Docket: IMM-4152-16
Citation:
2017 FC 599
Ottawa, Ontario, June 15, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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G.S.
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C.S.
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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 are a same sex couple who seek
judicial review of a Refugee Appeal Division [RAD] decision finding that they
would have adequate state protection in Hungary. They argue that the RAD
applied the wrong test for state protection. For the reasons that follow, I
conclude that the RAD applied the correct test and this application for judicial
review is therefore dismissed.
I.
Background
[2]
The Applicants are citizens of Hungary. They
seek protection in Canada pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] fearing persecution
in Hungary due to their sexual orientation. More specifically, they allege that
they cannot live openly as a same sex couple in Hungary and they argue that they
cannot seek police protection.
[3]
The Refugee Protection Division [RPD] accepted
that the Applicants are homosexuals and found them to be credible. However, the
RPD determined that state protection would be available to the Applicants in
Hungary.
II.
RAD decision
[4]
On appeal, the RAD considered the availability and
adequacy of state protection for the Applicants in Hungary. Citing (Canada (Attorney
General) v Ward ), [1993] 2 S.C.R. 689, the RAD outlined the presumption
of state protection and the fact that the onus is on the Applicants to produce
clear and convincing evidence that the state cannot provide protection.
[5]
As well, citing (Graff v Canada (Citizenship
and Immigration)), 2015 FC 437, the RAD noted its obligation to consider
the operational adequacy of state protection, rather than simply the
willingness of the state or the efforts made by the state.
[6]
In Hungary, the RAD noted that there is “legislation in place to charge and convict perpetrators of
crime, and that the police are willing and able to implement the country’s
legislative measures relating to criminality” (para 52).
[7]
The RAD noted that although LGBT persons face
harassment and violence at the hands of individuals or groups in Hungary, the
documentary evidence showed that the Applicants would have recourse to adequate
state protection in Hungary.
[8]
The RAD noted at paragraph 72 that “several sources within the documentary evidence and the
objective evidence regarding current country conditions suggest that, although
not perfect, there is adequate state protection in Hungary for members of the
LGBTI community and other minorities who are victims of crime, police abuse or
discrimination. The documentary evidence shows that Hungary is making serious
efforts to address these problems by implementing measures through legislation
and government programs; and that the police and government officials are both
willing and able, and act to protect victims”.
[9]
Accordingly, the RAD concluded that the
Applicants failed to rebut the presumption of state protection.
III.
Issues
[10]
There are two issues raised by the Applicants:
- Did the RAD
apply the proper test for assessing state protection?
- Is the RAD’s
conclusion on state protection reasonable?
IV.
Standard of Review
[11]
The applicable standard of review on the RAD’s application
of the proper test for state protection is correctness (Kina v Canada
(Citizenship and Immigration), 2014 FC 284 at para 24). On the correctness
standard of review, this Court will show no deference to the RAD’s decision if
the wrong test was applied (see Dunsmuir v New Brunswick, 2008 SCC 9 at
para 50).
[12]
With respect to assessing the adequacy of state
protection, the standard of review is reasonableness (Kina v Canada
(Citizenship and Immigration), 2014 FC 284 at para 24.) Under this
standard, this Court will not intervene unless the decision does not fall “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
V.
Analysis
A.
Did the RAD apply the proper test for assessing
state protection?
[13]
The Applicants argue that although the RAD
referenced the proper test of “operational
effectiveness”, they argue that the RAD applied the “serious efforts” test.
[14]
The test for state protection involves the
examination of whether there exists adequate state protection in operation. In
other words, state efforts must have actually translated into adequate state
protection at the operational level (see Majoros v Canada (Citizenship and
Immigration), 2013 FC 421 at para 12).
[15]
In its reasons, the RAD Member explicitly states
that its obligation is to consider the operational adequacy of state
protection, rather than simply the willingness of the state or the efforts made
by the state to correct discrimination. In doing so, the RAD Member identified
the correct legal test for state protection.
[16]
The RAD examined Hungary’s efforts to provide
protection. The use of the term “serious efforts”
to describe the state’s initiatives does not mean the RAD overlooked the
availability of protection for the Applicants at the operational level or that
the RAD failed to comprehend the principles governing state protection. The
RAD’s conclusions were not based on the assumption that a state’s “serious efforts” is the basis on which to analyse the
availability of state protection for an individual.
[17]
The RAD addressed the applicability,
effectiveness, and impact of Hungary’s efforts concerning protection for the
LGBT community in Hungary, on an operational level (see para 46
of the RAD Reasons and the documents consulted). The RAD did not simply infer
that Hungary’s “functional democracy” and
legislative initiatives amount to state protection for the Applicants. After
reviewing the evidentiary record, the RAD found that police were able to
implement the country’s legislative measures relating to criminality (para 52)
and that the police were able to protect victims (para 72).
[18]
The RAD noted that homosexuality is not illegal
in Hungary and that although same-sex marriage is not permitted, same-sex
domestic partnerships can be legally registered. The RAD also acknowledged that
the new Constitution of Hungary does not include sexual orientation as a ground
for discrimination.
[19]
The RAD also correctly acknowledged that
protection must be from the state, rather than from non-state sources. However,
it found the availability of state-run or state-funded agencies capable of
providing assistance to be relevant in determining the existence of state
protection, as these agencies are part of the state’s “protection
network” (para 61). Accordingly, the RAD found that the RPD did not err
by stating that the Applicants had recourse to such agencies and organizations.
[20]
Here the RAD articulated and applied the correct
test for state protection.
B.
Is the RAD’s conclusion on state protection
reasonable?
[21]
The Applicants contend that the RAD failed to
properly consider the operational effectiveness of state protection. They argue
that the mere possibility that there might be state protection is not
sufficient. The Applicants claim the RAD ignored the evidence of the specific
harassment they suffered when they were forced to show their ID cards in a park
in Budapest known to be frequented by members of the LGBT community.
[22]
The presumption is that a state is able to
protect its citizens. Here the legal burden is on the Applicants to rebut this
presumption with clear and convincing evidence that the state is unwilling, or
that a state is unable to provide adequate protection (see Cosgun v Canada
(Citizenship and Immigration), 2010 FC 400 at para 52).
[23]
The more a country is “democratic”,
the greater the burden is on the Applicant to rebut the presumption of state
protection (see Sow v Canada (Citizenship and Immigration), 2011 FC 646
at para 12).
[24]
Here, the RAD concluded that the Applicants did not
provide sufficient evidence to rebut the presumption. The incident in the park
was not sufficient to prove their assertion that state protection would not be
available.
[25]
The RAD considered the country documentation in
evidence, and the fact the Applicants did not have evidence of having been
subjected to harm while in Hungary, to conclude that there would be adequate
state protection in Hungary if the Applicants were to return.
[26]
An Applicant “cannot
simply rely on their own belief that state protection will not be forthcoming”
(Moya v Canada (Citizenship and Immigration), 2016 FC 315 [Moya]
at para 75).
[27]
It is not the role of this Court to reassess the
evidence and especially the weight given to the evidence by the decision-maker (see
Samad v Canada (Citizenship and Immigration), 2015 FC 30 at para 32).
[28]
The conclusion of the RAD with respect to state
protection is reasonable and entitled to deference.
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