Date:
20130624
Docket:
IMM-9511-12
Citation:
2013 FC 702
Toronto, Ontario,
June 24, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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DENES CSABA RACZ
MARODI RACZNE TIMEA
DAVID RACZ
VENESSZA RACZ
KEVIN RACZ
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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
applicant family members are citizens of Hungary and of Roma ethnicity.
[2]
In
their PIF and before the Board, they recounted various incidences of harassment,
discrimination, and violence against them in Hungary. Two relatively recent
incidents of violence were the focus of the Board’s decision and this judicial
review application.
[3]
On
the evening of May 3, 2011, the applicants were at home when stones were thrown
through their windows. Denes Csaba Racz, the father in the applicant family,
ran out of the house to see what had happened but he was immediately kicked in
his stomach and assaulted. By the time Timea Raczne Marodi, the mother in the
applicant family, went outside, her husband was on the ground and his attackers
were fleeing in a car. They were shouting that “this is not over” and that the
applicants would die. Mr. Racz called the police. When they arrived, he
showed them the broken windows and where he was kicked and punched. The police
asked if he saw the perpetrators, and Mr. Racz replied that he did not because
he was kicked very suddenly. Ms. Marodi did not get the license plate. The
police said that there was not much they could do, but that they would patrol
the area more often. They left without taking a report. They patrolled one
more time that night but no additional patrols were made. The applicants also
asked the Mayor of their village to help them but he said the police would take
care of things.
[4]
On
August 2, 2011, Ms. Marodi was on her way home from a store when three young
men blocked her way and insulted her. She wanted to call out for help but the men
told her to keep her mouth shut and then they punched her in her stomach. They
then threw away the items she had purchased, kicked her, and insulted her.
They called her a Gypsy whore and said that Gypsies should be exterminated.
Once the men had left and Ms. Marodi had gathered herself and her things
together, she went home and told her husband what had happened. He phoned the
police. They came and took personal information and she told them that this
was not the first time they had been attacked. She could not describe her
attackers accurately because at the time she was afraid and had tried to avoid
making eye contact with them. The police said they would send a copy of their
report by mail, but no record was ever received. Ms. Marodi even went to the
police station at some point after the attack but was told they were still
working on the report. She did not obtain any of copy of that report before
the family left for Canada on September 27, 2011.
[5]
The
Board dismissed the applicants’ refugee claims on the basis of the availability
of state protection in Hungary. In particular, the Board found that in the
context of the available documentary evidence about Hungary, which it had
extensively reviewed and summarized in its decision, the applicants had “failed
to rebut the presumption of state protection based on their personal experience
[with the police].”
Issues
[6]
The
applicants raise two issues in their written memorandum:
1.
Did
the Board err by finding that the various acts of discrimination and violence
against the applicants did not amount to persecution?
2.
Did
the Board err by failing to conduct a separate analysis under section 97 of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]?
[7]
However,
regarding the first issue raised, the Board did not actually make any finding
in its decision that the mistreatment suffered by the applicants did not amount
to persecution. Regarding the second issue, since an applicant must establish
a lack of state protection under both section 96 and subsection 97(1) of the
Act and since the Board found adequate state protection, there was no need for
it to examine whether the applicants also faced the mistreatment described in
subsection 97(1). This has been often recognized by this Court: See, e.g., Racz
v Canada (Minister of Citizenship & Immigration), 2012 FC 436. Further,
contrary to the submissions of the applicants, the Board made no credibility
findings and accordingly the above referenced decision is on all-fours with
this case.
[8]
The
only real issue in this application is whether the Board’s state protection
finding was reasonable.
Analysis
[9]
The
applicants make four submissions on state protection. First, citing Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, they argue that a refugee
claimant is not required to risk his or her life to seek the state’s protection.
However, the applicants do not point to any evidence in the record, including
in their own testimony, that they themselves would be risking their lives in
seeking Hungary’s protection.
[10]
Second,
citing a paragraph from the Board’s reasons, the applicants argue that state
protection is not available to the Roma in rural areas but rather only in the
larger cities. However, in that paragraph – paragraph 52 of the Board’s
reasons – the Board merely discusses how a particular legal aid program is only
available in larger cities. Moreover, a claimant is not a Convention refugee
or a person in need of protection under the Act if they have an internal flight
alternative in their home country. Accordingly, it could be said that by this
submission, the applicants presumably acknowledge that state protection is
available to them in larger cities.
[11]
Third,
the applicants submit that there is only a strong presumption of state
protection in a democracy, and that their evidence of rigged village elections
shows that there was in fact no democracy. However, while the applicants’
testimony about the elections in their village may establish that the
democratic institutions in their village are weak, the relevant unit of
analysis is, undoubtedly, the state: See, e.g., Kadenko v Canada (Solicitor General) (1996), 143 DLR (4th) 532 (FCA). The applicants
raise no real argument that Hungary as a whole is not a democracy.
[12]
Last,
the applicants criticize the Board for relying on evidence about the
Independent Police Complaints Board (IPCB), arguing that the Board at paragraph
37 of its decision “concede[d] that only a small proportion of IPCB’s
recommendations were followed up by police indicating that the IPCB is
effective.” However, the Board did not concede this. Rather, it noted that
the IPCB had forwarded 67 cases to the national police chief; that, at the time
the report was written, the police chief had agreed with the findings in two of
the cases, partially agreed with three, rejected three others; and that the remaining
cases remained “pending.” In other words, the Board’s comments only mean that
– at the time the report was written – the police had acted on eight of the 67
complaints referred to it. The applicants do not point out what documentary
source this information is derived from; however, the reasons on their face do
not amount to the assertion advanced by the applicants. In any event, even if
the IPCB were an ineffective complaint mechanism that alone does not mean that
the state protection offered in Hungary is not operationally adequate.
[13]
In
summary, the applicants have not raised any reviewable error in the Board’s
state protection finding. Further, I agree with the submission of the
respondent that the Board’s examination must focus on whether these persons, on
clear and convincing evidence, have established that there is not adequate
state protection at the operational level. I am unable to find, based on their
submissions in this application, that the Board’s decision that they did not
establish the inadequacy of state protection is unreasonable. In fact,
although not perfect, the response of the police to the applicants’ complaints,
given the specific circumstances of the assaults taken to the police, appears
to have been adequate and in keeping with what Canadian police forces would be
likely to do.
[14]
Neither
party proposed a question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is dismissed and no
question is certified.
"Russel W.
Zinn"
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