Docket: IMM-5119-11
Citation: 2012 FC 253
Ottawa, Ontario, February 23,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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FERENC HORVATH, FERENCNE
HORVATH
and EVELIN HORVATH,
FERENC HORVATH,
DZSENIFER HORVATH,
by their litigation guardian,
FERENC HORVATH
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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]
The
applicants seek judicial review of a decision of a panel of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board), dated July 6, 2011,
which held that the applicants were not Convention (United Nations’
Convention Relating to the Status of Refugees, [1969] Can TS No 6) refugees
or persons in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). For the reasons that
follow, the application is dismissed.
Facts
[2]
The
principal applicant, Ferenc Horvath (applicant), his wife, Ferencne Horvath,
and their children, Evelin Horvath, Ferenc Horvath and Dzsenifer Horvath, are
all Romani citizens of Hungary. The applicants allege
fear of persecution by right-wing extremists in Hungarian society because of
their Romani ethnicity.
[3]
The
applicant states that he and his family have been discriminated against because
of their Romani background. In April 2008, the applicant began working at a
new job. He was harassed by a co-worker who was a member of a right-wing group
called the Hungarian Guard. The applicant states that one day after work he
was followed by that co-worker in a car, and a group of men got out and beat
him. The applicant was attacked again by this group a couple months later. They
threatened to beat his family as well if he went to a doctor or to the police.
[4]
The
applicant states that in January 2010, the family returned home one day to find
the window in their front door broken and the words “You will die GYPSIES (as
animals)” written on the door. The applicant was afraid for the safety of
himself and his family and so they fled Hungary to Canada on February 23, 2010, and claimed
refugee protection on their arrival at the airport in Toronto.
[5]
The
applicants’ claims were heard on May 11, 2011. The applicant was appointed the
designated representative for the three children.
Decision Under Review
[6]
In
the reasons for its decision, dated June 14, 2011, the Board found that the
determinative issue was state protection. The Board noted that there was a
pervasive problem of discrimination against Romani people in Hungary, and also incidents of
violence. The Board acknowledged this background in determining whether state
protection was available to these particular claimants.
[7]
The
Board noted that the applicant had not made any efforts to seek state
protection, as well as the applicant’s statement that he was threatened not to
go to the police. The Board noted that cases of this Court have held that a
claimant’s decision to flee before police have had an opportunity to protect
does not amount to a lack of state protection.
[8]
The
Board noted the applicant’s assertion that the police would not do anything to
protect Romani people from the Hungarian Guard; however, the Board found that
this assertion was unsubstantiated, and it preferred the documentary evidence
supporting the conclusion that state protection was available.
[9]
In
the Board’s analysis of the documentary evidence it acknowledged the evidence
of corruption among police forces, but also noted the state action that had
been taken against officers guilty of misconduct. The Board also acknowledged
incidents of violence against Romani citizens, but referred to accounts of the
police response to those incidents in concluding that the police and government
were willing and able to protect victims.
[10]
The
Board also noted other avenues for recourse in response to discrimination
including the Roma anti-discrimination legal service network and the Equal
Treatment Authority. The Board acknowledged criticisms that some of the
initiatives of the government to respond to discrimination have not been
implemented effectively.
[11]
The
Board found that the applicants had not proven that state protection would not
be reasonably forthcoming if they had sought it and therefore they had not
rebutted the presumption of state protection with clear and convincing
evidence. The applicants’ claims were therefore rejected.
Issue
[12]
The
only issue raised by this application is whether the Board’s finding regarding
state protection was reasonable.
Analysis
[13]
The
applicants submit that the Board failed to provide reasons for discounting
their evidence that the state cannot protect Romani people; that the Board
failed to consider relevant evidence that contradicted its conclusions; and
that the Board relied on generalizations and references to the state’s efforts
and good intentions rather than considering whether state protection was
actually available.
[14]
The
applicant relies on Flores Alcazar v Canada (Minister of
Citizenship and Immigration), 2011 FC 173, which held at paragraph 25 that
the Board cannot discount an applicant’s evidence because of his or her
interest in the outcome. That proposition is correct but that is not what
occurred in this case; rather, the Board found in this case that the
reasonableness of the applicant’s decision not to seek state protection could
not be sustained in light of his own experience and the documentary evidence. The
Board found that the preponderance of the evidence supported the conclusion
that state protection was available.
[15]
The
applicant also relies on Flores Alcazar, above, and the Court’s decision
in Kovacs v Canada (Minister of
Citizenship and Immigration), 2010 FC 1003; in both cases, the Board failed
to consider evidence that contradicted its conclusions. However, I find that
both of these cases are distinguishable: in Flores Alcazar the Court
found, at paragraph 26, that the Board ignored its own body of research in
reaching its conclusion, and in Kovacs the Court found, at paragraph 61,
that the Board erroneously concluded that attacks on Roma had stopped without
regard to considerable evidence that attacks were continuing to occur.
[16]
In
contrast, in this case the Board considered the evidence before it and
acknowledged that some of that evidence was conflicting. I do not find that
this was a case in which the Board made generalizations about the country
without considering the specific evidence before it, nor did the Board refer
only to efforts or good intentions without considering implementation and
actual results.
[17]
Two
of the pieces of evidence cited by the applicants in support of their position
were explicitly considered in the Board’s decision. The Board cited the
Response to Information Request, and the US DOS Report several times in its
reasons. The Board acknowledged the problem of violence against Romani
individuals, prejudicial treatment of the Roma in all aspects of society, and
police corruption. However, the Board found that the preponderance of the
evidence supported the conclusion that state protection was available and there
were adequate state responses to these problems. This conclusion was supported
by reference to the documentary evidence and it was reasonably open to the
Board.
[18]
In
reaching this conclusion I do not detract from the observations of my
colleague, Justice
Michel Shore, in Kovacs, at
paragraph 66, wherein he noted:
Thus,
it cannot be sufficient to show the changes and improvements in the Hungarian
state, including a number of options for recourse and the possibility to obtain
state protection. It still remains to be proven that the changes have been
effectively implemented in practice. Proof of the state’s willingness to
improve and its progress should not be, for the decision-maker, a decisive
indication that the potential measures amount to effective protection in the
country under consideration. As the case law above shows, willingness, as
sincere as it may be, does not amount to action.
[19]
I
agree with this proposition. Here, however, in light of the applicants’
failure to make any effort to seek state protection, the onus was on them to
present clear and convincing evidence that such protection would not have been
reasonably forthcoming. The Board concluded that they had not discharged that
burden and it is not for the Court to re-weigh the evidence and substitute its
conclusions for that of the Board. There is therefore no basis to intervene.
[20]
The
application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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