Date:
20121126
Docket:
IMM-581-12
Citation:
2012 FC 1361
Ottawa, Ontario,
November 26, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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ROBERT TAMAS; DANIEL TAMAS;
LORETTA TAMAS; ROBERT TAMAS
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 21 December 2011 (Decision), which refused the Applicants’ application to
be deemed Convention refugees or persons in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Applicants are citizens of Hungary and of Roma ethnicity. They seek protection
in Canada from persecution on the basis of their ethnicity. The Primary
Applicant is Robert Tamas (Robert) and the Secondary Applicants are his
children Daniel Tamas, Loretta Tamas, and Robert Tamas.
[3]
The
Applicants, along with Robert’s common-law spouse, Eva Molnar, arrived in Canada on 15 December 2009 and claimed refugee protection. In support of their application Robert
submitted a narrative in his Personal Information Form (PIF), as well as
materials about conditions for Roma in Hungary.
[4]
Robert’s
PIF states that he has been treated as an outcast throughout his life because
people in Hungary are very racist towards Roma people. When his son David was
born, doctors at the hospital shouted at his wife to be quiet because she was
making too much noise. Robert tried to talk to the doctors about it, but they
called the police and they made him leave the hospital. Robert could not
continue his education past elementary school because he could not afford it,
and he was always humiliated at school. He could barely find any work because
Roma are continually discriminated against. Roma are not even allowed to enter
clubs and cafés. Robert felt so hopeless that he contemplated suicide at one
point. He heard about other Roma families being killed, and his family lived in
constant fear in Hungary. Robert had an opportunity to work in the countryside,
but his family was too scared for him to leave them so that he could not take
the job. When he went to the police about it, they laughed at him. Robert
decided to come to Canada with his family to avoid the life of unemployment and
starvation that existed for him in Hungary.
[5]
In
addition to the statements in his PIF, Robert submitted country condition
materials from a variety of sources. No other evidence was submitted.
[6]
After
two previous adjournments, a hearing was scheduled for 20 December 2011. Robert
submitted a medical note, stating that Eva Molnar has been suffering from health
problems since September 2011, and would not be able to attend a hearing for
approximately 3-6 months. The RPD decided to sever her application from the
other Applicants, and proceeded with the hearing. At the hearing, a lawyer
named Diane Younes was present. She stated that she was there for Victor
Hohots, counsel for the Applicants.
[7]
In
the early stages of the hearing, the following exchange occurred:
RPD: Now,
I am in receipt of a letter that the principal claimant has given me which
indicates that… that the principal claimant’s wife has been under medical care
since September 2011. The letter also says that it would be difficult for her
to attend a hearing for three to six months.
And
while I am very sympathetic to your wife’s heart condition, let me just point
out that you have been in the country for two years, that the first
communication with the board was January 2010; if your wife has been under
medical care since September, the day of the hearing is not acceptable to let
the board know that your wife cannot… cannot endure a hearing.
We
join family members, this is the practice of the board, but we also have the
jurisdiction to disjoin if the circumstances are such that… that it will impede
the proceedings if we adjourn instead of disjoining.
Counsel,
do you have any comments?
Counsel: No,
Madam Member, I just want to let the client know that… that if we are
successful today he can sponsor his wife, this is one of the options.
RPD: Well,
I think you can do that, speak to him privately.
Counsel: And
I think that is why we are… in terms of her heart condition…
RPD: And
he is… and he is the principal claimant?
Counsel: Yes.
And you are the principal claimant and this is your story.
RPD:
It is not your wife’s story; her allegations are based on your
allegations.
So,
because as I stated earlier, because of the history of this claim already
having been in the process for two years and having attended a show cause and
sir I have to say that it… it is somewhat irresponsible when your wife has been
under medical care since September to bring a note to the board on the day of
the hearing.
Applicant: This
is a mistake because I was actually at the lawyer’s office for a month prior to
this date; more than a month prior to this date.
RPD: Yeah
but you just gave me this now. Your wife has been under medical care since
September, today is December.
Applicant: Yes,
I have sent a letter to the lawyer as well but the doctor just gave us this now
because my wife needed further examination.
RPD: Okay,
I understand but I am not accepting… I am not accepting to postpone this three
to six months, I am disjoining your wife’s claim…it will…it will be of no
consequence to you in terms of…of…the outcome should not be…her allegations are
based on yours and moreover there are other avenues as your counsel pointed out
which she can deal with outside of the hearing room.
[…]
[8]
After
hearing the Applicants’ claim, the RPD made its Decision on 21 December 2011,
rejecting their claim for refugee protection.
DECISION
UNDER REVIEW
[9]
The
RPD found the Applicants were not Convention refugees or persons in need of
protection because Robert was not credible and had failed to rebut the
presumption of state protection in Hungary. The RPD also found that Robert had
suffered discrimination, but this did not amount to persecution within the
meaning of section 96 of the Act.
State Protection
[10]
The
RPD found that the Applicants had not rebutted the presumption of state
protection established in Canada (Attorney General) v Ward, [1993]
2 SCR 689. It noted that Hungary is in effective control of its territory and
has military, police, and civil authorities in place to uphold its laws and
constitution. The RPD also found that Hungary is a functioning democracy with
free and fair elections. Because the burden on an applicant to prove an absence
of state protection is directly proportional to the level of democracy of the
home state, the burden on the Applicants to rebut the presumption of state
protection was high. Further, the RPD noted that local failures by the
authorities to provide protection did not mean that a state as a whole is
unable to protect its citizens, unless it is part of a larger problem of
inability or refusal to provide protection.
[11]
The
RPD pointed out that although the effectiveness of state protection is a
relevant consideration, the case law has held that the test for a finding of
state protection is whether the protection is adequate, rather than effective
per se. The Applicants must demonstrate that they have taken all reasonable
steps in the circumstances to seek protection, taking into account contextual
factors such as their interactions with the authorities.
[12]
The
RPD considered what it found were insufficient efforts to seek state
protection. According to Robert’s testimony, the only time he went to the
police was in 1995. Given that they laughed at him, he never returned. Robert’s
PIF spoke of repeated attacks by individuals and police, but when he was asked
to provide details at the hearing he was unable to respond. When Robert was
asked if he knew of Romas who had contacted the police recently, he responded that
“they were asked to bring substantial evidence of who attacked them – not all
of them, but most of the police officers send you away.”
[13]
The
RPD found Robert was not diligent in seeking state protection, and did not
accept his explanations for not doing so. Robert was questioned about his
statements where he indicated that he thought future attacks may occur. In
response, he stated that he assumes that what has happened to other people
will, in turn, happen to him. He failed to provide “clear and convincing”
evidence of the state’s inability to protect him, and thus did not rebut the
presumption of state protection.
[14]
The
RPD also weighed the country condition evidence the Applicants submitted. It
noted that the constitution and law of Hungary prohibit arbitrary arrest and
detention, and the government generally observes these prohibitions. Reports
indicate that corruption remains a problem, but the Independent Police
Complaints Board (IPCB) has been established to investigate violations of
fundamental rights by the police. Roma are able to go to IPCB with complaints,
and have them investigated. The RPD noted there are also training programs in
place for young Roma. The RPD stated that discrimination against Roma remains a
serious problem in Hungary, but the documentary evidence shows that Hungary is committed to addressing the problems faced by Roma people.
Credibility
[15]
The
RPD found Robert’s PIF contained very little detail or information related to Robert
himself. Robert’s oral testimony was similar; he essentially provided only
opinions. The RPD concluded that Robert was concerned for his future based on
things he heard or read, but could not provide any evidence of personal attacks
on him. This undermined his claim, as there was no evidence that he was subject
to persecutory treatment.
Discrimination
vs. Persecution
[16]
The
RPD also found that the Applicants had not experienced persecution in Hungary, and had not been denied any basic human right. Robert testified that he was forced
to leave trade school because he could not afford it. While this is
unfortunate, he was allowed to attend for a month. This is not tantamount to
persecution. The RPD found the events Robert said happened to him did not
amount to persecution. This, combined with its finding on state protection, led
the RPD to conclude that the Applicants did not face a serious possibility of
persecution in Hungary or a risk to his life, a risk of cruel and unusual
punishment, or a danger of torture. As such, Robert’s claim was rejected. As
the Secondary Applicants’ claims were based on Robert’s, they too were
rejected.
ISSUES
[17]
The
Applicants raise the following issues in this case:
1.
Whether
the RPD breached their right to procedural fairness by refusing to grant an
adjournment and severing his spouse’s claim;
2.
Whether
the RPD’s credibility finding was reasonable;
3.
Whether
the RPD misinterpreted the definition of “persecution”;
4.
Whether
the RPD’s state protection finding was reasonable.
STANDARD
OF REVIEW
[18]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to a particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the standard
of review analysis.
[19]
The
Applicants argue that their procedural rights were violated when the RPD
refused the request for an adjournment. As the Supreme Court of Canada said in Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
at paragraph 22, procedural fairness includes the right to have submissions
considered. Further, in Canadian Union of Public Employees (C.U.P.E.) v
Ontario (Minister of Labour) 2003 SCC 29 (QL), the Supreme Court of Canada
held at paragraph 100 that “It is for the courts, not the Minister,
to provide the legal answer to procedural fairness questions.” Further,
the Federal Court of Appeal in Sketchley v Canada (Attorney General)
2005 FCA 404 at paragraph 53 held that the “procedural fairness
element is reviewed as a question of law. No deference is due. The
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached this duty.” The
standard of review on the first issue is correctness.
[20]
In
Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held at paragraph 4 that the
standard of review on a credibility finding is reasonableness. Further, in Elmi
v Canada (Minister of Citizenship and Immigration), 2008 FC 773, at
paragraph 21, Justice Max Teitelbaum held that findings of credibility are
central to the RPD’s finding of fact and are therefore to be evaluated on a
standard of review of reasonableness. Finally, in Wu v Canada (Minister of Citizenship and Immigration), 2009 FC 929, Justice Michael Kelen held at
paragraph 17 that the standard of review on a credibility determination is
reasonableness. The standard of review on the second issue is reasonableness.
[21]
The
issue of the RPD’s interpretation of “persecution” is a question of mixed fact
and law that involves a tribunal interpreting its enabling statute (see Sow v Canada (Minister of Citizenship and
Immigration),
2011 FC 1313 at paragraphs 17-21). The Supreme Court of Canada stated in Alliance
Pipeline Ltd v Smith, 2011 SCC 7 at paragraphs 26-34
that such a question is to be reviewed on a reasonableness standard. Further,
the RPD’s persecution analysis goes to the interpretation of evidence. The
third issue is reviewable on a reasonableness standard (Alhayek v Canada (Minister of Citizenship and Immigration), 2012 FC 1126 at paragraph 49).
[22]
Reasonableness
is also the standard of review applicable to the RPD’s state protection
finding. In Carillo v Canada (Minister of Citizenship
and Immigration),
2008 FCA 94, the Federal Court of Appeal held at paragraph 36
that the standard
of review on a state protection finding is reasonableness.
Justice Leonard Mandamin followed this approach in Lozada v
Canada (Minister of Citizenship and Immigration), 2008 FC 397, at paragraph 17.
Further, in Chaves v Canada (Minister of Citizenship and
Immigration),
2005 FC 193, Justice Danièle Tremblay-Lamer held at paragraph 11 that the standard of review
on a state
protection finding is reasonableness.
[23]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
STATUTORY
PROVISIONS
[24]
The
following provisions of the Act are applicable in this proceeding:
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Convention refugee
96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political
opinion,
(a) is outside each of their countries of
nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries;
[…]
Person in Need of Protection
97. (1) A person
in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care
[…]
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Définition
de « réfugié »
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
[…]
Personne à
protéger
97. (1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la nationalité
ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
[…]
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ARGUMENTS
The
Applicants
Request
for an Adjournment
[25]
Robert’s
spouse, Eva Molnar, was unable to attend the hearing due to a heart condition.
The RPD refused an adjournment and severed her claim. The Applicants submit
that the decision to postpone a hearing is a matter of procedural fairness
where no deference is owed (Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services), 2001 SCC 41; Madoui v Canada (Minister of Citizenship and Immigration), 2010 FC 106 [Madoui]).
[26]
The
Applicants submit that the RPD did not deal with the request for an adjournment
in the Decision, and thus the reasons for the refusal are unknown. This means
that it cannot be assessed whether the RPD complied with its own procedural
rules. The RPD is supposed to take into account all relevant factors when
determining whether to grant an adjournment (Madoui, above), and the
Decision must demonstrate some indication that the RPD considered these factors
(Sandy v Canada (Minister of Citizenship and Immigration), 2004
FC 1468 at paragraph 54; Modeste v Canada (Minister of Citizenship and
Immigration), 2006 FC 1027 at paragraph 21; Golbom v Canada
(Minister of Citizenship and Immigration), 2010 FC 640 at paragraph
11; Perez v Canada (Minister of Citizenship and Immigration), 2010
FC 1275).
[27]
The
Applicants submit that illness, supported by a medical note, is a legitimate
reason to postpone a hearing, and it is a factor that the RPD should have
considered (Khan v Canada (Minister of Citizenship and Immigration), 2010
FC 22). Eva Molnar’s testimony may have impacted the RPD’s credibility
findings, and thus might have influenced the outcome of the case. The Applicants
submit that this denied their right to procedural fairness, and the matter
ought to be sent back to the RPD for redetermination.
Credibility
[28]
The
Applicants state that the RPD did not express any concerns with Robert’s
credibility until the end of the Decision, when it said that credibility
concerns undermined the claim. The Applicants submit that in Griffith v
Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1142
(TD), it was held that there was a breach of natural justice because the Board
represented at the hearing that credibility was not an issue and then rejected
the claim in part based on credibility. The Applicants submit the current
situation is analogous.
[29]
The
Applicants also submit that there were no omissions, contradictions, or
inconsistencies for which they did not provide a reasonable explanation. Thus,
there is a presumption of truthfulness of the evidence provided by Robert, and
any negative credibility findings must be made in clear and unmistakeable terms
(Pinzon v Canada (Minister of Citizenship and Immigration), 2010
FC 1138). As such, Robert submits his evidence should have been accepted as
credible.
Persecution
[30]
The
Applicants submit that the RPD erred in finding that Robert’s evidence was
simply personal opinions. It was unreasonable for the RPD not to find evidence
persuasive unless it involved “personal attacks.” In doing so, the RPD
misinterpreted the issue of persecution by finding that unless Robert was
personally attacked he was not persecuted. The RPD did not explain why the
treatment suffered by Robert did not “threaten his or her basic human rights in
a fundamental way,” and it had an obligation to do so (Tetik v Canada (Minister of Citizenship and Immigration), 2009 FC 1240 at paragraphs 27
and 29).
[31]
The
Applicants submit that the RPD also failed to consider whether the treatment
suffered by Robert amounted to cumulative persecution. There is an onus on the
RPD to consider this issue, especially when there is a long history of discrimination
against a group of people, such as the Roma (Hegedüs v Canada (Minister of
Citizenship and Immigration), 2011 FC 1366; Munderere v Canada
(Minister of Citizenship and Immigration), 2008 FCA 84; J.B. v
Canada (Minister of Citizenship and Immigration), 2011 FC 210 at
paragraph 37; Rahman v Canada (Minister of Citizenship and Immigration),
2009 FC 768 at paragraph 67; Kaleja v Canada (Minister of Citizenship
and Immigration), 2010 FC 252 at paragraph 25; Mete v Canada
(Minister of Citizenship and Immigration), 2005 FC 840). Further, in
Bashta v Canada (Minister of Citizenship and Immigration), 2005
FC 563 the Court found that the failure of the RPD to refer to relevant
evidence demonstrating an objective fear of persecution was a reviewable error.
State Protection
[32]
The
Applicants submit that the RPD engaged in a microscopic analysis of the steps
taken by Robert to secure state protection, and that the Federal Court has held
that the RPD is not to focus in on a few points of error when analysing the
evidence about whether state protection was sought (Attakora v Canada
(Minister of Employment and Immigration), (1989) 99 NR 168 (FCA); Huang
v Canada (Minister of Citizenship and Immigration), 2008 FC 346 at
paragraph 10; Chen v Canada (Minister of Citizenship and Immigration),
2007 FC 270 at paragraph 16; Dong v Canada (Minister of Citizenship and
Immigration), 2010 FC 55).
[33]
The
RPD erred by equating the “considerable activism” and “serious measures” taken
by the Hungarian government to combat discrimination with adequate state
protection. The RPD cited enactments that happened in 1993, so one would expect
their efficacy to have been demonstrated by 2012. The RPD referred to the
“effectiveness” of these measures as a relevant consideration, but then proceeded
to ignore the lack of effectiveness of the measures cited.
[34]
In
regards to the anti-discrimination measures adopted by Hungary, the RPD did not really engage in any analysis, but simply repeated the efforts being
made by the government without any assessment as to their efficacy. Evidence
that indicated there may be a lack of protection was given little attention,
but the RPD concluded that the government is “taking measures” to combat the
problem and this is tantamount to adequate state protection. This type of
analysis was considered unreasonable in Cervenakova v Canada (Minister of Citizenship and Immigration), 2012 FC 525 [Cervenakova].
[35]
The
meaning of “adequate”
protection was considered in Gomez v Canada (Minister of Citizenship and
Immigration), 2010 FC 1041. Justice Marie-Josée Bédard found that the RPD
must provide an “indication of the effectiveness of the tribunal,” and stated
at paragraph 28:
I find that in this case, the documents on which the
Board based its decision do not give any indication of the effectiveness of the
protection mechanisms and were not sufficient to conclude that the applicant
had not rebutted the presumption of State protection, considering the evidence
to the contrary. In its decision, the Board did not mention, much less deal
with, the evidence submitted by the applicant which tended to support his
argument about the inability of the authorities to protect him from the Maras. The Board did not have to accept this evidence, but it was relevant and tended to
contradict the finding that the State was able to protect its citizens from the
violence of the Maras. A general statement by the Board about corruption in Guatemala was not, in this case, sufficient. The Board should have mentioned this evidence
and explained why it could not give it any weight (see to the same effect: Khakimov
v. Canada (Minister of Citizenship and Immigration) (2010), 2010 CF 909
(F.C.); Sanchez v. Canada (Minister of Citizenship and Immigration)
(2008), 2008 CF 1336, [2008] F.C.J. No. 1673 (F.C.); Aguirre v. Canada
(Minister of Citizenship and Immigration) (2010), 2010 CF 916 (F.C.)).
[36]
The
Applicants also point to the decision in Banya v Canada (Minister of
Citizenship and Immigration), 2010 FC 686, where Justice Douglas Campbell
found at paragraphs 2-3:
[…]
The critical factor in the Applicants’ claim is that
the immutable personal characteristic upon which their application is based is
their ethnicity. There is absolutely no evidence on the Record upon which a
doubt can be raised with respect to this fact. Nevertheless, as quoted above,
the PRRA Officer held a belief that the very underpinning of their applications
for risk relief, being their ethnicity, is in doubt. I find that this
unsubstantiated and unwarranted suspicion which effectively constitutes an
unsupported negative credibility finding explains how the negative PRRA
decision could be rendered without a full contextual analysis of the evidence
of the horrific suffering that the Applicants would probably experience should
they be required to return to Hungary. The evidence is found in 24 articles in
the Tribunal Record of in-country conditions in Hungary, a primary
representative source of which is the U.S. Department of State Country Reports
on Human Rights Practices — 2008, dated February 25, 2009, the introduction of
which reads as follows:
The government generally respected the human rights
of its citizens; however, problems remained and worsened, including in the
following areas: reports that police used excessive force against suspects,
particularly Roma; progovernment bias in state-owned media; extremist violence
and propaganda against ethnic and religious minority groups; and government and
societal corruption. Other human rights problems included societal violence
against women and children, sexual harassment of women, and trafficking in
persons. Extremists increasingly targeted Roma and other dark-skinned persons.
A series of violent attacks against Roma led to four deaths and multiple
injuries. Discrimination against Roma in education, housing, employment, and
access to social services continued. Violence and abuse directed at gays
continued to be a problem.
As
a result, I find that the decision under review is unreasonable.
[37]
Further,
Justice Michel Shore stated in Bors v Canada (Minister of Citizenship and
Immigration), 2010 FC 1004 at paragraphs 61-64:
In a context similar to the situation facing the
Roma in Hungary, Justice Yvon Pinard, in Balogh v. Canada (Minister of Citizenship and Immigration), 2002 CFPI 809, 221 F.T.R. 203 (Fed. T.D.),
pointed out that the evidence of improvement and progress made by the state is
not proof that the current measures amount to effective protection:
[37] ... I am of the view the tribunal erred when it
suggested a willingness to address the situation of the Roma minority in Hungary can be equated to adequate state protection....
In
Avila v. Canada (Minister of Citenzenship andImmigration)
(2006), 2006 CF 359, 295 F.T.R. 35 (Eng.) (F.C.), Justice Luc Martineau
also addressed the issue of state protection:
[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.).
Thus, it cannot be sufficient to show the changes
and improvements in the Hungarian state, including a number of options for
recourse and the possibility to obtain state protection. It still remains to be
proven that the changes have been effectively implemented in practice. 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. As the case law above
shows, willingness, as sincere as it may be, does not amount to action.
In Babai v. Canada (Minister of Citizenship &
Immigration) (2004), 2004 CF 1341, 2004 CarswellNat 3439 (F.C.), the
decision-maker was required to assess the contradictory documentary evidence
that indicated a risk for the applicant:
[22]
The applicant submits that it is open to the PRRA Officer to make her own
assessment of state protection. However, the PRRA Officer erred by ignoring
voluminous documentary evidence that is highly corroborative of the applicant’s
claim that he will face persecution without hope of state protection should he
be forced to return to Hungary....
[38]
The
Applicants submit that if an applicant had taken greater efforts to seek state
protection, and adequate state protection would not have been forthcoming, then
there is no obligation on an applicant to make such efforts (Mora v Canada
(Minister of Citizenship and Immigration), 2010 FC 235). The Court
has held that the RPD is required to look at what was happening in the country
at the time, rather than what the state was endeavouring to put into place;
that is, the RPD must look for evidence of actual adequate state protection
rather than merely looking for serious efforts by the state (R.A.F.A. v
Canada (Minister of Citizenship and Immigration), 2011 FC 173 at
paragraph 27).
[39]
The
Applicants submit that “adequate” state protection means effective protection.
Measures taken by the government to improve state protection are not tantamount
to adequate/effective state protection. The focus ought not to be on efforts to
combat a problem, but on the efforts which “actually translated into adequate
state protection” (Jaroslav v Canada (Minister of Citizenship and Immigration),
2011 FC 634 at paragraph 75; Gilvaja v Canada (Minister of Citizenship
and Immigration), 2009 FC 598 at paragraph 39; E.Y.M.V. v Canada
(Minister of Citizenship and Immigration), 2011 FC 1364 at
paragraphs 14-17; Salamanca v Canada (Minister of Citizenship and
Immigration), 2012 FC 780; Olahova v Canada (Minister of
Citizenship and Immigration), 2012 FC 806; Lopez v Canada (Minister of
Citizenship and Immigration), 2012 FC 1022; and Cervenakova,
above). The Applicant submits he presented evidence of a lack of adequate
state protection, which was ignored by the RPD, and so the Decision ought to be
sent back for reconsideration.
The Respondents
Request
for an Adjournment
[40]
The
Respondent points out that the transcript indicates that the doctor’s note was
discussed at the hearing, and the note was admitted into evidence. The RPD then
reasonably refused the adjournment because Robert’s wife had been under the
doctor’s care since September 2011, but the note was submitted on the day of
the hearing in December 2011. Robert’s wife’s claim was severed. There was no
breach of procedural fairness in the RPD’s actions, nor is there a requirement
for the RPD to provide written reasons for a refusal of an adjournment request.
Credibility
[41]
The
Respondent submits there is no breach of natural justice regarding the RPD’s
negative credibility finding, as it expressly stated that credibility was one
of the determinative issues in the claim and provided an analysis of why it
determined Robert was not credible.
[42]
The
Federal Court of Appeal has held that credibility findings are properly made as
long as the RPD gives reasons for its findings in “clear and unmistakable
terms” (Hilo v Canada (Minister of Employment and Immigration), (1991)
130 NR 236 (FCA)). In other words, the findings should be supported by
examples. Here, the RPD specifically expressed credibility concerns due to the
complete lack of detail in Robert’s narrative, and because Robert’s testimony
consisted primarily of personal opinions.
[43]
In
the Decision, the RPD provided specific examples for why it doubted the
credibility of Robert’s evidence. It specifically said the negative credibility
findings were based on inconsistencies and omissions in the evidence. For
example, Robert spoke in his PIF about repeated attacks by individuals and the
police, but when asked to provide more details he was unable to respond. The
RPD found that Robert’s PIF and oral testimony were lacking in details, and
that he only provided opinions about the future based on things he heard or
read. Thus, contrary to what the Applicants assert, credibility was clearly a
concern in the Decision. In fact, the RPD started the Decision by stating that
“the determinative issues are credibility, discrimination vs. persecution, and
state protection.”
Persecution
[44]
The
Respondent submits that the identification of persecution behind incidents of
discrimination is a mixed question of law and fact, and thus deference is owed
to the RPD’s conclusions (Sagharichi v Canada (Minister of Employment and Immigration),
1993 FCJ No 796 at paragraph 3; Al-Mahamud v Canada (Minister of
Citizenship and Immigration), 2003 FCT 521 at paragraph 8). The case
law indicates that to be considered persecution, mistreatment suffered must be
serious and the inflicting harm suffered must occur with repetition or
persistence, or in a systemic way. A given episode of mistreatment may
constitute discrimination, yet not be serious enough to be regarded as
persecution (Valdes v Canada (Minister of Citizenship and Immigration),
(1998) 47 Imm LR (2d) 125 (FCTD); Moudrak v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 419 (TD)).
[45]
The
Applicants had an onus to satisfy the RPD that they had a well founded fear of
persecution in Hungary; they failed to satisfy this onus because Robert could
not establish that he had a subjective fear of persecution (Munderere v Canada
(Minister of Citizenship and Immigration), above, at paragraph 42). Further,
it was reasonable for the RPD to find that Robert had not been denied any basic
human rights. Robert’s inability to pay for trade school is not tantamount to
persecution. The RPD stated that this was unfortunate, but he was permitted to
attend for one month.
[46]
The
Respondent submits that the RPD did consider the evidence of similarly situated
Roma. Robert was asked if he knew of other Roma who had contacted the police
recently and to describe their experiences. He responded that “they were asked
to bring substantial evidence of who attacked them – not all of them, but most
of the police officers send you away.” The RPD reasonably noted that this
response was general in nature and not specific, and so did not provide any
useful information regarding similarly situated persons. The Respondent submits
that the RPD’s Decision was reasonable in this regard.
State Protection
[47]
The
Respondent submits that the RPD’s state protection findings were reasonable
because it correctly noted that, while the effectiveness of the protection is a
relevant consideration, the preponderance of the jurisprudence has held that
the applicable test is whether protection is adequate.
[48]
The
Respondent submits that the Applicants had done nothing more than simply allege
that Robert went to see the police once and was unsuccessful (Canada (Minister of Employment and Immigration) v Villafranca, 99 DLR
(4th) 334 at 337). In Carillo, above, the Federal Court of
Appeal found that the claimant was not able to rebut the presumption of state
protection based on one unsuccessful attempt to seek out protection from local
police officers.
[49]
Further,
state protection may be available from state run or funded agencies, and not
only from the police (Nagy v Canada (Minister of Citizenship and
Immigration), 2002 FCT 281 at paragraphs 12 and 15; Szucs v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1614 at
paragraph 28). The RPD was alive to this consideration, and outlined a number
of organizations that offered support and assistance to Roma in making and
investigating complaints.
[50]
The
Respondent points out that the RPD considered things such as the penalties for
police officers found guilty of wrongdoing, the mandate of the Roma Police
Association to whom Roma can complain, and that there is training and education
of young Roma for employment in the police force and military. Robert also
specifically complained that he was discriminated against because he could not
attend trade school because he could not pay for it, and so the RPD analyzed
the effectiveness of the measures put into place by the Hungarian government to
improve job prospects for Roma. The RPD specifically noted that one vocational
program employed 14,700 people in 2009 alone, and that the government’s labour
programs have helped between 15,000 and 19,000 Roma find jobs every year from
2004-2006.
[51]
The
Respondent submits that the RPD properly considered and analyzed the evidence
before it, and that the Decision was reasonable.
ANALYSIS
[52]
The
Applicants have raised a range of grounds for review and I will deal with each
of them in turn.
Procedural Fairness
[53]
The
Applicants say the RPD does not deal with their request for an adjournment in
its Decision, so that the reasons on this point are not known. In addition,
they say that, because negative credibility findings were made, it cannot be
said that the refusal to postpone the hearing to allow Robert’s wife to testify
did not influence the outcome of the case.
[54]
A
review of the CTR reveals that the adjournment request was fully considered by
the RPD that the material factors relevant to the request were assessed and
weighed, and that, after a discussion between the RPD, Robert and counsel, full
reasons were given to the Applicants for refusing the request. The Applicants
were represented by counsel, who was invited to make comments. Counsel makes it
clear to Robert that “you are the principal claimant and this is your story.”
In other words, as the application for refugee protection makes clear, the
wife’s claim is based upon Robert’s claim, so that Robert is not prejudiced by
his wife’s absence. When the request for an adjournment is made, Robert and
counsel do not say that she is required to give evidence. In addition, a full
reading of the Decision reveals that insufficiency of evidence, rather than
credibility was the decisive factor. There is also nothing before me from
Robert’s wife to indicate what she could have added anything by way of evidence
that was not addressed by Robert himself.
[55]
For
the Applicants to now say that they were not given reasons for the refusal to adjourn,
and that the testimony of Robert’s wife may have influenced the outcome of the
case, is unconvincing, given what the CTR reveals. The wife’s illness and
possible prejudice to the Applicants was taken into account by the RPD and the
adjournment request was fully canvassed.
[56]
My
reading of the CTR also leads me to conclude that Robert’s argument that he was
somehow prevented by the RPD from providing the full details of persecution
that the RPD required has no substance. Any details that Robert wanted to
provide could have been provided through questions from his own counsel if he
felt that the RPD had not given him sufficient time or scope to make his case
through its own questioning.
Credibility
[57]
The
Applicants say that “there were no omissions, contradictions or
inconsistencies” and Robert “provided a reasonable explanation for everything.”
[58]
A
reading the CTR and the Decision reveals this assertion to be inaccurate. The
RPD’s concern was that Robert was unable to provide any details concerning the
repeated attacks by individuals and police that he said he had suffered. In
addition, he only went to the police once, which was back in 1995. Robert
simply could not provide cogent evidence to support his allegations of what had
occurred in the past. This is why the RPD focused its attention on the future,
and Robert’s concerns that future attacks might occur, and that what had
happened to other Roma might happen to him and his family if they returned to Hungary.
[59]
The
credibility issues in this case were Robert’s failure to substantiate his
allegations of past persecution. The fact that he could provide no details of
alleged attacks, and admitted that he only went to the police once back in
1995, rendered his assertions of past persecution untenable. All of this is
clearly explained in the Decision and was reasonable. No formal negative
credibility or plausibility finding is made because the decisive issue for the
RPD is that “the principal claimant failed to provide any persuasive evidence
that would be tantamount to persecution.” The RPD did not disbelieve that
Robert went to the police in 1995, or that he had been unable to afford to go
to trade school in 1993. These matters are fully addressed in the Decision. The
real problem was that he could not provide details of any alleged attacks by
individuals and police.
Microscopic Analysis
of Persecution
[60]
The
Applicants say in their written submissions that “the Board proceeded to conduct
a microscopic analysis of the steps taken by the Applicant in trying to secure
state protection.”
[61]
This
issue was withdrawn at the hearing. This is understandable because it is
difficult to know what the Applicants mean by this assertion. Robert provided
very little in the way of evidence that could be examined, microscopically or
otherwise. As the RPD points out
a.
The
Board found the principal claimant’s narrative submitted at the hearing to be
lacking in any detail. It provided very little information related to the
claimants themselves. What little information was provided, contained no
details, i.e. dates, circumstances of incidents, involvement or lack of
involvement by the police.
b.
The
principal claimant’s testimony was much the same. He provided opinions only.
His one alleged approach to the police was 16 years ago. Therefore, he has not
provided “clear and convincing” evidence of the state’s inability to protect
him and, therefore, he has not rebutted the presumption of state protection.
c.
The
Board concludes that the principal claimant was not diligently pursuing state
protection. Moreover, we do not accept his explanations for not doing so. His
examples response to counsel were again general in nature and not specific,
thereby not providing the Board with information regarding similarly situated
persons.
[62]
In
my view, this has nothing to do with a microscopic analysis. In addition to a
dearth of personal evidence, the Applicants provided no cogent evidence of
similarly situated persons. The RPD’s conclusion that “there was no evidence
adduced to persuade the Board that the claimants had been denied any basic
human rights” was based upon Robert’s failure to provide specifics to support
his general allegations.
Discrimination/Persecution
[63]
The
Applicants also say that the RPD should have considered the “cumulative nature
of the circumstances,” when considering persecution, but this is precisely what
the RPD did and concluded, reasonably, that the Applicants had provided
insufficient evidence of what had happened to them over time to support their
claims of persecution.
State Protection
[64]
Essentially,
the Applicants’ complaint is that the RPD failed to address what Justice Mosley
has called the “operational adequacy of state protection in Hungary.” See E.Y.M.V., above, at paragraph 16.
[65]
They
also cite and rely upon my decision in Cervenakova. However, the state
protection analysis in that case was far removed from what the RPD provided in
the present case. In the present case, the RPD acknowledges that the “general
situation of discrimination, exclusion and anti-Roma prejudice remains cause
for serious concern in Hungary.” The RPD then looks at what has been
implemented by the government to alleviate this situation. Details are provided
and the success, or lack of success, of various initiatives is assessed and
weighed. The RPD then concludes that the evidence shows “that the state’s
efforts are serious, that progress is slow, but there are positive signs and
results.”
[66]
In
addition, the Applicants had no evidence to demonstrate the state’s
unwillingness or inability to protect them. Going to the police in 1995 says
nothing about current conditions in Hungary. The onus is on the Applicants to
refute the presumption of adequate state protection; it is not for the RPD to
prove that adequate state protection exists.
[67]
It
is possible to disagree with the RPD’s analysis and conclusions but, in my
view, I cannot say that the RPD was unreasonable or that the state protection findings
fall outside of the Dunsmuir range.
Conclusions
[68]
In
the present case, the Applicants provided very little in the way of personal
evidence to demonstrate that they had suffered persecution. They relied upon
general conditions faced by Roma people in Hungary. As this Court has said on
several occasions, it is not sufficient to point to general human rights
problems in a country without providing evidence as to how those problems have
impacted, or will impact, the claimants.
[69]
In
Csonka v Canada (Minister of Citizenship and Immigration),
2012 FC 1056, Justice Shore said as follows at paragraph 3:
Evidence
of systemic or generalized human rights violations is insufficient to show “the
specific and individualized fear of persecution of [a particular] applicant” (Ahmad
v Canada (Minister of Citizenship and Immigration), 2004 FC 808 at para
22).
[70]
Justice Yves de
Montigny in Jarada v Canada (Minister of Citizenship and Immigration),
2005 FC 409 had the following to say at paragraph 28:
That
said, the assessment of the applicant’s potential risk of being persecuted if
he were sent back to his country must be individualized. The fact that the
documentary evidence shows that the human rights situation in a country is
problematic does not necessarily mean there is a risk to a given individual (Ahmad
v. M.C.I., [2004] F.C.J. No. 995 (F.C.); Gonulcan v. M.C.I., [2004]
F.C.J. No. 486 (F.C.); Rahim v. M.C.I., [2005] F.C.J. No. 18 (F.C.)).
[71]
We find a
similar point in Ahmad v Canada (Minister of Citizenship and Immigration),
2004 FC 808 from Justice Paul Rouleau at paragraph 22:
Thus
the assessment of the applicant’s fear must be made in concreto, and not from
an abstract and general perspective. The fact that the documentary evidence
illustrates unequivocally the systematic and generalized violation of human
rights in Pakistan is simply not sufficient to establish the specific and
individualized fear of persecution of the applicant in particular. Absent the
least proof that might link the general documentary evidence to the applicant's
specific circumstances, I conclude that the Board did not err in the way it
analyzed the applicant’s claim under section 97.
[72]
There is
also Justice Tremblay-Lamer in Prophète v Canada (Minister of Citizenship
and
Immigration), 2008 FC 331 at paragraph
17:
Accordingly,
documentary evidence which illustrates the systematic and generalized violation
of human rights in a given country will not be sufficient to ground a section
97 claim absent proof that might link this general documentary evidence to the
applicant’s specific circumstances (Ould v. Canada (Minister of Citizenship
and Immigration), 2007 FC 83, [2007] F.C.J. No. 103 (QL), at para. 21; Jarada
v. Canada (Minster of Citizenship and Immigration), 2005 FC 409, [2005]
F.C.J. No. 506 (QL), at para. 28; Ahmad, supra, at para. 22).
[73]
I
can find no reviewable error in the Decision.
[74]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
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