Docket: IMM-2005-11
Citation: 2011 FC 1202
Toronto, Ontario, October 20, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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ANDRAS SZTOJKA
Andrasne
sztojka
ANDRAS SZTOJKA
NIKLOASZ
SZTOJKA
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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 are a family of four Hungarian nationals of Roma ethnicity. They
sought protection in Canada due to harassment and abuse experienced in
their country. The Immigration and Refugee Board, Refugee Protection Division
accepted that they may have suffered discrimination but found that they were
not Convention refugees or persons in need of protection.
[2]
This
is an application for judicial review under s. 72 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (“IRPA”) of the decision made on
February 4, 2011 by the Board. For the reasons that follow, the application is
dismissed.
DECISION UNDER REVIEW:
[3]
The
determinative issue before the Board was the availability of state protection.
The applicants alleged that they had been subjected to violence, that the
parents had been denied employment opportunities and medical services, and that
the children had been mistreated at school and by bullies in the streets.
[4]
The
Board member considered the mother’s testimony and the documentary
evidence. The member did not accept that the applicants had been denied treatment by
the medical system because of their ethnicity. The mother’s claim that
her stomach problem was not treated for three years was found to be implausible
as a 2008 medical report showed that she had been treated promptly at that
point. The
applicants’ Personal Information Form claimed that the father, Andras, was
denied treatment in 2003 after receiving a broken nose. A medical report showed
that he was treated for a fractured nasal tip in 2005. No satisfactory answer
was given by the applicants to explain the discrepancy. Media reports of an
attack at the carnival where the parents worked gave no indication that it was
racially motivated.
[5]
The
member found that the applicants may have been subject to discrimination
because of their Roma ethnicity, but this discrimination both singularly and
cumulatively did not reach the level of persecution. The member considered the
physical attacks on the applicants and concluded they were not sustained or
systemic violations of basic human rights demonstrating a failure of state
protection.
[6]
The
member concluded that there is adequate protection available to the applicants
in Hungary. Documentary evidence
outlined that there has been difficulties in Hungary with addressing racism and discrimination
against the Roma. However, the member found that although the situation was not
perfect, the country is making serious and genuine efforts to erase the
problem. In the applicants’ specific case, the Board noted that the police had
investigated the older son Andreas’ fight in 2007. The police had also
intervened in the attack on the applicants at the carnival. Overall, the member
found, the applicants did not rebut the presumption of state protection with
clear and convincing evidence.
ISSUES:
[7]
While
the applicants questioned the Board’s implausibility findings in their written
argument, counsel for the parties focused on the following issues in their oral
submissions before the Court:
1. Did the Board err in
finding that the applicants’ mistreatment did not amount to persecution on all
of the evidence including their testimony?
2. Did the Board err in determining
that state protection is available to the applicants?
ANALYSIS:
[8]
The issues
in this matter are all fact driven
calling for the application of the reasonableness standard: Lin v Canada
(Minister of Citizenship and Immigration), 2008 FC 698; Tetik v Canada
(Minister of Citizenship and Immigration), 2009 FC 1240; Bledy v Canada
(Minister of Citizenship and Immigration), 2011 FC 210; Zepeda v Canada
(Minister of Citizenship and Immigration), 2008 FC 491; and Flores v
Canada (Minister of Citizenship and Immigration), 2010 FC 503.
[9]
In reviewing a
decision against the reasonableness standard, the Court must consider the
justification, transparency and intelligibility of the decision-making process,
and whether the decision falls within a range of possible acceptable outcomes
which are defensible in light of the facts and the law: Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 90 at para 47, and Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 59.
[10]
On
questions of fact, the Federal Court can intervene under paragraph 18.1(4)(d)
of the Federal Courts Act, RSC, 1985, c F-7 only if it considers that
the decision maker “based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without regard for the
material before it”. In enacting this ground of review, Parliament intended
administrative fact finding to be given a high degree of deference: Khosa, above, at para 46.
[11]
It is well
established that those claiming refugee status must provide clear and
convincing confirmation of their state’s inability to protect: Canada (Attorney General) v Ward, [1993] 2 SCR
689. The protection afforded by the state need not be perfect: Canada (Minister of Employment and
Immigration) v Villafranca, (1992) 18 Imm LR (2d) 130
(FCA).
[12]
The burden
of proof, standard of proof and quality of the evidence necessary to rebut the
presumption of state protection were addressed by the Federal Court of Appeal
in Canada (Minister of Citizenship and Immigration) v Carrillo, 2008 FCA
94 at paragraphs 17 to 30. An applicant bears both an evidentiary and legal
burden; she must introduce evidence of inadequate state protection and must
convince the trier of fact that the evidence adduced establishes that the state
protection is inadequate. The evidence will have sufficient probative value if
it convinces the trier of fact on the balance of probabilities that the state
protection is inadequate. Therefore the evidence must be relevant, reliable and
convincing.
[13]
Here, the
applicants, relying on Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA), argue
that the member erred by refusing to rely on their testimony that they received
inadequate medical attention and in placing greater weight on the documentary
evidence. They contend that he erred
by setting a standard of “systemic discrimination” so high that only the wholly
uneducated, without any work or housing, could qualify as being persecuted in Hungary. It is argued also that the member misinterpreted the hundreds
of pages of documents in evidence which support the applicants’ position that
there are systemic and sustained violations of human rights in Hungary and that the member misunderstood and misapplied the test
of persecution.
[14]
On the member’s
determinative finding that adequate state protection was available, the
applicants argue that the member erred by relying on the steps being taken by Hungary to ameliorate conditions without a thorough analysis of the
effectiveness of the results.
[15]
I find that the
member did not err in his findings on persecution and state protection. The
decision was thorough, well reasoned, and reasonable in its conclusions. The
reasons for decision clearly explain the member’s analysis. The findings were
based on the evidence before the Board and were reasonable.
[16]
Contrary to the
applicants’ assertions in their written representations, the member did not
reject their evidence due to a lack of corroboration. The member looked closely
at the documents provided by the applicants (medical reports and a news
article) and compared that evidence to the testimony of the adult female
applicant. Where the two conflicted, she was given an opportunity to explain
the contradictions. It was open to the member to find that she did not provide
a reasonable explanation. With regard to the claim that the adult applicants
had been denied medical care, the member reasonably concluded that the medical
reports showed that they had received adequate care when it was needed.
[17]
The member did not
err by applying a standard of “systemic discrimination” for finding
persecution. As the respondent points out, and as the member cites in the
decision, this test is derived from the leading case, Ward, above. The
applicants cite Saad v Canada (Minister of Citizenship and
Immigration), [2000] FCJ
No 1140, (2000) 187 FTR 262 for the proposition that the “systemic
discrimination” test is inappropriate. That is not how I read that decision. The
application in that case was allowed because the tribunal focused on the foreign
government’s intentions rather than upon their actions.
[18]
The applicants do not
challenge the reasonableness of the summary of their evidence which the member
provided. He also reviewed the social indicators, both positive and negative,
relating to the status of the Roma in Hungary in terms of education, employment, housing
and health care. The member clearly turned his mind to the negative information
contained in the documentary evidence. The evidence was weighed and applied to
the persecution test. Contrary to the applicants’ argument, the negative
country documentation was not ignored; the member found that the applicants’
personal experiences had not risen to the level of persecution. That was a
finding reasonably open to the Board on the evidence.
[19]
The applicants’ claim
is based largely on the collective experience of Roma in Hungary rather than their personal history. While the experiences
of persons with similar profiles must be taken into consideration in
determining whether persecution is systemic, each of these cases must be
determined on its own facts. Here, the member’s analysis of the availability of
state protection to the applicants is thoughtful, well reasoned, and carefully
crafted to conform to the relevant case law.
[20]
To illustrate, there
was evidence in the documentation before the Board indicating that there have
been instances of police violence towards Roma in Hungary. However, it is clear from the applicants’ evidence that in
the past they had no difficulty in approaching the police for help. Indeed the
assertion that the applicants now fear the Hungarian police was first raised in
their further memorandum of argument and was not presented to the Board.
[21]
In conclusion, I am
satisfied that the member’s reasons for decision in this case are transparent,
intelligible and justified on the evidence and that the decision falls within a
range of possible acceptable outcomes which are defensible in light of the
facts and the law. The application is, therefore, dismissed.
[22]
The parties did not
propose any serious questions of general importance and none will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that the application is
dismissed. No questions are certified.
“Richard
G. Mosley”
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