Date: 20131203
Docket:
IMM-8622-12
Citation: 2013 FC 1208
Ottawa, Ontario, December 3, 2013
PRESENT: The Honourable Mr. Justice Mosley
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BETWEEN:
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TIBOR ROLAND HETYEI
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, Tibor Roland Hetyei is a 23 year-old
Hungarian citizen of Roma ethnicity. He seeks judicial review of a decision of
the Refugee Protection Division of the Immigration and Refugee Board denying
his claim that he is a Convention refugee or a person in need of protection.
BACKGROUND:
[2]
Mr. Hetyei recounted a history of discrimination
and abuse growing up in Hungary. In one of the more serious of the incidents,
in July 2004, when he was 14 years old, he was beaten up and his girlfriend was
abducted and raped. His mother took the girl to a hospital the next day and the
rape was reported to the police. In 2008, Mr. Hetyei called the police when a neighbour’s
house was being ransacked. He later received a death threat which he took to
the police. They told him they could do nothing “until they saw blood
flowing”. In July 2009, the family’s pigs were slaughtered and he found
another death threat in his mail box. Mr. Hetyei did not report that incident
to the police. In another incident in November 2009, all of their household
windows were broken. He decided at that point to leave Hungary and seek protection in Canada with the intention of sending for his mother when he was
financially able to do so.
DECISION UNDER
REVIEW:
[3]
The Panel noted that the determinative issue was
whether the claimant’s fear was objectively reasonable and found that the applicant
had not established a serious possibility of persecution on a Convention
ground, or that he would personally be subjected, on a balance of
probabilities, to a danger of torture, risk to life, or a risk of cruel and
unusual treatment or punishment upon return to Hungary.
[4]
The Panel did not draw any negative inferences
from the failure of the applicant to report the earlier incidents to the
authorities when he was a minor. The Panel noted that the applicant had gone to
the police in 2008. However, when he did not receive satisfaction on that
occasion, he did not attempt to elevate his complaint to any higher authority.
Furthermore, the applicant had not reported the incidents of the pigs or the
broken windows to the police but chose to flee Hungary. Additionally, the
applicant was not able to provide copies of the death threats he had received.
[5]
The Panel held that there was insufficient
information to conclude that the police would not have conducted an earnest and
genuine investigation of the November 2009 incident and apprehended the
perpetrator. The applicant’s decision not to report the crime and to flee Hungary may have resulted in a possible investigation being “delayed or stymied” since he
would have been the key witness.
[6]
After a review of the documentary evidence, the Panel
recognized that there is widespread reporting of incidents of intolerance,
discrimination, and persecution of Romani individuals in Hungary. Weighted against this evidence, the Panel considered the fact that Hungary “candidly” acknowledges its past problems and is making serious efforts to rectify the
problematic treatment of minorities, and particularly of Roma. The Panel concluded
that the preponderance of the objective evidence regarding country conditions
indicates that there is adequate, albeit imperfect, state protection available
for Roma who are victims of crime, police abuse, discrimination or persecution;
that Hungary is making serious efforts to address these issues; and that police
and government officials are willing and able to protect victims.
[7]
As a result, the Panel found that the applicant
had not provided clear and convincing evidence that state protection in Hungary is inadequate.
ISSUES:
[8]
The following issues were raised in this case:
- Did the Panel
err in finding that the applicant had not rebutted the presumption of
state protection?
- Did the Panel
err in finding adequate state protection?
ANALYSIS:
Standard of
review
[9]
The prior jurisprudence has satisfactorily
established that the standard of review with respect to findings on the
availability of state protection is reasonableness: Conka v Canada (Minister of Citizenship and Immigration), 2013 FC 892 at para 12, [2013] FCJ no 929; Lozada
v Canada (Minister of Citizenship and Immigration), 2008 FC 397 at para 17,
[2008] FCJ no 492 [Lozada].
[10]
With respect to the second issue, the applicant
submits that the standard should be correctness because the issue is a question
of law. However, the applicant’s arguments challenge the Panel’s assessment of
the evidence on the effectiveness of state protection, which is a question of
mixed fact and law. The jurisprudence has consistently held that to be properly
reviewed under the standard of reasonableness: Lozada, above, at paras
17, 19 and 34.
Did the Panel err in finding that the applicant had
not rebutted the presumption of state protection?
[11]
The Panel’s conclusion that the presumption of
state protection had not been rebutted was not unreasonable. Of the four
incidents that occurred from 2008 onwards, when the applicant was no longer a
minor, he reported only one of them to the police (the death threat received in
December 2008). The applicant stated that on the one occasion that he had gone
to the police, they had told him that they couldn’t help him until blood
flowed. The Panel mistakenly took this evidence as a reference to a note given
to the applicant. However, the applicant did not take his complaint to a higher
authority, and made no further effort to seek protection.
[12]
On July 20, 2009, when blood did flow, the applicant
sought refuge at his half-brother’s house, but did not report the incident. He stated
that another note had been left threatening his life if he went to the police,
but he was unable to provide a copy of this note. On November 15, 2009, when
the windows of his house were broken, the applicant chose not to report the
incident to the police, even though in this case the record seems to indicate
that there was no threat of repercussions if he did so. Instead, the applicant
decided to flee the country.
[13]
The bar for rebutting the presumption is high.
As stated by Justice Mandamin in Lozada, above, at para 27, the claimant
bears an evidentiary burden and a legal burden. The claimant must satisfy the
evidentiary burden by introducing evidence of inadequate state protection. He
must satisfy the legal burden by convincing the tribunal that, on the balance
of probabilities, state protection is inadequate. The quality of the evidence
required to rebut the presumption of state protection must be reliable and of
sufficient probative value: Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at paras 18, 20, 30, [2008] FCJ no 399.
[14]
In this matter, the Panel concluded that the
applicant had not met either the evidentiary or legal burden. I am unable to
find that determination to be unreasonable.
Did the Panel
err in finding adequate state protection?
[15]
The Panel explained that it was not persuaded by
the applicant’s responses with respect to the effectiveness of state protection
because “they were not consistent with the documentary evidence”. The Panel
also explained that it preferred the documentary evidence over the applicant’s
testimony because it was “drawn from a wide range of publically [sic]
accessible documents”. This is not a case where the Panel ignored the
applicant’s evidence or failed to consider his personal circumstances. Rather, the
Panel was faced with the applicant’s account of calling the police on behalf of
the neighbours in 2008 and not again. Moreover, the applicant’s departure
shortly after the incident in November 2009 meant that the state had no
reasonable opportunity to address the applicant’s fears.
[16]
Reading the decision as a whole, I am satisfied
that the Panel did not apply the wrong legal test, as the applicant contends. In
engaging in its review of the evidence, the Panel considered numerous legal,
institutional, and legislative measures taken by the Hungarian government to
address the situation of Roma in light of whether these measures had been
successfully implemented. This was not simply a review of best efforts without
considering their effectiveness.
[17]
Furthermore, the Panel engaged in a thorough
review of the current country conditions and addressed the contradictory documentary
evidence. The Panel’s decision is therefore distinguishable from that reviewed
in Flores Alcazar v Canada (Minister of Citizenship and Immigration),
2011 FC 173, [2011] FCJ no 217, where the Panel had neglected to explain why it
had chosen to discount the contradictory evidence.
[18]
In order to establish that state protection was
inadequate, the applicant needed to lead clear and convincing evidence to an
inability to protect. That is an objective test. His subjective reluctance to
seek assistance did not establish that protection would be unavailable.
[19]
Having considered the decision as a whole and
the record before the Court, I am satisfied that the Panel conducted a
transparent, justifiable and intelligible analysis of the evidence before it
and came to a conclusion that was within the range of acceptable outcomes.
[20]
No serious questions of general importance were
proposed and none will be certified
JUDGMENT
THIS COURT’S JUDGMENT is that the
application is dismissed. No questions are certified.
“Richard G. Mosley”
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