Date:
20120910
Docket:
IMM-324-12
Citation:
2012 FC 1070
Ottawa, Ontario,
September 10, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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KALMAN LAKATOS, ERIKA BALOGH,
MIRELLA LAKATOS AND
KALMAN LAKATOS (JR)
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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 of Canada (“the Board”) dated
December 20, 2011. The Board found that the Applicants were neither refugees
nor persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the reasons that follow, this application for judicial review is dismissed.
I. Facts
[3]
The
Applicants – Kalman Lakatos, his spouse, Erika Balogh, and their two minor
children, Kalman Lakatos (Jr) and Mirella Lakatos – are Hungarian citizens of
Roma ethnicity. They arrived in Canada on December 10, 2009 and made
their claim for refugee protection on December 14, 2009 on the basis of
the discrimination and harassment they face as Roma in Hungary.
[4]
Specifically,
the Applicants describe the following events as forming the basis of their
claim for refugee protection: First, Mr. Lakatos was attacked as a teenager in
1996 by four skinheads while on his way home from school with two of his
friends. He sustained a broken nose and broken ribs in the altercation. Second,
Ms. Balogh was followed home from the store by skinheads, who shouted racial
slurs at her and slapped her across the face. Third, while in the hospital
giving birth to her two children, Ms. Balogh was placed, along with other
Romani women, in a ward that was separated from other Hungarian women, and was
given unequal treatment. Finally, one month prior to leaving for Canada, the Applicants discovered a swastika painted on the front door of their home.
II. Decision
under Review
[5]
The
Board found that the Applicants had not satisfied the burden of establishing
that they were Convention refugees or persons in need of protection under
sections 96 and 97 of IRPA. It found that the determinative issue was whether
the Applicants’ fear was objectively reasonable, and focused its analysis on
whether there is adequate state protection in Hungary, whether the Applicants
took all reasonable steps to avail themselves of that protection, and whether
they provided clear and convincing evidence of the state’s inability to protect
them.
[6]
After
a lengthy review of the documentary evidence, which the Board found to be
mixed, the Board concluded that there is adequate state protection in Hungary. It noted that states are presumed capable of protecting their citizens, and that
the Applicants bear the legal burden of rebutting that presumption with clear
and convincing evidence that satisfies the Board on a balance of probabilities.
[7]
While
the evidence indicated widespread discrimination and specific incidents of
persecution against the Roma in Hungary, the Board concluded that the Hungarian
government has taken a number of institutional and legal measures to improve
the situation of the Romani minority, and that the Applicants have recourse to
such programs for assistance should they need it. For example, the Board
pointed to the Parliamentary Commissioner for National and Ethnic Minority
Rights (Minorities Ombudsman), who takes complaints from persons who feel that
their minority or ethnic rights have been violated by reason of a government
agency’s decision, proceedings or negligence.
[8]
Moreover,
the Board was not convinced that the Applicants took all reasonable steps to
seek state protection in Hungary. Mr. Lakatos only ever approached the police
once, when he was a minor. No other complaints were submitted before any of
the other mechanisms in place. The Board concluded that, given the particular
circumstances of the case, the Applicants had not provided the requisite clear
and convincing evidence that, on a balance of probabilities, state protection
in Hungary is inadequate.
III. Issues
[9]
The
sole issue in this application is whether the Board erred in its assessment of
state protection.
IV. Standard
of Review
[10]
The
Board’s conclusion on state protection involves questions of mixed fact and law
and is thus reviewable on the standard of reasonableness (see Mendez v
Canada (Minister of Citizenship and Immigration), 2008 FC 584, [2008] FCJ
No 771 at paras 11-13; Pinto Ponce v Canada (Minister of Citizenship and
Immigration), 2012 FC 181, [2012] FCJ No 189 at para 25). As stated in Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] SCR 190, reasonableness is concerned
with “the existence of justification, transparency and intelligibility in the
decision-making process” (see para 47). This Court will only intervene
where the decision in question falls outside the range of possible, acceptable
outcomes defensible in respect of the facts and law.
V. Analysis
[11]
The
Applicants submit that the Board erred in its assessment of state protection in
three ways: (i) by giving contradictory reasons and misstating the test for
rebutting the presumption of state protection in its objective analysis; (ii)
by failing to consider the Applicants’ specific circumstances with respect to
its finding on their responsibility to seek state protection; and (iii) by
failing to consider the Gender Guidelines with respect to Ms. Balogh.
(i) Contradictory
Reasons and Rebutting the Presumption of State Protection
[12]
The
Applicants contend that in order to be adequate, state protection must be
minimally effective. They rely on a long list of case law to support their
position. They argue further that the Board erred by focusing on the efforts
of the Hungarian government to ameliorate the situation of the Roma and that it
should have considered, instead, the outcome of those efforts. In addition,
the Applicants submit that it is not for them to provide all of the evidence
required to rebut the presumption of state protection, and that the Board erred
in not reconciling the evidence submitted by the Applicants with that of the
Refugee Protection Division.
[13]
I
am unable to accept the Applicants arguments on this point for two primary
reasons. First, it is clear from the case law that the applicant bears
the burden of presenting clear and convincing evidence that rebuts the
presumption of state protection on a balance of probabilities (Carillo v
Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] FCJ
No 399 at para 38; Kis v Canada (Minister of Citizenship and Immigration),
2012 FC 606, [2012] FCJ No 603 at para 15). A claimant coming
from a democratic country bears a heavy burden, in terms of quality of
evidence, to show that state protection is unavailable (Hinzman v Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, [2007] FCJ No 584
at para 57; Carillo, above at para 26). The Board properly stated and
applied the test and reasonably concluded that the Applicants had not met their
burden of rebutting the presumption of state protection in this case.
[14]
Second,
this Court has repeatedly held that the test for state protection is not
whether it is effective, per se, but whether it is adequate (Kaleja v Canada
(Minister of Citizenship and Immigration), 2011 FC 668, [2011] FCJ No 840
at para 25; Carillo, above). Indeed, this Court and the Supreme Court
have underlined that refugee protection is a surrogate for the protection of a
claimant’s own state (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689
at para 18; Flores v Canada (Minister of Citizenship and
Immigration), 2008 FC 723, [2008] FCJ No 969 at para 10). As such, it
is “not enough for a claimant merely to show that his government has not always
been effective at protecting persons in his particular situation” (Flores,
above at para 10; Canada (Minister of Employment and Immigration) v
Villafranca, [1992] FCJ No 1189, 18 Imm LR (2d) 130 (FCA)).
[15]
The
Board considered the evidence before it and, while it found the evidence to be
mixed, it came to a conclusion that was within the realm of acceptable outcomes
defensible in respect of the facts. The Board reasonably assessed the various
programs in place to combat the particular challenges facing the Roma people in
Hungary before concluding, on a balance of probabilities, that state protection
was adequate.
(ii) Applicants’
Specific Circumstances
[16]
I
am not convinced by the Applicants’ arguments with respect to the Board’s
failure to consider their particular circumstances before concluding that they
had not taken all reasonable steps to avail themselves of state protection. The
Board put specific questions to the Applicants on this point at the hearing. Mr.
Lakatos even stated that he “understood [the Board Member’s] point” when asked
why he had only gone to the police once. The Board made a reasonable inquiry
into the Applicants’ specific circumstances and came to the reasonable
conclusions that: (i) the Applicants had not taken all reasonable steps to
avail themselves of state protection; and (ii) no exemption to this requirement
was warranted in this case.
(iii) Gender
Guidelines
[17]
The
Applicants posit that the Board erred by failing to consider “Guideline 4: Women
Refugee Claimants Fearing Gender-Related Persecution – Guidelines Issued by the
Chairperson Pursuant to Section 65(3) of the Immigration Act, Update”
(“Gender Guidelines”) in coming to its decision. I am unable to accept this
argument.
[18]
First,
the fact that the Gender Guidelines were not mentioned does not mean that the
Board did not consider them. As the Respondent points out, this Court has
concluded that the Board need not, in all cases, even refer explicitly to the
Guidelines in its decision (Martinez v Canada (Minister of Citizenship and
Immigration), 2010 FC 31, [2010] FCJ No 41 at para 23; Munoz v Canada
(Minister of Citizenship and Immigration), 2006 FC 1273, [2006] FCJ No 1591
at para 30).
[19]
Furthermore,
this Court has found that the Gender Guidelines do not constitute evidence to
support the applicant’s claim (see S.I. v Canada (Minister of Citizenship
and Immigration), 2004 FC 1662, [2004] FCJ No 2015 at para 9), nor are they
intended to serve as a “cure for all deficiencies in the applicant’s claim or
evidence” (Karanja v Canada (Minister of Citizenship and Immigration),
2006 FC 574, [2006] FCJ No 717 at para 5). As the Respondent indicates, this
Court has also held that “the gender guidelines do not necessarily absolve
applicants from seeking the protection of the state” (Canseco v Canada (Minister of Citizenship and Immigration), 2007 FC 73, [2007] FCJ No 115 at para
10).
[20]
As
counsel for the Applicants identifies, the Gender Guidelines state:
If the claimant can
demonstrate that it was objectively unreasonable for her to seek the protection
of her state, then her failure to approach the state for protection will not
defeat her claim. Also, the fact that the claimant did or did not seek
protection from non-government groups is irrelevant to the assessment of the
availability of state protection.
[21]
In
this case, the Board found that the Applicant had not demonstrated that it was
objectively unreasonable for her to seek the protection of the state after a
specific consideration of her circumstances. Indeed, Ms. Balogh’s reasons for
not approaching the state were focused on her ethnic identity. She stated that
she had not approached the Roma minority self-government because “they are Roma
people as well, they are treated as anybody else who is Roma.” Moreover, while
she stated at the hearing that she had not been aware of the office of the
Minority Ombudsman at the time she gave birth to her children, Ms. Balogh
asserted that she would have approached that office with a complaint about her
experiences in the hospital. She also submitted that the Ombudsman may have
been able to help other Roma women had she approached it with her complaint. Given
the circumstances of the case, I am satisfied that the Board’s decision with
respect to Ms. Balogh was reasonable.
VI. Conclusion
[22]
The
Board considered the evidence before it and reasonably concluded that the
Applicants failed to provide the requisite clear and convincing evidence to
rebut, on a balance of probabilities, the presumption of state protection.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
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