Docket: IMM-5314-11
Citation: 2012 FC 606
Ottawa, Ontario, May 18,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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BEATA KIS
LAURA BARDI
JOZSEF BARDI
CINTIA BARDI
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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 a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated July 14, 2011.
The Board found that the Applicants were neither Convention refugees nor
persons in need of protection within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
I. Facts
[2]
The
Principal Applicant (Beata Kis) and her children (Laura Bardi, Jozsef Bardi and
Cintia Bardi) are Hungarian citizens. They made refugee claims in Canada on April 27,
2010 fearing persecution for their Roma ethnicity.
[3]
The
Principal Applicant referred to her previous experiences as well as those of
her children being teased and called derogatory names at school. While living
with the father of her children from 1994 to 2003, the Principal Applicant
stated that police would stop and harass them.
[4]
Among
other incidents, the Principal Applicant described a fight with a vendor over
some candy. The vendor assaulted her and called the police, who ultimately
accused her of committing the assault. Following the incident, the Principal
Applicant attended court but received a warning that this should not happen
again rather than a conviction.
[5]
The
Principal Applicant also tried to obtain child support from the father of her
children after he left her in 2003. Members of his family threatened her,
called children’s protection services and attacked her in 2008.
II. Decision Under Review
[6]
The
Board accepted that the Principal Applicant and her children had faced some
difficulty in the past and been harassed because of their Roma ethnicity. Considering
attempts by Hungary to correct
historical discrimination as outlined in documentary evidence, however, the
Board found the Applicants had failed to rebut the presumption of state
protection with clear and convincing evidence. The Board summarized its
conclusion as follows:
It is accepted that Hungary has had difficulties in the
past with addressing racism and discrimination against Roma. However I accept
the documentary evidence outlined above. This suggests that although not
perfect, there is adequate state protection in Hungary and that Hungary is making serious and genuine efforts to
erase the problem of racism against Roma.
III. Issue
[7]
The
sole issue before the Court is whether the Board erred in its assessment of
state protection.
IV. Standard of Review
[8]
The
appropriate standard of review in this instance is reasonableness (see Mendez
v Canada (Minister of
Citizenship and Immigration), 2008 FC 584, [2008] FCJ No 771 at paras
11-13). Intervention of the Court is unwarranted unless the decision fails to
accord with the principles of justification, transparency and intelligibility
or does not fall within the range of possible, acceptable outcomes (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
[9]
The
Applicants assert that the Board erred by ignoring evidence and applying the
incorrect test for an assessment of state protection.
[10]
They
insist that the Board failed to look at evidence regarding attacks on Roma in Hungary. In
particular, it neglected to mention two recent reports discussing racist attacks.
[11]
I
must stress that the Board is presumed to have considered all of the evidence
before it, unless the contrary is shown (Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ no 598 (CA)). There is no
requirement to mention each and every piece of documentary evidence (Hassan
v Canada (Minister of Employment and Immigration) (1992), 147 NR 317,
[1992] FCJ no 946 (CA)).
[12]
The
Board weighed the documentary evidence related to state protection recognizing
the history of discrimination against Roma in Hungary but
balancing this against steps taken to address these issues, such as limiting
activities of certain groups and training to change attitudes of police towards
minorities. The failure to refer to two specific reports does not make the
conclusion reached unreasonable in the circumstances.
[13]
I
also decline to accept the Applicants’ claim that the Board applied the incorrect
test for state protection.
[14]
Referring
to the determinations in Bledy v Canada (Minister of Citizenship and Immigration),
2011 FC 210, [2011] CarswellNat 625 and Hercegi v Canada (Minister of
Citizenship and Immigration), 2012 FC 250, [2012] FCJ no 273, the Applicant
takes issue with the Board’s emphasis on Hungary’s efforts to protect the Roma.
[15]
The
Principal Applicant is required to provide clear and convincing evidence to
rebut the presumption that state protection is adequate (see Carillo v
Canada (Minister of Citizenship and Immigration), 2008 FCA 94, 2008
CarswellNat 605 at para 38). The burden for doing so is higher in a democratic
state, such as Hungary (see Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, [2007] FCJ no 584 at para
57).
[16]
In
Kaleja v Canada (Minister of Citizenship and Immigration), 2011 FC 668,
[2011] FCJ no 840 at paras 25-26, I underlined that the appropriate test
is the adequacy of state protection and not effectiveness per se as
identified in Carillo, above. A similar message was implied by
Justice Sean Harrington in Banya v Canada (Minister of Citizenship
and Immigration), 2011 FC 313, [2011] FCJ no 393 at paras 12-16
and Justice Paul Crampton in Cervenakova v Canada (Minister of Citizenship
and Immigration), 2010 FC 1281, [2010] FCJ no 1591 at para 87. It is
well-established that “[i]t is not enough for a claimant merely to show that
his government has not always been effective at protecting persons in his
particular situation” (Canada (Minister of Employment and Immigration) v
Villafranca, [1992] FCJ no 1189, 18 Imm LR (2d) 130 (CA)).
[17]
In
this instance, the Board conducted a reasonable assessment of various programs
put in place to address the ongoing challenges facing the Roma in Hungary before
concluding that these demonstrated “serious and genuine efforts” and state
protection was adequate.
[18]
The
Applicants further argue that the Board erred in considering state protection
in isolation from their serious possibility of persecution. They rely on the
determination in Jimenez v Canada (Minister of
Citizenship and Immigration), 2010 FC 727, [2010] FCJ no 879 at para 17
that faulted the Board for not considering the context of an applicant in
guiding the state protection analysis.
[19]
While
the Board did not conduct a formal analysis of subjective fear in this
instance, it still gave relatively detailed consideration to the Applicant’s
circumstances before proceeding to address state protection. This assessment
proved sufficient to dispose of the claim. The Applicants’ disagreement with
the weight given to their personal circumstances in this context does not
provide a basis for the strict application of Jimenez, above or constitute
a reviewable error.
[20]
The
Board reasonably considered the adequacy of state protection as the
determinative issue and, after weighing the evidence as it is entitled to do,
found that the Applicants had failed to rebut the presumption with clear and
convincing evidence of current conditions in Hungary as consistent with Carillo,
above.
VI. Conclusion
[21]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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