Docket: IMM-7225-13
Citation:
2015 FC 337
Ottawa, Ontario, March 17,
2015
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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JENO KOVACS
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JENONE KOVACS
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PETRA IZABELLA KOVACS
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ANNET KOVACS
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DIANA MOLNAR
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JENO (JR.)
KOVACS
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicants, a Roma family of six (two adults
and four children) who are citizens of Hungary, seek judicial review pursuant
to section 72 of the Immigration and Refugee Protection Act, SC 2001, c
27 (the Act), of the decision of a Senior Immigration Officer (the Officer)
made on September 25, 2013, which refused their Pre-Removal Risk Assessment
(PRRA) and found that they were not Convention refugees or persons in need of
protection pursuant to sections 96 or 97 of the Act.
[2]
For the reasons that follow, the application is
dismissed.
Background
[3]
The adult applicants, Mr. and Ms. Kovacs, and
their two eldest children first came to Canada in 2000 and made claims for
refugee protection under their former surname (Mata) but returned to Hungary.
[4]
The applicants then returned to Canada in November 2009, with four children, two of whom had been born since their return to Hungary, and made claims for refugee protection using their new surnames. The Refugee
Protection Division of the Immigration and Refugee Board (the Board) discovered
the applicants’ change of name. Mr. and Ms. Kovacs and the two eldest children
were found to be ineligible for refugee protection pursuant to section 101 of
the Act, as they had previously made claims for protection in Canada. The claims of the two youngest children were considered. Ms. Kovacs provided the evidence at
the hearing on behalf of the children, who were represented by a Designated
Representative.
[5]
In its June 23, 2011 decision, the Board noted
very serious credibility concerns. In addition to the applicants’ deception
regarding their change of name, their evidence was found to be inconsistent and
embellished. The Board’s credibility findings are described in the PRRA
decision, as noted below. The Board found that the applicants had not
established their Roma ethnicity with sufficient evidence. However, the Board
considered the claims assuming that they were Roma. The Board found that Ms.
Kovacs had failed to adduce sufficient, credible evidence to support the claims
for refugee protection and that the evidence of discrimination and harassment
as Roma in Hungary did not amount to persecution.
The PRRA Application
[6]
In support of their PRRA application, made in
May 2013, the applicants submitted amended Personal Information Forms (PIF)
reiterating their allegations of persecution in Hungary on the basis of their
Roma ethnicity, and new evidence to establish their Roma identity.
[7]
In addition, Ms. Kovacs submitted an affidavit
detailing a new risk based on a threat from her husband’s uncle, Mr. Illes
Ruszo. Ms. Kovacs stated that she feared returning to Hungary because she had been raped by Mr. Ruszo in Canada in September 2011. Ms. Kovacs did not
report this offence to the police in Canada. Mr. Ruszo subsequently returned to
Hungary. Ms. Kovacs stated that, after she told her husband, he
contacted Mr. Ruszo in Hungary. Following this, Mr. Ruszo sent letters
threatening to kill Ms. Kovacs and her family if they returned to Hungary. The applicants attached two letters from Mr. Ruszo, one post marked December 4,
2012 and the other January 16, 2013 and their certified translations.
[8]
The applicants argued that this new evidence
established that they would face risks in Hungary from Mr. Ruszo and due to
their Roma ethnicity and would not have access to adequate state protection.
The applicants referred to documentary evidence regarding state protection in Hungary, including with respect to gender violence, to support their assertion that Hungary “does not act on complaints of gender violence – especially
from Roma women”.
The PRRA Decision Under Review
[9]
The Officer noted that the applicants submitted
new evidence to support their PRRA in an effort to overcome the findings of the
Board, including: confirmation of their Roma ethnicity; progress reports from
Parkdale Community Health Services regarding Ms. Kovacs’ current psychological
state; the psychological report of Dr. Durish regarding Mr. Kovacs’ diagnosis
of Post-Traumatic Stress Disorder (PTSD); and the psychological report of Dr.
Kussin regarding Ms. Kovacs’ diagnosis of PTSD, depression, anxiety and some
psychotic experience. The Officer indicated that he would consider the
documentary evidence regarding the mistreatment of Roma in Hungary in his assessment of country conditions.
[10]
The Officer concluded that the new evidence was
not sufficient to rebut the Board’s findings about Ms. Kovacs’ credibility or
to persuade him to arrive at a different conclusion than that of the Board. The
Officer reviewed the relevant portions of the Board’s decision, including the
significant credibility findings of the Board regarding the applicants’
deception, noting that their evidence was found to be an embellishment and
concluding that the new material submitted did not contradict the findings of
credibility.
[11]
The Officer recited relevant parts of the
Board’s decision including its finding that “the parents
deliberately set out on a path to deceive the Canadian government, by entering
Canada and making refugee claims under fresh names they had just adopted, after
previously failing under other names, and knowing they were ineligible to apply
under their names”; with respect to the allegations of risk, “the parents only made these allegations and submitted these
documents once they were ‘outed’ and had nothing to lose by doing so”;
with respect to allegations of an attack, “the mother
presented oral evidence inconsistent with the medical report, which report
itself (sic) found to be an embellishment”; and, in conclusion “the panel has found this entire body of evidence to be an
embellishment, it assigns these new allegations and purported corroboration
little weight”. The Officer provided the following summary:
The facts are: this family, whether Roma or
not, willingly engages on a path to deliberately deceive the Canadian
authorities. In 2000, they made a refugee claim under the name of Mata. In
2009, they made a second refugee claim under the name Kovacs, hiding the change
of name in order to increase the likelihood of success in a second refugee
claim. With the second claim, the family presented an entire body of evidence
that was determined by the Board to be an embellishment. I find that the
confirmations of ethnicity, the death threat letters, the affidavits, the
psychological reports, and the documents on country conditions do not
contradict a finding of fact made by the Board, in this case a finding of
credibility.
[12]
The Officer indicated that the threat from Mr.
Ruszo was a new risk and would be considered in the PRRA. The Officer also
considered the risk arising from the medical condition of Mr. and Mrs. Kovacs
and the risk arising from the applicants’ Roma ethnicity.
[13]
With respect to the risk from Mr. Ruszo, the
Officer noted Ms. Kovacs’ claim that she was sexually assaulted in September
2011, did not report the crime to the police, told her husband a few months
before their PRRA application, and had received death threats from Mr. Ruszo
following her husband’s contact with him. The Officer understood that the
sexual assault occurred in Canada and that Mr. Ruszo had returned to Hungary.
[14]
The Officer then considered the documentary
evidence regarding the criminal law governing sexual offences in Hungary and its enforcement and stated “I do not find Mr Ruszo is
above the law. If he is reported as a criminal he will be prosecute (sic) as a
criminal”. The Officer concluded that, on a balance of probabilities, he
did not find that Ms. Kovacs and her family “face a risk
to their life or of cruel and unusual treatment or punishment in Hungary due to the presence of Mr. Illes Ruszo in Hungary. I find that the female applicant and her
family have access to adequate state protection in Hungary.”
[15]
The Officer then considered the risk arising from
the medical condition of Mr. and Ms. Kovacs as described in the
psychological reports. He found the reports were reliable evidence of their
current psychological states, but were not objective evidence that the
applicants would likely be at risk upon return to Hungary. The Officer noted
that a claim under section 97 cannot succeed based on the inability of a
country to provide adequate health or medical care.
[16]
Finally, the Officer accepted the confirmation
of the applicants’ Roma ethnicity and assessed whether they would be at risk on
that basis if returned to Hungary. The Officer noted Ms. Kovacs’ submission
that the police “do not even try to protect Roma people”
and are “even more reluctant to get involved in ‘domestic’ disputes.”
Based on the applicants’ stated reluctance to engage the state for protection,
the Officer indicated that objective evidence was critical to establish whether
adequate state protection would be available in Hungary.
[17]
The Officer reviewed the documentary evidence
regarding state protection and summarized his assessment. He acknowledged that
there are inconsistencies in the documentary evidence, but found that the
preponderance of objective evidence showed there is adequate state protection,
although it is not perfect. The Officer found that the applicants had failed to
rebut the presumption of state protection with clear and convincing evidence.
The Officer then concluded that there was no persuasive evidence that the
applicants would face persecution, or on a balance of probabilities, face a
risk to life, risk of cruel and unusual treatment or punishment, or risk of
torture if they returned to Hungary.
The Issues
[18]
The applicants argue that the Officer applied
the wrong test for state protection and, as a result, his analysis is incorrect.
Alternatively, the applicants argue that the decision is unreasonable on
several grounds: the Officer failed to assess state protection in the context
of the applicants’ circumstances, particularly the risks of sexual and gender
violence and the lack of protection for Roma; the Officer ignored evidence
provided by the applicants; the Officer’s decision is unintelligible because
the Officer failed to consider the risks of persecution claimed by the
applicants in their PIFs and failed to consider the corroborative evidence from
the psychological reports and offered no explanation for not doing so.
Standard of Review
[19]
As the applicant notes, in Dawidowicz v
Canada (Minister of Citizenship and Immigration), 2014 FC 115, [2014] FCJ
No 105 [Dawidowicz] Justice O’Keefe highlighted the distinction between
two issues; whether the correct test was applied, which is reviewed on the
standard of correctness, and whether the decision maker applied the test to the
particular facts, which is reviewed on the reasonableness standard. Justice
O’Keefe stated at para 23:
[23] Chief Justice Paul Crampton recently
explained the standard of review for decisions on persecution and state
protection in Ruszo v Canada (Minister of Citizenship and Immigration),
2013 FC 1004 at paragraphs 20 to 22, [2013] FCJ No 1099 (QL) [Ruszo]. In
essence, since the jurisprudence has developed clear tests for both, a board
cannot depart from them. Therefore, where applicants allege that a board
misunderstood the test, the standard is correctness and no deference is owed to
the board’s understanding of the relevant tests. However, where applicants
challenge how the tests were applied to the facts, those are questions of mixed
law and fact and the standard is reasonableness (Ruszo at paragraphs 20
to 22; Gur v Canada (Minister of Citizenship and Immigration), 2012 FC
992 at paragraph 17, [2012] FCJ No 1082 (QL); Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171 at paragraph 38, 282 DLR (4th)
413 [Hinzman]).
[20]
It is well established, that where the standard
of reasonableness applies, the role of the Court is to determine whether the
decision “falls within ‘a range of possible, acceptable
outcomes which are defensible in respect of the facts and law’ (Dunsmuir,
at para. 47). There might be more than one reasonable outcome. However, as long
as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome” (Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at para 59). Deference is owed to the decision maker. The Court will
not re-weigh the evidence or remake the decision.
[21]
In Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland
Nurses], the Supreme Court of Canada elaborated on the requirements of Dunsmuir
v New Brunswick, 2008 SCC 9 [Dunsmuir], noting that reasons are to “be read together with the outcome and serve the purpose of
showing whether the result falls within a range of possible outcomes”
and that courts “may, if they find it necessary, look to
the record for the purpose of assessing the reasonableness of the outcome”
(at paras 14-16). The Court summed up its guidance in para 16:
In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[22]
In Majlat v Canada (Minister of Citizenship
and Immigration), 2014 FC 965, [2014] FCJ No 1023 Justice Mary Gleason
summarized the notion of deference, following a comprehensive analysis of the
reasonableness standard of review, at para 24:
[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.
[23]
In this case the applicants argue that the
Officer applied the wrong test. That issue is addressed below. Alternatively,
the applicants argue that the assessment of state protection is not reasonable
because the Officer ignored evidence and failed to conduct a contextual
analysis of the risks they asserted. With the guidance of the jurisprudence
noted above, I have considered whether the Officer’s findings and decision are
reasonable with regard to the outcome and the record.
[24]
Before addressing these issues, it is helpful to
first examine the applicants’ last argument - that the Officer’s decision is
not intelligible.
Is the decision unintelligible?
The applicants’ position
[25]
The applicants argue that the Officer’s reasons
are unintelligible. First, the applicants submit that the Officer erred by
failing to address their allegations of persecution, claimed in their PIFs,
without explanation. Second, the Officer erred in not providing an explanation
for rejecting the psychological reports which the applicants assert corroborate
their allegations of persecution.
[26]
The applicants submit that the Officer’s finding
that their “new evidence” was insufficient to rebut the Board’s credibility
findings or persuade the Officer to reach a different conclusion is perverse
because the determinative finding of the Board was that the applicants were not
Roma. The Officer accepted that the applicants were Roma which, therefore,
rebuts the Board’s finding. The applicants argue that given this rebuttal,
their allegations of persecution should have been considered.
[27]
The applicants also argue that the Officer did
not explain why their new evidence was insufficient. In particular, the Officer
did not provide reasons for rejecting the psychological reports which corroborate
their allegations of persecution in Hungary. The adult applicants note that the
psychologists did not solely rely on their accounts, but conducted
psychological testing to diagnose their mental state.
The respondent’s position
[28]
The respondent notes that the Board had numerous
credibility concerns regarding the applicants, but found that even if the
applicants were Roma, they did not establish a well‑founded fear of
persecution. The Officer explained his finding that the credibility issues were
not addressed by the new evidence as it did not contradict findings made by the
Board.
The Decision is not unintelligible; the Officer did not
err in considering only the new risk
[29]
As noted, it is helpful to address this issue
first to provide the proper framework to review the Officer’s decision.
[30]
A PRRA is not an appeal of the refugee
protection determination conducted by the Board or an opportunity to reargue
the facts that were before the Board as noted by Justice Judith Snider in Perez
v Canada (Minister of Citizenship and Immigration), 2006 FC 1380, [2006]
FCJ No 1778 at para 12. Justice Snider added, “[t]he
decision of the RPD is to be considered as final with respect to the issue of
protection under s. 96 or s. 97, subject only to the possibility that new evidence
demonstrates that the applicant would be exposed to a new, different or
additional risk that could not have been contemplated at the time of the RPD
decision.”
[31]
The Board’s decision was based on significant
negative credibility findings. Although that decision determined the claims of
the two youngest children, Ms. Kovacs gave evidence on their behalf and the
allegations of the whole family were assessed.
[32]
The Officer carefully reviewed the Board’s
decision and the new evidence submitted and reasonably found that the new
evidence did not rebut the credibility findings of the Board.
[33]
The applicants’ argument that because they had
established their Roma ethnicity, the Officer erred in not assessing their
reiterated allegations of persecution, completely overlooks the fact that the
Board’s determinative finding in rejecting their claim for protection was their
significant lack of credibility. Although the Board had not been satisfied
regarding the establishment of their Roma ethnicity, the Board nonetheless assessed
the claim assuming that they were Roma. Therefore, the subsequent establishment
of their Roma ethnicity to the Officer does not rebut the determinative
findings of the Board, which were credibility findings.
[34]
The Officer did explain why he attributed little
weight to the reports from Dr. Durish and Dr. Kussin. The Officer accepted the
psychological reports only as evidence of the adult applicants’ current mental
state. The Officer explained that these reports were not corroborative of any
risk the applicants alleged, noting that the Doctors were not experts on the
country conditions in Hungary and could not provide objective evidence of
country conditions. The Officer also noted that the reports, apart from the
applicants’ current mental state, were based on what the adult applicants had
recounted.
[35]
Because the only new risk asserted was the risk
from Mr. Ruszo, the Officer did not err in failing to consider the allegations
of persecution that the applicants re-submitted with their PRRA application. These
were not new risks. Moreover, these risks had been found by the Board to not be
credible.
[36]
The decision is not unintelligible. The
reasonableness of the decision must be reviewed bearing in mind that the
Officer’s role was to assess only the new risk from Mr. Ruszo, the risk arising
from the adult applicants’ medical condition and the risk arising more
generally from their Roma ethnicity on a prospective basis, if the applicants
were returned to Hungary.
Did the Officer apply the wrong test for state protection?
The applicant’s submissions
[37]
The applicants argue that the Officer applied
the wrong test for determining whether there is adequate state protection for
the Roma in Hungary by focusing on efforts rather than on the effectiveness of
such efforts, that such an error is reviewable on the correctness standard (Dawidowicz
at para 23; Ruszo v Canada (Minister of Citizenship and Immigration),
2013 FC 1004, [2013] FCJ No 1099 [Ruszo] at paras 20-22), and that any
analysis based on this wrong test is erroneous.
[38]
The applicants point to several references in
the decision that refer to Hungary’s efforts rather than operational adequacy
as demonstrating that the Officer applied the wrong test:
• “measures are not always
implemented effectively at the local level”
• “failures implementing centrally
exacted legislation…continue to lie at the heart of much of the discrimination
towards the Roma”
• “the central government’s general
failure to maintain strong and effective control mechanisms over rights
violations takes its toll…on the Roma” , and,
• “the central authorities appear
somewhat hamstrung in their efforts to achieve change”.
[39]
The applicants note that the test for state
protection is whether a state is able to provide adequate protection (Elcock
v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1438; Garcia
v Canada (Minister of Citizenship and Immigration), 2007 FC 79; Canada
(Attorney General) v Ward, [1994] 2 S.C.R. 689 [Ward]). “Adequate protection” and “serious
efforts at protection” are not the same thing; evidence of adequacy of
state protection will indicate whether or not a given law actually functions to
protect citizens (Kumati v Canada (Minister of Citizenship and Immigration),
2012 FC 1519, [2012] FCJ No 1637 [Kumati] at paras 27, 28, 34, and 39).
The applicants note that this Court has held that “adequate” protection
requires evidence that it is more likely than not that the individual will be
protected (Salamanca v Canada (Minister of Citizenship and Immigration),
2012 FC 780, [2012] FCJ No 809 [Salamanca] at para 17). In addition, the
applicant submits that some empirical assessment of the adequacy of state
protection is required (Dawidowicz at paras 29-30).
The respondent’s submissions
[40]
The respondent submits that the passages referred
to by the applicants must be considered in their full context. For example, the
Officer’s comment that measures are not always implemented effectively at the
local level does not suggest that the Officer applied the wrong test. The
Officer considered the conflicting evidence and concluded that the
preponderance of objective evidence demonstrated that adequate state protection
was available to the applicants.
The Officer applied the correct test for state protection
[41]
I have carefully reviewed the Officer’s
decision, including the passages noted by the applicants. I have also reviewed
all the other passages in the Officer’s decision regarding state protection,
which referred to the various initiatives being developed, implemented and
assessed in Hungary to protect Roma from persecution and to counter
discrimination, including the oversight or redress mechanisms available to
Hungarian citizens. Contrary to the applicants’ view that the Officer applied
the wrong test, the decision reveals that the Officer understood that the test
for state protection is that of adequacy and that the onus is on the applicants
to rebut the presumption of adequate state protection in Hungary given that it
is a functioning democracy.
[42]
The passages noted by the applicants above do
not demonstrate that the Officer misunderstood the test or applied the wrong
test. Several of the Officer’s references were made in the context of
initiatives to address discrimination in employment and housing and not
persecution or risk of personal violence. The Officer candidly acknowledged
that the country condition evidence was inconsistent or mixed and the situation
was not perfect. His references to the efforts being made were related to his
assessment of the adequacy of state protection and do not reflect any
misunderstanding of the test.
[43]
The issue is whether the Officer’s assessment of
the adequacy of state protection for the applicants, including his finding that
they had not rebutted the presumption of state protection, is reasonable. In
other words, the issue is the reasonableness of the conclusion that adequate
state protection would be available to the applicants if they returned.
Is the decision reasonable?
The applicants’ submissions
[44]
The applicants argue that the Officer failed to
assess the adequacy of state protection for them based on their circumstances
and the risks they faced, which include the risk to Roma victims of domestic
and gender violence. The applicants note these risks underlie the threats from
Mr. Ruszo and would not be taken seriously.
[45]
The applicants further argue that the Officer
ignored the contradictory documentary evidence which establishes that there
would be no adequate state protection for the applicants. They again note that
domestic and gender violence underlies the threats and that the police do not
respond to domestic disputes.
[46]
The applicants also submit that the Officer
ignored relevant jurisprudence which has established how the adequacy of state
protection should be analyzed.
[47]
With respect to the Officer’s failure to conduct
an individualized assessment, the applicants note that they stated that, as
Roma, they would not receive protection as victims of crime. They provided
documentary evidence that Hungarian authorities rarely get involved in “domestic disputes” or those involving gender-based
violence. The applicants acknowledge that the threats from Mr. Ruszo are of
physical violence or death, but submit that these threats arise from the
disclosure of the sexual assault. The Officer erred in failing to analyze whether
state protection would be adequate to respond to the threat in the context of
domestic violence and the family’s Roma ethnicity (Djubok v Canada (Minister
of Citizenship and Immigration), 2014 FC 497, [2014] FCJ No 672 [Djubok]
at paras 18-19).
[48]
The applicants note that this Court has
intervened in several recent decisions where PRRA officers have made
unreasonable findings about the adequacy of state protection for the Roma in
Hungary: Gulyas v Canada (Minister of Citizenship and Immigration), 2013
FC 254, [2013] FCJ No 280 at para 78; Buri v Canada (Minister of Citizenship
and Immigration), 2014 FC 45, [2014] FCJ No 47 at paras 64-67; Kemenczei
v Canada (Minister of Citizenship and Immigration), 2012 FC 1349, [2012]
FCJ No 1457 at paras 57, 60-61; Mozco v Canada (Minister of Citizenship and
Immigration), 2013 FC 734, [2013] FCJ No 776 at para 10; Majoros v
Canada (Minister of Citizenship and Immigration), 2013 FC 421, [2013] FCJ
No 447 [Majoros] at para 18. The applicants submit that the Officer’s
analysis of the adequacy of state protection was flawed as he failed to follow
the guidance of this jurisprudence.
[49]
In addition, the Officer erred in failing to
refer to contradictory country condition evidence that could only lead to the
conclusion that there is no adequate state protection for the Roma in Hungary (Goman v Canada (Minister of Citizenship and Immigration), 2012 FC 643, [2012] FCJ No
866 at para 14).
The respondent’s submissions
[50]
The respondent highlights that a refugee
claimant bears the onus of providing clear and convincing proof of the state’s
inability to protect (Ward, supra at 724-726; Hinzman et al; Hughey
v Canada (Minister of Citizenship and Immigration), 2007 FCA 171, [2007]
FCJ No 584 [Hinzman]). The applicants failed to provide evidence
establishing that state protection was not available (Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 FCR 636 [Carrillo]
at para 30; Ruiz Martinez v Canada (Minister of Citizenship and Immigration),
2009 FC 1163, [2009] FCJ No 1443 at para 42-43).
[51]
The respondent notes that with respect to the
new risk allegation, the Officer accepted that the sexual assault occurred but
found that state protection would be available to the applicants if Mr. Ruszo
attempted to persecute them in Hungary. The documentary evidence demonstrated
that state protection would be available, although the Officer recognized some
problems with the implementation of measures (Horvath v Canada (Minister of Citizenship and Immigration), 2012 FC 1132, [2012] FCJ No 1217 [Horvath];
Ruszo supra).
[52]
The Officer assessed the risk from the
perspective of its link to gender and sexual violence noting the laws in place,
that the police would be responsible for protection, and that if reported, Mr.
Ruszo would not be above the law. The Officer also considered the initiatives
underway to respond to domestic violence, noting these were not perfect, but
that there were services and assistance available.
[53]
The Officer did not ignore evidence. The Officer
recognized problems with gender-based violence but found that the preponderance
of the evidence demonstrated that state protection was available. Merely
because the Officer did not refer to specific documents or passages does not
amount to an error.
[54]
The respondent notes that findings of a lack of
state protection in other cases cannot be used as evidence to impugn the
Officer’s decision (Konya v Canada (Minister of Citizenship and Immigration),
2013 FC 975, [2013] FCJ No 1041 [Konya]; Molnar v Canada (Minister of
Citizenship and Immigration), 2012 FC 530, [2012] FCJ No 551; Riczu v
Canada (Minister of Citizenship and Immigration), 2013 FC 888, [2013] FCJ
No 923, Ruszo, supra; Botragyi v Canada (Minister of Citizenship and
Immigration), IMM-13187-12, February 7, 2014).
The decision is reasonable; the Officer’s assessment of
the adequacy of state protection is reasonable
[55]
The Officer did not ignore the risks faced by
the applicants or their particular circumstances.
[56]
As noted above, the Officer first assessed the
risk from Mr. Ruszo. The Officer noted that Ms. Kovacs stated that she was
raped by Mr. Ruszo in Canada but she had not reported the offence to the police
in Canada. The Officer, therefore, considered what could be expected if the
applicants returned to Hungary. This was the proper approach because risk
assessment is forward looking.
[57]
The Officer considered that the risk from Mr.
Ruszo was a threat of violence, noting that the police would be responsible and
that if reported, the police would respond. That conclusion is reasonably based
on the Officer’s assessment of the country condition evidence, and as
acknowledged, it is not perfect state protection. However, the preponderance of
evidence supports the finding of adequate state protection.
[58]
The Officer noted the applicants’ assertion that
there was limited protection for Roma women who are victims of domestic
violence. The decision does not explicitly acknowledge the need to consider the
intersection of the risk from Mr. Ruszo and the risk arising from the applicants’
ethnicity. However, it is apparent when the reasons are read with the record
that the Officer approached the state protection analysis by, first,
considering the primary risk of the threat from Mr. Ruszo and, then, by
considering that risk in the context of the risk arising from the applicants’
Roma ethnicity.
[59]
The Officer did not ignore the documentary
evidence that the applicants say establishes that there would be no adequate
state protection for them. The Officer noted that, given the applicants’ stated
reluctance to engage the state, his assessment of whether they had rebutted the
presumption of state protection would be based on the documentary evidence.
[60]
The Officer began by describing the situation of
the Roma in Hungary, noting: that violent attacks continued, which had
generated strong public concern; that human rights NGOs had criticized law
enforcement authorities for failing to recognize the racial motivation for many
crimes; and, that these same organizations have reported that the Roma are
discriminated against in all ‘fields of life’. The
Officer also noted the reports of violence by right wing extremist groups,
adding that investigations and arrests did occur.
[61]
Against this backdrop, the Officer considered
state protection for the applicants due to their Roma ethnicity. He noted that
the ongoing challenges with racism were counterbalanced with information about
anti-discrimination measures. The Officer acknowledged that despite these
measures, “the system is not perfect to be sure”.
He also referred to alternative recourse if the applicants do not want to
approach the police, including complaint mechanisms such as the Minorities
Ombudsman and the Independent Police Complaints Board. The Officer concluded
that, although there were reports of police corruption, the evidence also shows
that the state takes action when complaints are made.
[62]
The Officer concluded this part of the analysis
stating “I recognize that there are some inconsistencies
among several sources within the documentary evidence; however, the objective
evidence regarding current country conditions suggests that, although not
perfect, there is adequate state protection in Hungary for Roma who are victims
of crime, police abuse, discrimination or persecution; that Hungary is making
serious efforts to address these problems; and, that the police and government
officials are both willing and able to protect victims”.
[63]
The Officer found, in conclusion, that having
considered the totality of the evidence, the applicants had failed to rebut the
presumption of state protection with clear and convincing evidence and that the
objective evidence did not establish that state protection would not be
available to the applicants. In reaching this conclusion, the Officer did not
ignore the objective country condition evidence indicating on-going problems
with Hungary’s treatment of the Roma. Rather, the Officer recognized that
discrimination and racial violence continues. The Officer was not required to
refer to every report included in the documentary evidence (Newfoundland
Nurses at para 16).
[64]
The Officer did not depart from the
jurisprudence or ignore its guidance about how the adequacy of state protection
should be analyzed.
[65]
The applicants referred to several cases where,
based on the particular circumstances, this Court found the analysis and,
consequently, the determination of state protection to be unreasonable.
However, the starting point in all cases must be an examination of the basic
principles.
[66]
The Supreme Court of Canada set out the
rationale underlying the international refugee protection regime in Ward
at para 18. This regime is meant to be relied upon when the protection one
expects from the state of which he or she is a national is unavailable. As
noted, a state that is a functioning democracy is presumed to be capable of
protecting its citizens. The onus is on the applicants to rebut that
presumption with clear and convincing evidence that satisfies the trier of
fact, on a balance of probabilities, that state protection is inadequate or
non-existent (Carrillo at para 30).
[67]
In Konya, supra Justice Judith Snider
reiterated that the standard is adequate state protection, at para 34:
[34] The test for state protection is not
a test of effectiveness, but whether it is adequate (Kaleja v Canada (Minister of Citizenship and Immigration), 2011 FC 668 at para 25, [2011] FCJ No 840; Kis
v Canada (Minister of Citizenship and Immigration), 2012 FC 606 at para 16,
[2012] FCJ No 603). It is not enough for the Applicant to demonstrate the state
is not always effective at protecting persons in the Applicant’s situation (Lakatos
v Canada (Minister of Citizenship and Immigration), 2012 FC 1070 at para
14, [2012] FCJ No 1152).
[68]
In Ruszo, supra (no relation to the
applicant’s uncle), the Chief Justice reviewed the governing principles and the
recent jurisprudence and addressed the issue of how an applicant could rebut
the presumption when they are no longer in their country of origin, noting, at
para 30:
[30] In discharging this burden, refugee
claimants who are outside their country of nationality may demonstrate either
that they are “unable” to obtain adequate state protection or that, by
reason of a well founded fear of persecution, are unwilling to avail
themselves of the protection of their home state. As stated in Ward,
above, at para 49:
The distinction between these two
branches of the “Convention Refugee” definition resides in the party’s
precluding resort to state protection: in the case of “inability”, protection
is denied to the claimant, whereas when the claimant is “unwilling”, he or she
opts not to approach the state by reason of his or her fear on an enumerated
basis.
(emphasis in original)
[69]
The Chief Justice added at para 33 that an
applicant cannot simply express reluctance to seek state protection, noting:
[33] In this regard, doubting the
effectiveness of state protection without reasonably testing it, or simply
asserting a subjective reluctance to engage the state, does not rebut the
presumption of state protection (Ramirez, above; Kim, above). In
the absence of a compelling or persuasive explanation, a failure to take
reasonable steps to exhaust all courses of action reasonably available in the
home state, prior to seeking refugee protection abroad, typically will provide
a reasonable basis for a conclusion by the RPD that an applicant for protection
did not displace the presumption of state protection with clear and convincing
evidence (Camacho, above).
[70]
In this case, the applicants were not in Hungary and had not, therefore, taken any steps to protect themselves from any prospective
risk from Mr. Ruszo. The Officer looked to the objective country condition
evidence to determine whether their unwillingness or inability to engage state
protection upon their return would be justified. This is the proper approach
given that the onus remains on the applicants to rebut the presumption.
[71]
I have considered all the jurisprudence noted by
the applicants regarding the assessment and determination of adequate state
protection, including: Dawidowicz, which reiterated that efforts alone
were small comfort and that the empirical reality of the adequacy of state
protection should be evaluated; Kumati, which noted that a law on the
books is not sufficient without evidence that the law actually functions to
protect; Majoros, which noted that state protection should be
sufficiently effective at the operational level; Salamanca, which
suggests that adequate state protection means that it is more likely than not
that the applicant will be protected; and, Djubok, which notes that the
various risk factors, as well as their intersection, must be assessed.
[72]
In my view, this guidance elaborates on the
indicators of adequate state protection but it does not elevate the standard.
Adequacy remains the standard and what will be adequate will vary with the
country and the circumstances of the applicants. In this case, the Officer’s
reasons as a whole indicate that he considered the mixed evidence about state
protection in Hungary and its effectiveness. This mixed evidence was the
context for his assessment of the adequacy of state protection for the risks
faced by these applicants.
[73]
With respect to the guidance from the
jurisprudence, this Court has consistently applied the same principles, leading
to different results in different cases due to different facts and
circumstances. Each case must be decided on its own facts. On judicial review,
the issue is whether the decision maker made findings which are reasonable
based on the evidence before the decision maker.
[74]
The applicants and respondent each pointed to
cases suggesting that adequate state protection ranges from serious efforts to
operational or “on the ground” effectiveness.
[75]
The applicants argue, for example, that the
empirical reality of state protection measures should be evaluated. However,
the evaluation of the empirical reality of state protection would be a
challenge in cases such as this where the applicants assert a prospective risk
from one particular individual and a subjective reluctance to seek state protection
if that risk materializes. The applicants have obviously not sought state
protection against this future potential threat, so the Officer can only look
to the objective evidence.
[76]
The applicants also note the need to consider
the full context – i.e. that Ms. Kovacs is a Roma woman facing a threat of
violence from a family member. Although the Officer did not state he was
conducting a contextual analysis, in fact, he did so by acknowledging the
domestic and gender violence context to the risk and by considering the range
of initiatives to counter domestic and gender violence in Hungary. While several of the references to initiatives for domestic and gender violence victims may
appear irrelevant given that the applicant was sexually assaulted in Canada,
the Officer considered the threat (which was of physical violence to the family
upon their return to Hungary), the underlying familial relationship, and the
context of sexual or gender violence, before concluding that Mr. Ruszo would
not be above the law. The Officer’s reasons are sufficient to demonstrate that
he considered the adequacy of state protection from this specific risk in the
context of the applicants’ Roma ethnicity.
[77]
The Officer also canvassed the programs,
policies, mechanisms, and institutions in Hungary that address discrimination
against the Roma, several of which may ultimately have no application to the
applicants, but do demonstrate the range of initiatives underway. The Officer
acknowledged that despite these initiatives, the Roma still face discrimination
in housing, education, employment. However, discrimination, as offensive as it
is, does not necessarily rise to the level of persecution. In the present case,
the applicants’ earlier allegations of persecution had been found not credible
and were, therefore, not assessed by the Officer.
[78]
As the applicants pointed out, the police are
primarily responsible for state protection against any violence, including
sexual and gender-based violence (Katinszki v Canada (Minister of Citizenship
and Immigration), 2012 FC 1326, [2012] FCJ 1444 at para 15). In this case,
the Officer recognized that the police would be responsible and found that if
reported, the police would respond and that Mr. Ruszo would not be above the
law.
[79]
The Officer referred to many agencies that, in
my view, might not be of assistance or benefit to the applicants regarding the
new risk from Mr. Ruszo but would be of assistance with respect to the risks
arising from their Roma ethnicity. Many of the Officer’s references to
measures implemented in Hungary to address racism, including the Minorities
Ombudsman and the Equal Treatment Authority, would not have any role in the
direct protection of the applicants against threats of violence, as this would
be the responsibility of the police, which the Officer noted. However, these
measures were referred to in the context of the Officer’s consideration of the
applicants’ risk as Roma.. The Officer acknowledged that discrimination
continues despite efforts to combat it.
[80]
The applicants note that several references to
the country condition evidence relied on by the Officer appear verbatim
in other refugee protection decisions, for example, references to Hungary being
part of the European Union and references to objective evidence suggesting that
“although not perfect, there is adequate state protection
for Roma who are victims of crime, police abuse, discrimination or
persecution….”.
[81]
I understand that it is troubling to the
applicants to find the same passages in their decision as in others which arise
from different facts. However, there may be no better way to summarize the
available documentary evidence on the issue of state protection in Hungary. The important issue is whether the Officer assessed this information in the
context of the risks to the applicants. In the present case, despite some
familiar passages, the Officer demonstrated that he considered and applied the
country condition evidence to the applicants’ circumstances.
Conclusion
[82]
In conclusion, the Officer considered the new
risks to the applicants, including the risk arising from the threat of violence
from Mr. Ruszo and the risk to the applicants as Roma in Hungary. The Officer also considered the context of the risk from Mr. Ruszo, finding that the police
would be responsible for the protection of the applicants from threats of
violence from a family member. This finding was made based on an assessment of
the country condition documents and taking into account that Ms. Kovacs had
asserted that the police do not take threats of sexual and gender violence from
the Roma seriously.
[83]
Given that the applicants had expressed a
reluctance to engage the state to protect them upon their return, the Officer
had only the objective country condition evidence to consider in determining
whether the applicants had rebutted the presumption of adequate state
protection. On this basis, his finding that the applicants had not rebutted the
presumption is reasonable.
[84]
The Officer also considered the risks to the
applicants as Roma returning to Hungary. He acknowledged the inconsistencies in
the country condition evidence but found that, overall, the evidence supported
a finding that if the applicants faced discrimination upon their return, they
would have programs and assistance to turn to. As noted above, a decision need
not be perfect to be reasonable. The Officer reasonably did not consider the
previous risks found not to be credible. He focussed on the new risk and the
overall or ongoing risk as a Roma and considered these risks and their
relationship to each other. Although the Officer referred to measures that may
not be applicable for these applicants and borrowed similar language from other
decisions, he assessed their risks, the adequacy of state protection for them
and whether they had rebutted the presumption of state protection based on the
available evidence and with a full appreciation of the applicants’
circumstances.
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