Date:
20120905
Docket:
IMM-6481-11
Citation:
2012 FC 1049
Ottawa, Ontario,
September 5, 2012
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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GYULA KANTO
GYULANE KANTO
GYULA KANTO
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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 (the “Board”) dated August 29, 2011, whereby the Board rejected the
Applicants’ claim for protection, finding that the three Applicants were not
Convention 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].
[2]
For
the reasons that follow, I have found that this application must be dismissed.
1. Facts
[3]
Gyula
Kanto Sr., his wife, Gyulane Kanto, and their son, Gyula Kanto Jr. are Roma
citizens of Hungary. They arrived in Canada on September 15, 2009, and, on the
same day, sought refugee protection on the basis of a well-founded fear of
persecution for reasons of race and membership in a particular social group.
[4]
The
Applicants argue that Romanies regularly face discrimination in Hungary. Since the 1980s, the Roma people claim to have faced persecution in many forms.
Roma children are segregated in schools, have the letter “C” affixed to their
name to indicate their ethnic origin, and are said to suffer humiliation at the
hands of their classmates and teachers. The Applicants further argue that, by
reason of their ethnicity, Roma people are unable to secure meaningful
employment and are reduced to menial labour that non-Roma would not entertain.
They submit that, in 2006, the Hungarian Guard, a Neo-Nazi organization with a
violent anti-Roma agenda, along with other skinhead/fascist groups,
increasingly targeted Romanies and that violence against the Roma people is
largely ignored by police officers. It is against this backdrop that the
Applicants allege to have experienced persecution.
[5]
The
Applicants allege that they were the victims of a number of incidents because
of their ethnic origin. The first of these incidents is said to have occurred
on November 21, 2006, when Gyula Kanto Jr. was attacked on his way home from
work by a group of five or six skinheads. He managed to escape and run home,
while sustaining only minor injuries. He did not report that incident to the
police.
[6]
On
December 6, 2006, after leaving work, Gyula Kanto Jr. was surrounded and
assaulted by the same group of individuals as the previous month. Fellow
colleagues came to his rescue. Two blocks from the incident, he met a police
officer who refused to come to his aid, claiming that the Applicant had
probably triggered the altercation.
[7]
In
2006, Gyula Kanto Sr. participated in the Roma elections for a position in the
minority government. This participation further publicized his ethnicity and
role as a Roma activist. In the Applicants’ apartment complex, their upstairs
neighbour was a known racist and Guardist. The neighbour would shout racial
slurs at them and send threatening letters. He even broke their windows. The
Applicants complained to the police but they refused to intervene.
[8]
On
July 8, 2009, Gyula Kanto Jr. was confronted by three Guardists. He warned
them that he would complain to the authorities. However, one of the men pulled
out a police badge and retorted that the Applicant could press charges but that
his complaint would not be investigated. The Applicant was then hit in the
face with an empty beer bottle. He required stitches after this incident.
[9]
On
July 25, 2009, while travelling in the metro, Gyula Kanto Sr. was grabbed from
behind, turned and punched in the face by a young man. No passengers came to
his aid. He complained to a police officer who smiled and declared that no one
is attacked without prior provocation. This is the most significant incident
that influenced the Applicants’ decision to flee Hungary. At some point in
August 2009, Gyula Kanto Sr. encountered a demonstration while on his way home
and a group of skinheads began to verbally assault him, telling him to
disappear. The Applicant did not suffer any physical injuries as a result of
the incident and did not report the incident to the police.
[10]
On
August 26, 2009, Gyula Kanto Jr. was surrounded and verbally abused by a group
of police officers at a bank machine. They spoke with approval about a recent
violent attack on Romanies by a group of skinheads. The Applicant overheard one
of the police officers say: “At least there is one less Roma in the country”.
[11]
The
hearing of this refugee protection application took place over the course of
three sittings: March 25, May 27 and July 29, 2011. At the initial sitting,
the Board member asked Gyula Kanto Sr. to confirm that the Personal Information
Form (PIF) had been translated to him in its entirety. The Applicant explained
that counsel had him sign the PIF before filling out the narrative portion of
that form. In addition, his narrative was never read back to him in
Hungarian. The Board member then left the room to allow the Applicant and his
counsel the opportunity to sort out this issue among themselves. However, the
Board’s audio record system was inadvertently left running and the privileged
conversation that ensued was recorded.
[12]
Upon
resumption of the hearing, the Board was advised by counsel for the
Applicants that he was withdrawing due to a breakdown in the solicitor-client
relationship. At that time, the Board informed the Applicants that they had the
burden of proving the allegations of incompetence made against their lawyer.
The hearing was then adjourned.
[13]
On
May 27, 2011, the Applicants’ new counsel, Mr. Michael Korman, presented an
urgent motion before the Board requesting: (a) the recusal of the Board member;
(b) that the existing audio record be destroyed or redacted to remove the
privileged conversation; and (c) a de novo hearing. Counsel made three
essential arguments: (1) the Applicants’ rights had been violated so as to
compromise the integrity of the administration; (2) the Board member
inappropriately shifted the burden to prove allegations against their former
counsel onto the Applicants; and (3) there was a reasonable apprehension of
bias on the part of the Board member, warranting his recusal. Counsel’s motion
was denied that same day.
[14]
The
hearing resumed on July 29, 2011 and the Board rendered its decision rejecting
the Applicants’ claim for protection one month later.
2.
The impugned decision
[15]
After
considering the Applicants’ testimony, the Board determined that they were not
credible. In addition, the Board found that Hungary provides adequate state
protection.
[16]
Regarding
the issue of credibility, the Board viewed the Applicants’ testimony as both
contradictory and inconsistent.
[17]
Firstly,
the Applicants could not provide medical reports to corroborate their
allegations of physical injuries. Gyula Kanto Sr. did not seek medical
attention for his injuries. Gyula Kanto Jr. initially stated that he had no
medical report with respect to the incident of July 2009. When probed further,
he admitted to possessing a copy of the report, which he had not submitted to
the Board despite the fact that question 31 of the PIF specifically urges
refugee claimants to attach copies of any medical documentation. As the Applicants
had the benefit of being represented by two experienced counsel, the Board drew
a negative inference from Gyula Kanto Jr.’s failure to submit the medical
report and concluded that he had not been physically assaulted in July 2009.
[18]
Secondly,
after Gyula Kanto Jr. testified regarding the November 2006 incidents, he was
asked if there were any other incidents that he wished to describe, and he
immediately began relating the events of August 2009. When further questioned
regarding the November 2006 assault, he explained that the interaction with the
police officer described as having occurred in July 2009 in the application
materials had actually transpired in December 2006, following another
incident. The Board member rejected the Applicant’s assertion that the
confusion in dates was an innocent mistake, finding that it was reasonable to
expect that Gyula Kanto Jr. would describe the November and December 2006
ordeals consecutively since they were allegedly perpetrated by the same
individuals. Consequently, the Board concluded that Gyula Kanto Jr. was not
assaulted in either November or December of 2006.
[19]
As
for state protection, the Board acknowledged that Hungary has a history of
discrimination against Roma people. Hungary, however, is a democracy;
therefore, there is a strong presumption in favour of adequate state
protection. Furthermore, the Board found that the documentary evidence shows
that Hungary has taken active measures to correct discriminatory practices
against the Roma people. The Board then listed a series of legislative
measures taken by the Hungarian government to protect the rights of ethnic
minorities. By way of example: the government has mandated training in human
rights, basic freedoms and tolerance for in-service and aspiring police
officers; in 1993, the government enacted the Rights of National and Ethnic
Minorities, a comprehensive and progressive tool for protecting minority
rights; and, in June 2007, Parliament adopted a resolution, The Decade of
Roma Inclusion Programme Strategic Plan (2007-2015), presenting tasks to be
accomplished in an effort to eradicate discrimination.
[20]
While
the Board determined that the police had provided no assistance whatsoever in
one instance of discrimination alleged by Gyula Kanto Sr., they found that the
remaining incidents described by Gyula Kanto Sr. and Gyula Kanto Jr. either
were not credible or had not been reported to the authorities, allegedly
because the Applicants did not trust the police. Ultimately, the Board took the
view that local authorities’ failure to provide protection does not establish a
broader pattern of the state’s inability or refusal to provide protection. As
a result, the Board found that the Applicants did not provide clear and
convincing evidence that Hungary could not provide adequate state protection.
3. Issues
[21]
This
application for judicial review raises the following issues:
a) Was there a
breach of the principles of natural justice?
b) Did the Board
err in failing to consider the issue of cumulative discrimination?
c) Did the Board
err in concluding that there was adequate state protection?
4. Analysis
[22]
The
parties are in agreement as to the applicable standard of review. As stated by
the Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190 [Dunsmuir], a court can seek guidance from the existing case
law for determining the appropriate degree of deference for a particular type
of question. The first question is one of procedural fairness, which courts
have held to be reviewable on a standard of correctness (C.U.P.E. v Ontario
(Minister of Labour), 2003 SCC 29 at paras 100 and 102, [2003] 1 SCR
539; Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339 at para 43; Dios v Canada (Minister of Citizenship and
Immigration), 2008 FC 1322 at para 24, 337 FTR 120). Therefore,
the Court will not show deference and may substitute its view for that of the
Board.
[23]
The
second and third questions raise issues pertaining to the assessment of risk of
persecution and the availability of adequate state protection. These are
issues of mixed fact and law that fall squarely within the expertise of the
Board (Khatun v Canada (Minister of Citizenship and Immigration), 2012
FC 159, [2012] FCJ no 169 at para 47; Sarmis v Canada (Minister of
Citizenship and Immigration), 2004 FC 110, 245 FTR 312 at para 11). As
such, they are reviewable against a standard of reasonableness. This requires
the Court to inquire into the existence of justification, transparency, and intelligibility
in the decision-making process. The Court will only intervene if the decision
falls outside of the range of possible, acceptable outcomes that are defensible
in respect of the facts and law (Dunsmuir, above at para 47).
a) Was there a
breach of the principles of natural justice?
[24]
The
Applicants allege the existence of a reasonable apprehension of bias on the
part of the Board member which, in turn, breaches the principles of natural
justice. This allegation is based on two arguments:
1) The Board member refused to strike or redact the
original hearing record containing privileged communication with their former
counsel. In spite of this refusal, the Board member declined to recuse himself
and to order a de novo hearing; and
2) The Board member inappropriately shifted on the
Applicants, the burden of proving the allegations of incompetence against their
former counsel onto the Applicants.
[25]
The
legal test for determining the existence of a reasonable apprehension of bias
is well-established. In Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394, 9 N.R. 115, Justice de
Grandpré stated:
[T]he apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to the question and
obtaining thereon the required information. In the words of the Court of
Appeal, that test is "what would an informed person, viewing the matter
realistically and practically - and having thought the matter through –
conclude.Would he think that it is more likely than not that [the
decision-maker], whether consciously or unconsciously, would not decide
fairly." [Emphasis added.]
[26]
It
is against this standard that the Applicants’ allegation of a reasonable
apprehension of bias must be examined.
[27]
The
first allegation that the Board member refused to strike or redact the original
record is without merit. During the second sitting of the hearing, the Board
member unequivocally stated that he did not object to destroying all record of
the privileged conversation (Tribunal Record, page 958, line 40). In fact, the
only indication in the transcripts of this conversation is the following
annotation: “RECORD LEFT RUNNING AND ENTIRE CONVERSATION BETWEEN CLAIMANT AND
COUNSEL WAS RECORDED” (Tribunal Record, page 951, line 10). No further detail
of the conversation is transcribed.
[28]
Furthermore,
I accept the Respondent’s submission that the fact that the conversation was
recorded does not in and of itself create unfairness. At the second sitting, the
Board member stated that he had not listened to the recording and explained
that transcripts are not prepared for the benefit of the members of the Board.
Transcripts are produced only upon request of a party. Even when such
transcripts are prepared, a copy is not provided to any member of the Board,
including the presiding member (Tribunal Record, Transcripts at page 958, lines
15 to 25). It also appears from the parties’ submissions that the conversation
that ensued between the Applicants and their former counsel took place in
Hungarian. There is no evidence that the Board member understands Hungarian or
that there is reason to believe that he may have had access to an English
translation of the privileged communication.
[29]
With
these considerations in mind, the Applicants have not provided evidence of a
breach of the solicitor-client privilege. An informed person would not
conclude that the Board member had access to any privileged communication that
would influence his ability to decide the case in a fair and impartial manner.
Therefore, the Applicants have provided no basis for a finding of a reasonable
apprehension of bias on the part of the Board member.
[30]
Additionally,
it should be noted that the Applicants have not reiterated their allegation of
incompetence against their former counsel before this Court. They have,
however, submitted a second basis for their allegation of bias against the
Board member, claiming that the burden of proving their former counsel’s
incompetence was mistakenly placed on their shoulder.
[31]
The
Applicants’ submission in this respect is unfounded. In Shirvan v Canada
(Minister of Citizenship and Immigration), 2005 FC 1509, [2005] FCJ no 1864
at para 20, Justice Teitelbaum states the following with respect to the evidentiary
burden of an allegation of incompetence:
The Applicants recognize that the
test for incompetent counsel is very high. They submit that the party making
the allegation of incompetence must show substantial prejudice to the
individual, that prejudice must flow from the actions or inaction of the
incompetent counsel, and that the prejudice must bring about a miscarriage of
justice.
(Cited with approval in Ahmad
v Canada (Minister of Citizenship and Immigration), 2008 FC 646, [2008] FCJ
no 814 at para 52.)
[32]
Accordingly,
during the first sitting, the Board member’s statements to the Applicants were
not inconsistent with the jurisprudence of this Court:
The claimant, the principal claimant had made an
accusation of misconduct on the part of his previous lawyer and I believe sir
that there is case law in the federal court that says, you know, when there is
such an accusation, it is up to the claimant to demonstrate that he has made
all the necessary steps in order to show that there has been that type of
misconduct sir.
Tribunal Record, Vol 5, page 959, Lines 25 to 29
[33]
Clearly,
the Applicants cannot expect the Board to prove this allegation of misconduct
on their behalf nor to accept their submissions at face value. This would be
contrary to the role of the Board. As Justice Herman of the Ontario Superior
Court of Justice stated in R v Ellis, 2010 ONSC 2390 at para 63, 89 Imm
LR (3d) 201:
As a member of the Refugee
Protection Division, it was his job to "make well-reasoned decisions on
behalf of Canadians on immigration and refugee matters efficiently, fairly and
in accordance with the law." In particular, it was his job to conduct
hearings and decide whether the individuals appearing before him were refugees
or in need of protection.
[34]
To
this end, it would be contrary to a member’s role and responsibilities to
blindly accept an applicant’s allegations or to aid an applicant in proving an
allegation. In fact, I am of the view that it is this precise situation that
would create a reasonable apprehension of bias against Canadian interests and
in favour of refugee claimants, thereby compromising the duty of impartiality
that is expected and required of Board members.
[35]
In
light of the above, the Board member made no error of law. An informed person
would not perceive any apprehension of bias in the member’s statements. In
fairness to the Applicants, it must be added that counsel did not vigorously
pursue this argument at the hearing.
b) Did the Board err in
failing to consider the issue of cumulative discrimination?
[36]
The
Board member has made a number of findings against the credibility of the
Applicants. Counsel for the Applicants, however, has not contested these
findings, and went so far as to acknowledge at the hearing that the Board made
adverse credibility findings. Nevertheless, counsel alleged that the Board
erred in law in its failure to consider whether the cumulative nature of their
treatment in Hungary amounts to persecution.
[37]
Admittedly,
at paragraph 46 of Chan v Canada (Minister of Employment and Immigration),
[1995]
3 SCR 593, 128 DLR (4th) 213, the Supreme Court addressed the United Nations
High Commissioner for Refugees Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees (Reedited, Geneva, January 1992) (the
“UNCR Handbook”), stating as follows: “[T]he UNCR Handbook must be treated as a
highly relevant authority in considering refugee admission practices. This, of
course, applies not only to the Board but also to a reviewing court.” Thus, the
following paragraphs of the Handbook are particularly relevant:
(b)
Persecution
...
52. Whether
other prejudicial actions or threats would amount to persecution will depend on
the circumstances of each case, including the subjective element to which
reference has been made in the preceding paragraphs. The subjective character
of fear of persecution requires an evaluation of the opinions and feelings of
the person concerned. It is also in the light of such opinions and feelings
that any actual or anticipated measures against him must necessarily be viewed.
Due to variations in the psychological make-up of individuals and in the
circumstances of each case, interpretations of what amounts to persecution are
bound to vary.
53. In
addition, an applicant may have been subjected to various measures not in
themselves amounting to persecution (e.g. discrimination in different forms),
in some cases combined with other adverse factors (e.g. general atmosphere of
insecurity in the country of origin). In such situations, the various
elements involved may, if taken together, produce an effect on the mind of the
applicant that can reasonably justify a claim to well-founded fear of
persecution on "cumulative grounds". Needless to say, it is not
possible to lay down a general rule as to what cumulative reasons can give rise
to a valid claim to refugee status. This will necessarily depend on all the
circumstances, including the particular geographical, historical and
ethnological context. [Emphasis added.]
(c)
Discrimination
54. Differences
in the treatment of various groups do indeed exist to a greater or lesser
extent in many societies. Persons who receive less favourable treatment as a
result of such differences are not necessarily victims of persecution. It is
only in certain circumstances that discrimination will amount to persecution.
This would be so if measures of discrimination lead to consequences of a
substantially prejudicial nature for the person concerned, e.g. serious
restrictions on his right to earn his livelihood, his right to practise his
religion, or his access to normally available educational facilities.
55. Where
measures of discrimination are, in themselves, not of a serious character, they
may nevertheless give rise to a reasonable fear of persecution if they produce,
in the mind of the person concerned, a feeling of apprehension and insecurity
as regards his future existence. Whether or not such measures of discrimination
in themselves amount to persecution must be determined in the light of all the
circumstances. A claim to fear of persecution will of course be stronger
where a person has been the victim of a number of discriminatory measures of
this type and where there is thus a cumulative element involved. [Emphasis
added.]
[38]
According
to these provisions, members of the Immigration and Refugee Board must consider
the cumulative instances of discrimination faced by refugee claimants to
determine whether it amounts to the requisite level of persecution. However,
the doctrine of cumulative persecution is premised on the notion that the
Applicants have experienced hardship, albeit of a non-persecutory nature when
considered in isolation. In the case at bar, the Board member concluded that the
Applicants’ testimony was contradictory and inconsistent, which undermined
their credibility. This conclusion remains unchallenged. As a result, there
is no basis for the Applicants’ objective fear of persecution. The Applicants
only presented evidence of a general nature in support of their allegations of
a general climate of intolerance and discrimination against Romani
individuals. This is not enough to conclude that the Applicants are
Convention refugees or persons in need of protection.
c) Did the Board
err in concluding that there was adequate state protection?
[39]
The
Applicants submit that the Board erred in concluding that the government
initiatives aimed at protecting Roma citizens were indicative of the
effectiveness and adequacy of state protection. Counsel submitted that in so
finding, the Board misconstrued the documentary evidence by relying on the
“efforts” and “attempts” of the Hungarian government to enact laws and policies
to protect its Roma citizens without considering the reality on the ground, or
whether the laws and policies have been effectively implemented. To support
that proposition, the Applicants rely on the decision of the Federal Court in Bors
v Canada (Minister of Citizenship and Immigration), 2010 FC 1004, 377 FTR
132 [Bors], where it was held that legislation and procedure may reflect
the will of the state to protect its citizens but do not suffice to establish
the reality of state protection unless they are given effect in practice. In
essence, the Applicants claim that the Board should have considered both the
willingness and capacity of the state to protect Romani people.
[40]
I
have to agree with the Applicants on this point. In his reasons, the Board
member extensively reviewed documentary evidence pertaining to the legislative
measures and policies put in place by the Hungarian state to tackle
discrimination and to improve the situation of the Roma people. While these
initiatives are undoubtedly commendable, they fall short of the test required
to prove the adequacy of state protection.
[41]
In
Streanga v Canada (Minister of Citizenship and Immigration), 2007 FC
792, [2007] FCJ no 1082 at para 15, this Court explained the standard for a
finding of effective state protection:
The Applicant submits that the PRRA Officer has
erred in viewing the legal test as one of "serious measures". The
Federal Court in Elcock v. Canada (MCI), [1999] F.C.J. No. 1438
(T.D.) (QL), at paragraph 15, established, that for adequate state protection to
exist, a government must have both the will and the capacity to effectively
implement its legislation and programs:
Ability of a state must be seen to comprehend not only the
existence of an effective legislative and procedural framework but the capacity
and the will to effectively implement that framework.
[Emphasis added]
[42]
Similarly
in Avila v Canada (Minister of Citizenship and Immigration), 2006
FC 359, 295 FTR 35, this Court pointed out:
[27] In order to
determine whether a refugee protection claimant has discharged his burden of
proof, the Board must undertake a proper analysis of the situation in the
country and the particular reasons why the protection claimant submits that he
is "unable or, because of that risk, unwilling to avail [himself] of the
protection" of his country of nationality or habitual residence
(paragraphs 96(a)
and (b) and subparagraph 97(1)(b)(i)
of the Act). The Board must consider not only whether the state is actually
capable of providing protection but also whether it is willing to act. In this
regard, the legislation and procedures which the applicant may use to obtain
state protection may reflect the will of the state. However, they do not
suffice in themselves to establish the reality of protection unless they are
given effect in practice: see Molnar v. Canada (Minister of Citizenship and Immigration), 2002 FCTD 1081,
[2003] 2 F.C. 339 (F.C.T.D.); Mohacsi v. Canada (Minister of Citizenship and Immigration), 2003 FCTD 429,
[2003] 4 F.C. 771 (F.C.T.D.). [Emphasis added]
[43]
In
Bors, above at paragraph 63 Justice Shore addressed the same issue: “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.”
[44]
In
the present case, the documentary evidence shows that the Hungarian state is
willing to protect Romani individuals. The Board member took great heed of
that fact, but failed to consider the effectiveness of the state’s measures or
policies. The Board member should have assessed the ability of the state to
protect Romani individuals and, in particular, whether the Hungarian
authorities are willing and able to protect the victims of hateful crimes and
prosecute their perpetrators.
[45]
That
being said, this finding is not sufficient to warrant the intervention of this
Court. Although the Applicants have demonstrated an error in the assessment of
state protection, it is of no consequence because they have failed to establish
that they are in need of that protection. The Board member has not found their
story credible and, as a result, their fear of persecution is not subjectively
grounded. As a result, this application for judicial review ought to be
dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
"Yves de
Montigny"
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