Citation:
2014 FC 110
Ottawa, Ontario, February 4, 2014
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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SANDOR ANDRAS RADICS,
ANDREA KUNYU, LASZLONE RADICS,
AND JAZMIN RADICS
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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 ORDER AND ORDER
I. Introduction
[1]
This is an application for judicial review under subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a
decision rendered by Mr. Harry Dortelus, of the Refugee Protection
Division [RPD], finding that Sandor Andras Radics [the Principal Applicant],
Andrea Kunyu, Laszlone Radics and Jazmin Radics [together, the Applicants] were neither refugees within the meaning of section 96 of the IRPA nor persons in need of protection under
subsection 97(1) of the IRPA.
II. Facts
[2]
All four Applicants are citizens of Hungary. They claimed being refugees and people in need of protection on the basis of their
Roma ethnicity, which has allegedly exposed them to a life of constant
discrimination, racism and harassment.
[3]
The Principal Applicant and his wife,
Andrea Kunyu, have a daughter, Jazmin Radics. Laszlone Radics is the
Principal Applicant’s mother.
[4]
They alleged having been denied job
opportunities and having experienced several racist incidents because of their
Roma origins in recent years. In particular, the Applicants submitted that they
have been intercepted and fined by the police, injured by a neighbour,
prevented from boarding a bus and assaulted by a gang while traveling by bus,
and that a smoke bomb was thrown into their family home in November 2011.
[5]
The Applicants left Hungary for Canada in May 2012 and claimed refugee status.
III. Decision
under review
[6]
The RPD was satisfied
as to the identity of the four Applicants.
[7]
The Principal
Applicant acted as the designated representative for his daughter,
Jazmin Radics.
[8]
The RPD rejected the refugee claim because the
Applicants failed to give credible evidence and to rebut the presumption of
state protection in their home country. The RPD was also of the opinion that
the Applicants could benefit from an Internal Flight Alternative [IFA] in Budapest.
[9]
The RPD found that the Applicants’ story was not
credible because they failed to adduce any corroborative evidence regarding the
incidents of discrimination which they allegedly experienced in Hungary. The RPD also concluded to a lack of effort on the part of the Applicants to obtain
such evidence.
[10]
The Principal Applicant, his wife, and
Mrs. Laszlone Radics, the Principal Applicant’s mother, testified with
respect to incidents they each went through. Both the Principal Applicant and
his wife claimed having filed police reports at the time of the events.
Questioned on the subject by the RPD, both of them stated that they tried to
obtain their respective reports – whether the police reports or the hospitalization
records – and that no documents were available because the authorities do
not want to produce documents attesting of the difficulties of the
Roma population. The RPD rejected this explanation based on its experience
with Hungarian claimants, further stating that had this been a major incident,
documents would have been available in Hungary, as it is a democratic country
and a member of the European Union. Similarly, the RPD concluded that the
Applicants did not provide any evidence regarding the November 2011
incident where a smoke bomb was allegedly thrown in their house. Once again,
when he was asked about the existence of a police report, the Principal
Applicant answered that he filed a report but that he was not able to retrieve
it from the police.
[11]
The RPD then examined the notion of persecution
as it relates to these incidents, which are at the basis of the refugee claim,
but ultimately found that although serious problems of racism and
discrimination against the Roma population exist in Hungary, it was unable,
without any evidence, to determine that these incidents amounted to
persecution.
[12]
The RPD found that the Applicants have a stable
life and live in a socially stable environment, as the Principal Applicant has lived
in his mother’s house all of his life, he has eight years of schooling and he was
able to work for a period of 10 years, having lost his job in 2002. The
Principal Applicant’s wife has 12 years of schooling and was able to work occasionally.
She claimed that working was too difficult for her, but she did not adduce any
evidence that she was unable to work because of discrimination resulting from
her Roma origins.
[13]
Finally, the RPD examined the issue of state
protection and considered mixed evidence regarding the efficiency of the
judicial system in Hungary. In the end, the RPD found that the Applicants do no
have a substantial ground to fear persecution, torture or a risk to their
lives, or cruel and unusual treatment or punishment if they return to Hungary
because, given the lack of evidence, they did not demonstrate, on a balance of
probabilities, that their state would not be able to protect them.
IV. Applicants’
submissions
[14]
The Applicants argue
that the RPD’s decision denying their claims is unreasonable because the RPD
misconstrued the evidence and erred in concluding to the existence of state
protection in Hungary.
[15]
First, the Applicants claim that the RPD erred
in requiring corroborating evidence. The Applicants submit that negative
inferences cannot be drawn solely from the failure to obtain corroborating
evidence, and that the RPD cannot reject their explanations without referring to
the evidentiary documentation. In fact, the RPD articulated no other reasons
for which it doubted the Applicants’ credibility and in the present case, the
documentary evidence and their testimony actually supported their explanations
for their inability to obtain police reports.
[16]
The Applicants also allege that the RPD erred
because it failed to consider evidence of persecution related to
similarly-situated individuals. In fact, the Applicants did not have to prove
past personal persecution, as the analysis needs to be forward-looking, and the
RPD, by concluding that the lack of corroborating evidence made a finding of
persecution impossible, failed to consider whether evidence concerning the Roma
population of Hungary supported the well-foundedness of the Applicants’ fear of
persecution, e.g. the fact the RPD recently accepted the Principal Applicant’s
brother’s refugee protection claim on similar facts. The Applicants’ testimony
and the documentary evidence actually indicate that the Roma population in Hungary is exposed to attacks, discrimination and harassment, but none of this evidence
appears in the RPD’s analysis on the well-foundedness of the fear of
persecution.
[17]
The Applicants further submit that the RPD
misapprehended the evidence when it concluded that the Applicants have been
able to work for a long period of time. The Principal Applicant has not worked
in over 10 years, his wife practically never worked and his mother has not
had a job in over 30 years. They lived off welfare but had to work on
public work projects to maintain their welfare benefits, and they argue that
having access to state financial support does not address the question of
whether there is discrimination in the employment. Further, these public work
projects, themselves, are discriminatory against Roma. The Applicants testified
that they have not been able to find work because of their Roma origins and
documentary evidence submitted supports this assertion.
[18]
Second, the Applicants argue that the RPD
committed an error in concluding to the existence of state protection in Hungary. In its decision, the RPD stated a number of serious problems related to the
ability of Hungary to protect its Roma citizens but nonetheless found that
state protection was available to the Applicants without providing any reasons
for this conclusion. Also, in its state protection analysis, the RPD should
have concentrated on the operational adequacy of said protection. However, according
to the documentary evidence, it is clear that the Hungarian government failed
to protect its Roma citizens, and the RPD could not ignore such critical
evidence.
V. Respondent’s
submissions
[19]
The Respondent claims
that the RPD’s decision was reasonable and although the Applicants are clearly
in disagreement with the RPD’s findings, they do not indicate in what way the
RPD’s decision is unreasonable.
[20]
First, the Applicants had the onus of adducing
credible evidence in support of their claim and failed to produce corroborative
evidence with regard to a central element of their claim, i.e. hospital
documents, and as such, it was open to the RPD to consider this failure and the
explanations given in its assessment of the claim. In these circumstances, the RPD
was entitled to make adverse findings regarding the Applicants’ credibility. The
RPD rejected the Applicants’ explanations for failing to produce the
corroborative evidence because, in its specialized knowledge, this evidence could
reasonably be expected to be available, especially considering the severity of
the alleged incident. Also, the Principal Applicant showed reluctance in
answering questions related to the smoke bomb incident, and credibility
findings related to observations made by the RPD during the hearing must be
shown significant judicial reserve as it is trite law that the RPD, having seen
and heard the Applicants, is in a better position to appreciate the credibility.
[21]
Second, the Respondent argues that the
Applicants did not suffer discrimination which amounts to persecution. It was
reasonable for the RPD to find that although the situation in Hungary is not perfect, the treatment of Roma citizens does not constitute persecution
because measures were put into place by the government to deal with this
situation. The RPD’s findings related to the objective basis of the Applicants’
claim is therefore reasonable as they are essentially fact-based. Further, the
evidence submitted is insufficient to demonstrate that the Applicants’ alleged
inability to obtain employment constitutes persecution. Also, the RPD is not
bound by decisions rendered by other panels as decisions are made on a
case-by-case basis.
[22]
Third, the Applicants failed to rebut the
presumption of state protection in Hungary, a functioning democracy not in a
state of complete breakdown that is presumed able to afford protection to its
citizens. The situation there is not perfect, but measures were put into place
to better protect the Roma citizens. Consequently, the Applicants had to adduce
relevant, reliable and very convincing evidence, which they did not do. In fact,
according to the evidence, when help was sought, help was given. Unfortunately
for them, the Applicants did not provide the authorities with sufficient
information for their investigations to go any further. As stated by case law, state
protection should not be held too high a standard, as it would be unreasonable
and unrealistic to expect the authorities to prevent every single random racist
act.
[23]
The Respondent ends by acknowledging that the
RPD’s decision could have been clearer and more detailed but that it
nonetheless falls within the range of possible outcomes.
VI. Applicants’
reply
[24]
In their Reply, the
Applicants further claim that the RPD erred in requiring the corroborative
evidence, especially as it failed to undertake any analysis of the relevant
evidence. The RPD failed to acknowledge evidence that contradicts its own
findings and its reasons are insufficient. Also, the Applicants reiterate that
for the RPD to have failed to consider evidence of similarly-situated people is
a reviewable error according to case law. They further submit having submitted
vast testimonial evidence in this regard. With respect to the discrimination,
they suffered in getting employment, they add that restrictions on their
ability to pursue a livelihood should have been considered by the RPD. Finally,
as for the finding of state protection, the Applicants put forward that the RPD
failed to indicate in what way they failed to rebut the presumption of state
protection.
VII. Issue
[25]
Was the RPD’s decision
to refuse the Applicants’ claims reasonable? This issue entails the following two
sub-questions:
1.
Did the RPD err in assessing the Applicants’ credibility
or in appreciating the evidence?
2.
Did the RPD err in concluding to the availability
of state protection in Hungary?
VIII. Standard
of review
[26]
Both parties agree
that the RPD’s decision is to be reviewed under the standard of reasonableness.
As they constitute questions of fact, the credibility findings and the
appreciation of the evidence are to be reviewed under the standard of reasonableness (Aguebor v Canada (Minister of Employment and
Immigration),
[1993] FCJ No 732
(FCA) at para 4, 160
NR 315, see also Dunsmuir
v New Brunswick, 2008 SCC
9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir] and Flores v Canada (Minister of Citizenship and
Immigration),
2010
FC 1147 at para 25,
[2010] FCJ No
1418). State
protection findings by the RPD are also reviewable against the standard of
reasonableness (Dunsmuir, above, at para 47, see also Paradi v Canada (Minister of Citizenship and
Immigration),
2013
FC 996 at para 40,
[2013] FCJ No
1095).
[27]
Therefore, this Court must afford great
deference to the RPD’s decision and shall intervene only if it determines that
the findings are unreasonable or that they fall outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.” [Dunsmuir, above, at para 47]
IX. Analysis
[28]
The RPD’s decision is reasonable for the
following reasons and this Court’s intervention is not warranted.
A.
Did the RPD err in assessing the Applicants’
credibility or in its appreciation of the evidence?
[29]
This Court finds that the RPD did not commit an
error in making findings of credibility with regard to the Applicants nor did
it err in its appreciation of the evidence.
[30]
The Applicants claim
that the RPD committed a reviewable error when it concluded that the Applicants
lacked credibility. Indeed, the RPD doubted the credibility of the Applicants’
story because it drew a significant negative inference from the fact that they
failed to present any piece of corroborative evidence
regarding the incidents of persecution that they allegedly experienced in Hungary. As rightly stated by the Applicants in their factum, “a failure to provide
corroborating documentation is only a proper consideration for the [RPD] where
there are valid reasons to doubt a claimant’s credibility or where the [RPD]
does not accept the applicant’s explanation for failing to produce that
evidence when it would reasonably be expected to be available.” [Emphasis
added.] While this statement – no doubt a rewording of para 10 of Amarapala v Canada (Minister of
Citizenship and Immigration), 2004 FC 12, [2004] FCJ No 62) [Amarapala] – is true, the issue in the case at bar seems to stem,
however, from the underlined portion of this statement: the Applicants claim
that their testimony and the documentary evidence presented reasonably explain
why they were not able to retrieve the various reports requested from the
authorities, whereas the Respondent claims that the Applicants simply made no
reasonable efforts to obtain said documents.
[31]
In this regard, this Court is of the opinion
that the RPD did not make an error in finding that the lack of corroborative
evidence undermined the Applicants’ credibility. On one hand, a plain reading
of the impugned decision indicates that the RPD took issue with more than the
fact that the Applicants did not adduce the various reports sought. Indeed, the
RPD found the Principal Applicant to be “very reluctant” in his testimony
regarding the events he experienced and even specified in its reasons that the
Principal Applicant had to be asked a same question no less than
three times before he gave an answer, answer which the RPD ultimately
found not to be credible. With respect to this credibility finding, the RPD,
who saw and heard the Applicants, is undoubtedly in a better position to assess
the Applicants’ credibility (see Navaratnam v Canada (Minister of Citizenship and
Immigration),
2011
FC 856 at para 22,
[2011] FCJ No
1066 [Navaratnam]),
and as such this Court must afford significant judicial reserve (Chen v Canada (Minister of
Citizenship and Immigration), [1999] FCJ No 551, 240 NR 376). I have read on a few
occasions the pertinent part of the transcript on this matter, and although it
is not as clear as what the findings found, there is a factual basis for this conclusion.
In such a situation, a reviewing court must abstain from intervening in
assessing the performance given in a testimony. Also, considering this finding, it cannot be said that the RPD made
its credibility findings “solely” on the Applicants’ failure to produce
documents, as these findings also rely on testimonies. What is more, on the
other hand, Justice Rennie, of this Court, more recently reiterated the
principle relied upon by the Applicants and found in Amarapala, above, as
follows:
6 Negative
inferences cannot be drawn solely from the failure to produce corroborating
documents: Amarapala v Canada (Minister of Citizenship and
Immigration), 2004 FC 12. While it is possible that the Board sought to
frame its analysis within the exception to this principle, namely that a
failure to produce corroborative documentation is a proper consideration where
it does not accept the applicant’s explanation for failing to produce that
evidence when it would reasonably be expected to be available. If that was the
case, precision was required as to the nature of the documentation expected and
a finding made to that effect. (Rojas v Canada (Minister of Citizenship
and Immigration), 2011 FC 849 at para 6, [2011] FCJ No 1048 [Rojas])
[32]
In the present matter, the RPD based its
credibility findings on this above-mentioned “exception to the principle”: it
rejected the Applicants’ explanation for failing to produce the evidence which it
found could reasonably be expected to be available. The RPD found that the
Applicants failed to produce documents corroborating a central element of their
claims, i.e. hospital records resulting from Ms. Kunyu’s alleged
hospitalization. In addition, it found that based on its vast
experience with Hungarian claimants, these documents could reasonably be
expected to be available. With respect to the hospital records, the RPD
specified that it has received, in numerous prior cases involving Hungarian
claimants, documents which have been made readily available by the Hungarian
hospitals to the claimants, meaning that at least some of the documents could
have been available especially considering the severity of the alleged incident.
The Applicants do not contest the findings related to the hospital records.
These findings also impact on the credibility of the Principal Applicant. His
story on this subject was not found to be credible (see Certified Tribunal
Record, at pages 368, 369).
[33]
It is also well-established that the burden of
producing evidence in support of their claims lies with the Applicants (El Jarjouhi v Canada (Minister
of Employment and Immigration), [1994] FCJ No 466 at
para 7, 48 ACWS (3d) 790). Also, section 11 of the Refugee Protection Division Rules,
SOR/2012-256, indicates that claimants who do not provide acceptable documents
must explain why they did not provide the documents and what they did in order
to obtain them. And so, keeping in mind that the Applicants
submitted no personal evidence despite having the burden to do so, it was
certainly open to the RPD to infer from such a failure and from these
explanations a lack of credibility with respect to the Applicants’ story (see,
for example, Castaneda v
Canada (Minister of Citizenship and Immigration), 2010 FC 393 at para 18, [2010] FCJ No 437).
[34]
The Applicants also submit that the RPD should
have considered the condition of similarly-situated individuals in assessing
whether the events they experienced amounted to persecution. This Court finds
that just because some people are of Roma ethnicity does not mean that they are
automatically exposed to the same risks as similarly-situated people or that
their situation systematically results in a finding of persecution (see Sathivadivel v Canada (Minister
of Citizenship and Immigration), 2010 FC 863 at paras 20-28, [2010] FCJ No 1070),
see also Navaratnam, above, at para 25). As previously mentioned in this decision, the Applicants did not
submit any personal evidence that they have suffered persecution or that they
would likely be persecuted. Rather, they relied on general statements and the
documentary evidence pertaining to the general situation of Roma citizens in Hungary. However, the Applicants had to establish a personalized risk, and given the lack
of evidence submitted, they simply failed to establish such a risk.
[35]
More generally, as it concerns the determination
of whether the discrimination amounts to persecution in the present case, this
Court finds that the RPD recognized the difficulties experienced by the
Applicants and undertook a valid analysis of mixed evidence – from documentary as
well as testimonial sources – which was reflected in its reasons. Indeed, the
RPD recognized the existence of serious problems of racism and discrimination
against the Roma population in Hungary, but it also mentioned the efforts made
by the government to protect Roma citizens from persecution. That said,
however, what was fatal to the Applicants in their claims was the fact they
failed to present any personal evidence which would tie these events of
discrimination to their own persons. Such a determination is essentially
fact-based and lies within the authority of the RPD. The same is to be said
about the Applicants’ alleged inability to find work: they did not provide
sufficient evidence. It was not factually right for the RPD to find that the Principal
Applicant was able to have steady work for a period over 10 years when the
evidence shows that it was only for seven years. This finding, although
erroneous, is not such that it impacts on the remaining findings. It was
therefore reasonable for the RPD to find that the incidents allegedly suffered
by the Applicants did not amount to persecution.
B.
Did the RPD err in concluding to the
availability of state protection in Hungary?
[36]
The RPD’s finding in
this regard does not warrant the intervention of this Court as it was
reasonable to find that the Applicants could have benefited from state
protection in Hungary.
[37]
It is well-known that a State is presumed to be able to afford
protection to its citizens unless it is in a state of complete breakdown (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at p. 709, 20
Imm LR (2d) 85 [Ward]),
and that in order to rebut this presumption claimants must “adduce relevant, reliable and convincing
evidence which satisfies the trier of fact on a balance of probabilities that
the state protection is inadequate” (Carrillo v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94 at para 30, [2008] FCJ No 399). Also, the protection offered by a state needs not to be perfect, but it
must be adequate (Canada (Minister of Employment
and Immigration) v Villafranca (1992), 18 Imm LR (2d)
130, 99 DLR (4th) 334 (FCA)). The claimants have an even heavier burden in cases where
they come from a democratic country (Hinzman, above, at para 57),
such as it is the case in the present matter.
[38]
In the case at bar, the Applicants argue that
the RPD, having recognized in its reasons the serious shortcomings in the state
authorities’ ability to protect the Roma population of Hungary, could not
reasonably come to the conclusion that the Applicants could have sought
protection from these authorities. They add that the RPD should have focused on
the operational adequacy of this protection, if any, and not on the willingness
of the authorities to deal with the problem. In particular, they suggest that
the RPD ignored critical evidence pointing to the failure of the state to
afford protection to its Roma citizen and that this is fatal to the decision.
[39]
However, this Court finds that, as properly
stated by the Respondent, the little evidence submitted by the Applicants
indicate that when it was sought, protection was given. For example, the
Principal Applicant testified that he was assaulted while riding the train with
his daughter, adding that he filed a report with the police, who could not do
anything because he was not able to describe the assailant. Moreover, one of
the complaints made by the Applicants even went before a Court, which dismissed
the case. In each of the three incidents presented by the Applicants, the
evidence shows that the police were asked to intervene and they did. This is
the Applicants’ evidence. This Court could hardly conclude to the absence of
state protection when such protection was never denied to the Applicants when
sought. In addition, with respect to state protection, the RPD refers to mixed evidence
concerning the measures taken by the Hungarian government to protect Roma
citizens and acknowledges that there is evidence of slow police intervention in
cases related to Hungarian Roma citizens. This reference, albeit seemingly
unimportant, is more than sufficient considering that the Applicants failed to
produce any personal evidence which could demonstrate, by the preponderance of
probabilities, that the Hungarian state would not be able to afford them
protection. It was therefore reasonable for the RPD to conclude that the
Applicants failed to rebut the state protection presumption.
[40]
Finally, just a note to comment on the decision
as written. It is one that is reasonable as Dunsmuir, above calls for at
para 47. As noted by the Respondent, it would have been a better decision if it
had dealt more explicitly with the credibility issues, the lack of
corroborative police reports and the RPD’s own knowledge that these documents
are not easy to obtain (“the police can be slack, a little bit”, see Certified Tribunal
Record, at page 369) as well as the normality of their daily life in Hungary,
and also if it had offered a better analysis of the state protection issue.
Having said that, it is still a decision that falls within the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
[41]
The parties were invited to submit
questions for certification but none were proposed.
ORDER
THIS
COURT ORDERS that the application for judicial
review is denied. No question is certified.
“Simon Noël”
___________________________
Judge
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