Date:
20130131
Docket:
IMM-3316-12
Citation:
2013 FC 106
Ottawa, Ontario,
January 31, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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GEZA OLAH
GEZANE OLAH
KRISZTIAN OLAH
EVELIN DORINA OLAH
ADRIENN BECSI
ALEXANDRA VIVIEN OLAH
GEZA OLAH
ANDREA ERZSEBET PACZOK
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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
I. INTRODUCTION
[1]
The
Applicants are a family of Hungarian Romas who claimed persecution and need for
protection based on their Roma ethnicity. The Immigration and Refugee Board
[Board] refused the Applicants’ claim for refugee status and protection. This
is the judicial review of that Board decision.
II. FACTS
[2]
The
Applicants outlined a number of incidents experienced by one or more members of
the family. These incidents include being assaulted in school, being bullied at
school, being intimidated and attacked by skinheads on numerous occasions and
being detained by supermarket security on suspicion of shoplifting. Only a few
of these incidents were reported to police and in some instances the police did
nothing.
[3]
In
support of their claim, the Applicants relied on their PIF narrative,
documentary materials on conditions faced by Hungarian Roma and a psychologist’s
letter. The psychologist opined that one of the Applicants had symptoms of
post-traumatic stress disorder (PTSD) and that all were terrified and
exhibiting signs of anxiety, depression and psychological trauma. The other
documentary evidence outlines the history of discrimination against Roma, the
fact that police do generally investigate attacks but that the Hungarian
criminal law system has difficulty in recognizing hate crimes.
[4]
The
Board, in rejecting the Applicants’ claim, concluded that the determinative
issue was whether the Applicants’ fear was objectively reasonable. This issue
was further divided between whether there was state protection and whether the
Applicants had taken all reasonable steps in the circumstances to seek
protection.
[5]
The
Board concluded that in the instance where the assailant was fined, the Board
could not determine whether the fine was inadequate due to insufficient
supporting evidence. The Board did note that the assailant was charged and
convicted which undermined the attempt to rebut the presumption of state
protection.
In the instance
of detention by a security guard, although the police laughed at one of the
Applicants, the police did investigate and report on the incident. The Board
concluded that even if there was a local failure by authorities, a single
incident of failure is insufficient to rebut the state protection presumption.
[6]
The
Board then went on to consider state protection in Hungary as a whole including
governmental organizations as well as the measures taken to implement European
Community standards while recognizing that there are difficulties in
implementing certain laws at a local level.
[7]
The
Board’s ultimate conclusion was that it was not persuaded that Hungary would not provide state protection if the Applicants sought it. The Board commented
on the high level of democracy in Hungary, the free and fair elections, and the
independence and impartiality of the judiciary. The Board concluded that the
Applicants had not taken all the reasonable steps to engage state protection.
III. ANALYSIS
[8]
It
was accepted that state protection findings such as the one at issue here and
which is primarily factual, are subject to the “reasonableness” standard of
review.
[9]
Where
the determinative issue was state protection, the Board did not have to engage
in a detailed analysis of subjective fear. The psychologist’s report confirms
the Applicants’ subjective fears but adds nothing to the state protection
analysis. In this regard, the psychologist has no direct knowledge of the
adequacy of state protection nor expertise in this field.
[10]
The
Board was sympathetic to the Applicants’ recounting of incidents but it
properly noted the times in 2002 and 2007 when none of the Applicants had any
interaction with the authorities concerning the incidents they described.
[11]
The
Board conducted the proper type of analysis for a state protection finding. It
looked at the laws and the organizations available to assist the Applicants,
but also considered the reality of operational adequacy. It reasonably accepted
the presumption of state protection in a democratic developed country that is
part of the European Union.
[12]
The
Board also reasonably concluded that the Applicants had not rebutted the
presumption by not engaging the authorities. There were no incidents of
absolute refusal to assist and failures (if any) were local and not systemic.
[13]
The
Board’s comment that there must be “clear and convincing” evidence to rebut the
presumption is just excessive verbiage for what is still a balance of
probabilities test (Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94, [2008] 4 FCR 636 at paras 24 and 30). The
critical matter is that the Applicants had the burden of proof. Nothing turns
on the use of this phrase because the Board applied the correct legal test for
state protection. It found that when looked at in its totality, state
protection existed; the Applicants had not met the burden of establishing the
absence of state protection as a whole or in their own particular circumstances.
IV. CONCLUSION
[14]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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