Date: 20100707
Docket: IMM-6345-09
Citation: 2010 FC 729
Montréal, Quebec, July 7, 2010
PRESENT:
The Honourable Mr. Justice Boivin
BETWEEN:
NIKOLETTA
KALLAI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application under subsection 72(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (Act) for judicial review of a decision dated
November 4, 2009, by the Refugee Protection Division of the Immigration and
Refugee Board (the panel), in which the panel found that the applicant is
neither a Convention refugee nor a person in need of protection pursuant to
sections 96 and 97 of the Act.
Factual background
[2]
The
applicant is a citizen of Hungary and is a gypsy (Roma). She
alleges being a victim of persecution and discrimination by reason of her Romani
ethnicity.
[3]
The
applicant’s refugee claim is essentially based on the following incident: in
November 2007, the applicant alleges that she was the victim of an assault in
the subway during which skinheads surrounded her, threatened her and struck
her.
[4]
After
escaping, the applicant went to the police station to report the incident. She
was allegedly told that the police could do nothing because she was unable to
identify her assailants.
[5]
In March
2008, the applicant came to join her father in Canada and claimed refugee protection in
September of that year.
Impugned decision
[6]
The panel
decided that the applicant had not discharged her burden of proving through
clear and convincing evidence that Hungary
was unable to protect her. After examining the documentary and testimonial
evidence, the panel noted that even if the situation of Roma was not ideal,
because many prejudices still exist regarding them, the Hungarian government
has put initiatives in place to eradicate stereotypes and help victims of
discriminatory acts.
[7]
Further,
the panel reported that, according to the documentary evidence, Hungary, which is a member of the
European Union, has a government that generally respects the rights of its
citizens.
[8]
The panel
added that in May 2008, the Hungarian prime minister appointed a special
commissioner to chair the new interministerial committee that coordinates the government’s
Romani policy, with which any person may file a complaint if he or she believes
that his or her rights as a member of a national or ethnic minority have been
violated. The panel noted that the commissioner’s Web site gives detailed
instructions on the procedure to follow to file a complaint and that such a
complaint may pertain to the police, the national security services and the
armed forces.
[9]
Moreover,
the panel mentioned that the Ministry of Justice was now operating a network
that provided free legal aid to Roma who claim to be victims of discrimination based
on their ethnicity. The panel also noted that it was possible to seek assistance
from non-governmental organizations such as the Legal Defense Bureau for National
and Ethnic Minorities (NEKI), which initiates litigation and represents victims
of national or ethnic discrimination before Hungarian authorities.
[10]
With
regard to the specific incident reported by the applicant, the panel determined
that the complaint had been dealt with by the police. The applicant stated that
she expected the police to arrest the assailants, but the panel noted that it
could be difficult for the police to make arrests if the applicant did not know
the identity of her assailants.
[11]
The panel
also indicated that despite the fact that the applicant was a victim of
discrimination, she was able to continue her studies. Moreover, the fact that
she had never reported other incidents to the police or called on other
mechanisms or organizations shows that she had not exhausted the remedies
available to her. The panel therefore found that (i) even if the applicant was
the victim of discrimination, this did not amount to persecution within the
meaning of section 96 of the Act and (ii) the applicant did not establish that
there was a serious risk that she would be personally subjected to a danger of torture
or to a risk to her life or a risk of cruel and unusual treatment or punishment
within the meaning of section 97 of the Act.
Relevant legislative provisions
[12]
The following provisions of the Act apply in this case:
|
Convention
refugee
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.
|
Définition
de « réfugié »
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.
|
|
Person
in need of protection
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.
Person
in need of protection
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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Personne
à protéger
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.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
Issue
[13]
In this
judicial review, the only issue is whether the panel’s decision that the
applicant is not a Convention refugee or a person in need of protection
pursuant to sections 96 and 97 of the Act is reasonable.
Standard of review
[14]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, at para. 51, the Supreme Court of Canada recognized that “questions of fact, discretion and policy as well as questions where the
legal issues cannot be easily separated from the factual issues generally
attract a standard of reasonableness”.
[15]
Moreover,
this Court has recognized that the application of sections 96 and 97 of the Act
is a question of mixed fact and law that must be reviewed on a reasonableness
standard (Acosta v. Canada (Minister of Citizenship and Immigration), 2009 FC 213, [2009] F.C.J.
No.270 (QL)).
Analysis
[16]
The
determinative issue that the panel had to analyze was the availability of state
protection in Hungary. In this regard, the
applicant set out the principles of state protection by citing Avila v. Canada (Minister of Citizenship and Immigration),
2006 FC 359, [2006] F.C.J. No. 439, at para. 27, in which my
colleague, Justice Martineau, made the following observations concerning state
protection:
[27] In order to
determine whether a refugee protection claimant has discharged his burden of
proof, the Board must undertake a proper analysis of the situation in the
country and the particular reasons why the protection claimant submits that he
is “unable or, because of that risk, unwilling to avail [himself] of the
protection” of his country of nationality or habitual residence
(paragraphs 96(a) and (b) and subparagraph 97(1)(b)(i)
of the Act). The Board must consider not only whether the state is
actually capable of providing protection but also whether it is willing to
act. In this regard, the legislation and procedures which the applicant
may use to obtain state protection may reflect the will of the state.
However, they do not suffice in themselves to establish the reality of
protection unless they are given effect in practice: see Molnar v. Canada
(Minister of Citizenship and Immigration), 2002
FCTD 1081, [2003] 2 F.C. 339 (F.C.T.D.); Mohacsi v. Canada (Minister of Citizenship and
Immigration), 2003
FCTD 429, [2003] 4 F.C. 771 (F.C.T.D.).
[17]
The
respondent contends that the applicant was unable to rebut the presumption by
means of clear and convincing evidence and prove that there was a complete
breakdown of the Hungarian state apparatus or that the protection afforded by
Hungary was inadequate (Canada (Attorney General) v. Ward [1993] 2 S.C.R.
689, [1993] S.C.J. No. 74).
[18]
In
Carrillo v. Canada (Minister of Citizenship and Immigration), 2008
FCA 94, [2008] F.C.J. No. 399, at
para. 38, the Federal Court of Appeal stated the following about the burden,
standard and quality of proof of an allegation of inadequacy or non-existence
of state protection for a citizen:
[38] …A
refugee who claims that the state protection is inadequate or non-existent
bears the evidentiary burden of adducing evidence to that effect and the legal
burden of persuading the trier of fact that his or her claim in this respect is
founded. The standard of proof applicable is the balance of probabilities and
there is no requirement of a higher degree of probability than what that
standard usually requires. As for the quality of the evidence required to rebut
the presumption of state protection, the presumption is rebutted by clear and
convincing evidence that the state protection is inadequate or non-existent.
[19]
In the
case at bar, the panel’s decision shows that it assessed and analyzed the
documentary evidence submitted to it, referring notably to the following
documents on the situation in Hungary as part of its analysis: United States. February 25, 2009. Department
of State. “Hungary”. Country Reports on Human
Rights Practices for 2008; Council of Europe. March 29, 2006. Commissioner for Human
Rights. Follow-up Report on Hungary (2002-2005); HUN100494.E. September
22, 2005. Recourse available to those with a complaint of police inaction in
response to crimes, harassment or discrimination; organizations that would be
of assistance in such cases (January 2003-August 2005).
[20]
However,
the applicant contends that her complaint never came before a court because the
police did not pursue the investigation. This Court disagrees with the
applicant’s claims and is instead of the opinion that it was reasonable for the
panel, in the circumstances, to find that this was not attributable to ill will
on the part of the police. Indeed, the applicant went to the police on only one
occasion. Moreover, she was unable to identify her assailants. What is more,
she gave only a very cursory description of her assailants. The documentary
evidence did not in any way demonstrate that the police refused to help her. In
fact, the police dealt with the complaint and the applicant received a copy (Tribunal
Record, p. 152). However, the police were unable to arrest anyone because of the
lack of information about the identity of the assailants.
[21]
As counsel
for the respondent clearly noted at the hearing before this Court, the
applicant was obliged to seek the protection of her country of nationality
before seeking international protection, which she did not do, given the fact that
she filed a complaint with the police only once and did not seek the assistance
of any other organization established to help Romani victims of discrimination
in Hungarian society.
[22]
In view of
the foregoing, the Court finds that the panel’s decision that the applicant did
not rebut the presumption of state protection by means of clear and convincing
evidence and that she did not show, on a balance of probabilities, that if she
returned to Hungary, she would be personally subjected to a danger of torture
or to a risk to her life or a risk of cruel and unusual treatment or punishment
is reasonable. This application for judicial review must therefore be
dismissed. This application does not raise any serious question of general
importance.
JUDGMENT
THE COURT ORDERS AND ADJUDGES THE
FOLLOWING:
- The
application for judicial review is dismissed.
- No question of general importance is
certified.
“Richard
Boivin”
Certified
true translation
Susan
Deichert,
LLB
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