "since no testimony was proffered about similar incidents of physical attacks".

2.          The Board noted that the applicants' inability to find accommodation was partly due to discrimination, but was also due to high rent and the influx of people to the village where the female applicant and her family lived.

3.          "When questioned about the nature of the relationship between the police and the Roma, the female [applicant] stated that she had never had any problems with the police and they only punished those who stole or broke into homes." The female applicant also stated that the police had never persecuted her and her family and had had no dealings with them at any time.

[26]            The Board wrote at page 4 of its reasons:

. . . There is no persuasive evidence of persecution that was perpetrated against the claimants. The panel recognizes that it is not necessary to have suffered persecution to find a well-founded fear of persecution. The panel finds that they had faced mistreatments amounting to discrimination. In the panel's view these acts of discrimination do not amount to persecution when considered singularly or cumulatively.

The Board did deal with the individual incidents of discrimination and then concluded cumulatively the incidents did not amount to discrimination.

[27]            Based on a review of the Board's reasons and of the transcript, I am of the view that it was open to the Board fo find that although the applicants had experienced discrimination in Hungary, they did not face a well-founded fear of persecution. The Board's decision on this point was a reasonable decision.

[28]            State Protection

The Board found that state protection was available to the applicants, based on the following:

1.          Documentary evidence indicates that the government has taken steps to improve the lot of the Roma community. The Hungarian government was noted in the documentary sources before the Board as generally respecting the human rights and civil liberties of its citizens. Further, the state has ratified a number of domestic laws and international instruments regarding its commitment to supporting minority rights.

2.          There are funding measures aimed at improving the situation of the Roma such as educational programs, scholarships, retraining of long-term unemployed Roma, participation of Roma in public works, public welfare land programs, grants to public foundations for Roma, and subsidies for Roma self-governments.

3.          Documentary evidence indicates there are other avenues of redress the applicants could access should they be subjected to mistreatment either by racists or the authorities. These include the Office of the Ombudsman, human rights organizations, civil legal protection organizations, and NGOs.

[29]            The applicants submitted that many of the measures had not been carried out. The Board acknowledged life for Roma in Hungary is significantly worse than among the general population and that there is widespread discrimination in education, housing, employment, access to public institutions and problems with the police.

[30]            The Board also acknowledged that the documentary evidence indicates that life for Roma in Hungary is significantly worse than among the general population and that there is widespread discrimination in education, housing, employment, access to public institutions and problems with the police. The Board noted that "[p]olice commonly abuse Roma citizens".

[31]            The Board also stated that "there is no evidence to indicate that there are barriers in their circumstances to prevent them from utilizing the various avenues available". The applicants submit the Board failed to consider the impact of extremely poor education and poverty on an individual's ability to access state institutions.    The applicants submit the funding measures for the improvement of the situation of Roma are "thin" and that the Board erred in finding this budget to be significant. The applicants also submit the documentary evidence shows that the Office of the Ombudsman can access only a limited number of issues.

[32]            The Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (C.A.) (QL), leave to appeal to the Supreme Court of Canada refused [1993] 2 S.c.R. xi, stated at page 3:

The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid (clearly not the case here) or that the government itself is in some way prevented from giving it.

No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however much they may merit our sympathy, do not become convention refugees simply because their governments have been unable to suppress the evil. Where, however, the state is so weak, and its control over all or part of its territory so tenuous as to make it a government in name only, as this Court found in the case of Zalzali v. Canada (Minister of Employment and Immigration) [See Note 2 below], a refugee may justly claim to be unable to avail himself of its protection. Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability. On the other hand, where a state is in effective 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.

[33]            In Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689, the Supreme Court of Canada stated at page 709:

. . . International refugee law was formulated to serve as a back-up to the protection one expects from the sate of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. . . .

Further, at page 724 of Ward, supra:

. . . The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state [page725] protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.

. . .

. . . A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. . . .

[34]            Just as the Board concluded, I am of the view that the applicants have failed to provide "clear and convincing confirmation of Hungary's inability to protect them should such protection be required, if not directly by the police, then by the network of government and government sponsored organizations that are active throughout Hungary" (Board's reasons at page 9). I would note that the applicants did not provide specific evidence of similarly-situated individuals let down by state protection and offered no testimony of past personal incidents in which state protection did not materialize. Also, the female applicant stated she never had any problem with the police. As well, after the attack at the festival, the female applicant and her family approached the Romani representative about the attack and he promised her that such events would not happen again.

[35]            I am of the view that the Board's finding that state protection was available to the applicants was a reasonable finding and as such, the Board did not make a reviewable error.

[36]            The application for judicial review is dismissed.

[37]            Neither party wished to propose a serious question of general importance for my consideration.

ORDER

[38]            IT IS ORDERED that the application for judicial review is dismissed.

          "John A. O'Keefe"         

             J.F.C.

Ottawa, Ontario

December 9, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-3414-02

STYLE OF CAUSE: ZOLTAN BALLA, ZOLTANNE BALLA,

KRISZTIAN BALLA, TAMAS BALLA,

ZOLTAN BALLA, RENATA PALINKAS

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                   Toronto, Ontario

DATE OF HEARING:                                     Wednesday, June 11, 2003

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Tuesday, December 9, 2003

APPEARANCES:

Robert E. Moores

FOR APPLICANTS

Kareena A. Wilding

FOR RESPONDENT

SOLICITORS OF RECORD:

Robert E. Moores

Burlington, Ontario

FOR APPLICANTS

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT