Date:
20130123
Docket:
IMM-5241-12
Citation:
2013 FC 62
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec,
January 23, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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JOZSEF BALAZS
JOZSEFNE BALAZS
MIKLOS BALAZS
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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 a decision by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board dated May 1, 2012, pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA). The RPD found that the applicants are not Convention
refugees under section 96 of the IRPA or persons in need of protection under
section 97 of the IRPA.
I. Facts
[2]
The
applicants are Hungarian citizens and members of the Roma ethnic minority. The
principal applicant was designated as the legal representative of his minor son.
[3]
The
applicants were discriminated against in Hungary on several occasions. The
couple’s child was apparently discriminated against at school. The family was
refused access to a playground; they had problems filling up at the gas station;
and they feel as though they are treated differently on public transit.
[4]
The
applicants left Hungary on November 27, 2009, for Canada and claimed refugee
protection here that same day.
[5]
On
April 4, 2012, the applicants amended their Personal Information Form (PIF) to
add the following facts.
[6]
On
October 17, 2009, the family made some purchases for their son’s birthday. A
security guard followed them while they were shopping. When they left the
store, the security alarm went off and the security guard purportedly insulted
them and treated them like shoplifters. He allegedly had the young applicant remove
his clothes to see what he had stolen; his parents were unable to intervene
because they were being held back by two other security guards.
[7]
On
November 1, 2009, at around 11:00 p.m., the applicants were woken up by a
noise. They looked out the window and saw a black vehicle and guards in uniforms
who were threatening to kill them. They found that their car had been damaged
and found a Molotov cocktail on the seat of their car. They filed a complaint
with the police, but the police said that they could not investigate unknown
people.
II. Decision
under review
[8]
The
RPD found that the applicants were not entitled to refugee protection or
“person in need or protection” status. That finding was largely based on the
applicants’ lack of credibility. In its decision, the RPD noted the
contradictions that seemed the most determinative in the applicants’ testimony.
[9]
First,
the RPD found that there was no doubt that the applicants are of Roma ethnicity.
[10]
The
panel member asked the applicants why the two incidents stated in the amended
statement dated April 4, 2012, were not mentioned in their initial PIF. They
replied that they did not understand why those events were not added to it
because the forms were prepared in their first lawyer’s office. The RPD did not
consider that explanation as being satisfactory. Furthermore, given that the
applicants state that the incident on October 17, 2009, was the most significant,
it is surprising that they did not mention it in their initial account. The RPD
nevertheless found that it believed the applicants when they said that that
incident occurred, but that it does not constitute an act of persecution.
[11]
When
asked whether they had been prevented from earning a living in Hungary, they
stated that they sold clothing in flea markets and stated in their amendments
submitted on April 4, 2012, that people refused to buy clothes from them
because they were sold by Gypsies. However, the RPD noted that the applicants
did not mention the fact that they were merchants in Hungary and that they did
not provide any satisfactory explanation to justify that omission. As a result,
the RPD found that the applicants did not establish that they were prevented
from earning a living.
[12]
Regarding
the incident on November 1, 2009, the RPD identified contradictions between the
account included in form IMM 5611 and the testimony in that regard. The
applicants alleged that a Molotov cocktail was thrown at their window and that
it fell on a bus, whereas they testified that they heard men in uniforms
shouting in the night and that the Molotov cocktail was found in their car. The
RPD considered these significant inconsistencies.
[13]
Thus,
the RPD found that the applicants were the target of certain discriminatory
acts because of their Roma ethnicity and that those acts did not amount to
persecution because they did not have serious, adverse consequences for the
applicants. The applicants were able to make a living in Hungary, lived in a
suitable house and had basic education. However, their son explained that, in
class, the Roma sat in a separate row. Moreover, the applicants also did not
establish that they would be at risk of persecution if they were to return to
Hungary.
[14]
The
RPD then analyzed the objective evidence on the situation of the Roma in Hungary.
It considered that the Hungarian Guard, a paramilitary group, as well as skinheads
have committed acts of violence against the Roma. The Hungarian Guard has now
been dissolved and participation in the activities of the dissolved
organizations is prosecuted as an infringement of the law.
[15]
Regarding
state protection, the RPD was of the opinion that it was adequate in the
applicants’ case. The RPD pointed out that the documentary evidence shows that
Hungary has taken a number of legal and institutional measures to improve the
situation of the Roma minority. Furthermore, although the situation is not
perfect, the Hungarian government has put measures in place, including the
establishment of a special group of 100 police officers to investigate crimes against
Roma. The RPD added that, if it considers that the incident on November 1, 2009,
actually happened, there was adequate state protection because the police came
to the applicants’ house but were unable to investigate for lack of information.
Therefore, the RPD was of the opinion that the applicants did not rebut the
presumption of state protection.
III. Position
of the applicants
[16]
The
applicants submit that the RPD’s findings on their situation are unreasonable
given that the discrimination against them was constant and repetitive and
therefore constitutes persecution under the Convention.
[17]
Second,
they established a reasonable fear should they return to Hungary given the
violence against the Roma in Hungary. The issue of reasonable fear of return is
separate from the analysis of the discriminatory acts the applicants were
apparently the subject of. Therefore, even if the RPD found that the applicants
did not establish that those acts occurred, it was unreasonable for it to find
that they do not face a risk if they were to return.
[18]
In
fact, according to the applicants, it is clear from the documentary evidence
that the Roma are at constant risk in Hungary and the RPD was silent on this
evidence in its assessment of the applicants’ fear of return to Hungary.
[19]
Regarding
state protection, the applicants are of the opinion that the RPD’s finding that
the Hungarian authorities could provide them with adequate protection is
erroneous. In fact, the documentary evidence shows that the Roma are persecuted
by the police and shows the racial profiling that they were the victim of. Thus,
the RPD found that the Hungarian state is making efforts to protect the Roma,
but, according to the applicants, those efforts are inadequate to establish
effective protection by the Hungarian state. In fact, the willingness of the
Hungarian state to protect the Roma is not sufficient to establish that concrete
protection is in place.
IV. Position
of the respondent
[20]
The
respondent maintains that the RPD did not commit an error by finding that the
applicants, even though they were victims of discrimination, were not the
subject of acts that constitute persecution. Thus, the applicants did not prove
that their lives would be in danger should they return to Hungary or that they
would be at risk of persecution there.
[21]
With
respect to the incident on October 17, 2009, the RPD validly determined that
the applicants should have mentioned it in their PIF, which they did not do.
Furthermore, that event does not constitute persecution.
[22]
The
respondent adds that the applicants rely on the documentary evidence that the Roma
are discriminated against but have not, however, demonstrated their own specific
situation of being discriminated against.
[23]
Regarding
state protection in Hungary, the RPD justly found that the state has put in
place measures to fight the discrimination the Roma are subject to.
Furthermore, the state protection does not have to be perfect. Under the circumstances,
it was up to the applicants to demonstrate that the protection was inadequate
in their case by submitting clear and convincing evidence and demonstrating
that they exhausted all of the avenues of recourse available to them.
[24]
In
this case, after the Molotov cocktail was discovered, the applicants contacted
the police. The police were ready to investigate but were unable to do so
because there was a lack of information.
V. Issues
1. Did
the RPD err by finding that the applicants were not victims of persecution?
2.
Did the RPD err by finding that state protection was available to the
applicants?
VI. Standard
of review
[25]
The
reasonableness standard applies to the RPD’s decision with respect to the
finding that the applicants were not victims of persecution and with respect to
the state protection issue because they are questions of mixed fact and law (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47, [2008] 1 S.C.R. 190).
VII. Analysis
1.
Did
the RPD err by finding that the applicants were not victims of persecution?
[26]
The
RPD’s decision is reasonable for the following reasons. It is true that the
dividing line between persecution and discrimination or
harassment is sometimes difficult to establish, the more so since, in the
refugee law context, it has been found that discrimination may very well be
seen as amounting to persecution.
[27]
In
Sagharichi v Canada (Minister of Employment and Immigration), 182 NR
398, 1993 CarswellNat 316 (FCA), it was established that, to be characterized
as persecution, incidents of discrimination or harassment must be serious,
systematic or support a finding of a serious possibility of persecution in the
future. Furthermore, the intervention of the reviewing Court is not warranted
unless the conclusion reached appears to be capricious or unreasonable.
[28]
In
that regard, it is recognized that people of Roma ethnicity are the subject of
discriminatory acts and that, in some cases, that discrimination is considered
persecution when the measures of discrimination lead to consequences of a
substantially prejudicial nature for the person concerned.
[29]
In
this case, the RPD did not make any unreasonable finding. In fact, the RPD assessed
the applicants’ testimony and written account and found that they were victims
of discrimination even though their credibility was not established regarding
the incident that apparently occurred on November 1, 2009. However, the RPD
found that the discrimination against the applicants does not amount to persecution
because it was not repetitive or systematic.
[30]
Although
some unfortunate events occurred in the case of the applicants, the RPD made a
reasonable finding by stating that they are not entitled to refugee protection
because the events do not constitute persecution. The events experienced by the
applicants are not of a severity that entitles them to refugee protection. They
were not prevented from studying or earning a living and the RPD was of the
opinion that the events experienced by the applicants, including the treatment
of children in school, do not constitute persecution in themselves even if the
incidents are assessed cumulatively.
[31]
In
Zsuzsanna v Canada (Minister of Citizenship and Immigration), 2002 FCT 1206 at paragraphs 18-19, 2002 CarswellNat 3339,
it was decided that the Roma refugee claimants, including the children who
experienced discrimination in school, could not establish a case of persecution
even when assessed cumulatively.
[32]
Furthermore,
the RPD’s observation that the applicants were not prevented from earning a
living because of their ethnicity given that they did not submit evidence on
this fact on a balance of probabilities, which tends to demonstrate that they
were not persecuted, is consistent with the case law of this Court (see Lin v Canada (Minister
of Employment and Immigration), (1993) 24 Imm LR (2d) 208 at paragraph 6, 66 FTR
207; Soto v Canada (Minister of Citizenship and Immigration),
2002 FCT 768 at paragraph 16, 2002 CarswellNat 1667).
[33]
Thus, the RPD’s finding that the applicants were the subject of discrimination,
but not persecution, is reasonable and this Court’s intervention is not warranted.
2.
Did
the RPD err by finding that state protection was available to the applicants?
[34]
The
RPD’s analysis of the state protection provided to the applicants in the circumstances
is reasonable. First, the RPD is assumed to have assessed all of the documentary
evidence submitted (Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ No
598 (FCA)).
[35]
The
RPD was of the opinion that the fact that the Hungarian government dissolved
the Hungarian Guard by ministerial edict, a decision that
was upheld by the courts, and the fact that the authorities made serious
efforts to fight discrimination against the Roma, was adequate (Banya v
Canada (Minister of Citizenship and Immigration), 2011 FC 313 at paragraph
12, 2011 CarswellNat 1694).
[36]
The
RPD considered the fact that it is recognized that there are problems of
discrimination against the Roma in Hungary and that the protection available is
not perfect. However, it found that the applicants did not establish that, in
their situation, the protection was inadequate. In fact, the police agreed to
investigate after the incident on November 1, 2009, although its occurrence was
not established on a balance of probabilities.
[37]
The
parties were invited to submit a question for certification, but none was submitted.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that this application for judicial
review is dismissed. No question for certification arises.
“Simon Noël”
Certified
true translation
Janine
Anderson, Translator
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