Date:
20130821
Docket:
IMM-8775-12
Citation:
2013 FC 888
Ottawa, Ontario,
August 21, 2013
PRESENT: The
Honourable Madam Justice McVeigh
BETWEEN:
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GYORGY RICZU
TEREZIA HARASZT
VIRAG RICZU
GYORGY RICZU
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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]
This
is an application for judicial review of the decision of Louise
Paquette-Neville, a member of the Refugee Protection Division of the
Immigration and Refugee Protection Board (the Board), pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the
Act). The Board dismissed the Applicants’ claim for refugee protection,
concluding that they were not convention refugees or persons in need of
protection under sections 96 and 97 of the Act.
I. Background
[2]
The
Applicants are Hungarian citizens of Roma ethnicity, consisting of a father
(Principal Applicant) and his common-law spouse, their daughter and son. They
are aged 27, 26, 5, and 3, respectively. The family resided in Sajozsentpeter
which is a small city close to Miskolc, the third largest city in Hungary. The Principal Applicant was employed as a nursing assistant in Miskolc.
[3]
Their
Personal Information Form (PIF) included a three-paragraph personal narrative
dated December 29, 2010 that said that living in Hungary is no longer bearable
for the Applicants due to ongoing threats, abuse and discrimination stemming
from their Roma ethnicity.
[4]
A
three-page amendment to the original PIF was provided to the Board on May 10,
2012. In the amended narrative, the Applicants allege three instances where the
Applicants faced persecution:
a) The
first of these incidents occurred in August, 2010. The Principal Applicant
alleges the Applicants were verbally threatened by five ethnic Hungarians at a
playground in their hometown of Sajozsentpeter;
b) The
second incident occurred on October 10, 2010. The Applicants went to the neighbouring
town of Miskolc and accidentally encountered an anti gypsy rally where
participants verbally threatened them. A coke bottle hit their son. The
Principal Applicant was pushed against a bus stop, which injuring his hand;
c) The
third incident occurred on November 21, 2010. The Principal Applicant says that
he was walking in Sajozsentpeter with his friend Kotai Otto, when some
skinheads threatened them before stabbing his friend Otto. As a result of his
wounds, Otto died in his arms. The Applicants left the day after the funeral
and arrived in Canada and applied for refugee protection on December 2, 2010.
II. Issue
[5]
The
issue raised in the present application is:
A. Was
the Board’s state protection analysis reasonable?
III. Standard of review
[6]
The
Board’s finding with regards to state protection is reviewable on the standard
of reasonableness (Mejia v Canada (Minister of Citizenship and Immigration),
2009 FC 354 at paras 25, 29; Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paras 46, 59 [Khosa]; Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47-48, 51 [Dunsmuir]).
[7]
When
reviewing a decision on the reasonableness standard, the Court must determine
whether the Board's findings fall within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47). Although there may be more than one possible outcome, as
long as the Board's decision-making process was justified, transparent and
intelligible, a reviewing court cannot substitute its own view of a preferable
outcome (Khosa, above, at para 59).
IV.
Analysis
A. The Appropriate Framework for the
State protection Analysis
[8]
The
appropriate test for state protection in the context of subsections 96(a) and
97 (1)(b)(i) of the Act was stated in Carrillo v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94 at para 30:
… a claimant seeking to rebut the presumption of
state protection must adduce relevant, reliable and convincing evidence which
satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate.
[9]
The
state is not required to provide perfect protection to all citizens all of the
time (Canada (Minister of Employment and Immigration) v Villafranca, [1992]
FCJ No 1189, 99 DLR (4th) 334).
B. Seeking Protection from Police
and Non-Police Organizations
[10]
There
is a presumption that a state is capable of protecting its citizens and that
the more democratic the state, the more an applicant must do to show what it
had done to exhaust all courses of action open to it (Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 and Hinzman v Canada (Minister of
Citizenship and Immigration); Hughey v Canada (Minister of Citizenship and
Immigration), 2007 FCA 171 at para 41).
[11]
The
Principal Applicant argued that he went to the police regarding the three
incidents and argues he had no relief so going more times would have garnished
the same results. The Applicants argue that it is operational adequacy on the
ground not efforts that matter and in this case police or other agencies do
nothing so there is no reason to go to them.
[12]
The
Principal Applicant said he went to the police to report the August, 2010
incident of verbal abuse that occurred in the playground. When he went to the
police station they asked if he could prove anything that happened and asked
for descriptions of the perpetrators. When the Principal Applicant told the
police they were the only witnesses, the police did not even write anything
down. At the hearing he was asked if there was any where else to turn to
address the lack of police response and he said the minority self-government in
Sajozsentpeter, but they say that the judicial system will believe the police
over them. The complaint was not pursued further.
[13]
The
Board found that this was abhorrent treatment but that the issue of racism
cannot be addressed overnight. The Board did find that the state was addressing
discrimination through legislation and on the ground by providing venues in
which complaints can be addressed. The Board found these measures to be
operationally adequate. The Board found that the Applicants had not made
reasonable attempts to address the discrimination and they did not demonstrate
with clear and convincing evidence that state protection was inadequate with
relation to the incident that occurred.
[14]
The
Principal Applicant testified that on October 10th, 2010, his family went to
Mickolc to enjoy themselves and they walked into a rally. The Principal Applicant’s
son was hit on the head with a coke bottle and the Principal Applicant injured
his hand. The Principal Applicant reported the incident to the police in Sajozsentpeter
where he lived rather than in Mickolc where the incident occurred. He said he
was too afraid to report to the police in Mickolc. The Principal Applicant
could not provide the police with a description other that they were Guardists
and racist people. The Principal Applicant testified that the police did not
seem interested. The Board asked why he reported it to his home and he said he
thought the police would contact the Mickolc police. The Principal Applicant
followed up 2-3 weeks later at the Sajoszentpeter police station and the
receptionist said the person in charge was not in. He did not return as he felt
they did not treat it the same as if an ethnic Hungarian filed the report.
[15]
The
Board found that he could not give the police a description of who threw the
bottle other than a general description of Guardists. The Board noted that he
said in his amended PIF that he attended a hospital to have his hand attended
to and he told them what happened but no one really seemed to pay attention. The
panel sympathized with the Applicants but found it unreasonable to expect the
police to investigate when lack of sufficient evidence regarding the
perpetrator. The Board found that on a balance, the police and state are
addressing this increased violence.
[16]
In
November, 2010 when the Principal Applicant’s friend was stabbed while walking
with him. The police arrived about when the ambulance did. He was so emotional
he said he could not talk to the police other than to tell them it was a “big
bald guy who worked out”. The day following this incident, the Principal
Applicant attended the police station to provide a statement. He was unable to
obtain a copy of the report. The day after the funeral the Applicants left for Canada. When his mother attended the police station to get a copy of his statement they
told her they had been looking to talk to him. The Principal Applicant’s mother
told him that the police attended his former residence in Hungary in January or February of 2011 looking for him. The Principal Applicant assumes
this visit was connected to the investigation of Otto’s death. The Principal Applicant
testified that in March 2012, his mother told him that she received a
threatening letter addressed to the Principal Applicant at his former address
in Hungary. The Principal Applicant assumed that this letter was sent by
someone connected to the death of Otto. The Board assigned little weight to the
note as it was 2 years later on unsigned paper with newspaper letter pasted on
it and mailed to him by his mother.
[17]
When
the Board questioned him he said he did not think he had to attend a hearing or
any judicial matter.
[18]
The
Board found that at a minimum the Applicants departure did not assist the
police in identifying who the perpetrator was and that this was unreasonable
given he knew his brined had an altercation with someone from the neighbourhood
3 weeks prior. The Board found his departure to be premature given the state’s
interest in taking his statement and that they attended his home and he was a
witness to the attack.
[19]
It
is very difficult to argue the state is not protecting you when you do not
enable them in anyway such as giving descriptions to them of alleged attackers
and to follow up with police regarding the attacker that killed your friend (Szucs
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1614).
The police cannot solve crimes where there is little if any evidence to
investigate or to respond to.
[20]
The
Applicants cannot rebut a presumption by only asserting subjective reluctance
to engage the state or other bodies legislated to assist operationally (Molnar
v Canada (Minister of Citizenship and Immigration), 2012 FC 530). It is
more understandable when the police are the alleged perpetrators but that was
not the case on these facts.
C. Board Considering all Relevant
Evidence
[21]
I
find that the Board conducted a thorough very detailed and full review of the
documentary evidence in coming to its decision on state protection contrary to
the Applicants’ suggestions that it completely disregarded the documentary
evidence supportive of the Applicants. There is no evidence to support that
claim.
[22]
Likewise
I do not agree with the Applicants that their testimonial evidence was
completely disregarded by the Board. The Board addresses each of the
Applicants’ main claims of persecution; the incidents in August, October and
November 2010 and the resulting police response. In addition it considers the
secondary incidents of concern regarding the Principal Applicant’s daughter
kindergarten, the medical treatment of the Principal Applicant's son and father
that were not argued at this hearing.
D. Board Reasonably Assessing
the Evidence
[23]
The
Board considered the mixed country condition evidence. They were aware of the
shortcomings of protection for Roma in Hungary. Their decision that protection
though not perfect was adequate was available for them to make on the evidence
before them. The decision was detailed analysis of the documentary evidence
that considered and weighed it against the facts in this case.
[24]
The
Board in reviewing the specific circumstances of these Applicants did not find this
family faced personalized risk of harm under section 97 of the Act. The Board
found that the Applicants “failed to rebut the presumption of state protection
with clear and convincing evidence and that the claimants did not take all
reasonable steps in the circumstances to avail themselves of that protection
before making a claim for refugee protection”.
[25]
Each
case must be determined on its own facts as established by the evidence. The
Applicants filed the recent cases of Kemenczei v Canada (Minister of Citizenship
and Immigration), 2012 FC 1349, Biro v Canada (Minister of Citizenship
and Immigration), 2012 FC 1120 and Majoros v Canada (Minister of Citizenship
and Immigration), 2013 FC 421. All were matters involving Roma with successful
judicial reviews. I agree with those cases, but there continue to be recent
cases where the judicial reviews have not been successful for Roma in Hungary. This strengthens the argument that it is a very factual determination and that
each case will be reviewed on their own facts.
[26]
On
these facts, I find that the Board came to a conclusion that based on the
evidence is a transparent, justifiable and intelligible result within the range
of reasonable outcomes based on the evidence before it (Dunsmuir, at
para 47 and Khosa, at para 46).
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed; and
2.
No
question of general importance is certified.
“Glennys L. McVeigh”
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