Date:
20120614
Docket:
IMM-8688-11
Citation:
2012 FC 737
[UNREVISED CERTIFIED ENGLISH
TRANSLATION]
Ottawa, Ontario,
this 14th day of June 2012
PRESENT: The
Honourable Mr. Justice Pinard
BETWEEN:
Gyorgyne
KOCSIS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
Anna Brychcy, member of the Refugee Protection Division of the Immigration and
Refugee Board (the panel) presented pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. (2001), c. 27
(the Act). The panel dismissed the refugee claim of Gyorgyne Kocsis (the
applicant), finding that she was not a Convention refugee or a person in need
of protection within the meaning of the Act.
[2]
The
applicant is a citizen of Hungary. She is a Gypsy and claims to be persecuted
in Hungary because of her race and her membership in a particular social group,
being of Roma ethnicity.
[3]
In
its October 24, 2011, decision, the panel accepted the applicant's story as the
truth. It found that the determining issue was the state protection offered.
[4]
The
applicant raises the following issues:
a.
Did
the panel err by not analyzing the applicant's subjective fear of returning to
Hungary?
b.
Did
the panel err by finding that state protection exists in Hungary?
[5]
The
appropriate standard of review in this case is reasonableness. The two
questions raise a mixed question of fact and law, namely identifying the test
and criteria that apply and applying these criteria in the case at bar. The
panel's determination of state protection was recognized as a mixed question of
fact and law in Mendoza v. The Minister of Citizenship and Immigration,
2010 FC 119, at paragraphs 26 and 27; Soto v. The Minister of Citizenship
and Immigration, 2010 FC 1183, at paragraph 26; and Burgos v. The
Minister of Citizenship and Immigration, 2006 FC 1537, at paragraph 17. Moreover,
assessing the evidence and issues of fact are under the jurisdiction of the
panel (Akhter v. The Minister of Citizenship and Immigration, 2006 FC
914 at para. 22). This court must therefore determine whether the panel's
decision and findings are justified, transparent and intelligible, and fall
"within a range of possible acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir v. New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 at para. 47 [Dunsmuir]).
* * *
* * * * *
1. Did the panel
err by not analyzing the applicant's subjective fear of returning to Hungary?
[6]
The
applicant was to prove a subjective fear of persecution based on an objective
reality, which could be based on documentary evidence (Alexibich v. The
Minister of Citizenship and Immigration, 2002 CFPI 53 at para. 16). More
specifically, refugee claimants in Canada must establish a credible link
between their claim and the objective situation in their country of origin in
order to be recognized as a refugee according to the Act (Al-Shammari v. The
Minister of Citizenship and Immigration, 2002 CFPI 364 at para. 24).
[7]
The
panel did not come to any specific conclusions regarding the applicant's
subjective fear. The panel generally believed the applicant's story, and did
not question her credibility, and therfore her fear. However, the panel found
that the applicant's story did not reveal any incidents of persecution.
Moreover, the panel explained that the determining issue in this case was the
availability of state protection. As a result, if the applicant were to return
to Hungary, that country would be able to protect her should she be harassed
because of her origins. The panel did not err by not listing the specific
findings in its decision regarding the applicant's subjective fear and it did
not neglect to consider her situation should she return, instead it focused on
state protection. The intervention of this court is not justified on this
basis: the applicant did not show that the panel's decision and findings were
unreasonable.
2. Did the panel
err by finding that state protection exists in Hungary?
[8]
The
applicant claims that the panel erred by finding that state protection is
available in Hungary; the panel neglected to consider all the documentary
evidence, in particular regarding relations between the police and the Roma,
and the effectiveness of existing measures. The applicant relied on Kovacs v.
The Minister of Citizenship and Immigration, 2010 FC 1003 [Kovacs] and
Bors v. The Minister of Citizenship and Immigration, 2010 FC 1004.
[9]
The
respondent claims that the panel's finding about state protection is
reasonable, being based on the evidence on record. The respondent adds that the
applicant claims that she was only the victim of isolated incidents of
harassment, which were never reported to the Hungarian authorities. Lastly, the
respondent notes that the applicant says she never had any problems between her
most serious assault in 2004 and her departure in 2009.
[10] In my
opinion, although the parties agree on the applicable law regarding state
protection, the applicant did not refute the presumption that protection exists
in Hungary with clear and convincing evidence; this was fatal to her refugee
claim (Kovacs, supra, at para. 55).
[11] The
panel had the obligation to consider the evidence on record, but no obligation
to make note of each element the applicant submitted as evidence (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425,
157 F.T.R. 35; Zhou v. Canada (Minister of Citizenship and Immigration),
[1994] F.C.J. No. 1087 (F.C.A.) at para. 1; Kanagaratnam v. Canada (Minister
of Employment and Immigration), [1994] F.C.J. No. 1069, 83 F.T.R. 131 at
para. 6).The panel is presumed to have considered all the evidence on
record (Florea v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 598 (F.C.A.) at para. 1). The applicant's memorandum identifies two
documents the panel allegedly neglected to consider. However, on the contrary, the
panel explicitly mentioned these documents in its decision, specifically referring
to information found in them, particularly regarding the charges against four
individuals pursuant to inquiries into the harassment of Roma in 2008 and 2009 and
the existence of funds to assist Roma.
[12] Additionally,
in its analysis of the documentary evidence, the panel did not exclusively rely
on the willingness of the state, but also on the effectiveness of measures in
place in Hungary. For example, when discussing the measures taken to reduce
discrimination where jobs are concerned, the panel notes that following the
implementation of these programs, some Roma were able to find work; when
discussing police investigations, the panel noted the arrest of four
individuals; when considering the fines imposed in cases of discrimination, the
panel identified a pizzeria that was fined for discriminatory signage. As for
the effectiveness of police interventions, the panel noted that a
discriminatory website was shut down following the intervention of Hungarian
authorities. It is therefore false to claim that the panel did not consider the
effectiveness of measures taken in Hungary to deal with discrimination against
Roma.
[13] The
panel must not only consider the state's commitment to act, but also the
effectiveness of the measures it has in place. However, this is not the deciding
factor when deciding whether protection was available for the applicant. The
panel also considered that she did not take any steps to contact the
authorities following the harassment she experienced, as in Horvath v.
Minister of Citizenship and Immigration, 2012 FC 253, at paragraphs 16 and
19.
[14] Moreover,
this case can be distinguished from Kovacs, where it was admitted that
the applicant and his family faced serious danger and were the victims of many
incidents of violence because of their Romni heritage (see paragraph 70). Here,
the panel reasonably found that the applicant did not face comparable dangers, having
been injured only once, after a fall while taking public transportation. There
was no recurrent violence against the applicant.
[15] One
need only recall that the panel may, under its field of expertise, sort through
the evidence before it (Ganiyu-Giwa v. Canada (Minister of Citizenship and Immigration),
[1995] F.C.J. No. 506 at para. 2). As explained by Justice Marcel Joyal in Omar
v. Canada (Minister of Citizenship and ’Immigration), [1997] F.C.J. No. 665,
at paragraph 7:
... For every bit of evidence referred to by the
Board, counsel could find conflicting evidence, and for every bit of inference
drawn, he
could expose alternate views. The test in such
matters, however, is not whether the case might lend itself to a different
conclusion, but whether a tribunal, on the evidence before it, could properly
arrive at the conclusion it did.
[16] For
this purpose, every case must be examined on its own merits. Here, the panel's
decision, taken as a whole, seems reasonable to me, and falls within the range
of "possible acceptable outcomes because it is defensible in respect of
the facts and the law." (Dunsmuir, supra, at para. 47).
* * *
* * * * *
[17] For
the above-noted reasons, the application for judicial review is dismissed.
[18] I
agree with counsel for the parties that there is no question for certification.
JUDGEMENT
The
application for judicial review of a decision by a member of the Refugee
Protection Division of the Immigration and Refugee Board, finding that the
applicant was not a refugee or a person in need of protection pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
(2001), c. 27, is dismissed.
"Yvon
Pinard"
Certified true translation
Elizabeth
Tan, Translator
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