Date:
20130207
Docket:
IMM-7805-11
Citation:
2013 FC 126
Ottawa, Ontario,
February 7, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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JOZSEF MOLNAR,
JOZSEFNE MOLNAR
(a.k.a. JOZSEFNE MARIA MOLNAR),
KATALIN MOLNAR, GEZA MOLNAR,
JOZSEF MOLNAR (a.k.a. JOZSEF
MOLNAR)
RAMONA MOLNAR,
ILONA BERKI
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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
seven applicants are a family of Roma ethnicity from Hungary. They seek
judicial review of a decision by the Refugee Protection Division of the
Immigration and Refugee Protection Board that they are neither Convention
refugees nor protected persons. This application is brought under s 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
As
a result of the applicants' initial pleadings in this matter their former
counsel sought and was granted intervenor status. Prior to the hearing of the
application the applicants advised the court that they would not proceed with
any allegations related to the conduct of the former counsel. As a result, the
former counsel took no further part in these proceedings.
BACKGROUND:
[3]
The
principal applicant Mr. Jozsef Molnar was born in Sajószentpéter, Hungary in 1966. His updated Personal Information Form (PIF) lists five brothers and a sister; two
brothers are in Toronto, one is deceased, and the rest remain in
Sajószentpéter. In 1983, he married Jozsefne Maria Molnar, also a Roma from
Sajószentpéter, the daughter of Geza Molnar. They have three children. Two of
them are Jozsef Molnar Jr (born in March 1988), and Katalin Molnar (born in
February 1996). The third, Maria Molnar (born in March 1984) was, as of the
date of the hearing on September 15, 2011, also living in Canada but is not included in this application.
[4]
Jozsef
Molnar Jr’s common law spouse is Ilona Berki (born 1987) in March 2007. Ms
Berki’s updated PIF lists five brothers and two sisters, all living in
Sajószentpéter. The couple have a daughter, Ramona Molnar (born in December
2009), and a handwritten addition to Jozsef’s original PIF indicates that a
son, Jozsef Roberto Molnar, was born in Toronto in 2011.
[5]
Mr.
Molnar testified that Roma are segregated into a ghetto in the town of Sajószentpéter and that his family experienced harassment and discrimination, especially
from the Magyar Gárda movement, extremist Hungarian nationalists. He says that
the Molnars were constantly checked for identification by the police and that
they suffered several severe incidents of persecution by members of the Magyar
Gárda. Efforts to seek police protection were unsuccessful.
The police told them that they
would not pursue his complaint if they didn’t know the names of their
attackers. Their horses were stolen, their home was fire-bombed and their dog
was killed. The parents and daughters came to Canada to seek protection in
April 2009. After their departure, Geza Molnar says he was assaulted by the
Magyar Gárda who demanded to know where the family had gone. He fled to Budapest where he stayed with family while making arrangements to come to Canada which he did in October 2009. Josef Molnar Jnr, his wife and daughter first sought
refuge in the town of Miscolc with the wife’s family and then came to Canada in February 2010 after a further assault by the Magyar Gárda.
[6]
At
the first RPD hearing date, the Board was advised of concerns with the
applicants’ PIFs due to the manner in which they had been prepared with the
assistance of an immigration consultant and translator. As a result, the
applicants were unable to swear that the PIFs were complete, true and correct.
The hearing was adjourned and the applicants were given an opportunity to
prepare revised PIFs and to submit a complaint against the consultant, neither
of which they did in the interim. At the second hearing date the applicants
elected to proceed with their oral testimony. Following the issuance of the
Board’s decision they filed a complaint against the legal counsel who assisted
them at the RPD hearings. As the allegations against that counsel in this Court
have been withdrawn, I see no reason to comment on them in these reasons.
DECISION UNDER
REVIEW:
[7]
The
Board Member noted that the determinative issue was whether the claimants’
fears of persecution were objectively reasonable. He found that the claimants
had not provided a reasonable explanation for not updating their PIF narratives
and this undermined their credibility. He then analyzed state protection in Hungary. The Member commented on the discriminatory and prejudicial situation faced by Roma
in that country.
[8]
The
Board Member wrote that he could not conclude that there was a failure of state
protection for several reasons. The Hungarian police could not have pursued an
investigation of an attack described by Mr. Molnar as he told them that he did
not know whether he recognized his assailants. When his horses were stolen in
2009, the claimant fled from the country before the police could complete an
investigation. The Member noted that the claimant gave what appeared to be two
different versions of a story of sexual harassment of his daughter Maria: one
version was that he did not report the incident because the police would do
nothing, the other was that his daughter reported the incident but the police sent
her away again. The Member drew a negative credibility inference. The Member
then commented that each of the adult claimants had described other particular
incidents which they experienced themselves, but that in relation to the
principal claimant, the presumption of adequate state protection in Hungary was not rebutted.
[9]
The
Board Member preferred the documentary evidence to the claimants’ testimony.
Counsel submitted material criticizing government efforts to improve the status
of Roma, which the Board Member considered warranted, but he did not find that
the material demonstrated that state protection was so inadequate that it would
have been unreasonable for the claimants’ to seek it out. He indicated his
concern over the rise of far-right parties in Hungary but balanced this with
persuasive evidence that Hungary was making serious efforts to rectify the
treatment of minorities and combat police abuses. He cited avenues of recourse
such as the Equal Treatment Authority, the Parliamentary Commissioners, and the
Roma Police Officers’ Association. He also noted that as a member of the
European Union, Hungary was taking steps to implement European standards.
Overall, he was not persuaded that state protection would not have been
forthcoming if the claimant had sought it out.
ISSUES:
[10]
As
a preliminary matter, the respondent asked that the application be dismissed on
the grounds that the applicants did not come before the Court with clean hands,
had failed to file their application for leave within the time limit and had
brought no request for an extension. While it appears clear that the applicants
did not exercise due attention to their claims, I am unable to conclude on the
record before me that they have deliberately attempted to mislead the Court. Accordingly,
I will not dismiss the application on this ground.
[11]
There
is a credible explanation for the delay (an address error by the Board) an
arguable case for leave, evidence of intent to pursue the application and no
evidence of prejudice to the respondent. In the circumstances, I grant an
extension retrospectively.
[12]
As
the applicants have advised the Court that they are not proceeding with any
allegations related to the conduct of their former counsel, the issues are:
1. Did
the Member err by failing to consider the oral testimony of the applicants
other than the principal applicant?
2. Did
the Member err by making unreasonable findings unsupported by the evidence?
3. Did the
Member err by ignoring relevant evidence?
4. Did
the Member commit an error of law in applying the wrong test for state
protection?
[13]
The
standard of review for each of these issues has been satisfactorily determined
by the previous jurisprudence. For the first three it is reasonableness: Nour v Canada (MCI), 2012
FC 805 at paras 13, 43; Kazondunge v Canada (MCI), 2012 FC 1310 at paras
11-12. For the fourth issue the standard is correctness: CRPP v Canada (MCI), 2012 FC 181 at paras 24-29.
ANALYSIS:
1. Did the Member
err by failing to consider the oral testimony of the applicants other than the
principal applicant?
[14]
The
applicants contend that while the Member noted at paragraph 13 of the decision
that each adult claimant had described incidents of persecution he did not
discuss this testimony. Even if only assessed as a set of dependent claims, the
testimony of the other applicants was relevant to the issue of state protection
and could not be dismissed without any explanation, they argue.
[15]
The
respondent notes that the evidence of the three other applicants who testified
at the hearing did not fill more than one page each in the transcript and added
nothing that required additional analysis.
[16]
The
test is whether the dependent claims raised different issues from the
main claim, not different factual details going to the same issues (Ramnauth
v Canada (MCI), 2004 FC 233 at para 9). I do not
see the incidents narrated by the three secondary claimants as relating to a
distinct issue from that of persecution of Roma. They merely add details to the
main issue. These incidents were considered, but taken separately, without Mr.
Molnar’s main narrative, they did not amount to successful claims. The Board
Member did provide express reference to the other applicants’ testimony, even
if the reference was rather terse.
[17]
I believe that the Board Member’s use of this testimony was
reasonable.
2. Did the
Member err by making unreasonable findings unsupported by the evidence?
[18]
The
applicants argue that it was unreasonable for the Member to find that Mr.
Molnar’s credibility was undermined over whether the sexual harassment of his
daughter Maria was reported or not. He had a longer experience with the
authorities and saw no point in reporting the incident; this was not
inconsistent with the fact that his daughter did report it.
[19]
The
respondent argues that a
Board is entitled to make such a negative credibility finding and that even if
this particular finding was unreasonable, it was not material to the outcome. (Aguebor
v Canada (MEI), [1993] FCJ No 732 at para 4; Do v Canada (MCI), 2002
FCT 464 at para 4).
[20]
The
Board Member had already accepted that Roma faced discrimination in Hungary,
that Mr. Molnar had been attacked in a restaurant in 2009, and that his
horse(s) had been stolen in 2009, and went on to accept the three incidents
narrated by Jozsefne, Geza, and Joszef Jr. While I might not have reached the
same conclusion on this point, I agree that it was immaterial to the outcome.
3.
Did the Member err by ignoring relevant evidence?
[21]
The
applicants argue that the Member should have more clearly demonstrated that he
had considered their documentary evidence. He relied heavily on the National
Documentation Package from the Refugee Protection Division and ignored evidence
which corroborated the applicants’ testimony, such as the documentation of the
injuries to Katalin Molnar and Jozsef Molnar. He failed to explain why he
preferred other evidence over their country evidence which ran contrary to his
conclusion that Hungary was providing adequate protection to Roma. He noted the
evidence contradicting his findings only in a summary way, without specifying
exactly what the contradictions were.
[22]
The
respondent argues that with
respect to the documentary evidence of injuries to Jozsef Molnar and Katalin
Molnar, the Member had not questioned that these incidents occurred. Regarding
the documentation related to state protection, the Magyar Gárda, and the
treatment of Hungarian Roma, the Member acknowledged that there were ongoing problems, but it was within his discretion to weigh
this evidence. It is trite law that the RPD is presumed to have
considered all the evidence unless the contrary is shown. Furthermore, the respondent argues that this finding was
also immaterial to the outcome.
[23]
An
explicit finding on every element of evidence is not required (Newfoundland and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62 at
para 16). It was within the Board’s discretion to weigh the factual evidence (Canada (MCI) v Khosa, 2009 SCC 12 at para 64). From my reading of the
record as a whole, I do not believe that the Member unreasonably ignored any
relevant information.
4.
Did the Member commit an error of law in applying the wrong test for state
protection?
[24]
It
is well established in the jurisprudence that a claimant is not required to
seek state protection if it would not reasonably be available: Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 [Ward] at paras 48-50. The test for
determining the adequacy of state protection is given in Zhuravlvev v Canada
(MCI), [2000] FCJ No 507 at para 31: “the lack of
state protection has to be assessed as a matter of state capacity to provide
protection rather than from the perspective of whether the local apparatus
provided protection in a given circumstance.”
[25]
The
applicants argue that where victims do not have an opportunity to obtain
protection from the police, that fact gives sufficient grounds to consider the
incapability of state protection (Myle v Canada (MCI), 2006 FC 871 at
para 32). The Court has drawn a line between the willingness of a government to
respond to violence and actual results (TMC v Canada (MCI), 2004 FC 1670
at para 8). The Panel’s view that the applicants did not rebut the presumption
of state protection because they failed to approach the authorities was a
misunderstanding of the test and a reviewable error.
[26]
The
respondent argues that the jurisprudence also demonstrates that states are
presumed to be able to protect their nationals, bar clear and convincing
evidence, and particularly so when they are democratic. A claimant has to prove
that he has exhausted all open courses of action (Flores
Carrillo v Canada (MCI), 2008 FCA 94 at
para 38; Park v Canada (MCI), 2010 FC 1269 at para 51; Canada (MEI) v
Villafranca, [1992] FCJ No 1189 (QL) at para 7). As well, the Refugee
Division may draw conclusions about the availability of state protection from
organizations other than the police (Hinzman v Canada (MCI), 2007 FCA 171 at para 57). The
test for state protection is not effectiveness but adequacy and the Panel
reasonably found that this had not been rebutted (Samuel
v Canada (MCI), 2008 FC 762 at para 13; Cosgun
v Canada (MCI), 2010 FC 400 at paras 42-43).
[27]
In
my view, the Board Member both applied the correct test and made a reasonable
finding. He addressed the problems of discrimination in Hungary and discussed whether the state was nonetheless willing and able to protect its
citizens. He addressed and weighed the Amnesty International evidence to the
contrary as well as other contrary evidence. He noted, however, that although
the applicants had initially approached the police, they did not attempt to
follow up with the police after filing their complaint about the horse theft.
He concluded that they had not rebutted the presumption that the police would
have furnished adequate protection if this had been sought.
[28]
Overall,
the Member’s factual findings were transparent, intelligible and justified, and
they fell within the range of acceptable outcomes. He applied the correct legal
test for state protection. I find that he committed no reviewable errors.
[29]
No
questions were proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. No questions are certified.
“Richard G. Mosley”
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