Docket: IMM-2912-11
Citation: 2012 FC 216
Vancouver, British Columbia, February
15, 2012
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
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IGNAC BALOGH, GIZELLA BODI, IGNAC TAMAS
BALOGH
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the April 7, 2011 decision by the
Refugee Protection Division (the RPD) of the Immigration and Refugee Board
refusing the Applicants’ claim for refugee protection pursuant to sections 96
and 97(1) of the Immigration and Refugee Protection Act, SC 2000, c 27
[IRPA]. The application is brought under subsection 72(1) of IRPA.
I. Factual Overview
[2]
The
Applicants, Ignac
Balogh (Principal Applicant), his common-law spouse, Gizella Bodi (Associate
Applicant), and their teenage son Ignac Tamas Balogh (minor Applicant), are
ethnic Roma of Hungarian nationality. They allege a well-founded fear of
persecution because of their ethnicity.
[3]
The
Principal Applicant is trained as a bricklayer and the Associate Applicant is
trained as a primary school teacher and a social worker for youth.
[4]
The
Applicants advance the following incidents and allegations in support of their
claim of persecution:
a.
The Applicants allege
that they cannot find work in their chosen field because they are Roma.
b.
The Principal
Applicant reports that he has been beaten severely in 1997, 2000 and 2003 and
that his injuries required hospitalization. He states that reports were filed
by the doctors with the police for the 1997 and 2000 incidents and no police
investigation resulted.
c.
The Principal
Applicant claims he was assaulted on the basis of his ethnicity approximately 4
times per year. He states he did not report these incidents on his Personal Information Form (PIF) because his previous counsel advised him
only to list the incidents where he had sustained bodily harm.
d.
The Applicants allege
that the Principal Applicant is more targeted than other Roma men because he had
an altercation with a leader of a group of ‘skin heads’ in 1997 and that a
member of the group had been present during two later assaults.
e.
The Principal
Applicant claims being detained 5 or 6 times a year for up to four hours at a
time by the police for not carrying his ID. He was allegedly beaten by the
police on one of these occasions.
f.
The Associate
Applicant alleges discrimination in the medical treatment she received in
medical facilities in Hungary for Cirrhosis of the liver by reason of
her ethnicity.
g.
The minor Applicant
was discriminated against in school by reason of his ethnicity. He was placed
in a separate class that consisted of nine Roma children. These children
allegedly suffered physical beatings from the teachers and were required to enter
and exit from a different door than the ethnic Hungarian students. The
Applicants’ son was also allegedly attacked by a group of youths in a previous
housing complex in which they lived.
h.
The Applicants allege
that in 2010, a neighbour set fire to the forest surrounding their property,
which destroyed their barn, shed, and garden. The Applicants claim the fire
department did not respond, claiming their equipment was busy and that the
lives of the Applicants and their neighbours were not in danger. The Associate
Applicant reported the incident to the police but was told that no report could
be made without a report of the fire from the fire department.
II. The Impugned Decision
[5]
The
RPD rejected the Applicants’ claim finding that the claimants did not have a
well-founded fear of persecution on a Convention ground in Hungary and that state
protection was available to them.
[6]
The
RPD accepted that the Applicants suffered discrimination but found that it did
not amount to persecution. The RPD found that the attacks and violence suffered
by the Applicants were “acts of random violence committed by racists”. It
found, on the evidence, that the discrimination suffered by the Applicants
“does not threaten their fundamental rights but rather affects the quality of their
existence in their home country.”
[7]
The
RPD also found that state protection was available to the Applicants and
they did not avail themselves of the protection and services offered by
state agencies, including: the Equal Treatment Authority (ETA), the access to
free legal aid for Roma offered by the Ministry of Justice and Law Enforcement in
cases of discrimination based on ethnicity, labour centres that have special
officers for Romani affairs focused on the needs of the Romani community, and
the Independent Police Complaints Board (IPCB). The RPD relied on country
documentation to find that the Hungarian government was making serious efforts
to ensure that state protection is available to Roma. As a consequence, the RPD
found that the claimants did not refute the presumption of state protection on
clear and convincing evidence.
III. Issues
[8]
The
Applicants raise the following issues on this application:
a. Did the RPD err in law
in finding that the denial of the Applicants to work in their respective chosen
professions was discriminatory rather than persecutory?
b. Did the RPD err in law
in failing to address the adequacy of state protection in light of evidence
before the Panel that the Principal Applicant had suffered persecution from
state actors?
c. Did the RPD err in law
by misconstruing or ignoring evidence properly before it with respect to recent
incidents of persecution and the Applicants’ recent attempt to obtain
protection from the state?
IV. The Standard of
Review
[9]
All
three issues are fact-driven and relate to the weighing of evidence and as such
are reviewable on the reasonableness standard (Diagana v Canada (Minister of
Citizenship and Immigration), 2007 FC 330 at para 14; Dunsmuir v New Brunswick, 2008 SCC 9 at paras
53, 63. On state protection, see Hinzman v Canada (Citizenship and
Immigration),
2007 FCA 171 at para 38).
V. Analysis
Did the RPD err
in law in finding that the denial of the Applicants to work in their respective
chosen professions was discriminatory rather that persecutory?
[10]
The
Applicants argue that the RPD failed to conduct any meaningful analysis of
whether their denial of the right to work in their chosen professions amounted
to persecution. They argue that the RPD “did not appear to take any issue with
the evidence from the Applicants in the hearing that they were repeatedly
denied employment in their chosen professions, due to their ethnicity.” The
Applicants contend that the RPD did not adequately probe the Applicants on this
issue. They also argue that the RPD failed to ask them what kind of
protection they could have availed themselves to with respect to the denial of
employment.
[11]
In
support of their argument, the Applicants cite He v Canada (Minister of Employment
and Immigration)
(1994), 78 FTR 313 at para 15, 25 Imm LR (2d) 128 [He], for the
proposition that actively denying an applicant the right to work in her
profession was persecutory.
[12]
The
Respondent contends that the RPD specifically referenced the Applicants’
difficulties in finding employment and appropriately considered those
circumstances in its decision. The Minister argues that there was only “vague
and uncorroborated” evidence to find persecution due to discrimination in
employment. The Respondent also argues that He does not apply in the
circumstances because there is no evidence that the authorities took active
steps to prevent the Applicants from obtaining employment.
[13]
I am
of the view that He be distinguished on its facts. In that case, the
applicant’s job was terminated and her request for a state work permit was
denied. The applicant was essentially forced by the state to become a farmer.
In the case at hand, there was no evidence to support the contention that the
Hungarian authorities took active steps to prevent the Applicants from
obtaining employment in their respective professions.
[14]
A
review of the RPD’s reasons and decision at paragraphs 19-20 shows that the
panel expressly considered the Applicants’ allegations that they were unable to
find work in their chosen professions and concludes that the claimants have
suffered discrimination that affects the quality of their existence in Hungary. The RPD did consider
the circumstances relating to Applicants’ work history in Hungary. Reading the decision
as a whole, I am satisfied that the RPD’s finding that the Applicants’ inability
to find work in their respective professions did not amount to persecution was
reasonably open to it on the record.
Did the RPD err
by failing to adequately consider the evidence relating to the Principal
Applicant’s treatment by state actors in finding that state protection was
available?
[15]
Since
the third issue raised by the Applicants also deals with state protection, I will
deal with both the second and third issue together.
[16]
The
Applicants argue that the RPD erred in finding that state protection was
available to them. They contend that the RPD failed to consider that the police
were the primary agents of harm and did nothing when serious incidents were
reported, and failed to consider whether the alleged violence by the police was
persecutory. The Applicants further contend that the RPD failed to engage in a
meaningful analysis of the Applicants’ circumstances, in particular the
allegation that the Principal Applicant had been detained by the police 5 or 6
times a year for failing to carry his ID. It is further argued the RPD did not
consider the Principal Applicant’s unwillingness to seek state protection
because he is being persecuted by the state, namely the police. They argue that
seeking such protection would be futile and cite Silva v Canada (Minister of Employment
and Immigration)
1994, 82 FTR 100 (TD), [1994] FCJ No 1161, in support of their argument.
[17]
The
Respondent argues that the Applicant has failed to rebut the presumption of
state protection. It is argued that the Applicants mistakenly conflate the
police with the state as a whole. The Respondent argues that the RPD took the
police action into account in its analysis and pointed to state agencies
established by the Hungarian government to address corruption and discriminatory
practices, including: 1) the Ministry of Justice and Law Enforcement; 2) the
Independent Police Complaints Board (IPCB); 3) the Parliamentary Commissioner’s
office; 4) special officers for Romani affairs; and 5) the Equal Treatment
Agency (ETA). The RPD found that the Associate Applicant did not
approach these agencies and found not credible her claim that she had
registered a complaint with the ETA.
[18]
The
Supreme Court of Canada in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at para
50 confirms that a state is presumed capable of protecting its citizens. There
is no dispute that the legal burden is on the Applicants to adduce clear and
convincing evidence to rebut the presumption of state protection. The
jurisprudence further teaches that state protection need not be perfect and the
assessment of state protection requires a forward-looking analysis (Canada (Minister of
Employment and Immigration) v Villafranca (1992), 99 DLR (4th) 334, 18 Imm LR (2d)
130 (FCA), Resulaj v Canada (Minister of Citizenship and Immigration),
2006 FC 269 at para 20; Guevara v Canada (Citizenship and
Immigration), 2011 FC 242 at para 39).
[19]
In
its reasons for decision, the RPD did not expressly address the Applicants’
allegations that the Principal Applicant would be detained by police 5 or 6
times a year for failing to carry his ID, or the allegation that he was once
beaten by the police. In my view, this omission is not fatal to the decision. A
review of the RPD’s reasons for decision indicates that the panel was well aware
of the alleged police discrimination. At paragraph 34 of its reasons, it
states: “The claimant’s [sic] have testified that they were routinely
subjected to prejudicial behaviour by teachers, employers, and government
workers including the police because of their ethnicity.” In my view, the RPD
turned its mind to the alleged discrimination by the state in coming to its
conclusion. There is no requirement that every element of evidence be addressed
in the reasons as long as “… the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes”. (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para
16).
[20]
With
regard to Applicants’ unwillingness to seek state protection given the alleged
discrimination by state actors, the RPD notes at paragraph 52 of its decision
that refugee protection is always forward-looking. The Applicants were aware
that they had access to independent state agencies for assistance. One of those
agencies, the IPCB, established in 2008, investigates
violations and omissions by the police that substantively concern fundamental
rights which are in essence the same kind of allegations made against the
police by the Applicants. There is no evidence that these independent agencies
were ineffective or corrupt. The Applicants did not file any complaints with
any of these agencies or attempt to seek assistance. Further, there is no evidence
that these agencies are in any way influenced by the local police. The RPD
further acknowledged at paragraph 59 of its reasons for decision, that the
protection by the Hungarian state was not perfect and that it required
improvement in many areas. It also determined that the government of Hungary “is taking significant
steps to ensure state protection is available to their citizens including those
of Roma ancestry.” The RPD also determined that the Applicants did not take
reasonable steps to avail themselves of the state protection which was
available to them. In my view, the above findings were reasonably open to
the RPD on the record.
[21]
The
Applicants further argue that the RPD erred by failing to adequately consider
the evidence relating to the incident of the fire in finding that state
protection was available to the Applicants. They contend that the RPD erred in
finding the “neighbours lit a fire in the forest around their home to burn off
dead grass.” It is argued that the evidence shows that the fire was
deliberately set with a wish or intention to set fire to the Applicants’ home.
The Applicants argue that this is important evidence that should have been
expressly dealt with by the RPD and since is was not, an inference should be
drawn that the RPD made its finding without regard to the evidence, thereby
committing a reviewable error.
[22]
The
Respondent contends that the evidence does not support the suggestion that the
fire was purposely set to burn the Applicants’ home and argues that the
RPD properly characterized the incident in its reasons.
[23]
The
following transcript of the hearing before the RPD reveals that the panel
sought clarification of the incident from the Associate Applicant:
RPD:
Who – who heard or who did this individual admit to that he lit the fire?
Associate
Applicant: He let to know to the neighbouring – he let to know to the
neighbouring Gypsies he was – he talked – talked about this on the bus with the
neighbours and then – and then these people told me that this individual lit
the fire and then I asked – and I asked him and he did not deny it.
RPD:
Okay. When you say he did not deny it, what does that mean?
Associate
Applicant: He said – he said that he lit that land in there so there are new
grass could grow again but then when he said, “I wish your house would have
been afire” that he wanted to lit everything, not just that land in there.
RPD:
Okay. So he said he had lit the fire so new grass could grow and then he said
that he wished that your house had burned as well. Is that correct?
Associate
Applicant: Yes. Correct.
(p
326 of Tribunal Record)
In my view, the above passage read in context
with the remainder of the transcript does not establish that the fire was lit
with the intent to burn the Applicants’ home. I am satisfied that the RPD’s
characterization of the incident was reasonably open to it on the record and as
such it did not err in its consideration of the incident in its reasons for
decision.
[24]
The
RPD’s finding that the Applicants did not discharge their burden of presenting
clear and convincing evidence of the state’s inability to protect them was
reasonably open to it on the record. It is a finding that falls within the
range of acceptable outcomes in all of the circumstances. The RPD
committed no reviewable error in its assessment and determination on state
protection. This conclusion is determinative of this application.
[25]
No
question was proposed and none will be certified as a serious question of
general importance pursuant to paragraph 74(d) of the Immigration and
Refugee Protection Act, [SC 2001, c 27.]
VI. Conclusion
[26]
For
the above reasons, the application will be dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The
application for judicial review is dismissed; and
2. No
question of general importance is certified.
“Edmond P. Blanchard”
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