Docket:
IMM-3263-13
Citation: 2014 FC 313
Ottawa, Ontario, April 1,
2014
PRESENT: The Honourable Madam Justice Gleason
|
BETWEEN:
|
|
JUDIT HORVATH
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant is 22 years old and a citizen of
Hungary of Roma ethnicity. In 2011 she left Hungary, travelled to Canada and made a refugee claim upon arrival. Unlike many other Romani refugee claimants,
the applicant was not a victim of physical violence and had been employed in Hungary. She claims to have left Hungary due to the wide-spread discrimination faced by the
Roma in that country and to her fear of being the victim of ongoing
discrimination and possibly of violence if she remained in Hungary.
[2]
In a Decision dated March 14, 2013, the Refugee
Protection Division of the Immigration and Refugee Board [the RPD or the Board]
rejected the applicant’s claim, finding that the discrimination the applicant
had faced in Hungary did not amount to persecution and that the applicant had
not rebutted the presumption of adequate state protection in Hungary.
[3]
In this application for judicial review, the
applicant challenges both of these findings.
[4]
In recent years, there has been a myriad of
decisions from this Court and from the Board in asylum claims of Romani
citizens of Hungary. The results in respect of them have been mixed, with some
claimants being granted refugee status and others not and some negative RPD
determinations being set aside by this Court and others not. As my colleague,
Justice Zinn, recently noted in Ignacz v Canada (Minister of Citizenship and
Immigration), 2013 FC 1164 at para 2, “[e]ach decision turns on its own
facts and the thoroughness of the analysis done by the Board, which explains
why many claims are denied on the basis of state protection while others
succeed, despite being determined on the same national documentation package”.
[5]
In this case, the facts support the RPD’s
determination that the applicant had not faced persecution. Likewise, the
Board’s treatment of the objective documentation regarding the situation of the
Roma in Hungary was thorough, balanced and did not focus solely on the
aspirations of the Hungarian state in respect of protecting its Romani
citizens, but, rather, discussed the degree to which such protection was
actually available and whether the applicant had rebutted the presumption of
adequate state protection. Thus, for these reasons, which are more fully
expanded on below, the RPD’s Decision was reasonable and this application for
judicial review must therefore be dismissed.
Background
[6]
The applicant grew up in the village of Diósjenő, a community in Nógrád county, where many Roma live. She attended
primary and secondary school, completing 10 years of schooling. She claims that
she was teased at school and was called a “dirty gypsy” by classmates, which
profoundly hurt her. She also alleges that her sister was beaten up by
schoolmates because she was a Roma, and that while her parents lodged a
complaint with the principal, nothing was done. After she left school, the
applicant looked for work and made 10 to 15 applications before she was hired
to work in a supermarket, stocking shelves. She alleges that her manager was
discriminatory, denying her break time and assigning her much more work than
her co-workers were required to do as her manager did not like Roma people. The
applicant therefore quit this job. She says that it took her several months to
find another one, and started working in September 2011 at a factory. She
claims that her co-workers there often made discriminatory remarks and that, at
the same time, anti-Roma sentiment was growing in the country generally and
there were increasing acts of violence and hate speech directed against the
Roma. She therefore quit her second job and left Hungary with two friends in
October 2011. All three made refugee claims upon arrival in Canada.
[7]
As noted, the applicant was not ever physically
attacked. However, members of the right-wing Hungarian Guard did engage in
anti-Roma demonstrations in the applicant’s village, which caused her and her
family to hide in their homes out of fear. The applicant did not make any
complaint about the discrimination she faced at work to her supervisors or to
any governmental agency, charged with dealing with discrimination complaints.
Nor did she or her family complain to the police about the actions of the
Hungarian Guard in their village.
The RPD’s Decision
[8]
The RPD accepted that the applicant was a
credible witness, noting that she was “a delightful young person” and that her
testimony was “very direct without any exaggerations” (Decision at paras 8 and
10). After summarising the applicant’s testimony about her experiences, the
Board reviewed highlights from several of the documents in the national
document package and concluded that the Roma in Hungary “face discrimination in
their everyday lives” (Decision at para 12). The RPD, however, concluded that
in the applicant’s case such discrimination did not amount to persecution as
she had not been personally targeted for violence, had not complained about the
discrimination she faced in her employment and therefore had not experienced a
lack of assistance from the governmental authorities. The RPD additionally
concluded that the documentary evidence, while “certainly not [painting] a rosy
picture”, showed that the government had taken steps to devote resources to
deal with complaints of discrimination and to remedy extremist demonstrations
of the type that had occurred in the applicant’s village (Decision at paras
26-28).
[9]
The RPD then moved to discuss state protection,
noting that as Hungary was a functioning democracy, the burden was on the
applicant to establish, in a clear and convincing way, the absence of state
protection in Hungary. The RPD concluded that the applicant had not discharged
this burden because the documentary evidence is not so stark so as to show that
state protection is unavailable for all Roma in Hungary. In the words of the
Board, “there is a certain level of ineffectiveness … however … we do see that
there exist different avenues that the [applicant] could have used … [and] that
there is an infrastructure in Hungary to try to obtain justice and protection”
(Decision at para 30).
[10]
In reviewing these avenues and infrastructure,
the RPD quoted extensively and, in my view, fairly from the national
documentation package. In this regard, it highlighted the significant problems
faced by the Roma and the challenges faced by the government in addressing the
systemic historical discrimination faced by them in Hungary. The RPD noted that
the central Hungarian government had passed legislation designed to assist the
Roma, including through the provision of free legal aid in respect of
discrimination complaints, the creation of ombudsmen, devotion of monies to
improving housing and education, providing for the election of minority
self-governments and the hiring of Romani police officers. The Board went on to
note that these various programs had not corrected the plight of the Roma, and
cited several examples from the documentary evidence where Romani Hungarians
had not been adequately protected from extremist right-wing violence and were
found to continue to face discrimination and hardship. The RPD concluded that
the documentary evidence showed “extreme challenges on one side [and] many
gestures [taken by the Hungarian government] seemingly …in good faith, in order
to remedy the situation” on the other side, but that the documentary evidence
left the Board with “difficulty finding out how effective these measures are”
(at para 25 of the Decision). In light of this, the Board determined that the
applicant had not met her burden of rebutting the presumption that the
Hungarian state could adequately protect her.
The parties’
arguments
[11]
The applicant argues that the RPD’s
determination that she had not faced persecution – and by implication that she was unlikely to face
persecution in the future – constitutes a reviewable error and that the Board
likewise erred in finding that the applicant had not rebutted the presumption
of adequate state protection. In support of both arguments the applicant relies
on several passages in the objective documentation that highlight the
discrimination and risk faced by the Roma in Hungary. Counsel in particular
pointed to the evidence documenting that unemployment among the Roma is
rampant, with 70% or by some estimates 90% of Hungarian Roma being unemployed,
that housing conditions for the Roma are sub-standard, with many living in what
amount to rural slums, that the average life span of the Roma is ten years less
that of other Hungarians, and that right wing extremism and violence toward the
Roma were reported in several sources to be on the rise when the applicant left
Hungary. Counsel for the applicant also noted several passages in the national
documentation package, and in the Board’s Decision, itself, where the efforts
made by the government to address the situation have been criticised, which she
argues demonstrate their ineffectiveness. Counsel highlights in this regard the
following passage at paragraph 28 of the Decision:
Obviously, the
documentary evidence shows that the results are not at desired levels. However,
it seems pretty evident that the government is taking real steps to try to
improve the situation and is not standing idle on the sidelines. Obviously,
some time will be required to implement the desired changes.
[12]
The applicant submits that the foregoing
demonstrates that the RPD applied the incorrect test in assessing state
protection, focusing on the mere fact that the Hungarian state had made efforts
to try to address the situation as opposed to focusing on the efficacy of those
efforts. Counsel therefore argues that this case is on all fours with Gilvaja
v Canada (Minister of Citizenship & Immigration), 2009 FC 598 [Gilvaja]
and Koky v Canada (Minister of Citizenship & Immigration), 2011 FC
1407 [Koky], where this Court set aside RPD decisions that erred in
assessing the adequacy of state protection solely from the point of view of
whether or not a state had made efforts to attempt to provide protection as
opposed to focussing on the efficacy or adequacy of those efforts.
[13]
The respondent, on the other hand, asserts that
the applicant’s reading of the RPD decision in this case is unfair and that,
contrary to what the applicant argues, the RPD focused not only on efforts made
by the Hungarian government but also on whether those efforts have borne fruit.
The respondent moreover highlights that the Board’s findings in respect of
persecution and state protection in this case are subject to review on the
deferential reasonableness standard, and argues that under this standard the Decision
must be upheld because the RPD’s determinations find support in the evidence,
do not misapply the applicable law, and, accordingly, fall within the range of
possible acceptable outcomes open to the Board.
The Standard
of Review
[14]
I agree that the reasonableness standard of
review applies to both of the errors the applicant alleges the Board made in
this case. In this regard, both determinations involve questions of mixed fact
and law and accordingly are reviewable on the reasonableness standard (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 S.C.R. 190 [Dunsmuir]).
Indeed, the case law specifically recognises that determinations of this nature
are subject to review on this standard.
[15]
As concerns the Board’s finding with respect to
the lack persecution faced by the applicant, in Paradi v Canada (Minster of Citizenship
and Immigration), 2013 FC 996, my colleague, Justice Simon Noël, held in
respect of a similar determination that “[t]he RPD reviewed mixed-evidence in
coming to this conclusion and, as a matter of fact, it lies within the RPD’s
expertise to draw conclusions as to whether or not the troubles encountered by
the Applicant amount to persecution” (at para 51). (See also to similar effect Kaleja
v Canada (Minister of Citizenship & Immigration), 2010 FC 252 at para
19; Ferencova v Canada (Minister of Citizenship & Immigration), 2011
FC 443 at para 8; Sagharichi v Canada (Minister of Employment &
Immigration) (1993), 182 NR 398 (FCA) at para 3).
[16]
As concerns the Board’s state protection
finding, it is likewise firmly settled that the reasonableness standard applies
to such determinations. As Justice Sexton stated in Re Hinzman, 2007 FCA
171 at para 38, “questions as to the adequacy of state protection are questions
of mixed fact and law ordinarily reviewable against a standard of
reasonableness”. (See also Bustos v Canada (Minister of Citizenship and
Immigration), 2014 FC 114 at para 29; Hetyei v Canada (Minister of Citizenship and Immigration), 2013 FC 1208 at para 9 [Hetyei]; Gezgez
v Canada (Minister of Citizenship and Immigration), 2013 FC 130 at para 9; Kanto
v Canada (Minister of Citizenship and Immigration), 2012 FC 1049 at para
23).
[17]
The reasonableness standard is a deferential
one, and requires that a reviewing court not intervene if the administrative
decision-maker’s reasoning is transparent, justified and intelligible and if
the result reached falls within “a range of possible, acceptable outcomes which
are defensible in respect of the facts and law” (Dunsmuir at para 47).
In short, the reviewing court cannot second-guess the tribunal even if it
disagrees with the decision made. Rather, under the reasonableness standard,
the reviewing court must defer to the administrative decision-maker’s expertise
and uphold decisions that are defensible in light of the applicable law and
facts.
[18]
Here, the applicant challenges both the
reasoning process of the Board and the results reached. More specifically, the
applicant argues that the Board’s reasoning is not justifiable because the RPD
did not assess the effectiveness of state protection but rather incorrectly
focussed only on the efforts made by the Hungarian state. In respect of the
result reached by the RPD, the applicant argues that the determinations that
the applicant did not – and would not – face persecution and that she had not
rebutted the presumption of adequate state protection are both unreasonable,
given the tenor of much of the national documentation package, which the
applicant claims leaves no room for a conclusion other than that the Roma will
be subject to ongoing persecution in Hungary in respect of which the state
cannot provide adequate protection.
Analysis
[19]
With respect, I disagree with the arguments made
by the applicant.
[20]
Turning, first, to the test applied by the RPD
in respect of state protection, when the decision is read as a whole, it is
clear that the Board did not focus solely on the efforts made by the Hungarian
state but, rather, considered the impact of those efforts. This is evident from
several passages in the Decision. In addition to the passages previously noted,
the RPD also writes the following:
▪
[I]t seems that most government departments have
the capacity, or at least resources, to deal with complaints of discrimination
in the place of employment” (Decision at para 26).
▪
As for extremist groups which protested and had
organized demonstrations …, we also see … that the government takes these
demonstrations seriously and deploys efforts to try to remedy and prevent these
situations” (Decision at para 27).
▪
The documentary evidence does not demonstrate
the absence of state protection, but it does show that there are certain levels
of ineffectiveness. However, recourses do exist in Hungary, and the [applicant]
never tried to seek any of these recourses” (Decision at para 29).
[21]
This case is therefore distinguishable from Gilvaja
and Koky, relied on by the applicant, where decisions were set aside
for focussing on mere efforts to provide state protection as opposed to
assessing the adequacy of those efforts.
[22]
Insofar as concerns the results reached by the
RPD in its assessment of whether the applicant had faced persecution and its
conclusion that the applicant had not rebutted the presumption of state
protection, I disagree with the applicant that the objective documentation in
the national documentation package for Hungary must necessarily mandate a
conclusion that the Roma will face persecution in Hungary or that there is not
adequate state protection for them. In my view, the documentation does not
paint such a dire picture so as to render all opposite conclusions
unreasonable. Indeed, several recent decision of this Court have upheld
determinations like that made in the present case, dismissing asylum claims of
Hungarian Roma due to the claimants’ failure to rebut the presumption of
adequate state protection (see e.g. Radics v Canada (Minister of Citizenship
and Immigration), 2014 FC 110; Hetyei; Ruszo v Canada (Minister
of Citizenship and Immigration), 2013 FC 1004; Paradi; Konya v
Canada (Minister of Citizenship and Immigration), 2013 FC 975; Riczu v
Canada (Minister of Citizenship and Immigration), 2013 FC 888; Buzas v
Canada (Minister of Citizenship and Immigration) (2013), 234 ACWS (3d)
1006; Racz v Canada (Minister of Citizenship and Immigration), 2013 FC 702;
Kotai v Canada (Minister of Citizenship and Immigration), 2013 FC 693; Olah
v Canada (Minister of Citizenship and Immigration), 2013 FC 106).
[23]
More specifically, as concerns persecution, the
applicant is correct in noting that facing significant repeated instances of
discrimination in respect of the fundamental aspects of life may amount to
persecution within the meaning of the Convention Relating to the Status of
Refugees, 189 UNTS 150 [Refugee Convention] and thus entitle victims
to protection under section 96 of the IRPA. The United Nations High
Commissioner for Refugee’s Handbook on Procedures and Criteria for Determining
Refugee Status under the Refugee Convention, HCR/IP/4/Eng/REV.1
(reissued 2011) [UNHCR Handbook] provides the following guidance on determining
when repeated acts of discrimination may amount to persecution at paras 54-55:
54. Differences
in the treatment of various groups do indeed exist to a greater or lesser
extent in many societies. Persons who receive less favourable treatment as a
result of such differences are not necessarily victims of persecution. It is
only in certain circumstances that discrimination will amount to persecution.
This would be so if measures of discrimination lead to consequences of a
substantially prejudicial nature for the person concerned, e.g. serious
restrictions on his right to earn his livelihood, his right to practise his
religion, or his access to normally available educational facilities.
55. Where
measures of discrimination are, in themselves, not of a serious character, they
may nevertheless give rise to a reasonable fear of persecution if they produce,
in the mind of the person concerned, a feeling of apprehension and insecurity
as regards his future existence. Whether or not such measures of discrimination
in themselves amount to persecution must be determined in the light of all the
circumstances. A claim to fear of persecution will of course be stronger where
a person has been the victim of a number of discriminatory measures of this
type and where there is thus a cumulative element involved.
[24]
Both the Federal Court of Appeal and the Federal
Court have recognised that cumulative harassment or discrimination can amount
to persecution in certain circumstances (see e.g. Madelat v Canada (Minister
of Employment & Immigration) (1991), 179 NR 94 (CA) at para 1; Retnem
v Canada (Minister of Employment & Immigration) (1991), 132 NR 53 (CA)
at para 4; Bobrik v Canada (Minister of Citizenship & Immigration)
(1994), 85 FTR 13 (TD) at para 22). Indeed, the Board’s failure to consider
whether cumulative adverse events constitute persecution when the factual
situation calls for such an analysis amounts to a reviewable error. As Justice
Nadon writes, at para 42 of Munderere v Canada (Minister of Citizenship
& Immigration), 2008 FCA 84:
[The] authorities
make clear that the Board is duty bound to consider all of the events which may
have an impact on a claimant’s claim that he or she has a well founded fear of
persecution, including those events which, if taken individually, do not amount
to persecution, but if taken together, may justify a claim to a well founded
fear of persecution.
[25]
Therefore, the applicant is right to note that
cumulative discrimination can amount to persecution. However, the
jurisprudential authorities, as well as the UNHCR Handbook, also make another
point clear: whether the cumulative circumstances of an individual rise to the
level of persecution depends on the particular circumstances of the case. This
requires a fact-driven analysis and is reviewable on the standard of
reasonableness.
[26]
In the present case, the RPD determined that the
applicant had not faced persecution principally because she had not been the
victim of violence, had not been faced with a failure of the authorities to
redress a complaint, and had been employed. In addition, it held that her
difficulty in finding work could equally have resulted from the sluggish
Hungarian economy, noting that youth unemployment in the country is generally
elevated. Given these facts, it was reasonable for the Board to conclude that
the applicant had not faced persecution.
[27]
Likewise, the Board’s conclusion that the
applicant had not rebutted the presumption of state protection was reasonable.
In Ward v Canada (Minister of Employment and Immigration), [1993] 2 SCR
689 [Ward] at 716, the Supreme Court of Canada noted that “the
international community was meant to be a forum of second resort for the
persecuted, a ‘surrogate’, approachable upon failure of local protection.”
Thus, a refugee claimant must demonstrate that his or her home state is unable
or unwilling to offer protection (Ward at 718-19).
[28]
The applicant cannot point to any specific
failure of state protection in her case. In light of this, and in the face of
documentary evidence, that, while mixed, does in some part support the
existence of state protection for the Roma in Hungary, the Board’s
determination that the applicant has not established state protection was
unavailable is reasonable, especially when one recalls that it is not the
Board’s duty to prove that state protection exists. Rather, it is the
applicant’s burden to establish that it does not. In the circumstances of this
case, the Board’s determination that the applicant had not discharged this
burden is not unreasonable. This case is similar to Molnar v Canada (Minster of Citizenship and Immigration), 2012 FC 530, where my colleague,
Justice Russell, in dismissing the application for judicial review, wrote at
para 105:
The Hungarian
situation is very difficult to gauge. Much will depend upon the facts and
evidence adduced in each case, and on whether the RPD goes about the analysis
in a reasonable way. Where it does, it is my view that it is not for this Court
to interfere even if I might come to a different conclusion myself. It is my
view that a reasonable analysis was conducted in this case that was alive to
the governing principles and that applied them to the facts on the record in a
responsive way. On this basis, I cannot interfere with the Decision.
[29]
I endorse these comments and find they apply in
the present case. Accordingly, this application for judicial review will be
dismissed.
[30]
Neither party proposed question for
certification under section 74 of the IRPA and none arises in this case.
Email this Content