Date: 20090203
Docket: IMM-2470-08
Citation: 2009
FC 95
Montréal, Quebec, February 3, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
KLARA LUGOSSY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review pursuant to section 72
of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA) of
a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated April
16, 2008, wherein the applicant is found not to be a “Convention refugee” or
a “person in need of protection”, in that her removal to Hungary would not subject
her personally to a risk to her life or to a risk of cruel and unusual
treatment or punishment, or a danger to torture.
I. The Facts
[2]
The
applicant is a citizen of Hungary who claimed to have
been harassed, threatened verbally and physically and continued to be sexually
abused by her husband until she decided to put his belongings outside the
apartment and changed the locks.
[3]
For
several weeks after, the applicant’s husband continued to threaten her, and ultimately
fearing for her safety the applicant left for Canada and claimed refugee
protection on the basis of being a victim of domestic violence.
[4]
The
Board accepted that the applicant was in an abusive relationship with her
husband and that she was seeing a doctor for her depression. However, the Board
concluded that there was adequate state protection in Hungary. It noted
that Hungary is a
functioning democracy that has ratified the United Nations Convention on the
Elimination of All Forms of Discrimination against Women.
[5]
The
Board further noted that the applicant had failed to make any efforts to obtain
state protection and that she had also failed to rebut the presumption of state
protection.
[6]
The
Board considered, concluding as it did, that the applicant did not report the
harassment and threats of her ex-husband because he had friends within the
police. But the Board took note of documentary evidence which stated that the
state was making serious efforts to combat abuse and corruption, including the police.
II. Issue
Did
the Board misapprehend the evidence leading it to unreasonably determine the
availability of state protection?
III. Analysis
[7]
The
appropriate standard of review here is reasonableness. The question at issue
falls within the expertise of the Board and as a result deference is owed to
its decision (Dunsmuir v. New Brunswick, 2008 SCC 9;
Zamora Huerta v. Canada (Minister of
Citizenship and Immigration), 2008 FC 586).
[8]
State
protection is the determinative issue in this case. The applicant claims that
state protection is inadequate for her in Hungary. However,
she “bears the evidentiary burden of adducing evidence to that effect and the
legal burden of persuading the trier of fact that […] her claim in this
respect is founded” (Canada (Minister of Citizenship and Immigration) v.
Flores Carrillo, 2008 FCA 94).
[9]
The
applicant faces the presumption of state protection in her home country,
meaning that the Hungarian state must “be presumed capable of protecting its
nationals”, including the applicant. This presumption can be rebutted however
with “clear and convincing” evidence by the applicant of the state’s inability
to protect her (Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689). Further, the applicant was required to seek the protection of the
authorities of her home country unless it was objectively unreasonable for her
to do so.
[10]
Documentary
evidence revealed to the Board that the Hungarian state provides various
avenues of redress for women who are victims of domestic violence, such as 24
–hour hotline and government shelters for such victims. There is also a
restraining order law to protect persons from abusive spouses, and prison
penalties for rape. The evidence on file indicates that the applicant failed to
make any efforts to explore any of these avenues or to look for state
protection before leaving for Canada to claim refugee protection.
[11]
The
applicant never went to the authorities to report the alleged rape or physical
attacks that she allegedly suffered, and this although she had ample time to do
so before choosing to claim refuge in Canada. As a result of her inaction, we
do not know if the state protection available to her in her home country was
inadequate considering her situation and the alleged connections of her ex‑husband
with police officers.
[12]
The
applicant cites Ward, above, to argue that the claimant was not required
risking her life in the “seeking ineffective protection of a state, merely to
demonstrate that ineffectiveness”. However, Ward, above, also directed
that refugee protection is not available where there has been inadequate
attempt to seek out the protections available in one’s home country. With
respect to Ward, it is now stated law that the Supreme Court of Canada
in that decision “did not intend that refugee claimants would easily be able to
avoid the requirement that they approach their home countries for protection
before seeking international refugee protection” (Hinzman v. Canada (Minister
of Citizenship and Immigration), 2007 FCA 171, at paras. 50-52, 56. The
Board’s reasoning reflects this jurisprudence.
[13]
True
the evidence demonstrates that there might be numerous problems in Hungary involving
victims of domestic violence. But the Board however did not ignore these
problems contrarily to the applicant’s pretensions; the Board cited documentary
evidence which acknowledged that there may not be perfect state protection in
the applicant’s home country; however state protection does not need to be
perfect.
[14]
The
applicant’s asserts that the Board misapprehended the evidence with respect to
the continued abuse of her ex-husband. However, the Board’s reasons clearly
indicate that the Board understood that the ex-husband did not sleep at her
house after June 9, 2006, that the abuse continued on until August 1, 2007, and
that as a result “she [decided to] put his belongings outside the apartment and
changed the locks on the apartment door”.
[15]
In
any event, with respect to the passage cited by the applicant to support her
assertion that the Board misapprehended the evidence, whether the Board
misapprehended or not the evidence on the continued abuse suffered by the
applicant does not change the crux of the panel’s negative finding with regard to
the applicant’s allegation that she was prevented to approach the authorities
during the period of her ex-husband’s abuse. The Court concludes that the
Board’s finding on this issue was reasonable and goes to the heart of the
Board’s decision on the applicant’s failure to make any effort to obtain state
protection.
[16]
Contrarily
to the applicant’s argument, the Board did not have to refer to and comment every
piece of evidence she cited (Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration), [1998]
F.C.J. No. 1425 (T.D.) (QL)). The Board is presumed to
have considered all evidence, and is not required to refer to all the evidence
unless the contrary is shown (Florea v.
Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 598 (F.C.A.) (QL)). In this case, it appears from the Board’s reasons
that it did consider essential evidence supporting the applicant’s thesis.
[17]
Upon
review, it appears that the Board did review the available information on Hungary before it
came to a clear and reasonable conclusion on the evidence before it, even though
it might not be the only reasonable conclusion possible.
[18]
For all
these reasons, the Court has no other alternative but to find that the impugned
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law, and that for her part the applicant
has failed with her burden to demonstrate the decision’s unreasonableness.
[19]
The
Court agrees with the parties that there is no important question of general
interest to certify.
JUDGMENT
FOR THE
FOREGOING REASONS THIS COURT dismisses the application.
“Maurice E. Lagacé”
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