Date:
20130503
Docket:
IMM-8730-12
Citation:
2013 FC 463
Ottawa, Ontario,
May 3, 2013
PRESENT: The
Honourable Mr. Justice Roy
BETWEEN:
Janos JONAS
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27, (the Act) for judicial review of
a decision by a member of the Refugee Protection Division of the Immigration
and Refugee Board (RPD), who determined that Janos Jonas (the applicant) is
neither a Convention refugee nor a person in need of protection under
sections 96 and 97 of the Act.
Facts
[2]
The
applicant is a Hungarian citizen of Roma ethnicity and is now 61 years old. Prior
to coming to Canada, the applicant lived in Ecseg, a village located some 70 km
from Budapest; the village is 30% Roma. He says he fears he would be persecuted
because of his ethnic origin if he were sent back to Hungary.
[3]
It
appears that the applicant is referring specifically to three incidents that he
was involved in. In August 2010, he was attacked by a group of skinheads while
at a bus stop. He was insulted, beaten, and someone spit in his face. The
applicant was able to escape and filed a complaint with the police the next
day. The police asked him to describe his attackers and, it seems, began an
investigation. A few months later, in October 2010, the applicant discovered
that the case had been closed for lack of evidence.
[4]
The
second incident occurred in September 2010. While the applicant was driving on
the main street of another village, a group of skinheads began rocking his car.
The applicant took refuge in a café and alerted the police. The police spoke to
the skinheads and then escorted the applicant outside the village.
[5]
Last,
in 2010, the skinheads shattered the windshield of the applicant’s car with a
baseball bat, this time in another village called Csenyi. The applicant was not
inside the vehicle when the attack occurred, but he witnessed it. Other cars
belonging to Roma were also vandalized. The police went to the scene and
prepared a report. Apparently there was no arrest in this case.
[6]
He
recounted other events to the RPD where he had not been attacked. In the spring
of 2010, the applicant noticed skinheads driving in an all‑terrain
vehicle in the woods behind his house. It seems that this happened several
times. The mayor of the village sent a volunteer patrol twice to search the
area. The applicant’s house, which he claims was particularly targeted because
of its location, was never attacked. In December 2010, the applicant reported his
observations to the police a few times; he says the police never followed up.
The applicant stated that in December 2010 some skinheads set up camp in Gyöngyöspata,
the village next to his, and engaged in activities against Roma, ranging from
attacks to even shooting at them. It should be pointed out in this regard that
the event in question attained some notoriety; in fact, the RPD noted that
these events occurred in 2011, not in 2010, hence after the applicant had left.
In fact, counsel for the applicant admitted this.
[7]
The
applicant arrived in Canada on December 6, 2010, and claimed refugee
protection on December 8 of the same year.
Impugned
decision
[8]
The
Refugee Protection Division rejected the application for refugee protection
because the applicant had not rebutted the presumption that a national benefits
from state protection and because what the applicant was complaining about was
discrimination that did not reach the level required to constitute persecution.
[9]
Relying
on Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, the RPD determined
that the applicant had not adduced the clear and convincing evidence that is
required to rebut the presumption. The burden of proof is proportional to the
level of democracy in the state in question (Kadenko v Canada (Minister of
Citizenship and Immigration) (1996), 143 DLR (4th) 532).
[10] The RPD
noted, on the facts of this case, that the applicant had benefited from state
protection for the incidents he recounted.
[11] Examining
the documentary evidence, the RPD acknowledged at the outset that there had
been attacks against Roma in recent years but stated that the Hungarian
government has taken steps to protect them. Moreover, the report on Hungary by
the European Commission against Racism and Intolerance states that the steps
taken by Hungary have had a positive impact. The RPD noted, in particular, that
most ministries now have an officer dedicated to the needs of Roma and that
there are various programs to promote their employment and education.
[12] Discrimination
that may constitute persecution has substantial harmful ramifications on the
right to earn income, practise one’s religion, access employment, health care
or education.
[13] In this
case, the RPD found that the applicant had suffered some discrimination but had
not been persecuted. For a finding of persecution to be made, the
discrimination suffered by a person must lead to severe restrictions in
employment, religious practice or access to health care or education. There was
no such evidence in this case. In fact, it was noted that the applicant had
worked for various employers all his life and that, even after the year 2000
when the situation in Hungary worsened, he continued to be able to live in
peace.
Position of the
parties
[14] At
the hearing, the applicant emphasized the lack of protection in Hungary. His
counsel pointed out that protection has to be prospective. In fact, to show
that the RPD’s decision was not reasonable, she focused on reviewing it to
demonstrate that the RPD had selected passages from the documentary evidence.
[15] When
questioned by the Court about the scope of her argument, counsel for the
applicant insisted that she was not trying to demonstrate that all Roma should
benefit from sections 96 and 97 of the Act because of the documentary
evidence she had analyzed before the panel. Rather, she wanted to show that the
decision was unreasonable because it did not adequately consider all the
documentary evidence.
[16] For his
part, the respondent submits that the applicant’s position is simply an
expression of his disagreement with the decision. The review, he says, must be
confined to the particular case that was before the panel. The evidence clearly
shows that the applicant received state protection. There is nothing to
indicate that this protection would not be available should he return to
Hungary. The applicable standard is not perfection.
Analysis
[17] The
parties agreed that the appropriate standard of review is reasonableness. The
Court agrees.
[18] However,
there are consequences that ensue for the person who attacks the reasonableness
of a decision, as the applicant is doing in this case. In Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, the Court provided the parameters to be used in a case such
as ours. Paragraph 47 states:
[47] Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[19] This
standard was further articulated in Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708. I note the
following passages from paragraphs 14 and 16:
[14] Read as a whole, I do not
see Dunsmuir as standing for the proposition that the “adequacy” of
reasons is a stand-alone basis for quashing a decision, or as advocating that a
reviewing court undertake two discrete analyses — one for the reasons and a
separate one for the result .
. .
. . .
[16] Reasons may not include
all the arguments, statutory provisions, jurisprudence or other details the
reviewing judge would have preferred, but that does not impugn the validity of
either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion . . . In other words, if the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met.
[20] Therefore,
that is the test. Because the applicant submits that all Roma should not be
able to benefit from the protection of sections 96 and 97 of the Act, it
follows that it is reasonable that some will not benefit from it. This stems
from the fact that each case must be considered individually. In this case, the
RPD found that state protection was available to this applicant and that,
consequently, he could be returned to Hungary. This was, appropriately, a
personalized decision. The mere fact that the documentation may also, in some
cases, be used to favour an applicant does not mean that the decision in our
case is unreasonable. The applicant would perhaps have liked to read more in
the RPD’s decision than what is there. But to repeat the words of the Supreme
Court of Canada, “that does not impugn the validity of either the
reasons or the result under a reasonableness analysis”.
[21] In
the case that was before the panel, it is not difficult to understand why the
RPD made the finding it did. The applicant was not persecuted, and he received
state protection. It is certainly worth noting that the presumption of state
protection must be rebutted by clear and convincing evidence. I reproduce the
following passage from pages 724 and 725 of Ward (above):
The
issue that arises, then, is how, in a practical sense, a claimant makes proof
of a state’s inability to protect its nationals as well as the reasonable
nature of the claimant's refusal actually to seek out this protection. On the
facts of this case, proof on this point was unnecessary, as representatives of
the state authorities conceded their inability to protect Ward. Where such an
admission is not available, however, clear and convincing confirmation of a
state’s inability to protect must be provided. For example, a claimant might
advance testimony of similarly situated individuals let down by the state
protection arrangement or the claimant's testimony of past personal incidents
in which state protection did not materialize. Absent some evidence, the claim
should fail, as nations should be presumed capable of protecting their
citizens. Security of nationals is, after all, the essence of sovereignty. Absent
a situation of complete breakdown of state apparatus, such as that recognized
in Lebanon in Zalzali, it should be assumed that the state is capable of
protecting a claimant.
[22] In
this case, not only was this evidence not adduced to rebut the presumption that
the state was capable of protecting the applicant, but it was put forward that such
protection had been provided to this applicant. It was reasonable for the RPD
to make the finding it did. Similarly, the finding that the applicant had not
been persecuted was also reasonable having regard to the circumstances of this
case.
[23] It
follows that the application for judicial review cannot be allowed. No question
under section 74 of the Act was certified.
JUDGMENT
The
application for judicial review of a decision by a member of the Refugee
Protection Division of the Immigration and Refugee Board dated July 27,
2012, is dismissed.
“Yvan Roy”
Certified
true translation
Mary
Jo Egan, LLB
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