Date: 20040521
Docket: IMM-2533-03
Citation: 2004 FC 723
Ottawa, Ontario, May 21, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
GABOR CZENE AND
RENATA GERA (a.k.a. Renata Irina Gera, a.k.a. Rena'ta Gera)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This in an application for judicial review of the decision of the Refugee Protection Division of the Immigration Refugee Board (Board) dated March 31, 2003, wherein the Board determined that the Applicants were not Convention refugees or persons in need of protection.
ISSUES
[2] The present case raises three issues:
1. Should the hearing have proceeded under the former Immigration Act, R.S.C. 1985, c. I-2?
2. Did the Board err in determining that the Applicants were not credible?
3. Did the Board err in determining that state protection is available to the Applicants?
[3] The first issue was abandoned by the Applicants at the hearing. For the reasons below, I answer in the negative to the other two questions and will therefore dismiss this application.
FACTS
[4] The alleged facts, as summarized by the Board, are as follows. The male claimant alleges that as a security guard at the government lottery office, he was privy to confidential personal information about the winners of the lottery. He claims that this knowledge brought him to the attention of an organized criminal element (the criminal organization) that he describes as Ukrainians.
[5] The male claimant alleges that in early 2001, he was initially approached by this criminal organization and asked to supply them with personal information about the winners. The male claimant alleges that originally, he did not take these approaches seriously or particularly threatening. However, over a period of several weeks, these contacts became threatening and included threats to his life, the lives of his family and the life of his common-law spouse, Renata Gera. The male claimant alleges that, in addition to threats, his encounters with this criminal organization included physical assaults to him. The male claimant alleges that he feared seeking help from the police because of his fear of retaliation by organized criminals against himself and those close to him. He based this decision on a commonly held knowledge of widespread corruption in Hungary and instead, promised to comply with their requests in order to buy some time and plan a course of action.
[6] However, by mid-March 2001, the male claimant alleges that he became convinced that the threats indicated a more impending danger and asked his employer to reduce his shifts at work. The male claimant states that in mid-May, he and the female claimant vacationed in the Hungarian countryside, as well as Slovakia and Austria. During this time, the male claimant alleges that he and the female claimant decided that, as long as they remained in Hungary, they risked being found by the organized criminals. The narrative of the claimants states, "We new (sic) that Western Europe was not hospitable to immigrants and we heard that Canada was still accepting newcomers. We decided to come to Canada". The claimants returned to Hungary and the male claimant resigned from his job on or about June 1, 2001. The claimants arrived in Canada on June 28, 2001 and made claims for refugee protection on October 5, 2001.
ANALYSIS
Standard of review
[7] The two issues, credibility and state protection, are clearly questions of fact. Therefore, the appropriate standard of review is the patently unreasonable character of the Board's decision. In other words, this Court will only interfere with the Board's decision if it was patently unreasonable.
Credibility
[8] The Board found that several elements in the male claimant's story were implausible, that he made a serious omission in his PIF, and that his failure to claim protection at the first opportunity and his delay in claiming protection once in Canada showed his lack of subjective fear of persecution. There has been quite some debate before me as to whether certain things were said or not at the hearing before the Board, and whether the Board member interpreted appropriately what was said or whether it based its findings on statements that were never actually made at the hearing. I read the relevant portions of the transcripts, particularly pages 281-282, 295-296, 309-312 in the Board's record, and I am satisfied that the male Applicant did indeed allude to his employer possibly belonging to a criminal organization "that was also dealing with things like that" (page 281) and that "that may mean he also belongs to this criminal thing. It's possible that he's in contact with organizations, as such" (page 282).
[9] The male Applicant also clearly became aware of the refugee process in Canada back in 1999, when he was talking with a friend of his who was working on a cruise ship: "A friend of mine was working on a cruise ship and he was telling me with a few words that this thing exists here. He was telling me about Canada and the refugees" (page 295). When counsel asked the male Applicant when this friend told him about Canada, the answer was "November of 1999" (page 296).
[10] I do not intend to comment on all the credibility findings made by the Board. Suffice it to say that the Board had enough solid elements on which to base its lack of credibility finding and that therefore, on the whole, drawing the conclusion that the Applicants were not credible was not patently unreasonable. These elements I am referring to include:
a) the fact that the male Applicant did not make his employer aware of the threats and beating because the employer was himself involved in criminal activity, even the kind of criminal activity at stake here, and therefore eliminating the need of the alleged criminals to seek the information from the male Applicant;
b) the fact that the male Applicant omitted to mention this significant piece of information, i.e. the conspiracy involving his employer, in his PIF and only talked about it at the hearing;
c) the fact that the Applicants delayed to leave Hungary despite the male Applicant having been threatened and beaten in March 2001, failed to make a protection claim in Austria while on vacation there in May 2001, re-availed themselves of the state protection of Hungary by returning in the country after their vacation, and staying there another month before leaving for Canada on June 28, 2001, which tends to show a lack of subjective fear on the Applicants' part;
d) the fact that, once in Canada, the Applicants waited more than three months before making a protection claim which, again, tends to indicate that the Applicants did not really fear persecution.
State protection
[11] I already found that the Board did not err in concluding the Applicants lacked credibility, which in itself is sufficient to reject this application, but I will say a few word about state protection. The question here is whether there was evidence before the Board that the state, Hungary, has the capacity and the willingness to effectively implement measures to address organized crime and protect its citizens from it. It is worth noting that absent of a complete breakdown of state apparatus, there is a presumption that the state is able to protect the claimant. The burden of proving that state protection is unavailable rests on the Applicant (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689).
[12] Since the Applicants did not present me with any reasons why the Board's reasoning was patently unreasonable on the issue of state protection, and having read the Board's reasons on this subject, I do not see anything that would warrant my intervention. The Applicants failed to show that they made reasonable efforts to seek protection (the male Applicant did not go even once to the police to seek help nor did he inform his employer of the situation) or to establish that protection was unavailable (the Applicants' reason was that the level of corruption in Hungary is such that going to the police "would have gotten back to the criminals" (PIF)).
[13] I also conclude, just as the Board did, that the Applicants have not rebutted the substantial amount of documentary evidence that shows that state protection is available for them in Hungary. Hungary has emerged as a liberal parliamentary democracy despite some noticeable imperfections. The documentary evidence (exhibit R-1: January 2001, Jane's Intelligence Review and The Budapest Sun of July 12, 2001) shows that organized criminal gangs, similar to those described by the Applicant, are still active in Hungary but that the government appears to be capable and willing to manage the problem and commit resources to fighting organized crime. Such efforts include a substantial funding increase to the police for the fight against crime, a new police centre dedicated to fighting cross-border crime, bilateral crime-fighting agreements with many European countries, the creation of an International Law Enforcement Academy in Budapest, as well as raids in bars and night-clubs allegedly controlled by organized crime groups.
[14] In conclusion, I am not satisfied that the Board made patently unreasonable findings in concluding that the Applicants lacked credibility and that state protection is available to them. Consequently, this application is dismissed.
[15] Neither counsel recommended certification of a question of general importance. No question will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Michel Beaudry"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2533-03
STYLE OF CAUSE: GABOR CZENE AND RENETA GERA
(a.k.a. Renata Irina Gera, a.k.a. Rena'ta Gera) v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 29, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: May 21, 2004
APPEARANCES:
Wennie Lee FOR THE APPLICANT
Mandeep Atwal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Wennie Lee
Toronto, Ontario FOR THE APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
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