Docket:
IMM-2230-13
Citation: 2014 FC 79
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 23,
2014
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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ANGELIKA EVA ISTENES
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Applicant
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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. Introduction
[1]
Pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), the applicant, Ms.
Istenes, is challenging the decision of the Refugee Protection Division (“RPD”
or “panel”) dated February 13, 2013, which found that she was not a Convention
Refugee and would not be granted refugee protection in Canada.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
2. The
Facts
[3]
The applicant is a Hungarian citizen born in
1968. Married in 1995, she worked as a teacher for a while before going into
business with her husband, Ferenc Winkler, producing and selling electrotechnical
products. The 2009 economic crisis resulted in huge revenue losses for the couple.
The applicant stated that her husband had accused her of being responsible for
their losses and that he had started to become aggressive towards her when he
consumed alcohol.
[4]
She called the police a first time in 2011. The police
officers arrived and advised Mr. Winkler to seek treatment for his alcohol
problem. He promised his wife he would do so, but did not. On January 20, 2012,
she once again called the police and this time they advised her to apply for a
restraining order, which would prevent Mr. Winkler from being near her for 72
hours. She could not bring herself to do so, fearing that after three days she
would be the victim of another assault. The police explained to her that she
could seek another restraining order that would be valid for 30 days, but she
was afraid of being assaulted or killed while awaiting the order.
[5]
On February 15, 2012, when her drunken husband
threatened to kill her, knife in hand, she was forced to leave the conjugal
home. She stayed with her sister, then with a friend, and then elsewhere
several times, but her husband continued to pursue her. She sought help from
the police and from women’s shelters, but did not receive adequate protection.
Ms. Istenes noted that Hungary is a small country of about 2,000 square km with
a diameter of about 260 km, in which her husband would always be able to locate
her, and that she ultimately fled to Canada.
[6]
She arrived here on March 27, 2012, declaring
that she was here to visit her sister, who is a Canadian citizen. At
Pierre-Elliott-Trudeau Airport, she stated that she had no problems in Hungary,
where her husband and children lived. During the hearing, she and her counsel
explained that she had lied because she was afraid of being returned to Hungary,
that people arriving from that country had begun to be detained and sent back.
[7]
At the hearing, the member asked the applicant
to name three large cities in Hungary to prove her Hungarian identity and
subsequently used these three cities for his internal flight alternative
analysis.
3. Impugned
decision
[8]
In the decision, the panel noted that it had
verified the applicant’s identity as a Hungarian citizen. It also noted that
she was seeking refugee protection under section 96 of the IRPA, given that her
allegations referred to her membership in the particular social group of women.
The panel took into account the Chairperson’s Guidelines on Women Refugee
Claimants Fearing Gender-Related Persecution (http://www.irb-cisr.gc.ca/En/BoaCom/references/pol/GuiDir/Pages/GuideDir04.aspx).
[9]
The panel accepted the applicant’s explanation
regarding her misleading statement upon arriving in Canada and did not identify
any contradictions or implausibilities that would have led it to make a
negative credibility finding. However, it did note that when the member asked
the applicant if she could leave Budapest and find refuge in Debrecen, Eger, or
Miskolc, she failed to demonstrate that it would be unreasonable for her to do
so. She simply argued that at 44 years of age she would not be able to find
employment in those cities. It therefore dismissed the claim for refugee
protection on the ground that the applicant had an internal flight alternative
(IFA).
4. Issues
[10]
The issues are the following:
A. Did the panel err in finding that there was an IFA without
referring to any documentary evidence in support of its assessment?
B. Did the panel err in finding that
there was an IFA without analyzing the applicant’s particular circumstances in
view of the Guidelines on Gender-Based Persecution?
5. Standard
of review
[11]
The standard of review applicable to decisions
by a panel regarding the existence of an IFA is reasonableness (see Gulyas v
Canada (MCI), 2013 FC 254 at paras 36-39).
6. Analysis
A. Did the panel err in finding that there was an internal
flight alternative without referring to any documentary evidence in support of
its assessment?
[12]
The burden of showing that no IFA exists or that
it would be objectively unreasonable to be expected to move there falls on the
applicant, not the panel. See Thirunavukkarasu v Canada (Minister of
Employment and Immigration), [1993] FCJ No 1172 (FCA):
Since
the existence or not of an IFA is part of the question of whether the claimant
is a Convention refugee, the onus of proof rests on the claimant to show, on a
balance of probabilities, that there is a serious possibility of persecution
throughout the country, including the area which is alleged to afford an IFA. . . . Rather, the question is whether, given the persecution in the
claimant's part of the country, it is objectively reasonable to expect him or
her to seek safety in a different part of that country before seeking a haven
in Canada or elsewhere. This is an objective criterion and the burden of proof
is on the applicant. . . .
[13]
See also Oliva v Canada (MCI), 2012 FC
315 (Harrington J.) at para 10.
10 The IFA is inherent in any determination as
to whether a person is a refugee, the burden being on the applicant (Rasaratnam
v Canada (Minister of Employment and Immigration), [1992] 1 FC 706,
[1991] FCJ No 1256 (QL) (FCA), Thirunavukkarasu v Canada (Minister of
Employment and Immigration), [1994] 1 FC 589, [1993] FCJ No 1172 (QL)
(FCA)). As Justice Devlin, as he then was, said in Waddle v Wallsend
Shipping Company, Ltd, [1952] 2 Lloyd’s Rep 105, at page 139:
In a case where
substantially all the facts have been brought to light, it is no doubt
legitimate to argue that some cause must be found, and therefore the one that
has most to be said for it should be selected. Where it can fairly be said that
all possible causes have been canvassed, the strongest must be the winner. But
in a case where all direct evidence is missing, there is no ground for saying
that the most plausible conjecture must perforce be the true explanation. The
answer that may well have to be given is that not enough is known about the
circumstances of the loss to enable the inquirer to say how it happened. All
that he can say is that no theory advanced has been able to collect enough
support from the facts to make it more likely than not that it happened in that
way and not in any other ...
[14]
Having regard to the facts in this case, the panel
committed no error in this regard.
B. Did the panel err in finding that there was an internal
flight alternative without analyzing the applicant’s particular circumstances
in view of the Guidelines on Gender-Based Persecution?
[15]
The applicant submits that an IFA analysis must
be tailored to the circumstances of each case. In this case, she had no IFA
because her husband would still be able to locate her anywhere in Hungary. She
claims that she had made sufficient efforts to avoid her abusive husband but
that these had ultimately proved unsuccessful. The law in Hungary does not
protect women who are victims of domestic violence and when she sought help
from the police, no permanent or secure assistance was provided to her. In
addition, documentation on the country shows that she faced discrimination
towards women and that there was therefore no possibility of her finding
employment in another city.
[16]
The respondent contends that the applicant
failed to demonstrate that her alleged agent of persecution would have the will
or the means to locate her in Debrecen, Eger, or Miskolc; she had even visited
those cities often. Instead, she testified that the reason she could not move
to one of those cities was the difficulty she would have finding employment.
[17]
I agree that the applicant failed to demonstrate
that she could not avail herself of Hungarian state protection in the proposed
cities and that the panel’s decision was therefore reasonable and justified in
view of the facts presented. When she had sought state protection, the police
arrived and offered her the opportunity of obtaining an order against her
husband. It was she who chose not to avail herself of this alternative. The
record does not show that the proposed solution would have been inadequate, or
that she had undertaken any efforts to contact other state organizations. I
also dismiss the theory that the distance between the cities in question and
the husband’s home was too short to provide adequate protection to the
applicant.
[18]
The applicant has not met her burden of
establishing the lack of an IFA available to her in Hungary.
7. Conclusion
[19]
The application for judicial review is dismissed.
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