Docket: IMM-1898-13
Citation:
2014 FC 670
Ottawa, Ontario, July 9, 2014
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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JOZSEF JENO HORVATH
TIMEO BLAZSOVICS
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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 of a
decision by a Board Member (Board) of the Refugee Protection Division (RPD)
that the applicants are not Convention Refugees or persons in need of protection
pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
The following are my reasons for dismissing the application.
I.
BACKGROUND
[2]
The applicants, Mr.
Jozsef Jeno Horvath (the principal claimant) and Ms. Timea Blazsovics (the
co-claimaint), are common-law spouses and citizens of Hungary. They allege a fear of persecution based on their Roma heritage.
[3]
The applicants allege that they faced
discrimination on a daily basis. When the applicants were out in public, people
would spit on them and harass them. If they were allowed into stores, security
guards would follow them and ask them to empty their pockets. At restaurants or
bars, they would be told the restaurant was fully booked or made to wait an
extended period of time. Sometimes they would be told that the restaurant or
bar did not serve Roma individuals. Their neighbours threatened them, and they
witnessed several marches by members of the Hungarian Guards. None of these
incidents were reported to the police because the applicants didn’t believe
that the police would do anything.
[4]
The applicants also allege they faced
discrimination with respect to access to employment, health care, education,
and housing. In particular, the applicants allege that they both encountered
difficulties trying to find permanent employment and that Mr. Horvath was
refused entry to a vocational school because of their ethnicity.
[5]
In or around August 2010, the applicants allege
that they were leaving their house when three men on the street called them “stinky gypsies” and threatened to kill them if they stayed in Hungary. The applicants asked them why they were yelling about the fact that they were Roma
and the men attacked them. Mr. Horvath, who lost consciousness during the
assault, was hospitalized. He attended the police station to file a complaint.
After waiting a few hours, he was eventually told that the police were busy and
that he should come back the following day. He returned the following day to
file a complaint, but testified at the hearing that he did not receive any
notification in the weeks following the filing of the complaint. He also
testified that he did not follow up on the complaint, explaining that he had
heard that the police did not investigate complaints filed by Roma individuals.
[6]
In or around September 2010, an armed group
attacked the applicants’ house yelling “you have too many
of you living in this neighbourhood and if you do not move from here, we will
kill all Gypsies – starting with you.” The applicants escaped through
the back gate. Mr. Horvath and his father tried to file a complaint with the
police, but the police told them they were making the incident up.
[7]
In or around February 2010, three policemen
allegedly detained Mr. Horvath while he was driving his father-in-law’s car.
The policemen told him that “a lot of Roma are accused of
theft” before searching the car and checking the passengers’
identification.
II.
DECISION UNDER REVIEW
[8]
The Board held that the applicants had “not provided the requisite clear and convincing evidence that,
on a balance of probabilities, state protection in Hungary is inadequate.”
Although Mr. Horvath had filed a complaint with the police after the physical
assault, the Board noted that Mr. Horvath had not followed up on his complaint.
Further, the Board held that in the circumstances of the case, the applicants
had not established that they did not need to make reasonable efforts to obtain
state protection beyond filing a complaint with the police.
[9]
Upon a thorough and detailed review of the
documentary evidence, the Board held that it preferred the documentary evidence
that indicated that effective, albeit imperfect, state protection is available
to Roma citizens of Hungary. The Board noted that Hungary is a functioning
democracy, and acknowledged that while there is evidence that police commit
abuses against people, including the Roma, it also demonstrates that it is
reasonable to expect authorities to take action in those cases, and that the
police and government officials are willing and capable of protecting Roma.
Further, there are organizations in place to ensure that the police are held
accountable. Thus the Board found that the presumption that adequate state
protection was available in Hungary had not been rebutted.
[10]
The Board also reviewed the documentary evidence
with respect to the state response to discrimination against Roma to address
Mr. Horvath’s allegation of potential employers’ discrimination. The Board
found that while the documentary evidence indicated that Roma face “widespread
discrimination” and “exclusion” in Hungary, recourse is available with, amongst
other organizations, the Parliamentary Commissioner for National and Ethnic
Minority Rights (Minorities Ombudsman) as well as with the Equal Treatment
Authority, which “has provided individuals with a direct
avenue of redress for violations of the prohibition of discrimination in a
variety of public and private law relationships.”
[11]
On the basis of its findings with respect to
state protection, the Board therefore concluded that the applicants were
neither Convention refugees nor persons in need of protection. I note that the
Board did not make any adverse credibility findings against the applicants.
III.
ISSUES
[12]
The applicant has raised a number of issues
relating to the Board’s analysis of state protection, persecution and s 97 of
the IRPA.
[13]
In my view, these issues can be reformulated as
follows:
A.
Whether the Board’s analysis of state
protection is reasonable?
B.
Whether the Board’s analysis of
persecution is reasonable?
C.
Whether the Board erred by failing to
complete a separate s 97 IRPA analysis?
IV.
STANDARD OF REVIEW
[14]
The applicant has not provided any submissions
on the standard of review. I agree with the respondent who submits that the
standard of review for findings on state protection and lack of persecution is
reasonableness: Horvath v Canada (Minister of Citizenship and
Immigration), 2014 FC 313 at paras 15-16; Ndegwa
v Canada (Minister of Citizenship and Immigration), 2006 FC 847 at para 7.
V.
ANALYSIS
A.
ISSUE 1: Is the Board’s analysis of state
protection reasonable?
[15]
The applicants bore the onus of establishing a
fear of persecution. Since Hungary is a functioning democracy, the applicants
were required to establish with clear and convincing evidence that the State is
unwilling or unable to protect them in a meaningful way: Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 [Ward]; Guzman Sanchez v
Canada (Minister of Citizenship and Immigration), 2008 FC 66; Hinzman v
Canada (Minister of Citizenship and Immigration), 2007 FCA 171 [Hinzman].
[16]
Counsel for the applicants cited five decisions
of this Court in which judicial review was granted with respect to Hungarian
Roma: Orgona v Canada (Minister of Citizenship and
Immigration), 2012 FC 1438, Buri v Canada
(Minister of Citizenship and Immigration), 2012 FC 1538 and Pinter v
Canada (Minister of Citizenship and Immigration), 2012 FC 1119, Hercegi
v Canada (Minister of Citizenship and Immigration), 2012 FC 250, and Rezmuves
v Canada (Minister of Citizenship and Immigration), 2012 FC 334. Counsel
relies on these decisions to argue that this Court should be consistent in its
consideration of applications for judicial review relating to the adequacy of
state protection. Specifically, Counsel submits that since the Court found in
those cases that adequate state protection was not available to Hungarian Roma,
the Board’s finding of adequate state protection in this case was unreasonable.
[17]
However, as set out by
Justice Harrington in Varga v Canada (Minister of Citizenship and
Immigration), 2014 FC 510 [Varga] at para 20:
Each case turns on the particular history of
the claimant, the record, the adequacy of the analysis by the Tribunal and,
indeed, the appreciation of that evidence by various judges of this Court: Banya
v Canada (Minister of Citizenship and Immigration), 2011 FC 313, [2011] FCJ
No 393 (QL), at para 4.
[18]
In this case, the Board carefully considered the
evidence before it, concluding that the applicants had failed to rebut the
presumption of state protection with clear and convincing evidence. The Board
accepted the applicants’ evidence that they filed a police complaint after the
physical assault, and tried to file a complaint after the attack on the house.
However, the Board noted that they had failed to follow up with the police with
respect to either incident, and rejected their explanation that they had been
told the police did not follow up on complaints filed by Roma individuals. The
Board also accepted the applicants’ evidence that as members of the Roma ethnic
minority, they face “exclusion” and “widespread discrimination” in education,
employment, housing and access to social services in Hungary. However, the
Board held that it preferred the documentary evidence which indicated that
adequate albeit imperfect state protection was available. Specifically, the
Board concluded, upon a review of the country documentation, that the central
government is motivated and willing to implement measures to protect the Roma,
and that these measures have proved effective, if imperfect, at the operational
level. Furthermore, the Board held that the documentation also indicated that
effective recourse is available to Roma individuals and others who are not
satisfied with police responses to their complaints. On this basis, the Board
held that adequate state protection is available.
[19]
I agree with the respondent that the Board’s
findings on state protection are factual findings which can only be overturned
if the applicant demonstrates that they are capricious, perverse or made
without regard to the evidence.
[20]
Justice Gleason recently reviewed the meaning of
findings that are “capricious”, “perverse” or “made without regard to the
evidence” in Rahal v Canada (Minister of Citizenship and Immigration),
2012 FC 319 at paras 36-38:
[36] In
the seminal case interpreting section 18(1)(d) of the FCA, Rohm & Haas,
Chief Justice Jacket defined “perversity” as “willfully going contrary to the
evidence” (at para 6). Thus defined, there will be relatively few decisions
that may be characterized as perverse.
[37] The
notion of “capriciousness” is somewhat less exacting. In Khakh v Canada
(Minister of Citizenship and Immigration), (1996), 116 FTR 310, [1996] FCJ
No 980 at para 6, Justice Campbell defined capricious, with reference to a
dictionary definition, as meaning “marked or guided by caprice; given to
changes of interest or attitude according to whim or fancies; not guided by
steady judgment, intent or purpose”. To somewhat similar effect, Justice
Harrington in Matondo v Canada (Minister of Citizenship and Immigration),
2005 FC 416 at para 1, [2005] FCJ No 509, defined “capricious” as being
“so irregular as to appear to be ungoverned by law”. Many decisions hold that
inferences based on conjecture are capricious. In Canada (Minister of
Employment and Immigration) v Satiacum (1989), 99 NR 171, [1989] FCJ No 505
(FCA) at para 33, Justice MacGuigan, writing for the Court, stated as follows
regarding conjecture:
The common law has long recognized the
difference between reasonable inference and pure conjecture. Lord Macmillan put
the distinction this way in Jones v. Great Western Railway Co. [citation
omitted]:
The dividing
line between conjecture and inference is often a very difficult one to draw. A
conjecture may be plausible but it is of no legal value, for its essence is
that it is a mere guess. An inference in the legal sense, on the other hand, is
a deduction from the evidence, and if it is a reasonable deduction it may have
the validity of legal proof. …
[38] Turning,
finally, to the third aspect of section 18.1(4)(d), the case law recognizes
that a finding for which there is no evidence before the tribunal will be set
aside on review because such a finding is made without regard to the material
before the tribunal (see e.g. Canadian Union of Postal Workers v Healy,
2003 FCA 380 at para 25, [2003] FCJ No 1517). Beyond that, it is difficult to
discern a bright-line. The oft-cited Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425) [Cepeda-Gutierez]
provides a useful review of the sorts of errors that might meet the
standard of a decision made “without regard to the material” before the
tribunal which fall short of findings for which there is no evidence. There,
Justice Evans (as he then was) wrote at paragraphs 14 - 17:
… in order to attract judicial
intervention under section 18.1(4)(d), the applicant must satisfy the Court,
not only that the Board made a palpably erroneous finding of material fact, but
also that the finding was made “without regard to the evidence” …
The
Court may infer that the administrative agency under review made the erroneous
finding of fact “without regard to the evidence” from the agency's failure to
mention in its reasons some evidence before it that was relevant to the
finding, and pointed to a different conclusion from that reached by the agency.
Just as a court will only defer to an agency's interpretation of its
constituent statute if it provides reasons for its conclusion, so a court
will be reluctant to defer to an agency's factual determinations in the absence
of express findings, and an analysis of the evidence that shows how the agency
reached its result.
[16] On
the other hand, the reasons given by administrative agencies are not to be
read hypercritically by a court [citations omitted]… nor are agencies
required to refer to every piece of evidence that they received that is
contrary to their finding, and to explain how they dealt with it ... That
would be far too onerous a burden to impose upon administrative decision-makers
who may be struggling with a heavy case-load and inadequate resources. A
statement by the agency in its reasons for decision that, in making its
findings, it considered all the evidence before it, will often suffice to
assure the parties, and a reviewing court, that the agency directed itself to
the totality of the evidence when making its findings of fact.
[17]
However, the more important the evidence that is not mentioned specifically and
analyzed in the agency's reasons, the more willing a court may be to
infer from the silence that the agency made an erroneous finding of fact
“without regard to the evidence”: … In other words, the agency’s burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
[emphasis added, citations omitted]
[21]
In my view, the Board’s findings on state
protection were reasonably open to it on the record before it.
[22]
For this reason, I agree with the respondent
that the applicants are seeking to have this Court reweigh the evidence. This
is not the Court’s role on judicial review: Jiang v Canada (Minister of Citizenship and Immigration), 2008 FC 635 at para 15; Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para 9; Velinova v Canada (Minister of Citizenship and Immigration), 2008 FC 268 at para 21.
B.
ISSUE 2: Whether the Board’s analysis of
persecution is reasonable?
[23]
Since a finding of adequate state protection is
determinative, it is not necessary for me to consider whether the Board erred
by failing to find that the discrimination alleged did not amount to
persecution.
C.
ISSUE 2: Did the Board err by failing to
complete a separate s 97 IRPA analysis?
[24]
The applicant relies on Dunkova v Canada
(Minister of Citizenship and Immigration), 2010 FC 1322 [Dunkova] to
argue that the Board committed a reviewable error by failing to complete a
separate s 97 IRPA analysis in spite of the negative credibility
findings.
[25]
I agree with the respondent that the Board was not required to complete a separate s 97 IRPA analysis.
As noted by the respondent, Dunkova can be distinguished on the basis
that the determinative issue in that case was credibility, not state
protection. The Board is not required to complete a separate s 97 IRPA analysis
where the determinative issue is state protection, since findings on state
protection are equally applicable under s 96 and s 97 of the IRPA: Racz
v Canada (Minister of Citizenship and Immigration), 2012 FC 436 at para 7:
[7] Irrespective of the applicable standard of review, the Board’s
Decision must stand as, in light of the foregoing authorities, it was not
necessary for the Board to conduct a separate section 97 analysis on the facts
of this case. This case is analogous to the situations in Balakumar, Brovina,
and Kaleja because the findings on state protection applied equally
under sections 96 and 97 of IRPA. Accordingly, there was no need for the Board
to engage in a separate analysis of whether, but for the availability of state
protection, the Applicants would otherwise have qualified as persons in need of
protection under section 97 of IRPA.
[26]
The parties proposed no serious questions of
general importance and none will be certified.
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