Docket: IMM-7800-13
Citation:
2014 FC 710
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, July 17, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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GABOR TOTH, MONIKA TOTH-SZEPSI AND KAZMER GABOR TOTH
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review,
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), of a decision dated November 18, 2013, by the Refugee
Protection Division (RPD) of the Immigration and Refugee Board rejecting the
applicants’ claim for protection as refugees or as persons in need of
protection within the meaning of sections 96 and 97 of the IRPA.
[2]
The applicants are citizens of Hungary. The principal female applicant, Monika Toth-Szepsi, is of Roma origin. Her
husband, Gabor Toth, is Hungarian.
[3]
The principal female applicant allegedly fears
returning to her country because of an assault that occurred in January 2012 by
members of the Hungarian Guard, as well as because of the cumulative
discrimination she reportedly experienced by reason of her Roma ethnicity. In
her Personal Information Form (PIF), the principal female applicant claims to
have been a victim racism since childhood. She further contends that her son
was also discriminated against at school.
[4]
In its decision, the RPD pointed out that there
were serious doubts as to the credibility of the principal female applicant’s
allegations owing to a number of contradictions, inconsistencies and omissions
in the evidence, and because of her behaviour, which it found to be
inconsistent with her alleged fear. The RPD thus found that the discriminatory
acts the principal female applicant claimed to have experienced, even cumulatively,
did not constitute persecution. The RPD did not question the fact that the
principal female applicant may have been subjected to insults and certain other
forms of discrimination, nevertheless, it concluded that such discrimination was not sufficiently serious or systematic to amount to
persecution. The RPD noted that even if the female applicant had been
the subject of persecution, she had not provided clear and convincing proof of
the state’s inability to provide protection to her.
[5]
In this case, the applicants appear to be
primarily in disagreement with the RPD’s assessment of the evidence. However,
that function is within the SPR’s expertise, and not that of the Court; it is
not for the Court to substitute its own assessment for that of the RPD (Martinez
v Canada (Minister of Citizenship and Immigration), 2009 FC 441). The Court
therefore cannot intervene on that ground.
[6]
The applicants’ submissions in no way show how
the impugned decision is not reasonable within the meaning of Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. It was entirely open to the RPD to
rely on the omissions and inconsistencies in the applicants’ narrative to draw
an adverse conclusion regarding their credibility (Cortes v Canada (Minister
of Citizenship and Immigration), 2009 FC 583). Furthermore, the applicants
did not rebut the presumption of the availability of state protection. Indeed,
the evidence in the record shows that the police were willing and able to help
them following the assault on January 20, 2012. The principal female applicant
herself during her testimony before the RPD attested to the fact that the
police would [translation] “surely” have helped her if she had been able to
identify her assailants (Hearing Transcript at page 25).
[7]
Considering the decision as a whole and the
record before the RPD, the Court is of the view that the decision is reasonable,
as it falls within a range of acceptable and possible
outcomes which are defensible in respect of the facts and law (Dunsmuir,
above, at para 47).
[8]
For all of the foregoing reasons, the
applicants’ application for judicial review is dismissed.
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