Date:
20121012
Docket:
IMM-42-12
Citation:
2012 FC 1191
Ottawa, Ontario,
October 12, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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ONODI, PETER ZOLTAN
and
VARGA, EMESE
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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]
The
applicants seek judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated December
12, 2011, which found that they were neither Convention refugees nor persons in
need of protection pursuant to sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA). For the reasons that
follow the application is dismissed.
Background
[2]
Mr.
Onodi (the applicant) and his common law wife, Ms. Varga (collectively, the
applicants), are citizens of Hungary. The applicant is Roma and Ms. Varga is
Jewish.
[3]
The
applicant has experienced discrimination and violence in Hungary, starting with harassment at his high school. In 2006, skinheads shouted threats
and threw a beer bottle at him. Also that year, extremists threw a Molotov
cocktail in front of his apartment building. He reported this to the police
but they did not believe him. In 2010 members of the Hungarian Guard, a now
disbanded racist organization, shouted threats and him and his sister.
[4]
The
Board decided that the determinative issue was state protection and concluded
that the applicants did not provide clear and convincing evidence of Hungary’s inability to provide adequate protection. The Board found that their assertions
concerning Hungary’s inability to protect its citizens to be unsubstantiated
and inconsistent with the documentary evidence. The Board preferred the
documentary evidence with respect to state protection because it was drawn from
a wide range of sources including government and non-government organizations.
[5]
The
Board acknowledged that Roma face discrimination and racially motivated crime.
There are also reports of police corruption and misconduct. However, the Board
noted that police officers are disciplined for that behaviour. The Board also
considered several organizations where one could complain about police abuse,
including the Independent Police Complaints Board, the Parliamentary
Commissioners’ Office, the Equal Treatment Authority and the Roma Police
Officers’ Association. Individuals can also file lawsuits against the police
for inaction or human rights violations. Additionally, Hungary is part of the European Union and is accountable to the European Commission against
Racism and Intolerance.
[6]
The
applicant sought police assistance on one occasion. He described an incident
where a Molotov cocktail was thrown at the entrance of the building where he
lived. He testified that the police chased him away from the police station.
The Board noted that the applicant did not seek redress though any of the
available avenues. He did not describe any other problems with the police.
[7]
The
Board found that the applicant’s one attempt to engage state protection did not
provide the requisite clear and convincing evidence that, on a balance of
probabilities, state protection in Hungary is inadequate.
Issue
[8]
The
issue for this judicial review is whether the Board reasonably decided that the
applicants had not rebutted the presumption of state protection: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Discussion
[9]
An
individual claiming refugee protection must overcome the presumption of state
protection. The claimant has the burden of establishing, on a balance of
probabilities, that state protection is inadequate: Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94.
[10]
In
the case of a functioning democracy, refugee claimants face a heavy evidentiary
burden in demonstrating that they exhausted their domestic options: Hinzman
v Canada (Minister of Citizenship), 2007 FCA 171. Generally speaking,
refugee claimants must first seek protection from their country of citizenship,
unless it is reasonable to expect that protection would not have been
forthcoming. As this Court set out in Sow v Canada (MCI), 2011 FC 646,
the mere existence of free and fair elections does not indicate that state
protection is present. The Board must consider in addition, the robustness of
the institutions which constitute a democratic state, including the judiciary,
defence bar and the professionalism of the police force.
[11]
In
this case, the Board conducted a detailed analysis of the Hungarian constitution,
judiciary and legislation that protects minority rights. The Board found that Hungary is a functioning democracy, not just because it has elections, but also because of
strong government institutions.
[12]
The
applicants also submit that the Board relied on the mere fact that Hungary had taken steps to protect Roma citizens, without considering whether those steps
had resulted in adequate protection. Additionally, the applicants submit that,
where the Board relies on non-police agencies as evidence of protection, those
agencies must actually have the ability to offer protection.
[13]
This
is not a case, such as in Rezmuves v Canada (Citizenship and Immigration),
2012 FC 334, where the Board described the institutional protections available
to protect Roma, but failed to examine their effectiveness. Nor is this a case
like Bledy v Canada (Citizenship and Immigration), 2012 FC 679, where
the Board failed to consider recent evidence of attacks on ethnic minorities.
[14]
The
Board acknowledged Hungary’s imperfect record regarding ethnic minorities,
especially Roma citizens. In particular, the Board noted the low rates of
education, employment and adequate housing among Roma Hungarians. The Board
also noted that Roma face discrimination by law enforcement officers and are
targeted for violent crime because of their ethnicity.
[15]
The
Board weighed this against evidence which demonstrated that the police were
responding to protect Roma. It noted that the National Bureau of Investigation
had recently laid charges against four individuals suspected of murder, violent
attacks and threats to the Roma community, and the courts have also offered
protection. In 2008, a Budapest court ordered the Hungarian Guard disbanded
because of its attacks on the Roma community. This decision was upheld on
appeal.
[16]
The
applicants submit that state protection cannot be adequate because the
applicant was attacked recently and violent attacks against Roma and Jews are
increasing. However, no country can offer its citizens perfect protection. It
is not sufficient for a refugee claimant to show that the government’s efforts
have not always been successful: Canada (Minister of Employment and
Immigration) v Villafranca, [1992] FCJ No 1189.
[17]
It
is important to recall that the applicants have the burden of displacing the
presumption of state protection. It is not the Board which is required to
demonstrate that state protection is adequate. While the applicant did seek
police protection on one occasion in 2006, the Board reasonably expected him to
do more in the context. Its finding that the presumption of state protection
had not been displaced survives judicial review.
JUDGMENT
THIS
COURT ORDERS that the application for judicial review be
and is hereby dismissed. No question for certification has been proposed and
none arises.
"Donald J.
Rennie"
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