Docket: IMM-5087-16
Citation:
2017 FC 649
Toronto, Ontario, July 5, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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NICHOLAS
FRIGYIK
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27 [IRPA or Act] of a November 14, 2016 negative decision [Decision]. In the
Decision, the Refugee Appeal Division [RAD or Board], found that Applicant is
neither a Convention refugee or a person in need of protection as contemplated
by sections 96 and 97(1) of the Act. For the reasons explained below, I am
dismissing this judicial review.
[2]
The Applicant is a 2 year-old child born in
Manchester, England, who is claiming refugee protection from Hungary due to his
Roma ethnicity. His father, who was his designated representative, signed his
Basis of Claim [BOC] form and testified on his young son’s behalf.
[3]
The Applicant and his family arrived in Canada
on February 10, 2016. Each member made a refugee claim; however, the Respondent
found that the Applicant’s parents and siblings were not eligible to file
claims because they had withdrawn previous claims in 2009 and 2010 respectively.
This did not affect the Applicant because the claims were withdrawn before he
was born. He was, therefore, allowed to proceed with his claim.
[4]
The Applicant contends that he and his family
will face persecution in Hungary due to their Roma ethnicity in all aspects of
their lives: housing, education, health, and employment. In support of this
claim, the Applicant’s father has outlined incidents which occurred before and
after the Applicant was born.
[5]
In January 2009, the Hungarian Guard members
[Guardists] attacked the Applicant’s parents’ residential district, made racial
slurs against Roma people, and threw bricks in their windows. The police came
and said they would make a report. He alleges the Jobbik political party, who
is gaining population in Hungary, supports the Guardists in threatening Roma.
[6]
Shortly thereafter, in February 2009, the
Applicant’s family fled Hungary and came to Canada to seek refugee protection.
They made claims upon their arrival. Before their claims were processed,
however, the Applicant’s grandmother fell ill. As a result, the family went
back to Hungary to take care of her, and subsequently abandoned their claims in
Canada. The Applicant’s father alleges the discrimination against his family
got worse upon returning to Hungary.
[7]
In 2014, the Applicant’s father found a job as a
painter in Manchester, England and moved with his wife and two children. The
Applicant’s mother was pregnant with him at the time. On May 11, 2014, the
Applicant was born in England. The family returned to Hungary in August 2014
and, aside from the father working in England for a month in January 2015,
stayed there until their departure for Canada.
[8]
In June 2015, the Applicant and his family claim
to have been evicted from their home in Miskolc, Hungary. Unable to find
alternate accommodation, they were forced to move in with the Applicant’s
great-grandparents. Due to the residence’s small size, which could not
accommodate an additional family of five, the Applicant’s family was not able
to legally register the address as their own. Without a registered address, the
Applicant’s father claims he or his wife can neither work legally nor receive
benefits.
[9]
The Applicant’s father fears the Applicant will
be taken away by the State, and this is part of the reason he chose to relocate
his family to Canada and make a refugee claim in February 2016 on behalf of his
young son.
[10]
In the first decision on this matter, although
the Refugee Protection Division [RPD] accepted the Applicant’s Roma identity,
it had credibility concerns regarding the allegations of eviction and
re-availment to Hungary, and drew a negative inference in this regard from the
lack of corroborative evidence. The RPD also found that the discrimination did
not amount to persecution and that the Applicant did not demonstrate subjective
or objective fear. For these reasons, the RPD rejected the Applicant’s claim
and found he was not a Convention refugee or person in need of protection.
[11]
In the subsequent Decision on appeal, the RAD
conducted an independent assessment of the evidence and came to the same end
result as the RPD: the Applicant was not a Convention refugee or person in need
of protection. Specifically, the Board held that the discrimination did not
amount to persecution and that state protection would be available to the
Applicant. However, it is worth noting that the RAD overturned the credibility
findings with respect to the eviction allegation. It also found that the
family’s reasons for returning to Hungary were “reasonably
substantiated”.
II.
Analysis
[12]
The Applicant argues that the RAD’s findings are
unreasonable regarding (1) discrimination and (2) state protection.
[13]
The standard of review of a RAD decision is
reasonableness (Canada (Citizenship and Immigration) v Huruglica, 2016
FCA 93 at para 35). Reasonableness also applies to when the RAD interprets its
home statute (Canada (Citizenship and Immigration) v Singh, 2016 FCA 96
at para 29). The issue of whether there is adequate state protection in Hungary
is a question of mixed fact and law reviewable on a standard of correctness (Canada
(Citizenship and Immigration) v Neubauer, 2015 FC 260 at para 10).
A.
Discrimination
[14]
The Applicant submits that the RAD’s finding
that the discrimination faced by the Applicant does not amount to persecution
is unreasonable, because (i) the RAD overlooked important evidence about the
persecution of Roma and (ii) considered the elements of discrimination
separately rather than cumulatively, thus committing errors on both counts.
[15]
Specifically, the Applicant contends that the
RAD overlooked evidence of the eviction, housing crisis, the difficulty of
finding work, and the inability to find accommodation faced by the Applicant if
he were to return to Hungary, as well as the overrepresentation of Roma
children in state care, which would, due to all other factors being present,
lead to the removal of the Applicant into state care.
[16]
I cannot agree that the RAD failed to fully
consider either the cumulative effect of the discrimination, or the claimed
element of persecution regarding state care. Starting with the accommodation
issue, there are various places in the Decision which show that the RAD
considered the Applicant’s precarious housing situation. For instance, it
acknowledged that “[t]he documentary evidence notes
that residential segregation of Roma is evident in Hungary. Even when not
formally segregated, Roma continue to live in substandard conditions”.
[17]
Notwithstanding these findings, the RAD found
that the discrimination the Applicant would face in housing, at school, at
work, and in accessing social services “does not rise
to the level of persecution” (Decision at para 54). Indeed, the RAD
noted that “the discrimination feared by the
[Applicant], as unfortunate as it is, does not threaten his fundamental rights
but rather affects the quality of his existence in his home country”
(Decision at para 57).
[18]
Although the Applicant is not satisfied with
these findings, it is the RAD’s role to distinguish discrimination from
persecution (Sagharichi v Canada (Minister of Employment and Immigration),
[1993] FCJ No 796 at para 3 (FCA)). Contrary to the Applicant’s submissions, I
read these conclusions as referring to and considering the cumulative effect of
the elements of discrimination, which it decided did not reach the level of persecution.
In light of the particular circumstances experienced by the Applicant’s family
in Hungary, it was open to the RAD to make this conclusion. Indeed, as the
Respondent put it, for the Board to have decided otherwise would have required
it to engage in speculation.
B.
State Protection
[19]
The Applicant submits that the RAD applied the
incorrect legal test for state protection: the state must be able to provide actual
state protection; a mere effort to protect is not enough. The Applicant submits
that the RAD simply described the various efforts made by the Hungarian
government and other organizations, without referring to actual evidence which
described the efficacy and availability of that state protection.
[20]
The test for state protection was articulated by
the Supreme Court of Canada in Canada (Attorney General) v Ward, [1993]
2 SCR 689 at 725 [Ward] and was correctly identified by the RAD: a
claimant seeking refugee protection must provide “clear
and convincing confirmation of a state's inability to protect”. In
addition, a claimant’s burden of proof is directly proportionate to the level
of democracy of the state in question.
[21]
The RAD reviewed the evidence showing state
protection for Roma is mixed. It considered negative evidence regarding acts of
violence and general discrimination against Roma, including by some police, the
rise of anti-Roma sentiment and the Jobbik party. However, the RAD also noted
several positive steps including new legislation, initiatives and prosecution
to curb anti-Roma action.
[22]
I therefore do not agree with the Applicant’s
contention that the Board simply discussed the good intentions of the State and
ignored all other evidence which came to a contrary conclusion. The RAD
considered the effectiveness of the state protection by giving concrete
examples of the government and various organizations’ efforts. The Board also
referenced international organizations helping to combat racism and the
marginalization of Roma. After looking at the evidence presented by the
Applicant, as well as in the National Documentation Package, the RAD found that
the mechanisms put in place to provide state protection had achieved certain
operational success on the ground. This was certainly one conclusion open to it
given the particular facts of the Applicant and his family in this case, and
consistent with the instructions from the Federal Court of Appeal in Mudrak
v Canada (Citizenship and Immigration), 2016 FCA 178 at para 29. Under a
different set of circumstances or experiences befalling the Applicant, it may
not have been open to the Board to make those same findings.
[23]
In particular, the Applicant provided no
evidence showing he or his family sought and were denied state or police
protection; it was thus reasonable for the RAD to rely solely on the documentary
evidence before it. Indeed, the role of this Court is not to reweigh the
evidence (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 59).
[24]
Finally, although the observation in paragraph
77 of the Decision is weakly worded and certainly cannot be supported as a
proposition in isolation (as conceded by the Respondent), it is not sufficient
to render the remaining 87 paragraphs of the Decision unreasonable.
III.
Conclusion
[25]
The RAD’s conclusions that the Applicant will
neither suffer persecution, nor rebutted the presumption of state protection
with clear and convincing evidence, were both reasonable in light of the
personalized risk presented. In the particular circumstances, the RAD
reasonably found there was insufficient evidence to arrive at the Applicant’s
desired outcome.
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