Date: 20050603
Docket: IMM-6477-04
Citation: 2005 FC 805
Ottawa, Ontario, this 3rd day of June, 2005
PRESENT: THE HONOURABLE MR. JUSTICE O'KEEFE
BETWEEN:
ELEMER JOZSEF PRUMA
JOZSEF ELEMERNE PRUMA
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 subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated July 2, 2004 wherein it was determined that the applicants are not Convention refugees nor persons in need of protection.
[2] The applicants seek an order setting aside the Board's decision and remitting the matter back for redetermination by a differently constituted panel.
Background
[3] Elemer Jozsef Pruma (the "male applicant") and his wife, Jozsef Elemerne Pruma (the "female applicant") are citizens of Hungary who claimed refugee protection on the basis of a well-founded fear of persecution based on their race (Roma), their religion, and their membership in a particular social group.
[4] This was the second claim for refugee protection filed by each of the applicants. The male applicant filed his first claim on June 10, 1998 and the female applicant filed her first claim on February 4, 1999. The claims were dismissed by decision dated March 30, 2000. The application for leave of that decision was dismissed by order dated August 14, 2000. The applicants were ultimately deported to Hungary where they remained until November 6, 2001 at which point they landed again in Canada and made a second refugee claim upon arriving at Pearson International Airport. The second claim was signed on December 18, 2001.
[5] The applicants alleged that they had been discriminated against all their lives because they are Roma. They alleged they had been subject to attacks by skinheads and neo-Nazi groups and had to leave their city and re-establish themselves elsewhere in Hungary.
[6] The applicants alleged that from August 2001 to November 2001 when they went back to Hungary, they were homeless, were again insulted and called names because they are Roma, and they were afraid to walk in the street because of skinheads who were everywhere. The male applicant alleged that he could not find employment and was always afraid. The applicants further alleged that their daughter, who was denied refugee status in 2003, is now living homeless in Hungary. The male applicant alleged that he tried to call police once in order to complain about the skinheads who threatened them in 2001, but to no avail.
[7] The Board dismissed their claim. This is the judicial review of that decision.
Reasons of the Board
[8] The Board noted that a large portion of this claim was covered by the negative decision of March 2000, and for which the application for leave was denied. The Board determined that as a result, the allegations contained in that portion of the claim could not be the subject of another refugee claim pursuant to the principle of res judicata. The Board restricted its determination to only those alleged incidents that took place between the applicants' return to Hungary in August 2001, and their return to Canada on November 6, 2001.
[9] The Board noted that contrary to the applicants' claim that they were homeless upon their return to Hungary, the male applicant testified that upon their arrival, they stayed with his wife's brother in Godollo, a city outside of Budapest.
[10] The Board noted the applicant's allegations that they were both called names by unknown persons who they associated with skinheads, and the male applicant who was going to the grocery store got scared and ran away. After those alleged incidents, the applicants were too afraid to venture outside for fear of being attacked by skinheads.
[11] The Board noted that the male applicant stated that he called the police about the incident but they did not come. The male applicant then stated that he did not go to the police station to report the incident because according to his past experiences, police called him names, and "it is of no use to contact the police because they do not help Roma". The applicants also stated that they did not contact any Roma authorities as they do not actually do anything to assist Roma. The male applicant also stated that he did not try to find out if there was a Roma organization in the area they lived or in Budapest.
[12] The Board determined that the applicants had therefore failed to seek protection from the authorities.
[13] The Board also determined that based on the applicants' evidence that they later moved to a part of Budapest where they rented a basement apartment for three weeks without any trouble, and that they had lived with relatives in Godolla upon their return to Hungary, the applicants were not homeless as they had alleged.
[14] The Board noted that the documentary evidence showed that the employment situation for Romas like the applicants who do not possess skills or education is very problematic, but it is not a situation that could be equated with persecution.
[15] The Board also noted that the female applicant's two brothers were living in Hungary with one still living in Godollo. He was working and his child was in school there, despite the allegations that skinheads were everywhere harassing Roma.
[16] The Board found that the applicants had been discriminated against as Roma, but they had not demonstrated that they had been discriminated against to the point of constituting persecution.
[17] The Board found that contrary to the applicants' allegations that the situation for Roma has not changed, the documentary evidence, for example, the 2002 European Union Ascension Report, shows that the Hungarian government had continued to make efforts to address the difficult situation of the Roma minority.
[18] The report showed, for example; (i) the government had created a new cabinet position that dealt with issues related to Romas, (ii) the Ombudsman's Office was available to assist, although they had no authority to issue binding judgments, (iii) a special anti-discrimination network of legal aid offices was established in late 2001 by the Ministry of Justice in cooperation with the national Roma Self-Government and the Office for National and Ethnic Minorities, and (iv) in the summer of 2001, a central Hungary municipal court found five skinheads guilty of an ethnically motivated attack on a group of Roma in 1999.
[19] The Board referred to Pal v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 894, in regards to the availability of state protection and the different organizations sponsored by the government, that offered services to Roma in need of them.
[20] The Board's determination was that the incidents related by the applicants amounted to acts of discrimination not persecution. The Board further held that "it is clear that the claimants fear is more related to a fear of having difficulties in finding employment, and the documentary evidence demonstrates that the claimants could have access to state protection in the event that they would be mistreated."
Issues
[21] The issues as framed by the applicants:
1. Did the Board err by failing to consider all of the relevant evidence?
2. Did the Board err by failing to assess the evidence as a whole and not having
regard for the totality of the evidence?
3. Did the Board err by making use of selective documentary evidence in a
manner which excluded references to other credible and convincing documentary evidence supportive of the applicants' claim?
4. Did the Board make numerous errors both in law and in fact in determining whether state protection was available to the applicants?
[22] I would restate the issues as follows:
1. Did the Board err in applying the principle of res judicata to the applicants'claim?
2. Did the Board err in its analysis of the availability of state protection for the
applicants in Hungary?
Applicants' Submissions
[23] The applicants submitted that the Board erred in failing to address and include all the events that preceded the applicants' second claim for refugee status. That is a denial of natural justice as the applicants' fear of persecution stems from their entire experience as members of a persecuted minority in Hungary.
[24] The applicants submitted that within the three short months of their return to Hungary, they experienced similar conditions to those that made them flee their country in the first place.
[25] The applicants submitted that the Board was obligated to assess their case anew as the previous claims were decided under the former Immigration Act and the protections under IRPA are more extensive. The applicants submitted that contrary to the respondent's submissions, Danyluk v. Ainsworth Technologies Inc., [2002] 2 S.C.R. 460, does not apply to this case as there has been a change in their circumstances. The applicants further submitted that if they were going to be prevented from rearguing parts of their claims, it should have been set out in IRPA, just as there is a ban in IRPA against repeat claims.
[26] The applicants submitted that the standard of review in a determination of whether the Board correctly understood the legal principles involved in the issue of state protection is that of correctness (see Goodman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 342).
[27] The applicants submitted that the Board erred in failing to provide reasons why it did not accept the documentary evidence that neither the Ombudsman's Office nor NEKI would have provided actual protection from the abuses suffered by the applicants. The two organizations are very limited in what they can do. The Board erred by equating the presence of government initiatives and non- governmental organizations with adequate protection. It is the role of government to protect its citizens, not the role of NGOs or private foundations.
[28] The applicants submitted that documentary evidence before the Board (for example, the Human Rights Watch World Report 2001 and 2002) indicate widespread mistreatment and rampant discrimination of Roma in Hungary.
[29] The applicants submitted that the Board erred by applying the wrong test of whether the state was making serious efforts to protect the applicants rather than whether the state was actually able to provide effective protection (see Molnar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1425, Balogh v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1080, and Bobrik v. Canada, [1994] F.C.J. No. 1364)).
[30] The applicants submitted that the Board erred by failing to test the presumption of the documentary evidence it relied upon against the evidence lead by the applicants. The Board also failed to take note of the extensive documentary evidence led by the applicants and referred to in the submissions from their counsel at hearing on the situation of similarly situated people which rebutted the presumption of state protection (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 268).
Respondent's Submissions
[31] The respondent submitted that the appropriate standard of review with respect to factual findings such as state protection is patent unreasonableness.
[32] The respondent submitted that the applicants failed to rebut the presumption of state protection. The respondent submitted that the Board correctly based its decision on the principle of res judicata, finding that it was barred from looking at the events already addressed in the first negative decisions in 2000. The applicants are attempting to indirectly appeal the orders dismissing their application for leave. The applicants should not be able to indirectly appeal orders that they would be barred from directly appealing (see Ge v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1663 (F.C.A.)).
[33] The respondent submitted that the principles of res judicata, and specifically, issue estoppel, apply to the case at hand. The Supreme Court of Canada in Danyluk, supra, has held that "an issue, once decided, should not be re-litigated to the benefit of the losing party and the harassment of the winner."
[34] The respondent submitted that the three preconditions set out by the Supreme Court to the operation of issue estoppel have been met in this case with regard to the Board's decision not to consider the incidents alleged by the applicants that had already been dealt with by the previous Board. The three preconditions are: (i) that the same question has to be decided, (ii) that the judicial decision which was said to create the estoppel was final, and (iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[35] The respondent submitted that to be considered persecution, the mistreatment suffered or anticipated to be suffered must be serious; that is, when an interest is seriously compromised, coupled with a key denial of a core human right (see Ward, supra). This Court has defined persecution as an affliction of repeated acts of cruelty or a particular course or systemic infliction of punishment. The Board properly determined that although the incidents alleged by the applicants may constitute discrimination, they were not sufficient to meet the threshold for persecution (see Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.)).
[36] State Protection
The respondent submitted that the applicants have failed to show that the Board's determination that the applicants had failed to seek protection from the authorities and otherwise had not rebutted the presumption of state protection, was a patently unreasonable finding.
[37] The respondent submitted that absent a complete breakdown of state apparatus, it should be assumed that a state is capable of protecting it citizens (see Ward, supra). State protection need not be perfect (see Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.)), and a claimant must do more than show that he or she went to see some members of the police force and that his or her efforts were unsuccessful (see Kadenko v. Canada (Minister of Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532). The respondent further submitted that Molnar, supra, is distinguishable since that case turned on the fact that the police were alleged to be the agents of persecution.
Relevant Statutory Provisions
[38] Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
|
|
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
|
I am of the view that the determination of whether or not certain conduct amounts to persecution is a question of mixed fact and law which should be reviewed on a standard of reasonableness simpliciter (see Machedon v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1331). The prevailing view is that while the underlying factual findings are subject to the standard of patent unreasonableness, the Board's findings on the adequacy of state protection is a question of mixed fact and law that is reviewed on a standard of reasonableness simpliciter (see Machedon, supra).
Did the Board err in applying the principle of res judicata to the applicants' claim?
In Thuraisingham v. Canada (Minister of Employment and Immigration) 2004 FC 1332, Madam Justice Snider dealt with a similar argument to that made by the applicants in this case. The relevant extract from her decision is as follows:
As noted, this is the Applicant's second claim for Convention refugee status. With respect to the Applicant's claim, the Board determined that res judicata applies (Vasquez v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 142) and considered only evidence brought forward in this claim that could not reasonably have been brought forward in the original claim. Given that the grounds of the claim were the same as those in the originally rejected claim, the Board focussed on whether there were any changes in the country conditions or the circumstances particular to the Applicant subsequent to the original negative determination that would warrant a positive determination.
The Applicant submits that the doctrine of res judicata ought not to apply in these cases of refugee claims. I cannot agree. The conclusion in Vasquez consistently has been applied by the Board and its use affirmed by this Court, even where the first determination was made under the former Immigration Act and the later one under s. 96 of IRPA (Bhatti v. Canada (Minister of Citizenship and Immigration) (March 10, 2004) Doc. No. IMM-1966-03; De Silva v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1388 (F.C.) (QL)). The principle of res judicata, as described recently by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 60, has been correctly applied in respect of the s. 96 determination of the Board.
The doctrine is only applicable to previously decided issues. The question of whether the Applicant is a protected person as defined by s. 97 of IRPA was not previously before the Board. Accordingly, res judicata does not apply to the Board's s. 97 determination.
[41] I fully adopt and apply Snider J.'s reasoning to that same issue here. In my view, the Board correctly applied the principle of issue estoppel in this case. It was open to the Board to determine that this was an appropriate case in which to exercise its discretion to apply the principle of issue estoppel, and it chose to.
[42] I also agree that res judicata does not apply to a determination under section 97 of IRPA in this case, but it does not matter as no section 97 arguments were advanced before the Board.
[43] I have reviewed the incidents which the applicants submit constitute persecution. I am of the view that the Board did not make an error in deciding that these incidents amounted to discrimination and not persecution, based on the facts of this case.
Did the Board err in its analysis of the availability of state protection for the applicants in Hungary?
The applicants submitted that the Board erred in not referring to evidence identified by their counsel in submissions at the hearing that showed similarly situated persons in Hungary were persecuted.
[45] I have reviewed the transcript of hearing and find that the applicants' submissions on this point do not assist them. Their then counsel quoted from materials that were not before the Board.
[46] At page 204 of the certified record, the following exchange took place:
(Presiding member to counsel):
Q: And counsel, you're referring to a document; could you give me . . . do I have that document or is it a new document?
A: No you don't have that document.
Q: And it's part of the documentary evidence and you haven't sent it to me?
A: No not this one.
[47] And at page 206 of the certified record, when counsel refers to passages from some documents:
Q: Excuse me one moment. Are you using the national documentary package on Hungary, March 2004, that was disclosed for this case?
A: I'm not sure if this is their latest . . . No, I'm using something that has been amended in June 2003.
Q: Because this is not the documentary evidence on this file now.
A: Right, I understand.
Q: And we have to work with the documentary evidence that was disclosed and is in the file because the situation evolved, sometimes for the best, sometimes for the worst. So we have to take the up-to-date documentary evidence.
A: Well, if it was amended in June 2003 and these people have been in Hungary in 2001, I don't see much of a difference that this would make.
Q: Well there is. Because what I'm looking for is what would be their situation in 2004. Because they could have been in a difficult position in 2001, but [not] anymore in 2004.
A: Anyway, those are my submissions. What else did I . . .
[48] The documentary evidence referred to by the applicants identifies discrimination experienced by Roma in Hungary. The Board discussed the documentation that was before it and concluded that the documentation disclosed discrimination and not persecution.
[49] The applicants also submitted that the Board made a reviewable error by finding that the applicants had not tried to seek protection from the authorities. The male applicant stated that it was of no use to contact the police because they will not help Roma persons. He also stated that he did not approach a Roma association to assist them. He further stated that these associations do nothing for Roma and only exist on paper.
[50] With respect to the submission that the Board applied the wrong test for state protection, I do not agree. A reading of the Board's decision does not support this argument.
[51] In my view, the Board has not made a reviewable error in relation to state protection.
[52] The application for judicial review is therefore dismissed.
[53] Neither party wished to submit a serious question of general importance for my consideration for certification.
[54] IT IS ORDERED that the application for judicial review is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6477-04
STYLE OF CAUSE: ELEMER JOZSEF PRUMA
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 26, 2005
REASONS FOR ORDER AND ORDER OF: O'KEEFE J.
DATED: June 3, 2005
APPEARANCES:
Alesha Green
SOLICITORS OF RECORD:
Green, Willard
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada
Email this Content