Docket: IMM-3582-13
Citation:
2015 FC 188
Ottawa, Ontario, February 16,
2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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ZSOLT JOZSEF MUDRAK,
PATRIK ZOLTAN FEKE,
ZSOLT MUDRAK,
RENATA FUTO
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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
I.
Nature of the Matter
[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 or the Act], of a decision dated April 29, 2013 of the
Refugee Protection Division [the Board] of the Immigration and Refugee Board of
Canada [IRB]. The Board determined that the applicants, Zsolt Jozsef Mudrak,
Patrik Zoltan Feke, Zsolt Mudrak and Renata Futo, were not Convention refugees
and are not persons in need of protection under sections 96 and 97 of the IRPA.
[2]
For the following reasons, the application is
dismissed.
II.
Background
[3]
Zsolt Jozsef Mudrak [the applicant] is the
principal claimant in this file. The other claimants are Renata Futo, his common-law
partner, and their two sons, Patrik Zoltan Feke and Zsolt Mudrak. The applicants
are all citizens of Hungary. The applicant is of Roma and Jewish heritage and
he alleges that he and his family began experiencing harassment in Hungary due to their Roma ethnicity in 2007.
[4]
On March 16, 2008, the applicant was on his way
home from work on the train when a group of four men pushed him off the train
and beat him, causing him to lose one of his teeth. The men yelled ethnic slurs
at him. The applicant reported the incident to the police, who opened an
investigation. Nothing came of the investigation.
[5]
On July 9, 2009, the applicant was with a friend
in a car when, for unknown reasons, the driver of a jeep chased them at speeds of
up to 150 kilometres per hour. The applicant’s car was pushed off the road and
destroyed. He testified that when the Hungarian Guard arrived at the scene,
they yelled ethnic slurs at him. As a result of the attack, the applicant was
injured and spent one hour at the hospital, although the hospital staff
recommended that he remain for 48 hours of observation. The police came to the
hospital and took notes in regard to the applicant’s allegations. The applicant
alleges that no report was made of the incident.
[6]
On July 27, 2009, his common-law partner was
walking in the street with her children when a young man and two girls attacked
her, causing a wound to her leg. She filed a complaint, but the investigation
was halted six months later because the police were unable to find the perpetrators.
[7]
On May 8, 2011, the applicants were walking in
the street when a group of people began yelling obscenities at them, causing
them to run. The perpetrators dispersed when a police car passed by.
[8]
On August 17, 2011, the applicants left Hungary and came to Canada to claim refugee status.
III.
Impugned Decision
[9]
The Board reviewed the incidents involving the applicants
and concluded that, while they experienced discrimination, it did not reach the
level of persecution. This was decided on the basis that there was insufficient
persuasive evidence that the mistreatment suffered or anticipated by the applicants
was serious enough or occurred with any degree of repetition to conclude that
their basic human rights were denied.
[10]
The Board set out the meaning of persecution,
stating that it can mean sustained or systematic violation of basic human
rights which demonstrates a failure of state protection. The Board noted that
the jurisprudence has stated that to be considered persecution; the
mistreatment suffered or anticipated must be serious and occur with repetition
or affect the exercise of a basic human right.
[11]
The Board then assessed whether the applicants
would be persecuted simply because they are Roma if they were to return to Hungary, concluding that the determinative issue on this point was state protection.
[12]
The Board acknowledged the violence against Roma
in Hungary, referring to a report of the United States Department of State 2012
Human Rights Report on Hungary [USDOS 2012 Report] included in the National
Documentation Package on Hungary, which in turned referred to a report of the
Organization for Security and Cooperation in Europe [OSCE] stating that 12
violent attacks against members of national, ethnic, racial or religious groups
occurred in Hungary in 2008.
[13]
The Board reiterated the principle that there is
a presumption, except in situations where the state is in a complete breakdown,
that a state is capable of protecting its citizens. An applicant can rebut this
presumption by providing clear and convincing evidence of the state’s inability
to protect. The onus is on the applicant to approach the state for protection
in situations where state protection might be reasonably forthcoming. The Board
cited Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, 103 DLR
(4th) 1 [Ward]) for these principles.
[14]
The Board noted the following in relation to the
applicant’s particular case:
- He reported the March 16, 2008 incident where four individuals
attacked him. The police took down a report and commenced an
investigation. He has not heard anything regarding this report, and has
not inquired about the progress of the investigation.
- In the case of the July 9, 2009 incident, the police came to
the scene of the incident, but the applicant had already been taken to the
hospital. The applicant stated there was no police report with respect to
the incident, though the police took notes. The Board criticized the applicant
for not following up for purposes of filing a complaint or report.
- In regard to the
July 27, 2009 incident, the police conducted an investigation, but the
investigation was suspended due to the absence of eyewitnesses and the
unknown identity of the perpetrators.
[15]
The Board concluded that there was insufficient
evidence to conclude that the police did not act in accordance with the law in
pursuing an investigation. The fact that the police carried out an
investigation of the July 27, 2009 incident demonstrates that the police were
acting in a responsible manner. In regards to the other two incidents, the applicant
did not follow up with the police, which the panel member concluded he should
have done.
[16]
The Board stated that this conclusion applied
particularly to the applicant’s common-law partner, since the police
investigated the incident in which she was involved.
[17]
In regard to the applicant’s children, the Board
accepted that they have been psychologically affected by the treatment they
have experienced. However, the Board found that no evidence had been proffered
in respect to the current situation with the children’s education or their
psychological state.
[18]
The Board also acknowledged the applicant’s
submissions on corruption in Hungary. It emphasized that despite serious
problems with corruption, the new government appointed a commissioner for
accountability and anticorruption. The Commissioner’s mandate is to uncover
wrongdoing by the previous administration, leading to the uncovering of various
corruption scandals. The Board concluded that this may have a positive effect
on Hungarian society.
[19]
The Board then went on to distinguish the state
of the law from the actual situation in Hungary. It acknowledged that Hungary has faced criticism for the implementation of the laws enacted to address the
discrimination and persecution of minorities and that there is difficulty implementing
and enforcing these laws at the local level. The Board pointed out that Hungary is a part of the European Union [EU] and is therefore responsible for upholding
various standards to maintain its membership in the EU. As an example, the
Board mentioned the European Commission against Racism and Intolerance [ECRI],
an independent human rights monitoring body specialized in questions of racism
and intolerance. The ECRI published a report on Hungary in which it praised Hungary for its accomplishments, cited issues of concern, and gave recommendations for
future action. As a result, the Board concluded that Hungary is taking measures
to implement the standards that are mandated as a member of the EU.
[20]
The Board stressed the democratic nature of Hungary, the free nature of its elections, its extensive laws prohibiting arbitrary arrest
and detention, and the effective control of the security forces by the
Prosecutor General’s Office and its civilian authorities. It also described the
policing structure throughout the country, which operates under the direction
of the Ministry of Justice and Law Enforcement.
[21]
The Board noted the Independent Police
Complaints Board [IPCB], which was established by the Hungarian National
Assembly in 2008 to investigate police violations and omissions that
substantively concern fundamental rights. The IPCB functions independently from
police authorities. No statistics were cited on these investigations, although
the police were reported to have rejected the overwhelming majority of
complaints found by IPCB. Hungary does not maintain aggregated statistics, so
it is not known how many of these complaints related to Roma.
[22]
The Board also mentioned the Roma Police
Officers’ Association [RPOA]. Roma are able to file complaints about discrimination
with the RPOA, such as discrimination by law enforcement authorities or police
officers. The RPOA’s mandate includes: training and education of young Roma and
other minorities for employment in the police and military, promoting equal
treatment in the law enforcement authorities, providing help to Roma with
identity problems, participating in cultural activities, providing and
organizing educational events, arranging workshops and working for the
protection of human rights.
[23]
Other oversight organizations mentioned in the
decision included:
- The Equal Treatment Authority [ETA], which is charged with
implementing Act CXXV on the Equal Treatment and the Promotion of Equal
Opportunities. Act CXXV provides a comprehensive legislative framework
on anti-discrimination and has the mandate of encouraging the development
of affirmative action programs for minorities. The ETA accepted 1087
complaints in 2009. It ordered employers to stop illegal activities and
refrain from further wrongdoing in 51 cases and issued fines in 19
instances.
- The
Parliamentary Commissioner for National and Ethnic Minorities Rights acts
as the ombudsman.
[24]
The Board also noted Hungarian government
initiatives in micro-financing Roma business ventures as positive practices.
[25]
In terms of the applicants’ well-founded fear of
persecution, it does not appear that the Roma are intimidated by the police or
do not have means to protest their actions and lay complaints against them. The
applicant referred to an incident described in the USDOS 2012, a report on a
clash on November 22, 2011 between police and a crowd of 20 Roma persons
gathered outside the police station after police detained 12 persons on
suspicion of drug abuse. The arrest of some of the protesters resulted in the
Hungarian Civil Liberties Union filing a complaint with the IPCB for alleged
violations of the arrested demonstrators’ basic rights by police through use of
excessive force. The investigations remained pending at year’s end.
[26]
Moreover, the Information Request on the Hungarian
Guard describes information obtained from the OSCE report describing a series
of events which occurred between 2008 and August 2011, including measures taken
by Roma protesting the Hungarian Guard, such as organizing Roma self-defence
guards and patrols and working with the Jewish minority to address the high
level of intolerance and lack of debate in Hungary about the Hungarian Guard.
[27]
In its overview, the USDOS 2012 Report concluded
that the Hungarian government generally took steps to prosecute and punish
officials, whether in the security services or elsewhere in the government, who
committed abuses.
[28]
As a result of these initiatives, the Board
concluded that the applicant’s common-law partner could have reported the
incident of violence against her to the ETA and that there is no reason to
believe that the ETA would not have investigated the complaint.
[29]
The Board went on to conclude that there is
evidence of strong public concern over attacks against Roma, which suggests
that racism is not rampant in Hungary and that the majority of the public is
concerned about racially-motivated violence. Furthermore, the state has put in
place a process to deal with corrupt, incompetent police officers, as well as
those who might abuse their authority or refuse to carry out their duties due
to racist attitudes.
[30]
As for the disadvantages Roma persons in Hungary might face on a social level, the Board noted the following:
- Municipalities provide scholarships for socially disadvantaged
students;
- Parents in disadvantaged situations are eligible for annual
grants towards education; and
- The Sound Start
program ensures early intervention to provide health, child welfare, and
social services for disadvantaged children up to 5 years of age.
[31]
On the other hand, 20% of Roma children live in
a place where there is no preschool. There have also been instances of Roma
children being turned away from preschools due to their parents’ social
disadvantage or unemployment.
[32]
The Board also noted difficulty in assessing the
effectiveness of programs for Roma integration because Hungary prohibits keeping records based on ethnicity, despite a recommendation from the Minority
Ombudsman that this system of record-keeping should be changed.
[33]
The Board noted the Hungarian government’s
participation in the following programs run by non-governmental organizations:
- The Decade of Inclusion program for the improvement of Roma in
employment, housing, healthcare and education;
- The Roma Education Fund initiative to close the gap in
educational outcomes between Roma and non-Roma;
- The Roma Education Fund’s “A Good
Start” project, which targets 850 Roma and non-Roma children in six
different locations in Hungary to prepare mothers for tasks related to
preschool education and to increase the enrolment of Roma children in
preschool;
- The Unity in Diversity Foundation, which focuses on educational
programs and projects related to Roma integration; and
- The Association
for Roma Solidarity, to improve the situation of Roma in education through
programs based on voluntary work and to provide scholarships to students
from disadvantaged backgrounds to ensure secondary and college education
of Roma youth.
[34]
The Board acknowledged the information about
violent attacks against Roma, the complaints regarding the reluctance of the
Hungarian law enforcement authorities, prosecutors and courts to recognize
racial motivation for many crimes, and the existence of far-right organizations
that incite prejudice against Roma. The Board noted widespread discrimination
against Roma and evidence of specific incidents of persecution, often promoted
and carried out by right-wing extremist groups with the support of the Jobbik
Party, an extreme right wing political party with a strong anti-Roma agenda. It
cited Amnesty International’s concerns with respect to the attacks against Roma
in 2008 and 2009 in various places across the country, causing fear among many
in the community.
[35]
On the other hand, the Board referred to the
measures taken by the police to intervene in demonstrations and to enhance community
safety by increasing patrols, as well as the fact that the government enacted
strict legislation outlawing and controlling vigilante groups. In April 2009,
protection was extended to “vulnerable settlements” or places where police
believed similar attacks could be expected. These areas were patrolled at night
and in the early morning hours.
[36]
The Board concluded that the applicants had not
demonstrated that state protection in Hungary is so inadequate that they did
not need to approach the authorities at all, or that they should not have
sought help from the oversight agencies, such as the Minorities Ombudsman’s
Office [MOO] or the IPCB.
[37]
In its conclusions, the Board expressed the
following points:
- Effectiveness of state protection should not be set too high.
As long as the government is taking serious steps to provide or increase
protection for individuals, the individuals must seek state protection.
- It is open to the Board to determine if the state was unable to
protect the claimants, not in the absolute sense but rather to a degree
that was reasonable, having regard to the circumstances of the applicants.
- There was no
evidence of a complete breakdown in the state apparatus in Hungary and there is no evidence of past personal experience that would lead the applicants
to believe that state protection would not be adequate or reasonably
available to them.
IV. Issues
[38]
The issues in this matter, as stated by the applicant,
are:
- Did the Board err by failing to conduct a full and separate
analysis of the need for protection pursuant to section 97 of the IRPA?
- Did the Board err in its findings regarding the availability of
state protection in Hungary for those of Roma ethnicity?
- Did the Board
err in finding that the applicants ought to have sought state protection,
including complaining to policing oversight agencies when the police did
not properly discharge their functions?
V. Standard of Review
[39]
The issue of whether the Board erred in failing
to conduct a separate analysis under section 97 is a question of mixed fact and
law (Velez v Canada (Citizenship and Immigration), 2010 FC 923 at para
22). Assessment of state protection also raises questions of mixed fact and law
(Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171, 282 DLR
(4th) 413 at para 38, leave to appeal refused [2007] SCCA No 321 [Hinzman];
Horvath v Canada (Citizenship and Immigration), 2014 FC 313 at para 16, 239
ACWS (3d) 457 [Horvath (Judit)]).
[40]
Therefore, both issues are reviewable on
the reasonableness standard. As stated at para 47 of Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], the Court will
be concerned with the “existence of justification,
transparency and intelligibility within the decision-making process,”
but must also assess whether the decision falls within a range of “possible, acceptable outcomes which are defensible in
respect of the facts and law.”
VI. Analysis
A.
No Section 97 Analysis
[41]
The Board concluded that while the applicants
suffered discrimination in “employment, health care,
housing, and social services,” their personal circumstances did not rise
to the level of harm of persecution, nor did the discrimination threaten their
fundamental rights. This conclusion was based on the Federal Court of Appeal
decision of Sagharichi v Canada (Minister of Employment and Immigration),
[1993] FCJ No 796 (QL), 182 NR 398 [Sagharichi] setting out the
distinction between discrimination and persecution. A distinction is made
between discrimination that amounts to persecution based on the seriousness of
the risk of harm and that of hardship which requires a less harmful form of discrimination
(see for example Kanthasamy v Canada (Citizenship and Immigration), 2014
FCA 113, 372 DLR (4th) 539). The applicants did not challenge this finding.
[42]
Notwithstanding the finding that the applicants’
personal circumstances did not amount to persecution, the Board concluded that
it was required to analyze whether the claimants would be persecuted should
they return to Hungary simply because they are Roma. The applicants nonetheless
argued that the Board was required to conduct a separate section 97 analysis,
citing Dunkova v Canada (Citizenship and Immigration), 2010 FC 1322, 377
FTR 306 in support of their position. I find that there is no requirement for a
separate section 97 analysis of either the applicants’ personal circumstances
or the availability of state protection.
[43]
I say this in respect of personal circumstances based
upon the definition of persecution in Rajudeen v Canada (Minister of Employment
and Immigration), [1984] FCJ No 601 (QL) (FCA), 55 NR 129 at 134. It
describes a risk of harm for persecution that is wider or of similar scope than
required under section 97 for risks of death or cruel or unusual treatment or
punishment (see generally Peter v Canada (Public Safety and Emergency
Preparedness), 2014 FC 1073 at paras 176 to 201 [Peter]). The legal
standard is also lower for persecution under section 96 than that required for
being in need of protection under section 97 (see for example Li v Canada (Minister of Citizenship and Immigration), 2005 FCA 1, 249 DLR (4th) 306) and Peter
at para 245). Accordingly, if the personal objective circumstances of the applicant
does not establish a risk of persecution within the meaning of section 96, I do
not see how they could reasonably make an alternative argument that the same
personal circumstances could objectively establish a risk of torture or risk of
cruel or unusual treatment or punishment or risk to life within the meaning of
section 97.
[44]
In addition, the Board considered the issue of
state protection for the purposes of persecution and found that it was adequate
and that the applicants were required to have recourse to it. There was no
separate evidence before the RPD on state protection which would not be
resolved by the analysis of state protection applying to persecution. In the
circumstances, a separate section 97(1)(b) analysis is not required (see Racz
v Canada (Citizenship and Immigration), 2012 FC 436, 216 ACWS (3d) 206 at
paras 6 and 7 [Racz] and the cases cited therein).
B.
State Protection: Whether Hungary is Unable to Provide Adequate State Protection to Roma
[45]
The applicants’ submissions on state protection
are two-fold: first, that the Board erred in not concluding that Hungary was unwilling or unable to provide protection and second, that it erred in
concluding that the applicants were required to provide sufficient evidence to
satisfy the Board that they had sought state protection. Given the controversy
in the Federal Court over these issues, both will be analyzed in some detail
below.
(1)
Whether Hungary is Unable to Provide Adequate
State Protection to Roma
[46]
It is well recognized that there is a division
in the ranks of judges of the Federal Court on the issue of state protection,
particularly as it applies to claimants from the Hungarian Roma community.
Justice Harrington in Varga v Canada (Citizenship and Immigration), 2014
FC 510, 240 ACWS (3d) 950 recently summarised the contrasting outcomes in
Hungarian Roma cases at paragraphs 18 and 19 of the decision as follows:
[18] Counsel for Mr. Varga has cited
fourteen recent cases of this Court which have been granted judicial review
with respect to Hungarian Roma (Hercegi v Canada (Citizenship and
Immigration), 2012 FC 250 (CanLII); Balogh v Canada (Citizenship and
Immigration), IMM-1892-12; Sebok v Canada (Citizenship and Immigration),
2012 FC 1107 (CanLII); Orgona v Canada (Citizenship and Immigration),
2012 FC 1438 (CanLII); Varadi v Canada (Citizenship and Immigration),
2013 FC 407 (CanLII); Budai v Canada (Citizenship and Immigration), 2013
FC 552 (CanLII); Majoros v Canada (Citizenship and Immigration), 2013 FC
421 (CanLII); Muntyan v Canada (Citizenship and Immigration), 2013 FC
422 (CanLII); Beri v Canada (Citizenship and Immigration), 2013 FC 854
(CanLII); Moczo v Canada (Citizenship and Immigration), 2013 FC 734
(CanLII); Gulyas v Canada (Citizenship and Immigration), 2013 FC 254
(CanLII); Ignacz v Canada (Citizenship and Immigration), 2013 FC 1164
(CanLII); Horvath v Canada (Citizenship and Immigration), 2013 FC 95 (CanLII)
and Molnar v Canada (Citizenship and Immigration), 2013 FC 296
(CanLII)).
[19] The Minister has only been able to
muster up five recent decisions in which judicial review has been dismissed (Botragyi
v Canada (Citizenship and Immigration), IMM-13187-12; Dudu v Canada
(Citizenship and Immigration), IMM-6686-13; Horvath v Canada
(Citizenship and Immigration), 2012 FC 253 (CanLII); Riczu v Canada
(Citizenship and Immigration), 2013 FC 888 (CanLII) and Ruszo v Canada
(Citizenship and Immigration), 2013 FC 1004 (CanLII)).
[47]
In fact, there are several other cases, from
three different judges, where the judicial review applications of decisions
involving Roma were dismissed on the basis that the decisions were reasonable: Onodi
v Canada (Citizenship and Immigration), 2012 FC 1191 at para 16, 221 ACWS
(3d) 420 (per Rennie J.); Molnar v Canada (Citizenship and Immigration),
2012 FC 1475, 224 ACWS (3d) 446 (per Boivin J., as he then was); Majlat v
Canada (Citizenship and Immigration), 2014 FC 965, 246 ACWS (3d) 664 (per
Gleason J.) [Majlat].
[48]
By and large, the decisions setting aside Board
conclusions of adequate state protection are based upon the failure of the
Board’s reasons to demonstrate “the extent to which
government action translates into operational adequacy” (see Buri v
Canada (Citizenship and Immigration), 2014 FC 45 at para 62, 237 ACWS (3d) 188;
Hercegi v Canada (Citizenship and Immigration), 2012 FC 250 at para 5,
211 ACWS (3d) 946 [Hercegi]; Stark v Canada (Citizenship and
Immigration), 2013 FC 829 at paras 10-11, 234 ACWS (3d) 1012; Beri v
Canada (Citizenship and Immigration), 2013 FC 854 at paras 36-37, 231 ACWS
(3d) 777 [Beri]); EYMV v Canada (Citizenship and Immigration),
2011 FC 1364 (CanLII), [2011] FCJ No 1663 (QL) [EYMV]).
[49]
These views are well articulated in Beri at
paragraph 44 as follows:
[44] In my view, the RPD’s Decision as
regards to state protection is more descriptive in nature than it is
analytical. That is, it describes state efforts intended to address
discrimination, persecution and protection of the Roma but undertakes no
real analysis of the operational adequacy or success of those efforts. As
stated by Justice Mosley in EYMV v Canada (Minister of Citizenship and
Immigration), 2011 FC 1364 (CanLII), [2011] FCJ No 1663 (QL) [EYMV]:
[16] The Board did not provide
any analysis of the operational adequacy of the efforts undertaken by the
government of Honduras and international actors to improve state protection in Honduras. While the state's efforts are indeed relevant to an assessment of state
protection, they are neither determinative nor sufficient (Jaroslav v. Canada (Minister of Citizenship and Immigration), 2011 FC 634 (CanLII), [2011] F.C.J. No.
816 at para 75). Any efforts must have "actually translated into
adequate state protection" at the operational level (Beharry v. Canada (Minister of Citizenship and Immigration), 2011 FC 111 (CanLII) at para 9.
[Emphasis added.]
[50]
If other evidence has not established to the
Court’s satisfaction that there has been a failure of state protection, in my
view, these reasons tend effectively to shift the onus away from the applicant
having to establish inadequate state protection such that it becomes incumbent
on the RPD, if it wishes to avoid committing a reviewable error, to demonstrate
that the measures taken by the Government of Hungary have been translated into
“operational adequacy” of state protection for Roma citizens.
[51]
What I have described as the reversing of
presumptions from the claimants to the Board also occurs when the Board is
judged as having acknowledged an increasing number of incidents of violence
against Roma citizens or, to similar effect, by the fact that the Hungarian
government undertakes measures to protect them. This is described in Horvath
v Canada (Minister of Citizenship and Immigration), 2013 FC 95, 224 ACWS
(3d) 750 [Horvath (Ferenc)]. The Court in Horvath (Ferenc)
found that by the Board noting “some problems have
worsened” and this “raises the Dunsmuir… value
of justification that is, whether the Board has reasonably justified its
finding of state protection given its acknowledgement of submissions indicating
violence was increasing” (Horvath (Ferenc) at paras 44-45,
emphasis added).
[52]
With full respect to my colleagues, I am of the
opinion that this line of analysis is inconsistent on a number of grounds with
the principles of judicial review of the Board’s findings of adequate state
protection. In the first place, I respectfully think that it is highly
problematic because it is generally not the Court’s role to review the evidence
with the view to concluding that it is overwhelming that Hungary is unable presently to provide adequate protection to its Roma citizens. This is not what is
usually thought of as a reviewable error. I believe this form of reasoning
borders on the substitution of the Court’s opinion in the guise of
unreasonableness, i.e. outside the range of possible, acceptable, reasonable
decisions. This judgment is made despite the fact that the RPD’s determination
of state protection involves a complex, multifaceted question of mixed fact and
law and that the Board is considering all the evidence on a subject matter
which falls squarely within its core area of expertise.
[53]
The Court can set aside a decision where there
is a perverse finding of fact; but determining the adequacy of state protection
is not a pure factual issue, particularly because it is so difficult to state
what constitutes the legal standard of adequate state protection. Otherwise,
when this Court concludes that a decision is substantively unreasonable, it
usually does so based upon some breakdown in logic in the reasons that does not
permit the undisputed facts to rationally support the decision. Apart from
reviewable errors, such as overly selective treatment of key documents, I do
not believe that it is the Court’s function to review 3 to 6 inches of country
conditions documentation of varying probative value to arrive at a conclusion
of mixed fact and law about the adequacy of state protection. The Court
is not functioning as a court of appeal.
[54]
In support of this conclusion, I cite the
opinion expressed in Sinnappu v Canada (Minister of Citizenship and
Immigration), [1997] 2 FC 791, 126 FTR 29, aff’d [1999] FCJ No 2023 (QL), 179
FTR 320 (note) to the effect that it is not the judge’s role to review the
evidence to determine country conditions:
[57] In my opinion, the submissions of
counsel for the respondent are based on a misreading of that paragraph. In
particular, Marceau J.A. did not indicate that such a standard of proof would
be required in order to determine the threshold question of the engagement of
section 7. Furthermore, I see nothing whatsoever in the reasons of Marceau J.A.
to indicate that the Court must determine the state of the country conditions
at any point in its analysis of the issues pertaining to the application of
section 7 of the Charter. Indeed, I am of the opinion that it is simply not
the function of a judge, in judicial review proceedings of this nature, to
determine the state of country conditions. I am further of the opinion that it
would be highly undesirable for a judge to engage in such an exercise,
particularly given that the legislative scheme requires immigration officers,
who have specialized training and expertise in relation to country conditions,
to make such decisions.
[Emphasis added.]
[55]
Second, I respectfully think it is also
incorrect to, in effect, reverse the presumption of adequate state protection
in a democratic society when a country enacts legislation, or when there is
evidence of increasing acts of violence, thereby requiring the Board to
demonstrate the operational adequacy of measures taken to prevent incidents of
persecution in its reasons. There is no direct one-to-one, cause-and-effect
conclusion that an increasing risk of harm to the Roma demonstrates a failure
of state protection. One would first have to determine that the evidence
demonstrates that the increasing violence reached the point of demonstrating
inadequate state protection, which is the same conclusion as the Court arrived
at in Hercegi.
[56]
Nor should the fact that a democratic government
enacting legislation and putting other measures in place to combat persecution,
somehow be seen as an admission of a failure of state protection. The Court
starts from the presumption of adequate state protection in a democratic nation
(Ward at 724-726). I think that extensive and substantial legislation
and other measures being undertaken should be treated as evidence supporting
the democratic foundations of the country, thereby enhancing the presumption
of adequate state protection as opposed to requiring the Board to demonstrate
operational adequacy. It is for that reason that I am in agreement with the
Board’s conclusion in this case that the legislation and other measures taken
by the Hungarian government to protect Roma citizens strengthens the
presumption of adequate state protection and escalates the challenge facing an applicant.
This is particularly true when an applicant is unable to provide clear and
convincing evidence of a subjective well-founded fear of persecution or an
objective need for protection.
[57]
Third, and perhaps most importantly, I believe
it to be incorrect to impose on a government an obligation to demonstrate the
“operational adequacy” of its recently instituted protection measures. This
threshold is, realistically, not subject to proof, even if the legislation is
having a positive effect. At the very least, when setting aside the Board’s
decision, the Court should indicate how one goes about demonstrating
operational adequacy from state measures or what information is lacking that
shows that operational adequacy has not been achieved. How does one demonstrate
that Canadian legislation is effective? Demonstrating the adequacy of state
protection is, by and large, an empirical task or one that probably requires
opinion evidence from state security experts who can provide criteria and
measures based on standards drawn from the international community, none of
which evidence exists. Moving the onus to the Board to prove operational adequacy
of its legislative and other measures is, in effect, finding for the applicant.
[58]
The materials contain very little in the way of
empirical data or opinions of state security experts as to either whether state
protection is adequate or operationally adequate. The evidence generally
consists of information from various agencies and newspapers, some more
reliable than others depending upon mandates and other influencing factors in the
collection of information, reporting descriptions of a wide variety of
incidents dating back to 2008. The most recent information is one to two years
out of time. There is some empirical evidence of sorts on the lack of police
responsiveness to complaints and recommendations of ombudsmen. However, by and
large, the overall situation describing a need for protection is documented at
a generalized level, leaving it as a matter of generalized opinion, which in
these cases is based upon the expertise of the RPD, whose members deal with
these issues on a daily basis.
[59]
Moreover, the Court can do no better, as its
decisions are invariably expressed at a generalized level of opinion, although
in Beri there was a more comprehensive consideration of the materials.
This is not a criticism, but simply a statement of the challenge facing the
Court in attempting to reasonably analyze a great amount of evidence provided
in these cases and to state conclusions on this evidence with any degree of
particularity, as well as the recognition of its restrained and deferential
role in the judicial review context.
[60]
In light of this background, the Board enjoys a
very wide degree of discretion to decide these matters before the Court can
establish a reviewable error permitting it to intervene. The following factors
contribute to that very wide discretion: (1) the amorphous nature of the
question of what constitutes adequate protection, not to mention operational
adequacy; (2) the extensive number of factors and the assessment of their
relevance and weight that contribute to a decision on state protection; (3) the
extensive documentation consisting of hundreds of pages on issues related to
state protection, little of which reports directly on the operational adequacy
of measures to combat persecution and discrimination; (4) the absence of
empirical and aggregated evidence to provide an objective means to evaluate
state protection, particularly at an operational level; and (5) the singular
expertise of the RPD as the only body with experience in evaluating issues of
state protection as an essential core function of its duties.
[61]
On this latter point of the need to recognize
and pay deference to the Board’s experience, I cite Justice Gleason at paragraphs
24 and 25 of Majlat as follows:
[24] Thus, under the reasonableness
standard, the issue is neither whether the court would have reached the same
conclusion as the tribunal nor whether the conclusion the tribunal made is
correct. Rather, deference requires that tribunals such as the RPD be afforded
latitude to make decisions and to have their decisions upheld by the courts
where their decisions are understandable, rational and reach one of the
possible outcomes one could envisage legitimately being reached on the
applicable facts and law.
[25] This is particularly so when
the case involves a matter falling within the core specialized expertise of the
tribunal, as does the assessment of state protection by the RPD. As I
stated at para 5 in Arias v Canada (Minister of Citizenship and Immigration),
2012 FC 322 (CanLII), [2012] FCJ No 1105, “[t]he Board is to be afforded
considerable deference in respect of its … conclusions regarding state
protection [which]…fall within the core of the Board’s expertise and are
intimately tied to the facts of a particular case”.
[Emphasis added.]
[62]
I have attempted to portray in my description of
the Board’s decision, the exhaustive accounting that it has provided in describing
the measures and organizations in place to counter persecution and
discriminatory violence directed at the Roma in Hungary. The Board considered
the state protection afforded to Roma and found that the Hungarian government
was taking important steps to ensure the protection of citizens of Roma
ethnicity. The Board relied on the USDOS 2012 Report which concluded that the
government generally took steps to prosecute and punish officials who committed
abuses, whether in the security services or elsewhere in the government, along
with the other evidence referred to above in my description of its decision.
[63]
Random attacks are the most serious problem
afflicting these applicants and the Hungarian Roma community in general.
Operational measures have been put in place both to outlaw vigilante
organizations and to increase patrolling in areas where these incidents are
likely to arise. There is some evidence that they are being enforced.
[64]
The most damning evidence in the materials on
country conditions that raises concerns about state protection in the face of
violent attacks on Roma citizens is the description of the Commissioner of
Police’s refusal to accept recommendations from investigations by the oversight
agencies. The IPCB had investigated 458 of the 805 public complaints in 2011,
though there is no indication of the number of complaints involving Roma. As
noted, the IPCB found serious legal violations in 67 complaints. Two of these
had been accepted and three rejected, with responses outstanding on the
remaining complaints. These statistics should also be considered in light of
reports in Responses to Information Requests of statements (which did not
appear to be contained in official reports) that in 2010 the Ombudsman had
stated that the Commissioner had rejected the findings in 90% of the serious
complaints from the previous year.
[65]
However, this information is difficult to
evaluate in light of other information contained in Hungary’s report to the
United Nations with respect to the actions of the National Police Commissioner
regarding police response to complaints lodged by Roma citizens (see Response
to Information Requests dated October 12, 2011). The report indicates that the
Commissioner may only “deviate” from the IPCB’s recommendations on the basis of
“detailed argumentation” and the Commissioner’s decision is subject to judicial
review.
[66]
It would also seem to me, referring back to the
67 serious complaints found by the IPCB, that it is difficult to judge whether
this is a significant number of complaints out of a population ranging in
estimates from 200,000 to 500,000 Roma. I say this only because Canada is experiencing serious issues in significant numbers of an inability to protect First
Nation women. My point is that only experts with experience and some form of
benchmarks that have been developed from their expertise are able to interpret
the implications on state protection from these statistics.
[67]
While the emphasis has been on the extent of the
protections created by the state on a going-forward basis, the Board has not
minced words in portraying the gravity of the violence, or the social and
economic discrimination the Roma suffer in Hungary. The Board has obviously
balanced those considerations with all the evidence on state protection. I am
satisfied that the Board has correctly stated the law on state protection and
has applied it to the totality of the evidence on this issue with the
conclusion that for these applicants, state protection was adequate. I see no
reviewable error in the Board’s conclusions in this regard.
[68]
The Board, who appears to be aware of similar
Federal Court decisions overturning similar RPD decisions involving Roma,
declares that “it is open to the panel” to
determine if the state was unable to protect the applicants “not in the absolute sense, but rather to a degree that was
reasonable, having regard to the circumstances of the claimants.” I see
this as a “cri de Coeur” from this Board member at
least, querying who the experts are in this field: RPD Board members and other
officers charged with assessing risk, or the Federal Court?
[69]
The Board quotes Justice Gibson in Smirnov v Canada (Secretary of State), [1995] 1 FC 780, 89 FTR 269 for the well-established
proposition that the threshold for adequate state protection should not be set
too high. What this proposition really means is that the Federal Court should
not set aside the decisions of the RPD, or other risk assessing officers,
unless there is some persuasive and compelling justification to categorize the
decision as falling outside the range of any acceptable standard of
reasonability that the experts might apply.
[70]
The more occasions where the Federal Court
overturns decisions in this area on the grounds of failing to demonstrate
operational adequacy, the more it is in effect stating that the Board has set
the standard for adequacy of protection too low. This is, in effect,
substituting the Court’s opinion for what appears to be the collective opinion
of the experts in the field.
[71]
As stated, I do not believe that is the Court’s
role, nor that it is practicable to come to a generalized conclusion on the
adequacy of state protection for the Roma minority in Hungary in the context of
a judicial review application, the intent of which is to review the “quality”
of the decision as applied to the circumstances of the individual applicants.
[72]
Nevertheless, if a question affecting the
determination of this judicial review application on the issue of state
protection entails the Board being required to demonstrate in its reasons the
“operational adequacy” of the recent measures to protect Roma citizens; I do
not believe that the Board has met that requirement, because it quite properly never
set out to do so.
(2)
Failure to Follow Up on Alleged Failures of
Police to Investigate or Report on Incidents of Violence
(a)
Requirement to Exhaust All Available Recourses
of Protection
[73]
The Board reviewed the four incidents relied
upon by the applicants to demonstrate persecution. It found that the police
could not be criticized for two of them. The 2009 incident involving the
principal claimant’s common-law partner was investigated and closed for lack of
evidence. The 2011 incident where the family was pursued, the police intervened
to prevent any harm occurring. With respect to the 2009 attack by skinheads, a
police report was produced, but the applicants did nothing to follow up.
Similarly, with respect to the incident involving the high-speed motor vehicle
chase and accident during which the principal applicant was injured, he stated
that the police visited him at the hospital and took notes, but no report was
filed. The applicant took no steps to complain to oversight agencies about the
failure of the police to report and take action against the perpetrators of the
incident.
[74]
In light of these circumstances, the Board
concluded that the applicants had not provided clear and convincing evidence of
the state’s inability to protect them. In that respect, they had not
demonstrated that state protection in Hungary was so inadequate that they need
not have approached the authorities at all, or that they ought not to have
sought help from the oversight agencies.
[75]
The applicants again relied upon the decision of
Hercegi for the proposition that Roma claimants from Hungary are
relieved from having to provide documentation on violent attacks against them
on the basis that the police do not report such incidents, and that there is no
obligation to complain to policing oversight agencies when police fail to do
their job:
[3] I will mention the insistence of
the Board Member to have further, and yet further, documentation to back up
some of the evidence given by the claimants. They claim they were beaten on
several occasions by “skinheads”. Photographs attest to large bruising on the
body of some of the applicants. There are scars and missing teeth. Two babies
died - one while still in the womb when the mother was struck by several blows,
the other in a melee during an attack. Death certificates were produced. The
applicants gave evidence as to complaints that they made to police authorities
and the refusal of the police to investigate or even document the complaints.
There is evidence that the Hungarian police will not document complaints by Roma.
The insistence by the Board Member for yet further documentation was
unreasonable.
[Emphasis added.]
[76]
In addition, the applicants relied upon cases
explicitly excusing a claimant from complaining to policing oversight agencies
when not satisfied with the police’s response to their reported incidents of
persecution. Two rationales were offered in these cases justifying the
claimants’ failure to follow-up on policing deficiencies: (1) oversight
agencies do not have primary responsibility for protection services and (2) respondents
could not demonstrate that complaining to police watchdog agencies would
protect Roma or make them any safer. These views are probably best summarized
in the decision of Ignacz v Canada (Citizenship and Immigration), 2013
FC 1164, 235 ACWS (3d) 1057 at paras 22-23 [Ignacz] as follows:
[22] […] I agree entirely with the
observation of Justice de Montigny that the mandate of these and similar
organizations [agencies overseeing the activities of police forces] in Hungary
“is not to provide protection but to make recommendations and, at the best, to
investigate police inaction after the fact:” Katinszki v Canada (Minister of
Citizenship and Immigration), 2012 FC 1326 at para 14. I further agree with
his statement at paragraph 15 that “the jurisprudence of this Court is very
clear that the police force is presumed to be the main institution mandated to
protect citizens, and that other governmental or private institutions are
presumed not to have the means nor the mandate to assume that responsibility.”
[23] I repeat the question I
posed in Majoros v Canada (Minister of Citizenship and Immigration),
2013 FC 421: Had the applicants followed up with the president of their Roma
community, or used the complaints mechanisms available through the CFR and the
IPCB, would they be any safer or any more protected? Unless, one can answer
that question positively - and there is nothing in the NDP that would
support that response - then failing to approach these authorities cannot be
fatal to a refugee claim when police protection has been unsuccessfully sought.
The Member’s finding that these institutions offered the applicants - and Roma
generally - effective protection at the operational level is just not supported
by the evidence and her conclusion that the claims of the applicants must fail
because they failed to seek it out, is therefore unreasonable.
[Emphasis added.]
[77]
With full respect to my learned colleagues, I
disagree with important aspects of the foregoing statement of principles on the
requirement to seek and exhaust all recourses of state protection when applied
to the claims of Roma citizens in Hungary, which includes complaints to
policing oversight agencies where appropriate. I believe that these statements
generally place too low a burden on the applicants where the Federal Court of
Appeal has indicated that claimants are required to exhaust all possible
avenues of protection available except in the most exceptional circumstances.
It is my view that such exceptional circumstances do not arise in a functioning
democracy that is taking significant measures to combat persecution of Roma
citizens and where the applicants cannot demonstrate that a serious risk of
harm will result from seeking state protection to its fullest extent.
(b)
Oversight Agencies Do Not Have Primary
Responsibility for Protection Services
[78]
I cite the paragraphs 56 and 57 of Hinzman in
support of the proposition that applicants confront a heavy burden to exhaust
all avenues of state protection except in the most exceptional circumstances,
as follows:
[56] I
cannot agree. A careful reading of Ward illustrates that when the
Supreme Court of Canada adopted the test formulated by Professor Hathaway (that
only in situations in which state protection “might reasonably have been
forthcoming” will the claimant’s failure to approach the state for protection
defeat his claim), the Court did not intend that refugee claimants would
easily be able to avoid the requirement that they approach their home countries
for protection before seeking international refugee protection. La Forest
J. clarifies in the next sentence of his Reasons, at page 724, that the test is
meant to be an objective one:
…the
claimant will not meet the definition of "Convention refugee" where
it is objectively unreasonable for the claimant not to have sought the
protection of his home authorities...
[57] Kadenko and Satiacum
together teach that in the case of a developed democracy, the claimant is faced
with the burden of proving that he exhausted all the possible protections
available to him and will be exempted from his obligation to seek state
protection only in the event of exceptional circumstances: Kadenko
at page 534, Satiacum at page 176. Reading all these authorities
together, a claimant coming from a democratic country will have a heavy
burden when attempting to show that he should not have been required to
exhaust all of the recourses available to him domestically before claiming
refugee status. […]
[Emphasis added.]
[79]
Therefore, Roma claimants face a very heavy
burden to demonstrate the exceptional circumstances permitting the dispensation
of the need to access state protection, which in my respectful opinion extends
to state protection oversight agencies. In this regard, I am in respectful
disagreement with my colleagues who discount the role of oversight agencies in
ensuring effective policing due to the need for the full involvement of victims
in crime prevention. For that matter, I see little distinction in the
requirement to seek state protection in the first place and the obligation to
follow up on the investigation right through to complaining to the applicable
oversight agencies if the police do not provide adequate assistance.
[80]
Conversely, if such oversight institutions were
not in place in Hungary, it would most certainly be counted as an indicator of
inadequate state protection by the Court.
[81]
More substantively, suggesting that police
oversight agencies have no role in demonstrating adequate state protection is
like saying senior policing management has no role in policing due to their
oversight function, or saying that policing is a short-term operational
exercise. Similarly, denying oversight agencies an important role in police
protection would suggest that the police complaints process, and thereafter the
courts in Canada, have no responsibility in ensuring adequate policing. This is
surely an unsustainable proposition. It is no counter-argument that Canadian
police are more responsive to complaints about their conduct, which in some
recent instances at least, might be challenged. The point is that the evidence
in the Hungarian Roma persecution claims indicates that the oversight agencies
are diligent in their investigations and in reporting their findings to the
police. The transparency and accompanying public criticism of the state
protection apparatus is an important ingredient to reforms and improvement in
protection services accorded to Roma citizens.
[82]
The requirement to access police oversight
agencies is particularly important where the persecution is in the form of
random incidents, such as is normally the case for members of the Roma
community. Adequate state protection against random crime must operate at a
community level over a longer time frame, because responding to any particular
victim cannot assure that future random attacks from other assailants will not
occur. To the extent that random criminal conduct can be prevented by means
other than increased patrols, effective policing can have a deterrent effect by
arresting and successfully prosecuting wrongdoers accompanied by the
declaratory publicity attached to successful convictions.
[83]
Thus, looking ahead, no crime prevention process
can be effective if victims of crime do not report incidents to the police and
proactively cooperate in their investigations, including complaining if not
satisfied with the efforts of the police. If the rhetorical question is whether
all members of the Roma community will be better protected from a rule
requiring they follow up instances of inadequate policing with oversight
agencies, I would argue, yes it would.
[84]
In addition, Ward teaches us that refugee
protection is an international commitment where Canada acts as a surrogate of
those countries suffering a failure of their institutions of state protection
by offering a safe haven to their citizens who flee to Canada. On the other hand, citizens of Canada are expected to report crimes to the police, even if
there is no expectation of arresting and convicting the guilty persons, as may
be the case for random incidents of crime. Indeed, insurance companies make
reporting crimes a contractual obligation in seeking indemnification for their
loss. But it is really part of our civic duties, just as it is to report crimes
being committed on others. In a democracy we count on the full participation of
our citizens in combating crime, which includes complaining to policing
oversight agencies. As surrogates for those seeking protection in our country,
we expect no less from them in their country as a condition to become permanent
residents of Canada, when no risk of harm arises in complaining to oversight
agencies.
[85]
Moreover, there is no basis for the Court to
adopt a legal principle that undermines the attempts by the home country to
correct deficiencies in its state protection facilities by the employment of
its democratic powers.
(c)
The Requirement to Establish that Protection
Will Result from Complaining to Oversight Agencies
[86]
In my respectful opinion the heavy burden
described in Hinzman to demonstrate the exceptional circumstances before
permitting the dispensation of the need to access state protection is not
discharged in respect of oversight agencies by answering the rhetorical
question posed in Ignacz. It is recalled that the question posed by the
Court was whether the claimant would be any safer or more protected by
complaining to the police or the oversight policing agencies.
[87]
First, I see the rhetorical question in Ignacz
as effectively shifting the burden to the Board to demonstrate state
protection, rather than the applicant showing by clear and convincing evidence
that state protection is not adequate. The burden of proving or not proving
state protection is in many respects highly significant, because anything
having to do with establishing state protection is challenging, making the onus
an important factor in the outcome.
[88]
Additionally, requiring a positive reply to the
rhetorical question of how protection for the victim improves by complaining to
oversight agencies is particularly difficult in a situation of random
acts of persecution, which typically are those afflicting members of the Roma
community. The reality is that proving improved protection for the victim of
random acts of persecution is largely unattainable, as the courts have
repeatedly pointed out. When neither the claimant nor the police can know when
and by whom a future act of persecution against any particular claimant may
occur, it can always be posited that increased protection cannot be reasonably
obtained by the individual approaching state authorities.
[89]
In this regard, I refer to the point already
made that reporting to oversight agencies tends to improve the state protection
afforded to all members of the Roma community.
[90]
As well, if this rationale of needing to
demonstrate protection from complaining applies to oversight agencies, there is
no logic why the same requirement would not apply to seeking state protection
from the police in the first instance. It has not been suggested that there is
no requirement to report acts of random violence to the police in the first
instance if not assured some protection will follow. It is not clear therefore,
why it should be any different in respect of being required to follow up if not
satisfied with the efforts of the police, when there is no risk of harm in
doing so.
(d)
Absence of Risk of Harm in Making Further
Complaints
[91]
It is apparent from my comments above that I
judge whether any risk of harm or other downside to the claimant would
result from seeking police protection, to be an important underlying factor
in these cases. The absence of risk to members of the Roma community who are
normally victims of random attacks is an important factual distinction when
considering the requirement to seek state protection in these cases. For
targeted attacks, a common risk of seeking police assistance or complaining to
policing oversight agencies is the possible threat of retaliation by the
assailants. This distinction however, does not appear to be considered in these
cases when determining whether exceptional circumstances exist to exempt the
need to seek state protection, or to complain about its inadequacies to
oversight agencies.
[92]
My view is that the absence of risk of harm in
seeking state protection is one of the important factors that underlies the
exceptional burden of seeking state protection in a functioning democracy.
Democracies, by their nature, generally present little risk of harm in
reporting crimes or complaining about the adequacy of protection. Moreover, the
absence of harm in accessing state protection only appears to be relevant in
the circumstances of complaining about the adequacy of policing. It is
generally conceded that no exemptions apply for first reporting crimes
when no risk arises from doing so, even if the issue of absence of risk of harm
is not stated as the underlying rationale.
[93]
Besides targeting, a risk of harm may arise by
simply remaining in the country instead of fleeing, when there exists the possibility
of an imminent attack by the aggressors. The Ward decision is an
example of this form of risk - the applicant had to flee Ireland because his
life was in imminent danger as a target of the Irish Republican Army and it was
admitted that the state could not adequately protect him. The Supreme Court
pointed out why the imminent risk of harm to Mr. Ward excused him from seeking
police protection, as follows:
Moreover, it would defeat the purpose of
international protection if a claimant would be required to risk his or her
life seeking ineffective protection of a state merely to demonstrate
ineffectiveness.
[Emphasis added.]
[94]
In Ward, the Supreme Court set out two
formulations to determine whether there is a requirement to approach state
authorities in the following oft-cited passage:
Like Hathaway, I prefer to formulate this
aspect of the test for fear of persecution as follows: only in situations in
which state protection [1] "might reasonably have been forthcoming",
will the claimant's failure to approach the state for protection defeat his
claim. Put another way, the claimant will not meet the definition of
"Convention refugee" [2] where it is objectively unreasonable for
the claimant not to have sought the protection of his home authorities;
otherwise, the claimant need not literally approach the state.
[Emphasis and numbering added.]
[95]
I think it important to note that the Court’s
formulation of the test, “where it is objectively
unreasonable” not to seek protection, is broader and more generic than
that of Professor Hathaway who formulates a subset of the principle that the
requirement to seek protection arises only in situations when protection “might reasonably have been forthcoming.” It would
appear that the distinction between the two formulations underlies the comment
in Hinzman that “a careful reading of Ward”
should not lead to the conclusion that refugee claimants can easily avoid
seeking state protection.
[96]
I am not aware of any case that has considered
whether it is “objectively unreasonable” for an applicant not to seek state
protection when no risk of harm arises from doing so. I think this is the
fundamental issue in these debates. Given the Court’s reference to the risk of
harm to Mr. Ward in approaching the state for protection in the passage cited
above, I think it is reasonable to conclude that the Court in Ward did
not have in its full contemplation an exception to the requirement to approach
state authorities in a democratic state when there is no risk of harm in
seeking protection.
[97]
I say this because the founding principle
underlying refugee protection stems from the risk of harm in the home country,
whether in the form of a well founded fear, or being in need of protection. If
there is no risk of harm in accessing state protection, it would be objectively
unreasonable not to seek state protection, because seeking state protection
cannot add to the risk of harm that causes the individual to flee. Seeking
state protection when no risk of harm ensues from doing so can only diminish
the risk, if the police prove successful. That is to say that there could only
be an upside to going to the police, however remote.
[98]
At the very least, Ward contemplates a
requirement to access state protection in incidents prior to the “culminating
incident”, being the last one that led the claimant to flee to Canada. This distinction between past and the culminating incidents of persecution is
implicit in the Supreme Court's statement in Ward that an
"exceptional exemption" from seeking state protection arises from “the claimant's testimony of past personal incidents in which
state protection did not materialize”. Logically, this can only mean
that the applicant must have exhausted the state protection mechanisms in all
previous incidents before giving up on state protection. Similarly, if
according to Professor Hathaway state protection is about giving the state an
opportunity to respond to a form of harm, then as long as the claimant intends
to remain in the home country, there is no logic why that opportunity would not
be given to the state to respond to the harm, if it does not add to the risk of
the claimant.
[99]
Thus, if a risk of persecution leads the
claimant to flee after giving state protection every opportunity to provide
protection, then the objectively reasonable ground is met not to seek state
protection regarding the last incident. But, in my view, if the claimant
remains in the country for any appreciable time, such as for arranging their
affairs as is often the case, the requirement to seek state protection remains
when no risk of harm arises in doing so. It is a question of fact to be
determined in the circumstances whether it was reasonable to give up on the
protections of the state when the decision has been made to leave. But it is
only in issue after the culminating incident occurs; otherwise the applicant is
required to exhaust all avenues of state protection.
(e)
Facilitating Corroboration of Incidents of
Persecution
[100] For what is admittedly a corollary consideration but still an
important factor for the RPD and this Court, the requirement to access state
protection generally improves the reliability of the factual conclusions
regarding the incidents of persecution alleged by Roma claimants. Normally,
accessing state protection should lead to reliable corroborative evidence being
available due to the state authority’s documentation that is generated in the
process. This is particularly significant in terms of corroboration where
claimants allege that the police failed to prepare reports or inadequately
dealt with their case.
[101] By being required to complain about inadequate police services to
one of the oversight agencies, who are diligent in following up on such
complaints, the record of the incident and policing failures would be available
for the Board’s consideration.
[102] This would also be of benefit to the refugee claimant, whose
application should receive a more favourable consideration since such
documentation would corroborate the incidents of persecution and their claim
would not be solely based on his or her bare testimony.
[103] The case at hand is a good example to demonstrate the Court’s
concerns about the exception of the need to report policing failures to the
various oversight agencies for lack of corroboration that would have resulted
by complaining to the oversight agencies. The principal applicant claims to
have been involved in a random violent attack during which he and a friend were
pursued by assailants in a car chase at speeds up to 150 kilometres per hour.
The applicant alleges that they were run off the road, destroying his
automobile and causing him personal injury. He testified that the police
visited him at the hospital and took notes but prepared no report. Besides it being
somewhat difficult to believe that no accident report was prepared and filed on
such a public and provable event, this was an occasion where the identity of
the assailants would have been known to the police by their investigation.
[104] This would have been a particularly helpful case for the applicant
to have pursued with the police and thereafter with the oversight agencies to
ensure either that the perpetrators were brought to justice or, failing this
resolution, that police inadequacies were highlighted. Not only would this have
served the purpose of deterrence and transparency, the applicants’ allegations
would have been corroborated and their chance of success in their refugee claim
improved.
[105] Yet, by my interpretation of the jurisprudence cited above, because
oversight agencies are said to serve no function of protection and there is no
evidence that the complainant’s safety will be improved from other random acts
of violence, the need to complain to the oversight agencies is not relevant to
state protection. Thus, by this jurisprudence, the Board committed a reviewable
error by insisting that the failure to follow up on alleged policing
inadequacies with either the police or any oversight agency was a ground to
reject the application.
[106] In my view, these principles do not properly state the requirements
of state protection. Moreover, they result in the circumstances where all
citizens of Canada and Hungary lose by this rule, except the refugee claimant
making a false claim of having been the victim of an incident of persecution.
IV.
Conclusion
[107] For the reasons described above, I conclude that no reviewable error
was made by the Board in its conclusions that the personal circumstances of the
applicants did not demonstrate persecution or being in need of protection and
that the state protection afforded to the applicants was adequate in the
circumstances. Its decision falls within the range of reasonable acceptable
outcomes and is justified by transparent and intelligible reasons. Accordingly,
I dismiss the application.
A.
Certified Questions
[108]
Given what I considered to be the determinative
role of the principles of state protection discussed above, and the fact that I
had not asked the parties during argument whether they wished to propose any
certified questions, I provided an advance copy of my reasons for that purpose,
which included the following questions for their consideration:
1.
Whether the Refugee Protection Board commits a
reviewable error if it fails to determine whether protection measures
introduced in a democratic state to protect minorities have been demonstrated
to provide operational adequacy of state protection in order to conclude that
adequate state protection exists?
2.
Whether refugee protection claimants are
required to complain to policing oversight agencies in a democratic state as a
requirement of accessing state protection, when no risk of harm arises from
doing so?
[109] The applicant replied that the questions proposed by the Court should
be certified. However, the reasoning offered was not of assistance, to the
effect only that the answers to the questions would be helpful to Members of
the Immigration and Refugee (Bar) in rendering decisions for Convention Refugee
Claims and for determining if persons are in need of protection in Canada.
[110] Conversely, the respondent submitted that the proposed questions did
not meet the requirements for certification, being that of transcending the
interests of the immediate parties to the litigation, contemplating issues of
broad significance or general application, and being determinative of the
appeal. In its reply, it discussed certain principles in support of its
position, in effect claiming that the legal principles were clear and not
determinative.
[111] I am not in agreement that the questions proposed do not address
issues that are determinative of the decision (in the respondent’s favour). The
Board’s reasons regarding state protection vary largely fixated on the measures
introduced by the state to enhance protection of the Roma minority with very
little evidence demonstrating their operational adequacy. Based on the
jurisprudence referred to in my reasons, this would otherwise render the
absence of such analysis a reviewable error. To similar effect was the Board’s
justification of its decision on the basis of the applicant’s failure to follow
up on complaints to the police and their oversight agencies even though no risk
arises in doing so. The jurisprudence cited above has rejected failures to seek
state protection in the circumstances as insufficient grounds to reject a
claim.
[112] I also am of the view that the proposed questions raise issues that
both remain unresolved and transcend the interests of the immediate parties,
particularly as they relate to a significant division of opinion in this Court
regarding the application of legal principles underlying the certified
questions. The cases cited by the respondent, such as the Villafranca
and Hezman in respect of the first and second certified questions have
not received general application in this Court. There appears to be a
difference of opinion in the Court on several issues involving state
protection. These include the degree of deference owed to the decisions of the
Board pertaining to the exercise of a wide discretion on these issues falling
squarely within its area of expertise, the effect of the state undertaking
extensive measures to protect the Roma minority and the requirement to seek
state protection when no risk arises from the claimant’s doing so. The
resolution of the different views of the Court that determine the outcome of
decisions transcends the interests of the parties in this matter.
[113] Accordingly, the Court certifies the two questions set out in
paragraph 108 above.
JUDGMENT
THIS COURT’S JUDGMENT is that
1.
the application is dismissed; and
2. the following questions are certified for appeal:
i.
Whether the Refugee Protection Board commits a
reviewable error if it fails to determine whether protection measures
introduced in a democratic state to protect minorities have been demonstrated
to provide operational adequacy of state protection in order to conclude that
adequate state protection exists?
ii.
Whether refugee protection claimants are
required to complain to policing oversight agencies in a democratic state as a
requirement of accessing state protection, when no risk of harm arises from
doing so?
“Peter B. Annis”
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