Docket: IMM-5637-11
Citation: 2012 FC 436
Ottawa, Ontario, April 16, 2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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JENO RACZ
RENATA RACZ
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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 from the Decision of the Refugee
Protection Division of the Immigration and Refugee Board [RPD], dated June 16,
2011, in which the RPD rejected the Applicants’ refugee claims [the Decision].
The Applicants are Roma from Hungary and sought refugee protection in Canada
due to the risk of discrimination and persecution they claimed they would face
in Hungary by reason of their ethnicity. The Applicants made their claims under
both sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA].
[2]
The
RPD rejected their claims because it held that the Applicants had failed to
rebut the presumption of adequate state protection in Hungary. In their
application for judicial review, the Applicants advanced a single ground and
argued that the RPD committed a reviewable error in failing to conduct a
separate section 97 analysis. For the reasons detailed below, it is my view
that no separate section 97 analysis was required and, accordingly, that this
application for judicial review should be dismissed.
[3]
In
the Decision, the RPD first reviewed the Applicants’ allegations and determined
that they were credible. To summarise them briefly, Jeno Racz is Renata Racz’
father. He was previously married to Renata’s mother, a woman of Hungarian
ethnicity, but they divorced because her family objected to his ethnicity.
Following the divorce, Jeno and Renata continued to live in the family home.
Both claimed to have experienced discrimination in school, but both were able
to complete high school, and, indeed, had more education than is common for
Roma in Hungary. Both were also employed, Renata for a bank and Jeno was
self-employed. They recounted several incidents of discrimination. For example,
Renata recounted being harassed by co-workers and members of her boyfriend's
family. Jeno claimed he was harassed by the police when he was selling shoes in
the market. He also claimed that in 2003 he received inferior medical treatment
at a hospital following a fall, which resulted in his developing blood
poisoning. In 2008, he was harassed while attending a New Year's Eve party and
was assaulted by two individuals, who made derogatory remarks regarding his
Roma ethnicity. The next week, their home was broken into and vandalized, and
the Applicants fled to Canada. Neither, however, went to the police to
report any of these incidents, as they feared they would not be taken seriously
due to their ethnicity.
[4]
After
reviewing the Applicants’ allegations, the RPD engaged in a thorough and
detailed review of the documentary evidence before it regarding the
availability of state protection in Hungary to those of Roma
ethnicity. The RPD noted that while there was certainly documentation regarding
discrimination faced by the Roma, the documentation also established that
Hungary is a functioning democracy and that the Hungarian government has made
several attempts and taken several steps to limit or ban the activities of
xenophobic right-wing groups, who have been engaging in systemic harassment and
of the Roma people. The RPD continued by noting that Roma in Hungary suffer
from unemployment, poor housing and typically receive less education than other
Hungarians. However, none of these problems was faced by the Applicants who,
respectively, completed 12 and 14 years of education, were both employed, and
had a home to live in. The RPD concluded its state protection analysis by
underlining that the Applicants did not even attempt to seek protection from
the police in Hungary.
[5]
The
RPD then went on to dismiss the Applicants’ claims under both sections 96 and
97 of IRPA, without conducting a separate analysis regarding the risks that the
Applicants might face under section 97.
[6]
The
Applicants cite a single case in support of their position that the Board was
required to conduct a separate section 97 analysis: Dunkova v Canada (Minister of
Citizenship and Immigration), 2010 FC 1322, 95 Imm LR (3d) 149 [Dunkova].
On the particular facts of that case, Justice Kelen held that the RPD had
committed a reviewable error in failing to conduct a section 97 analysis. In Dunkova,
however, the RPD based its determination under section 96 on a finding that the
applicant's story was not credible. It did not go on to assess state
protection. This Court has similarly stated on other occasions that the RPD may
be required to conduct a section 97 analysis where it rejects a refugee claim
under section 96 of IRPA solely on a lack of credibility (see e.g. Bouaouni
v Canada (Minister of Citizenship and Immigration), 2003 FC 1211 at para
41; Kilic v Canada (Minister of Citizenship and Immigration), 2004 FC 84
at para 32, 245 FTR 52. However, where there is no evidence before the RPD that
would support a claim under section 97, this Court has held that a separate
section 97 analysis is not required (see e.g. Balakumar v Canada Minister of
Citizenship and Immigration), 2008 FC 20 at para 14, [2008] FCJ No 30 [Balakumar]; Brovina v Canada
(Minister of Citizenship and Immigration), 2004 FC 635 at para 18, 254 FTR 244 [Brovina]; and Kaleja
v Canada (Minister of Citizenship and Immigration), 2011 FC 668 at paras
34-35) [Kaleja].
[7]
Irrespective
of the applicable standard of review, the Board’s Decision must stand as, in
light of the foregoing authorities, it was not necessary for the Board to
conduct a separate section 97 analysis on the facts of this case. This case is
analogous to the situations in Balakumar, Brovina, and Kaleja
because the findings on state protection applied equally under sections 96 and
97 of IRPA. Accordingly, there was no need for the Board to engage in a
separate analysis of whether, but for the availability of state protection, the
Applicants would otherwise have qualified as persons in need of protection
under section 97 of IRPA.
[8]
This
application for judicial review will therefore be dismissed.
[9]
No
question for certification under section 74 of IRPA was presented and none
arises in this case.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
This
application for judicial review is dismissed;
2.
No
question of general importance is certified; and
3.
There
is no order as to costs.
"Mary
J.L. Gleason"
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