Docket: IMM-2424-15
Citation:
2016 FC 191
Ottawa, Ontario, February 12, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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ROBERT BAKOS
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] of the decision of the Immigration and Refugee
Protection Board, Refugee Protection Division [RPD], dated April 23, 2015,
dismissing the Applicant’s claim for refugee protection under sections 96 and
97 of the Act on the basis he did not provide clear and convincing evidence to
rebut the presumption of state protection.
II.
Background
[2]
Robert Bakos [the Applicant] is a citizen of
Hungary of Roma ethnicity who claims refugee protection on the basis he fears
for his life and safety in Hungary at the hands of anti-Roma individuals and
groups.
[3]
The Applicant has experienced varying degrees of
discrimination, intimidation, and harassment at school, work and in his daily
life.
[4]
In March 2011, the Applicant opened a beauty
salon in Budapest District 8. Shortly thereafter he was approached by two men
offering security services, which he declined. As a result, the men, accompanied
by another wearing a police badge, returned and badly beat the Applicant,
ordering him to pay monthly. The Applicant paid the men upon demand until
November 2011, when he could no longer afford to make payments. He closed his
business and hid at home.
[5]
The Applicant had no way to earn money and
attempted to re-open his business for the holidays. He was immediately
approached by the same men, who demanded money and assaulted him. The Applicant
escaped before being too badly beaten and stayed with his cousin until he left
Hungary for Canada on January 30, 2012, claiming refugee status immediately
upon arrival.
[6]
The RPD’s decision was rendered orally on April
23, 2015. The RPD found the Applicant was neither a Convention refugee nor
person in need of protection, with the determinative issue being the
Applicant’s inability to provide clear and convincing evidence of the state’s
inability to protect.
[7]
The RPD explained that the Applicant has the
legal burden of rebutting the presumption that adequate state protection exists
by adducing clear and convincing evidence to satisfy the RPD, on a balance of
probabilities, that the state cannot provide adequate protection to its
citizens. In a functioning democracy, such as Hungary, a claimant has a burden
to show he should not have been required to exhaust all domestic options
available to him before claiming refugee protection abroad.
[8]
The RPD referenced the Department of State
Report from the National Documentation Package [NDP], which indicates that
Hungary is a multi-party parliamentary democracy. Civilian authorities
effectively control police and the government has effective mechanisms to
investigate and punish abuse and corruption. The RPD noted there is an
independent and impartial judiciary and avenues to seek legal recourse for
human rights violations. Upon exhausting domestic remedies, individuals have
access to the European Court of Human Rights.
[9]
The Applicant did not report to the police when
extorted and beaten, and did not show he took all reasonable steps in the
circumstances to seek protection in Hungary.
[10]
Furthermore, the Applicant did not establish his
business was specifically targeted because of his Roma ethnicity. Instead, the
evidence indicates the Applicant did not know why he was being targeted: he was
forced to pay because “everyone pays”. As well, the Applicant’s Immigration
Form states he feared the mafia and criminal people, and made no mention he is
Roma. The RPD found the Applicant’s explanation – that he felt his Roma
identity was evident and did not need to be mentioned –unreasonable.
[11]
The RPD noted that the Applicant failed to
provide relevant corroborative evidence to support his claim, despite the ample
time, over 3 years, he had to do so.
[12]
Despite credibility concerns, the RPD accepted
the Applicant’s allegations as true for purposes of its state protection
analysis. The Applicant explained he did not report the beatings and extortion
to the police because it would create a “much worse situation”. He explained he
had once gone to police when his wife was robbed, and they did nothing. The
Applicant claimed he does not know anyone who has been aided by police and is
not aware of complaint mechanisms or Roma organizations in Budapest.
[13]
The RPD did not accept this testimony as
reasonable given documentary evidence suggesting otherwise. It found that the
Applicant did not provide the necessary clear and convincing evidence
establishing on a balance of probabilities that state protection in Hungary is
inadequate, as the Applicant took no steps to seek protection before coming to
Canada.
[14]
The RPD referred to the documentary evidence,
summarizing its findings as follows:
a.
Roma are subject to discrimination in almost all
facets of life in Hungary;
b.
the government has taken steps to prosecute and punish
officials abusing their powers, indeed, four officers were charged with
racially-motivated murders of Roma in 2008 and 2009;
c.
documentary evidence also references details of
the Jobbik Party, referred to by the Applicant, but indicates that heavy police
presence maintain order when this group has held anti-Roma demonstrations;
d.
police officers receive training in conflict
management related to members of social minorities, within the police force
there is a commissioner for fundamental rights, education programs in police
schools teach about prejudice and victim and minority protection, and there are
minority liaison officers and procedures to lodge complaints against officers
in Budapest.
[15]
The RPD preferred the documentary evidence over
the Applicant’s unsubstantiated and unpersuasive testimony.
[16]
The decision notes that what is relevant to the
analysis of state protection is whether adequate protection is actually
provided at the present time, not simply the government’s efforts.
[17]
At the hearing, the RPD denied the Applicant’s
application pursuant to Rule 36 of the Refugee Protection Division Rules
(SOR/2012-256) [the Rules] to admit post-hearing submissions consisting of: (i)
a business registration document certifying the Applicant’s business; (ii) a police
report from the Applicant’s father explaining he had been approached and
threatened by people looking for the Applicant; and (iii) a letter from the
Applicant’s father explaining that people are looking for the Applicant. Counsel
explained that the Applicant was not represented until recently and was unaware
he would need the documents. Upon obtaining them, he could not afford to get
them translated. Although the RPD permitted the admission of other late-filed
documents, it decided not to admit the above listed documents, explaining that
the Applicant has had plenty of time to prepare for the hearing: he is
responsible for establishing his claim and providing documents according to the
Rules.
III.
Issues
[18]
The issues are:
A. Was the RPD’s state protection analysis reasonable?
B.
Was the RPD’s conclusion the Applicant had not
established a nexus between a Convention refugee ground and his alleged
persecution reasonable?
C. Did the RPD violate rules of natural justice by refusing to accept
the post-hearing documents?
IV.
Standard of Review
[19]
The issue of state protection, as well as
finding an absence of nexus between a Convention ground and alleged persecution
are questions of mixed fact and law reviewed on a standard of reasonableness (Carillo
v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at para 36;
Molnar v Canada (Minister of Citizenship and Immigration), 2015 FC 273 [Molnar]).
[20]
A correctness review governs allegations of
procedural unfairness and breach of natural justice.
V.
Analysis
A.
Was the RPD’s state protection analysis
reasonable?
[21]
The Applicant claims the RPD erred in assessing
state protection in two areas: (i) by focusing on the Applicant’s failure to
seek protection without regard to the practical significance of that reporting
to the real issue of state protection; and (ii) by failing to reconcile
contrary evidence regarding the adequacy of state protection for Roma in
Hungary.
[22]
Regarding the first issue, the Applicant submits
the RPD effectively imposed a duty to seek state protection prior to claiming
refugee status by placing decisive emphasis on the Applicant’s failure to seek
state protection. As Justice Russel Zinn outlined in Majoros v Canada (Minister
of Citizenship and Immigration), 2013 FC 421 at para 10 [Majoros],
the role of seeking state protection is a de facto, not legal,
requirement for refugee protection. When the evidence indicates that state
protection would not be forthcoming, a claimant is not required to seek
protection from the authorities (Canada (Attorney General) v Ward),
[1993] 2 S.C.R. 689 at para 19 [Ward]).
[23]
The Applicant’s narrative described several
incidents of attacks and extortion – none of which he reported to police. He
did not seek police protection because in his view, the police would do nothing
to help him.
[24]
The Applicant claims his distrust towards police
is supported by the testimony of his cousin, Gyula Bakos, who obtained refugee
status in Canada in 2001.
[25]
The Applicant also references Molnar, above,
a recent decision with similar facts and arguments to this case, wherein
Justice John O'Keefe followed Justice Zinn’s decision in Majoros. In
both of these cases, the Court found the Board’s decision that the Roma
applicants had not rebutted the presumption of state protection unreasonable on
the basis that a failure to seek state protection, where such efforts would be
futile, does not preclude an applicant from rebutting the presumption of state
protection.
[26]
The Applicant’s second argument is that the RPD
did not consider the effectiveness of state protection in Hungary and failed to
assess contrary evidence regarding adequacy of state protection for Roma. He
submits that while Hungary’s efforts to protect its citizens are relevant, they
are neither determinative, nor sufficient: the RPD must consider the actual
adequacy of state protection at an operational level, rather than the efforts
made to correct discrimination (Graff v Canada (Minister of Citizenship and
Immigration), 2015 FC 437 at para 27 [Graff]; Beharry v Canada (Minister
of Citizenship and Immigration), 2011 FC 111 at para 9 [Beharry]).
[27]
The Applicant cites contrary evidence the RPD
ignored. The US Department of State’s Country Report on Human Rights Practices
discloses that extremist anti-Roma groups illegally patrolled small towns in
northeast Hungary to intimidate the local Roma population. That report also
provides evidence that courts used the criminal code provision on racism to
convict, rather than protect, Roma. The IRB Responses to Information Requests
on Hungary explain the ineffective police response to crimes committed against
Roma in Hungary and the lack of specific procedure for investigation involving
Roma.
[28]
The Federal Court has been divided on the issue
of state protection available to Roma claimants. A majority of recent
decisions, despite review on the reasonableness standard, have set aside the
Board’s conclusions that state protection was adequate in Hungary on the
premise that the Board had failed to demonstrate the operational adequacy of
government state protection efforts.
[29]
Case law has established that the RPD is to
consider the actual adequacy of state protection, rather than simply the
willingness of the state or the efforts made to correct discrimination (Graff,
above, at para 27; Beharry, above, at para 9).
[30]
However, the Court must begin the analysis of
state protection in each case by examining basic principles. As stated by
Justice Kane in Kovacs v Canada (Minister of Citizenship and Immigration),
2015 FC 337 at paras 66-68, and 71-72:
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)
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.
[31]
As also stated by Justice Gleason, as she then
was, in Majlat v Canada (Minister of Citizenship and Immigration), 2014
FC 965 at paras 24-25:
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, [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".
[32]
Finally, in the case of Mudrak v Canada
(Minister of Citizenship and Immigration), 2015 FC 188, Justice Annis, in
considering state protection for Roma claimants in Hungary, stated at para 50,
that expecting the Board to assess operational effectiveness:
50 … tend[s] 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.
[33]
His reasoning concludes that:
i.
it is not the Court’s role to review and reweigh
the evidence and conclude it establishes Hungary is unable to provide adequate
protection to Roma, as this reasoning effectively substitutes the Court’s
opinion for that of experts in the field under the guise of unreasonableness (paras
52 – 54);
ii.
it is incorrect to, in effect, reverse the
presumption of adequate state protection and require the Board to demonstrate
operational adequacy of measures in its reasons: the Court starts with the
presumption a state is capable of protecting its citizens, and the onus is on
the Applicant to rebut that presumption (paras 55, 56);
iii.
it is incorrect to impose on a government an
obligation to demonstrate the “operational adequacy” of recently instituted
protection measures – a threshold that likely requires empirical and opinion
evidence, and which is scarcely found in the materials (paras 57-59); and
iv.
the RPD, an expert body with experience in
evaluating issues of state protection, is to be provided deference upon
judicial review in the context of its determinations of mixed fact and law (paras
60, 61).
[34]
The role of the Court on judicial review is to
assess the quality of the decision and reasons provided therefor with regards
to an applicant’s particular circumstances. It is not to set aside conclusions
of mixed fact and law made by an expert body, the RPD, without a persuasive and
compelling justification as to why the decision falls outside the range of
acceptable outcomes on the facts and law: that it is not justified, transparent
or intelligible.
[35]
In this case, the RPD found that the Applicant
did not show, as he was required, that he has taken all reasonable steps in the
circumstances to seek protection in Hungary, as he did not once go to the
police for protection and provided no reliable corroborative evidence of his
persecution or why state protection would be unavailable should he seek it.
Thus, it concluded he did not provide the necessary clear and convincing
evidence establishing on a balance of probabilities that state protection is
inadequate. In my view, this conclusion is reasonable. The Federal Court of
Appeal has indicated that, except in the most exceptional circumstances,
claimants are required to exhaust all possible avenues of protection available
to them (Hinzman, Re, 2007 FCA 171 at paras 56, 57 ). The present case
does not, in my opinion, amount to an exceptional circumstance.
B.
Was the RPD’s conclusion the Applicant had not
established a nexus between a Convention refugee ground and his alleged
persecution reasonable?
[36]
The RPD opined that the Applicant failed to
prove he was persecuted due to being Roma. I disagree with the Respondent that
the Applicant’s Roma identity was not established. The RPD accepted the Applicant’s
identity as a Hungarian and accepted the late submission of documents establishing
he is a citizen of Roma ethnicity. His Personal Information Form [PIF]
narrative also conveys he is Roma. The RPD made no statement to the effect it
did not believe the Applicant is Roma, nor did it dispute the identity of the
Applicant’s persecutors as Jobbik people. Instead, the RPD noted its concerns
that the Applicant did not demonstrate his persecution stemmed from his Roma
ethnicity, and was thus connected to a Convention ground.
[37]
The Applicant submits that his identity as Roma,
and the identity of the persecutors as Jobbik people provide the required nexus
to the Convention ground of being persecuted based on ethnic background. He
claims the RPD did not find inconsistencies or contradictions between different
sources of his evidence, his Port of Entry notes, PIF, and testimony at the
hearing.
[38]
Contrary to the Applicant’s assertion – that
since the RPD was aware the Applicant is Roma and he mentioned Jobbik people,
the requisite nexus was established – it is not the RPD’s role to deduce upon
which Convention ground a claim is based from the country a claimant is fleeing
and their particular circumstances. The onus was on the Applicant to establish
his claim, including that the persecution from which he fled was connected to a
Convention ground – his Roma ethnicity.
[39]
In my view, it was open to the RPD to conclude
the Applicant did not establish that his business was targeted because he was
Roma. When asked why he was being extorted, the Applicant testified he did not
know: the men extorting him told him everyone pays. As well, the Applicant’s
PIF states he feared the mafia and criminal people. Although he mentioned the
extortion, he did not convey it stemmed from the fact he is Roma. The Applicant
also did not provide corroborative evidence to support his allegations of
persecution or that it stemmed from his ethnicity.
[40]
Accordingly, the RPD found the Applicant did not
establish on a balance of probabilities his business was specifically targeted
because he is Roma – a conclusion that does not fall outside the range of
reasonable outcomes.
C.
Did the RPD violate rules of natural justice by
refusing to accept the post-hearing documents?
[41]
The Applicant argues that the RPD’s refusal to
accept the post-hearing disclosure amounted to a breach of natural justice.
[42]
Rule 36 requires that the RPD consider “any
relevant factors” in deciding admissibility, including: (a) the document’s
relevance and probative value; (b) any new evidence it brings to the hearing;
and (c) whether the party, with reasonable effort, could have provided the
document as required by Rule 34.
[43]
The Applicant provided explanations for the late
disclosure; he was not previously represented, was unaware the documents would
be needed, and could not afford translation, which he claims the RPD did not
analyze.
[44]
I disagree that the RPD’s refusal to admit three
documents amounted to a breach of natural justice. The transcript reveals that
the hearing was fair and the RPD admitted documents it deemed relevant and of
probative value, despite non-compliance with the Rules.
[45]
At the outset of the hearing the Applicant
attempted to admit a number of late documents (including five packages of
objective evidence, documents regarding the Applicant’s nose injury from being
beaten, proof of his Roma ethnicity, PIF amendments, his business registration,
and evidence from the Applicant’s father) not in accordance with Rule 34, which
requires disclosure at least 10 days before the hearing. The Applicant also
requested that his cousin be permitted to testify as a witness, despite
non-compliance with Rule 44.
[46]
The RPD admitted the Applicant’s personal
documents, finding them relevant and of probative value, “so as not to prejudice Mr. Bakos”. The RPD then
inquired, pursuant to Rule 36, what evidence the late-filed documents would
bring to the hearing, their relevance, probative value and reason they could
not have been provided earlier. After hearing counsel’s explanation, the RPD
decided not to accept the country documents, as there is “ample evidence with respect to the situation of Roma in
Hungary” in the NDP. The RPD also permitted the witness to testify at
the hearing.
[47]
At the end of the hearing, the RPD determined it
would not admit the final three documents – the business registration, the
Applicant’s father’s police report and letter. The RPD mentioned the business
registration document was referred to in the course of the hearing, and denied
admission of the other documents as “there has been
plenty of time for the claimant to prepare for this hearing”.
[48]
The RPD retains discretion to admit evidence not
in accordance with the Rules. The hearing transcript demonstrates that the RPD
was fair, considered the Rule 36 factors, and indeed admitted evidence found to
be probative and reliable. It is clear that the RPD considered whether the
Applicant, with reasonable effort, could have provided the documents as
required by Rule 34. With respect to the documents refused, although the RPD
did not outwardly convey its consideration of relevance and probative value, or
what new evidence the documents brought to the hearing, it is clear the RPD was
alive to the factors to be considered. In balancing these factors with the
mandate of efficient and effective decision-making, the RPD made its
determination based on the documentary evidence before it, including the
admitted late-disclosure documents, the Applicant’s testimony, the witness
testimony, counsel’s submissions, the NDP and PIF and amendments.
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