Docket:
IMM-5386-12
Citation: 2013 FC 1004
Ottawa, Ontario, October
1, 2013
PRESENT: THE CHIEF JUSTICE
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BETWEEN:
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ZSOLT RUSZO, ZSOLTNE
RUSZO, MARK ZSOLT RUSZO, FANNI DORINA RUSZO and
ZSOLT RUSZO
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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 Applicants are citizens of Hungary. They are of Roma ethnicity. They fled Hungary in December 2009 fearing persecution,
including physical harm, at the hands of skinheads and the Hungarian Guards, an
extremist organization.
[2]
Upon their arrival in Canada from Hungary, they claimed refugee protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. Their respective
claims were denied by the Refugee Protection Division [RPD] of the Immigration
and Refugee Board.
[3]
The Applicants submit that the RPD erred by:
i.
concluding that the discriminatory treatment to
which they were personally subjected, and to which people of Roma ethnicity in
general are subjected in Hungary, does not rise to the level of “persecution”;
and
ii.
unduly focusing on the efforts of the state to
provide protection to its Roma citizens, rather than on the operational
adequacy of those efforts.
[4]
For the reasons that follow, this application is
dismissed.
I. Background
[5]
Mr. Zsolt Ruszo is the principal Applicant.
His spouse and their three children are the other Applicants in this
proceeding.
[6]
Mr. Ruszo alleges that his two youngest children
were segregated together with other Roma children and apart from other children
at their primary school, and that his eldest son was constantly harassed at his
school. This harassment included being spat at and yelled at, and having their
coats, bags and other things taken from them. The number of complaints from
Roma parents regarding similar harassment of their children was such that the
local government hired guards to work at the school.
[7]
In December 2008, Mr. Ruszo, his cousin and one
of his sons were attacked by a group of skinheads while waiting for a bus. As
they were being beaten and kicked on the ground, they screamed for help. The
police were alerted, and as they approached the scene, the skinheads, who had
scarves around their faces, fled. After confirming that they had not sustained
any serious injuries, the police drove off.
[8]
The following day, Mr. Ruszo and his spouse went
to the police station to report the incident. However, when Mr. Ruszo was
unable to identify his assailants, he and Mrs. Ruszo were told that charges
could not be pressed against unknown persons. The police then smiled at them
and took no further action. As a result of that response, Mr. and Mrs. Ruszo
did not further pursue the matter.
[9]
On March 15, 2009, a national holiday in Hungary, skinheads and the Hungarian Guards held demonstrations and apparently chanted
death threats to Roma. The situation allegedly escalated to shots being fired
at Roma citizens and Molotov cocktails being thrown into Roma homes over the
ensuing days.
[10]
As a result of the foregoing events, and
fearing for the safety of their children, Mr. and Mrs. Ruszo fled to Canada with their children and claimed refugee protection.
II. The Decision under Review
[11]
After briefly considering the medical care
that the Applicants had received in Hungary, the manner in which the minor
Applicants were treated in school, and the principal Applicant’s inability to
find steady work, the RPD stated that it was not persuaded that the state of Hungary is denying the Applicants the basic necessities of life.
[12]
The RPD then observed that some Hungarian
people, including some people in positions of authority, discriminate against
people of Roma ethnicity. However, it proceeded to conclude, without further
analysis, that such behaviour does not reach the level of persecution.
[13]
The RPD then turned to the issue of state
protection, which it described as being “determinative … in the case at bar.”
It addressed this issue in three steps: first, it discussed the presumption
that a state is capable of protecting its citizens, absent a situation of
complete breakdown of the state apparatus; second, it discussed an applicant’s
burden to provide “clear and convincing” evidence of the state’s inability to
protect its citizens; third, it discussed the steps that have been taken by the
state of Hungary to provide adequate state protection.
[14]
Ultimately, the RPD determined that (i) Mr. and
Mrs. Ruszo had not taken all reasonable steps to seek state protection, (ii)
steps were taken to protect students at their son’s school, (iii) Hungary has undertaken serious and substantial efforts to offer state protection when
requested and (iv) it has made significant improvements in providing such
protection. Based on these determinations, the RPD concluded that the
Applicants had “not provided clear and convincing evidence that, on a balance
of probabilities, state protection in Hungary is inadequate.”
III. Issues
[15]
The Applicants raised the following two issues
with respect to the RPD’s decision:
i.
Did the RPD err by failing to provide adequate
reasons for its conclusions that (i) the treatment to which he, his spouse and
their children were subjected in Hungary was discriminatory, but not
persecutory, in nature; and (ii) the general treatment to which people of Roma
ethnicity in Hungary are subjected also does not reach the level of
persecution?
j.
Did the RPD err in reaching its conclusion with
respect to state protection in Hungary?
IV. The Standard of Review
[16]
The issue of whether the treatment to which the
Applicants were subjected, and the treatment to which people of Roma ethnicity
in general are subjected in Hungary, amounts to persecution raises two distinct
questions.
[17]
The first is a question of statutory
interpretation, namely, the meaning of the term “persecution” in section 96 of
the IRPA. The IRPA is the RPD’s “home statute” or a statute “closely connected
to its function, with which it will have particular familiarity.” Accordingly,
the interpretation of the IRPA by the RPD will generally be reviewed on a
standard of reasonableness, unless the interpretation involves (i) a
constitutional question, (ii) a question of law that is of central importance
to the legal system as a whole and is outside of the RPD’s expertise,
(iii) a question regarding the jurisdictional lines between two or more
competing specialized tribunals, (iv) a true question of jurisdiction or vires,
or (v) is otherwise exceptional (Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR
654 [Alberta Teachers], at paras 30, 34 and 46; Smith v Alliance
Pipeline Ltd, 2011 SCC 7, at paras 26-28; Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190, at paras 54-61 [Dunsmuir]; Agraira v Canada (Public Safety and
Emergency Preparedness), 2013 SCC 36, at para 36).
[18]
In my view, the meaning of
the term “persecution” in section 96 of the IRPA raises a question of law that
is of central importance to the legal system. However, it would be difficult to
maintain that this question is outside the RPD’s area of expertise. Indeed, it
is difficult to think of a subject matter that would be more squarely within
the RPD’s expertise.
[19]
The meaning of the term
“persecution” also does not raise a constitutional question, a question
regarding the jurisdictional lines between two or more competing tribunals or a
true question of vires (Alberta Teachers, above, at paras 33-46).
[20]
Nevertheless, to the extent
that the jurisprudence can be said to have established a clear test for what
constitutes “persecution,” within the meaning of section 96 (see, e.g., Canada (Attorney General) v Ward, [1993]
2 SCR 689, 1993 CarswellNat 90, at para 71 [Ward]; Rajudeen v Canada
(Minister of Employment and Immigration),
[1984] FCJ No 601, 55 NR 129, at p 133; Tolu v Canada (Minister of
Citizenship and Immigration), [2002] FCJ No 447, at para 16 [Tolu]; Prato
v Canada (Minister of Citizenship and Immigration), 2005 FC 1088, at para 7
[Prato]; Canada (Minister of Citizenship and Immigration) v Hamdan,
2006 FC 290, at paras 25-26 [Hamdan]; Yurteri v The Minister of
Citizenship and Immigration, 2008 FC 478, at para 34 [Yurteri]; Warner
v Canada (Minister of Citizenship & Immigration), 2011 FC 363, at para
7; Mallampally v Canada (Minister of Citizenship & Immigration), 2012
FC 267, at paras 23-24; and Savas v Canada (Citizenship and
Immigration), 2013 FC 598, at para 7 [Savas]), this, in my view,
would fall within the narrow category of “exceptional” situations identified in
Alberta Teachers, above, at para 34. In the face of settled law on the
meaning of the term “persecution,” it is not open to the RPD to adopt a
different interpretation of that term. Accordingly, the question of whether the
RPD erred in interpreting the test for what constitutes “persecution” within
the meaning of section 96 is reviewable on a standard of correctness.
[21]
The second question raised with respect to the
RPD’s conclusion on the issue of “persecution” is whether the RPD erred in
determining that the discriminatory conduct that formed the basis of the Applicants’
claims did not meet the test for what constitutes “persecution”, within the
meaning of section 96. This is a question of mixed fact and law that is
reviewable on a standard of reasonableness (Dunsmuir, at paras 51-53; Liang v Canada (Minister of Citizenship
and Immigration), 2008 FC 450, at para 12; Sefa v Canada (Minister of
Citizenship and Immigration), 2010 FC 1190, at para 21; Hamdan,
above, at para 17; Tolu, above, at para 15; Prato, above, at para
8; Yurteri, above, at para 33; Savas, above, at paras 9-11).
[22]
The standard of review applicable to the RPD’s
assessment of the issue of state protection depends on whether the conclusion
reached by Board turned on its understanding of the proper test for state
protection or on its application of that test to the facts of this case. For
essentially the same reasons discussed at paragraphs 20 and 21 above, the
former would be reviewable on a standard of correctness (see also Koky v Canada (Minister of Citizenship and Immigration), 2011 FC 1407, at para 19 [Koky]), whereas
the latter would be reviewable on a standard of reasonableness. In short, the
jurisprudence has established a clear test for state protection (see, e.g., Burai
v Canada (Minister of Citizenship and Immigration), 2013 FC 565, at para 28
[Burai]; Lakatos v Canada (Minister of Citizenship and Immigration),
2012 FC 1070, at paras 13-14; Kaleja v Canada (Minister of Citizenship and
Immigration), 2011 FC 668, at para 25; and Cosgun v Canada (Minister of
Citizenship and Immigration), 2010 FC 400, at paras 42-52). Therefore, it
is not open to the RPD to apply a different test, and the issue of whether the
RPD applied the proper test would be reviewable on a standard of correctness.
However, the issue of whether the RPD erred in applying the settled law to the
facts in this case would be a question of mixed fact and law that is reviewable
on a standard of reasonableness (Dunsmuir, above, at paras 51-53; Hinzman
v Canada (Minister of Citizenship and Immigration), 2007 FCA 171, at
para 38 [Hinzman].
[23]
In my view, the RPD’s decision in this case
turned on its application of the settled law to the facts of this case, and is
therefore reviewable on a standard of reasonableness.
V. Analysis
[24]
In their written submissions, the Applicants
maintained that if the RPD committed a reviewable error in its approach to the
issue of “persecution,” this would constitute an error that tainted its finding
on the issue of state protection. However, in their subsequent oral
submissions, the Applicants conceded that the RPD’s conclusions on these two
issues were distinct, and that therefore they (the Applicants) need to prevail
on both issues to succeed in this Application.
[25]
For the reasons that follow, I am satisfied
that the ultimate conclusion reached by the RPD with respect to the issue of
state protection was reasonable. Accordingly, it is not necessary to address
the issue of whether the RPD erred in concluding that the conduct which formed
the basis of the Applicants’ claims for refugee protection does not rise to the
level of “persecution.”
[26]
The Applicants submitted that the RPD erred by
unduly focusing its assessment on the efforts of the state to provide
protection, as opposed to the operational adequacy of that protection (Salamon
v Canada (Minister of Citizenship and Immigration), 2013 FC 582, at para
3 [Salamon]; Burai, above, at paras 29-33; Olah v
Canada (Minister of Citizenship and Immigration), 2013 FC 606, at paras
9-14; Budai v Canada (Minister of Citizenship and Immigration),
2013 FC 552, at para 19 [Budai]; Molnar v Canada (Minister of
Citizenship and Immigration), 2013 FC 296, at para 26; Gulyas v
Canada (Minister of Citizenship and Immigration), 2013 FC 254, at paras
78-81; Koky, above, at para 59; Bledy v Canada (Minister of
Citizenship and Immigration), 2011 FC 210, at para 47 [Bledy]; Cervenakova
v Canada (Minister of Citizenship and Immigration), 2012 FC 525, at para
74).
[27]
I agree. This is readily apparent from a review
of paragraphs 25-31 of the RPD’s decision, which appear at the end of its
analysis. Although the RPD correctly identified (at paragraphs 9, 18, 28 and
31) the test to be applied in terms of “adequate state protection,” it failed
to assess whether the various steps that have been taken and the various
efforts that have been made by the state to provide such protection actually
provide adequate protection, at an operational level, to people of Roma
ethnicity in Hungary. This is evident from the language used throughout this
part of its assessment, which includes phrases such as “Hungary is making best
efforts to offer state protection,” “serious efforts with adequate protection
would be reasonably forthcoming” and “Hungary has undertaken serious and
substantial efforts to ensure the future existence of the Roma and other
minorities are protected.”
[28]
Nevertheless, the RPD’s misunderstanding or
misapplication of the “adequate state protection” test is not necessarily fatal
in cases where, as here, the RPD also reasonably concluded on other grounds
that the Applicants had failed to rebut the presumption of adequate state
protection with “clear and convincing evidence of the state’s inability to
protect [them].” In this case, those grounds were the failure of the Applicants
to demonstrate that they had taken all objectively reasonable steps to avail
themselves of state protection, and to provide compelling or persuasive
evidence to explain their failure to do more than make a single attempt to seek
protection from the police. As discussed below, it is clear from various parts
of the decision that these were very important considerations for the RPD, and,
indeed, provided an alternate basis for the RPD’s decision. Having regard to
the RPD’s determinations on these points, its decision was not unreasonable.
[29]
It is settled law that absent a complete
breakdown of state apparatus, it should be presumed that a state is capable of
protecting its citizens (Ward, above, at para 57). Moreover, “[t]he more
democratic the state’s institutions, the more the claimant must have done to
exhaust all the courses of action open to him or her (Kadenko v Canada (Minister of Citizenship and Immigration, [1996] FCJ No 1376, at para 5 (FCA); Avila v Canada (Minister of Citizenship and Immigration), 2006 FC 359, at
para 30). However, in all cases to which the presumption applies, the burden is
upon an applicant for refugee protection to demonstrate, with clear and
convincing evidence, the state’s inability to provide adequate protection (Ward,
above, at paras 57, 59). This burden must be discharged on a balance of
probabilities (Carillo v Canada (Minister of Citizenship and Immigration),
2008 FCA 94, at paras 20, 30 [Carillo]).
[30]
In discharging this burden, refugee claimants
who are outside their country of nationality may demonstrate either that they
are “unable” to obtain adequate state protection or that, by reason of a
well founded fear of persecution, are unwilling to avail themselves of the
protection of their home state. As stated in Ward, above, at para 49:
The
distinction between these two branches of the “Convention Refugee” definition
resides in the party’s precluding resort to state protection: in the case of
“inability”, protection is denied to the claimant, whereas when the claimant is
“unwilling”, he or she opts not to approach the state by reason of his or her
fear on an enumerated basis.
[31]
With respect to the “inability” branch of the
definition, it is not sufficient to simply demonstrate that there may have been
some local failures of the police to provide state protection (Carillo,
above, at paras 32 and 36; Kadenko, above; Avila, above; Rocque
v Canada (Minister of Citizenship and Immigration), 2010 FC 802, at
paras 17-20; Gregor v Canada (Minister of Citizenship and
Immigration), 2011 FC 1068, at para 24; Gezgez v Canada (Minister
of Citizenship and Immigration), 2013 FC 130, at para 11).
[32]
An applicant for refugee protection is required
to demonstrate that he or she took all objectively reasonable efforts, without
success, to exhaust all courses of action reasonably available to them, before
seeking refugee protection abroad (Hinzman, above, at para 46; Dean
v Canada (Minister of Citizenship and Immigration), 2009 FC 772, at para
20; Salamon, above, at para 5). Among other things, this requires
claimants for refugee protection “to approach their home state for protection
before the responsibility of other states becomes engaged” (Ward, above,
at para 25; Kim v Canada (Minister of Citizenship and Immigration),
2005 FC 1126, at para 10 [Kim]; Hassaballa v Canada
(Minister of Citizenship and Immigration), 2007 FC 489, at paras 20-22);
Camacho v Canada (Minister of Citizenship and Immigration),
2007 FC 830, at para 10; Del Real v Canada (Minister of
Citizenship and (Immigration), 2008 FC 140, at para 44; Ramirez v
Canada (Minister of Citizenship and Immigration), 2008 FC 1214, at para 28;
Stojka v Canada (Minister of Citizenship and Immigration),
2012 FC 1371, at para 3; Ruiz Coto v Canada (Minister of Citizenship
and Immigration), 2012 FC 1211, at para 11; Matthews v Canada
(Minister of Citizenship and Immigration), 2012 FC 535, at paras 43-45; Kotai
v Canada (Minister of Citizenship and Immigration), 2013 FC 693, at para
31; Muli v Canada (Minister of Citizenship and Immigration),
2013 FC 237, at paras 17-18; Ndoja v Canada (Minister of Citizenship
and Immigration), 2013 FC 163, at paras 16-18, 25; Dieng v Canada
(Minister of Citizenship and Immigration), 2013 FC 450, at para 32).
[33]
In this regard, doubting the effectiveness of
state protection without reasonably testing it, or simply asserting a subjective
reluctance to engage the state, does not rebut the presumption of state
protection (Ramirez, above; Kim, above). In the absence of a
compelling or persuasive explanation, a failure to take reasonable steps to
exhaust all courses of action reasonably available in the home state, prior to
seeking refugee protection abroad, typically will provide a reasonable basis
for a conclusion by the RPD that an applicant for protection did not displace
the presumption of state protection with clear and convincing evidence (Camacho,
above).
[34]
With respect to the “unwillingness” branch, a
claimant for refugee protection will not meet the definition of “Convention
refugee” where “it is objectively unreasonable for the claimant not to have
sought the protection of his home authorities” (Ward, above, at para
56). It bears underscoring that, on this branch of the test, the grounds for
failing to seek state protection must be based on well founded fears.
[35]
It is against the backdrop of the foregoing
principles that I will now return to the RPD’s decision. At paragraph 9 of its
decision, after identifying the nexus issue of persecution, the RPD stated: “As
well, the Panel has also considered whether or not there is adequate state
protection in Hungary, whether the claimants took all reasonable steps to avail
themselves of that protection, and whether they have provided clear and
convincing evidence of the state’s inability to protect them.” At paragraphs 21
and 22 of its decision, after elaborating upon the latter two principles, the
RPD characterized them as being “directly on point” in this case. After dealing
with the persecution versus discrimination issue, the RPD then proceeded to
conclude that the Applicants had failed to provide sufficient “objective
evidence in the material aspects of these claims and, alternatively, the
availability of state protection” (my emphasis).
[36]
In the course of reaching this conclusion, the
RPD discussed documentary evidence regarding Hungary’s democratic institutions
and experience. This included evidence that the most recent election was
considered to have been free and fair, and that civilian authorities generally
maintained effective control of the security forces.
[37]
In reaching its determination that the
Applicants had not demonstrated that they had taken all reasonable steps in the
circumstances to seek state protection with respect to the incident that
occurred in December 2008, the RPD twice noted that they did not ask to speak
to a police supervisor, did not go to a different police station, did not
complain to the local Roma self-government about the lack of police assistance
and did not complain to any other authority in Hungary. In short, the
Applicants only made one attempt to report the incident and then failed to
pursue the matter further.
[38]
The RPD also noted that the police did not
pursue the matter because the Applicants were unable to identify their
assailants, who were disguised with scarves across their faces. Relying on Karaseva
v Canada (Minister of Citizenship and Immigration), 1997 CanLII 5680, at
para 28 (FC), the RPD observed that a “claimant must provide the police with
sufficient evidence to mount a successful investigation.”
[39]
The Applicants submitted that Karaseva,
above, is distinguishable on the basis that, in the present case, there was
“total inaction” by the police, whereas in Karaseva, the police did get
involved, but ultimately did not pursue the matter in question because the
applicant could only provide information regarding the colour of the perpetrator’s
jacket and pants. I disagree. In my view, the two cases are not materially
distinguishable on this point. In Karaseva, above, the applicant was
questioned by police following the stabbing of her fiancé, whereas here, the
police attended at the scene of the attack and then declined to take further
action at that time and again the following day, because the assailants had
fled and could not be identified.
[40]
Relying upon Pinter v Canada (Minister of Citizenship and Immigration), 2012 FC 1119, at para 14, the Applicants also
asserted that the police had an obligation to investigate the complaint, even
if their assailants were unknown. I do not read that case as standing for such
a stark proposition. The failure of the police in that case to further investigate
the applicants’ complaints in relation to attackers who could not be identified
was simply a matter that the Court described as “troubling” at the end of its
decision, and after identifying other grounds for setting aside the RPD’s
decision. However, if I am wrong in this regard, then I respectfully disagree.
I am not aware of any obligation on the police in Canada to take further steps
to investigate in these types of situations, and it is settled law that
claimants for refugee protection are not entitled to greater protection in
their home country than is available in Canada (Smirnov v Canada (Secretary
of State), [1995] 1 FC 780, at para 11; Syed v Canada (Minister of
Citizenship and Immigration) (2000), 195 FTR 39, at paras 17-18 (FC); Mejia
v Canada (Minister of Citizenship and Immigration), 2003 FC 1180, at para
12; Samuel v Canada (Minister of Citizenship & Immigration), 2008 FC
762, at para 13; Garcia Rivadeneyra v Canada (Minister of Citizenship &
Immigration), 2010 FC 845, at para 26; Kotai v Canada (Minister of
Citizenship and Immigration), 2013 FC 693, at para 14).
[41]
Finally, the Applicants submitted that the
police are the main agents of state protection in Hungary and that, in the
absence of evidence that other sources of state protection in that country
actually provide an adequate level of protection, the RPD erred by basing its
state protection finding on the Applicants’ failure to attempt to access state
protection from those other sources (Katinszki v Canada (Minister of
Citizenship and Immigration), 2012 FC 1326, at paras 14-15; Gonzalez
Torres v Canada (Minister of Citizenship and Immigration), 2010 FC 234, at
para 50).
[42]
In my view, this proposition is somewhat in
tension with the well settled obligations on applicants for refugee protection
to (i) provide clear and convincing evidence that they are unlikely to be able
to avail themselves of adequate state protection if they return to their
country of origin; and (ii) demonstrate that they took all objectively
reasonable efforts, without success, to exhaust all courses of action
reasonably available to them, before seeking refugee protection in Canada.
[43]
In any event, as mentioned above, in reaching
its conclusion on state protection, the RPD twice stated that the Applicants
did not ask to speak to a police supervisor, did not go to a different Miskolc
police station, did not complain to the local Roma self government about the
lack of police assistance and did not seek protection from any other
authority.
[44]
The failure to seek additional protection from
the police distinguishes this case from the various cases in which the RPD’s
conclusion appears to have turned largely upon the failure of the applicants to
seek protection from other sources of protection (see e.g., Olah, above;
Salamon, above; Gulyas, above; Bledy, above, at para 46; Buri
v Canada (Citizenship and Immigration), 2012 FC 1538, at para 2; Bali v
Canada (Citizenship and Immigration), 2013 FC 414, at paras 5-6).
[45]
The Applicants did not provide a compelling or
indeed any reasonable explanation for failing to take any of these steps with
respect to the single incident in December 2008 in which they personally were
allegedly persecuted and did not receive adequate state protection. In this
regard, they did not adduce any evidence to establish that they had any
reasonable basis for believing that taking any of these actions might
reasonably expose them to persecution, physical harm, inordinate monetary
expense, or would otherwise be objectively unreasonable. This distinguishes this
case from cases such as Budai, above, where the applicants had a
reasonable and compelling basis for fearing the police.
[46]
In this context, I am satisfied that the RPD’s
conclusion falls “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at para
47). The conclusion was also appropriately justified, intelligible and
transparent. On the facts of this case, the RPD’s decision was “reasonable in
light of the outcome and the reasons” that were given (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, at para 15).
[47]
The RPD’s decision was also entirely consistent
with the weight of the jurisprudence discussed at paragraphs 29-34 above, which
includes jurisprudence from the Supreme Court of Canada and the Federal Court
of Appeal.
[48]
I recognize that the decisive emphasis placed by
the RPD on an applicant’s failure to take all reasonable steps to engage the
police was found to be unreasonable in a recent decision of this Court, in
circumstances in which the evidentiary record suggested that the police may not
have provided adequate protection even if the applicants had sought their
protection (Majoros v Canada (Citizenship and Immigration), 2013 FC
421). To the extent that this decision may be inconsistent with the
jurisprudence discussed above, I respectfully decline to follow it and it was
reasonably open to the RPD to do the same.
[49]
In my view, the weight of the jurisprudence
establishes that, in the absence of compelling or persuasive evidence which
establishes an objectively reasonable basis for refraining from fully
exhausting all reasonably available avenues of state protection, it is
reasonably open to the RPD to find that the presumption of state protection has
not been rebutted with clear and convincing evidence.
[50]
In this regard, compelling or persuasive
evidence is evidence that provides an objective basis for the belief that
taking any of these actions might reasonably expose the applicant to
persecution, physical harm or inordinate monetary expense, or would otherwise
be objectively unreasonable. It is not unreasonable to expect a person who
wishes to seek the assistance and generosity of Canada to make a serious effort
to identify and exhaust all reasonably available sources of potential
protection in his or her home state, unless there is such a compelling or
persuasive basis for refraining from doing so. In brief, this would not satisfy
the requirements of the “unable” branch of section 96, discussed at paragraphs
30-33 above. And in the absence of a demonstration of an objectively
reasonable well founded fear of persecution, the requirements of the
“unwilling” branch, discussed at paragraph 34 above, also would not be met.
[51]
For greater certainty, a subjective perception
that one would simply be wasting one’s time by seeking police protection or by
addressing local police failures by pursuing the matter with other sources of
police protection, would not constitute compelling or persuasive evidence,
unless the applicant had unsuccessfully sought police protection on multiple
occasions, as in Ferko v Canada (Citizenship and Immigration), 2012 FC
1284, at para 49.
[52]
My conclusion regarding the reasonableness of
the RPD’s decision is reinforced by the fact that the state did in fact respond
to each of the three allegedly persecutory acts relied upon by the Applicants
to advance their claims for refugee protection. With respect to the abuse that
the principal Applicant’s son and other Roma children suffered at their school,
the local government hired security guards. No evidence was adduced to suggest
that this was not an adequate response. With respect to the attack that
occurred in December 2008, the police did attend on the scene and cause the
masked assailants to flee before inflicting any serious injuries on any of the
Applicants. With respect to the demonstration held by skinheads and members of
the Hungarian Guard on March 15, 2009, the principal Applicant testified that the
police were present in riot gear. In addition, country documentation included
at pages 115 of the Applicant’s Record and 156-157 of the Certified Tribunal
Record indicate that, at the time of publication, (i) there was an ongoing
police investigation into the throwing of Molotov cocktails at Roma homes which
occurred shortly after that demonstration, (ii) police had initiated legal
proceedings against 16 members of the Hungarian Guard for violating the ban on
participating in any event of a legally disbanded organization, and (iii)
police arrested more than 70 members of the Hungarian Guard at demonstrations
in 2010 that appear to be similar to the one that occurred on March 15, 2009.
VI. Conclusion
[53]
This application is dismissed.
[54]
The parties did not propose a question for
certification and I find that no such question arises on the facts of this
case.
JUDGMENT
THIS COURT ORDERS AND ADJUGES THAT this
application is dismissed. There is no question for certification.
"Paul S. Crampton"
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