Docket: IMM-1280-14
Citation:
2015 FC 9
Ottawa, Ontario, January 6, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
|
BETWEEN:
|
|
VIKTORIA CSANYANE NOVAK
|
|
NORBERT CSANYA
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
ORDER AND REASONS
UPON application for
judicial review pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act) of a decision made on January 23,
2014 by the Refugee Protection Division of the Immigration and Refugee Board
(the RPD), wherein the RPD rejected the applicants’ claim for refugee
protection under sections 96 and 97 of the Act;
AND UPON considering the written
and oral submissions of the parties and reviewing the RPD’s Certified Record;
AND UPON considering that
the applicants are mother (Ms Novak) and son (Norbert) and are citizens of
Hungary;
AND UPON considering that
they submitted a refugee protection claim on November 18, 2011 along with Mr
Norbert Csanya, Ms Novak ex-husband and Norbert’s father alleging discrimination
based on Mr Norbert Csanya’s Roma ethnicity;
AND UPON considering that
Mr Norbert Csanya abandoned his refugee protection claim in June 2012 following
the couple’s separation and that he returned to Hungary and that Ms Novak then amended
her refugee claim to allege fear for her life and that of Norbert if they were
to return to Mr Norbert Csanya in Hungary due to the domestic violence and the
abuse they were victims of at the hands of Mr. Norbert Csanya;
AND UPON considering that
on January 23, 2014, the RPD rejected the applicants’ refugee claim based on Ms
Novak’s lack of credibility and failure to rebut the presumption of state
protection in Hungary;
AND UPON considering that
the issue raised by this application is whether the RPD, in concluding as it
did, committed a reviewable error as contemplated by section 18.1(4) of the Federal
Courts Act, RSC, 1985, c F-7;
AND UPON finding that,
even if I were to rule that the RPD was unreasonable in its assessment of Ms
Novak’s credibility, the applicants’ failure to rebut the presumption of state
protection was fatal to their refugee protection claim and that, as a result,
the application for judicial review will be dismissed for the following reasons:
[1]
Issues relating to state protection are
reviewable on a standard of reasonableness as such issues are questions of
mixed fact and law which, given the RPD’s expertise on this subject matter,
attract deference (Dunsmuir v New Brunswick, 2008 SCC 9 at para 51,
[2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paras 44, 59, [2009] 1 S.C.R. 339; The Minister of
Citizenship and Immigration v Flores Carrillo, 2008 FCA 94, [2008] 4 FCR
636, at para 36; Romero Davila v Canada (Minister of Citizenship and
Immigration), 2012 FC 1116, at para 26; Gulyas v Canada (Minister
of Citizenship and Immigration), 2013 FC 254, 429 FTR 22, at para 38).
[2]
The applicants maintain that the RPD used the
wrong test to assess whether state protection was available for them, focusing
its analysis on the efforts made to protect victims of domestic violence rather
than the effectiveness of Hungary’s protection.
[3]
However, as the Supreme Court of Canada stated
in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, refugee
protection is meant to be a form a surrogate protection, invoked only in
situations where a refugee claimant has unsuccessfully sought the protection of
his home state (Ward, at para 18). This means that, absent a complete
breakdown of the state apparatus, it is presumed that state protection is
available for a refugee claimant and that to rebut this presumption, the
claimant must provide clear and convincing evidence of the state’s inability or
willingness to provide adequate – not perfect - protection (Hinzman v Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, at para 43 and 44;
Carillo v Canada (Minister of Citizenship and Immigration), 2008
FCA 94, [2008] 4 FCR 636 at para 19; Ruszo v Canada (Minister
of Citizenship and Immigration), 2013 FC 1004, at para 29; Salamon v Canada (Minister of
Citizenship and Immigration), 2013 FC 582, at para 5; Ward, above at para
52).
[4]
In this case, the alleged acts of violence
towards Ms Novak occurred both before she left Hungary for Canada and while she
was living with her ex-husband, Mr. Norbert Csanya, in Canada. The evidence is
that Ms Novak did not attempt to access state protection from her ex-husband in
Hungary as she believes that domestic abuse is not taken seriously in that
country. However, the evidence adduced needed to provide a direct, relevant
and compelling explanation as to why she failed to make a single attempt to
seek protection from the police. Furthermore, she had to demonstrate that it
was objectively unreasonable for her to seek the protection of the state based
on her fear of persecution (Ruszo, above).
[5]
Whilst it is true, as acknowledged by the RPD,
that the jurisprudence and the Gender Guidelines are to the effect that a woman
victim of domestic abuse can be reluctant to seek protection from her home
state, a legal burden to do so remains and the applicants needed to establish
and prove this fear, explaining the “unwillingness” to engage with the state (Mares
v Canada (Minister of Citizenship and Immigration), 2013 FC 297 at para 43;
Yang v Canada (Minister of Citizenship and Immigration), 2012 FC 930,
416 FTR 110 at paras 25 and 83). Furthermore, as the RPD reasonably concluded
that Ms Novak had not taken all objectively reasonable steps to avail herself
of state protection, the error in the enunciation of the state protection test,
assuming there was one, would not be enough for this Court to overturn its
decision. As the Chief Justice of this Court said in Ruszo, above, at
para 28:
Nevertheless, the RPD’s misunderstanding or misapplication
of the “adequate state protection” test is not necessarily fatal in cases
where, as here, the RPD also reasonably concluded on other grounds that the
Applicants had failed to rebut the presumption of adequate state protection
with “clear and convincing evidence of the state’s inability to protect
[them].” In this case, those grounds were the failure of the Applicants to
demonstrate that they had taken all objectively reasonable steps to avail
themselves of state protection, and to provide compelling or persuasive
evidence to explain their failure to do more than make a single attempt to seek
protection from the police. As discussed below, it is clear from various parts
of the decision that these were very important considerations for the RPD, and,
indeed, provided an alternate basis for the RPD’s decision. Having regard to
the RPD’s determinations on these points, its decision was not unreasonable.
[6]
Here, the RPD clearly expressed its concern with
the evidence adduced by the applicants being solely subjective and not
objectively establishing their reluctance to engage with the state (RPD’s
decision, at para 27). Indeed, it is clear, from various parts of the
decision, that it is the applicants’ failure to provide evidence of their
reluctance to engage the state that was fatal to their claim and not, as the
applicants contends, the use of the wrong legal test. In fact, the RPD’s
approach to the state protection analysis is fully consistent with the above
principle that refugee protection is meant to be a form a surrogate protection
(Ward, above, at para 18).
[7]
The applicants also submit that the RPD
selectively relied on the documentary evidence, focusing exclusively on the
efforts made by Hungary and ignoring the evidence that these efforts are ineffective
for victims of domestic violence.
[8]
This argument cannot stand. The RPD assessed
the evidence on domestic violence in Hungary and referred to it thoroughly in
its decision. The RPD specifically acknowledged the inconsistencies in the
documentary evidence adduced. Nevertheless, it is clear, from the RPD’s
reasons that it reached its conclusion that Hungary would be willing and
capable of offering protection based on the totality and entirety of the record
before it, including the contradictory evidence referred to and provided by the
applicants. As the Respondent points out, the RPD noted the efforts and
actions undertaken by Hungary to address the situation of victims of domestic
abuse in that country which would have made it reasonable for Ms Novak, who is
of Hungarian ethnicity, to at least attempt to seek protection. The evidence
before the RPD is that she did not do so. It was therefore reasonably open to
the RPD, in my view, to conclude that the evidence on the ineffectiveness of
state protection for victims of domestic violence in Hungary was not convincing
and that Ms Novak had failed to rebut the presumption of state protection by
making no attempts to seek that protection and by failing to provide a
reasonable explanation as to why this was not done.
[9]
As is well established, the role of this Court
is not to interfere with factual conclusions reached by the RPD, nor is it to
re-weight the evidence before it (Canada
(Minister of Citizenship and Immigration) v Thanabalasingham, 2003 FC 1225, [2004] 3 FCR 523 at para 102, Selliah v Canada (Minister of Citizenship and Immigration) 2004 FC 872,
256 FTR 53 at para 38; Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] SCJ No. 12 at para 59).
As long as such conclusions fall within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law, the
Court ought not to interfere with them (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708); Dunsmuir, above).
[10]
For these reasons, I find that the RPD’s finding on state protection and its assessment of the evidence on this
issue falls within that range of possible, acceptable
outcomes. Since this finding is fatal to the applicants’ case, the application
for judicial review is dismissed.
[11]
Neither party has proposed a question of general
importance. None will be certified.
Email this Content