Docket: IMM-769-17
Citation:
2017 FC 956
Ottawa, Ontario, October 26, 2017
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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ZSOLT POCZKODI
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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
[1]
The Applicant, Zsolt Poczkodi, seeks judicial
review of the decision of the Refugee Appeal Division of the Immigration and
Refugee Board [RAD] dated January 27, 2017, which confirmed the decision of the
Refugee Protection Division [RPD], refusing the joint claims of he and his
family members under sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act]. The RPD and RAD considered the
joint claims of the Applicant and Bertalan Poczkodi, Bertalenne Poczkodi, and
Benjamin Poczkodi, the Applicant’s father, mother, and younger brother,
respectively [the family]. In the original application, Bertalan Poczkodi was
the principal applicant. Bertalan Poczkodi, Bertalenne Poczkodi, and Benjamin
Poczkodi have withdrawn their applications for judicial review. Zsolt Poczkodi
is the adult son and is the only applicant pursuing this Application for
Judicial Review. As a result, the style of cause is changed to refer only to
Zsolt Poczkodi.
I.
Background
[2]
Zsolt Poczkodi is a citizen of Hungary of Roma
ethnicity. He arrived with his parents and younger brother in Canada on May 19,
2016 and sought refugee protection based on the family’s experience in Hungary.
The family alleged discrimination and persecution in housing, employment,
education, and in entering public places, as well as physical assaults based on
their ethnicity.
[3]
The RPD found that discrimination experienced by
the family in housing, health, employment and education did not rise to the
level of persecution separately or cumulatively, but when considered with the
physical assaults alleged, did amount to persecution. The RPD found, however,
that the determinative issue was state protection. The RPD concluded that state
protection was adequate and that the family would be afforded adequate state
protection if they returned to Hungary and sought state protection if and when
needed. The RPD probed the family’s efforts to seek state protection in Hungary
following two alleged assaults, on Bertalan Poczkodi and the Applicant,
respectively. The RPD found that the family’s accounts of reporting these
assaults to the police were not credible. The RPD concluded that Bertalan Poczkodi
had not reported his beating to the police and that Zsolt Poczkodi did not
provide the police with sufficient details of his assault, although he knew the
name of his attacker. The RPD also noted that the alleged assault was reported
to the police in a different location from where it took place and where the
family lived. The RPD noted that claimants cannot assert lack of state
protection in general without making efforts to test the adequacy of state
protection.
[4]
The family did not dispute the RPD’s credibility
findings in their appeal to the RAD.
II.
The RAD Decision Under Review
[5]
The RAD noted that it conducted its own
assessment to determine whether the family would face discrimination or
persecution upon return to Hungary and whether, “in
their particular situation and circumstances”, they would receive
adequate state protection if they were to seek it.
[6]
The RAD’s decision is lengthy and comprehensive.
The RAD addressed the situation of Roma in Hungary in general with reference to
the documentary evidence. The RAD agreed that Roma face discrimination in
several aspects of their lives, but noted that Hungary’s anti‑discrimination
laws were well advanced and that the government has been engaged in improving
the situation of minorities.
[7]
With respect to education, the RAD acknowledged
the disparity in education levels between Roma and non-Roma, but noted the
improvements over the last decade as reported in recent Responses to
Information Requests. The RAD acknowledged that the adult family members had
faced discrimination in school. However, the RAD concluded that the documentary
evidence did not establish that Roma are denied the opportunity to get an
education at any level.
[8]
With respect to employment, the RAD acknowledged
that Roma face more difficulty obtaining steady jobs. The RAD found that Roma
face discrimination, but that the evidence did not establish that Roma face
persecution in either education or employment. The RAD noted that the adult
family members had been gainfully employed in Hungary and found that they had
not established that they would not find work upon return, in their particular
circumstances.
[9]
With respect to access to medical services, the
RAD found that Roma patients have been subjected to differential treatment, but
initiatives have been taken to reduce inequalities. The RAD concluded that
there was insufficient evidence to conclude that the family had been denied
medical services and found that they would receive essential medical services
upon return to Hungary as needed.
[10]
With respect to housing, the RAD noted the
segregation of Roma and that the family had been evicted from their home in Miskolc.
The RAD agreed that this amounted to discrimination but found that it did not
rise to the level of persecution, noting that the family had found housing
while living in Hungary, including after their eviction.
[11]
The RAD found that the discrimination faced by
the family in housing, employment, education and in public places did not
amount to persecution. Similarly, the RAD found that Roma as a group experience
discrimination, but that the evidence did not establish that Roma as a group
face persecution.
[12]
The RAD found that, despite its finding that the
family had not established persecution or such a risk upon return, the
determinative issue was the adequacy of state protection.
[13]
The RAD referred at length to the principles in
the jurisprudence regarding state protection, including that refugee claimants
are required to make reasonable efforts to seek protection in their home
country before seeking refugee protection in another country and that the onus
rests on the refugee claimant to provide clear and convincing evidence to rebut
the presumption of adequate, not perfect, state protection. The RAD noted the
submissions made by counsel for the family and the jurisprudence they relied
on, as well as the information in the National Documentation Package. The RAD
acknowledged that the evidence was mixed and that some Roma experience violence
by racists, including by some rogue police officers. The RAD also referred to
the initiatives underway in Hungary to address racism, including to ban the
Hungarian Guard and to address corruption.
[14]
The RAD concluded that the family had not
provided clear and convincing evidence that state protection is inadequate for
them. The RAD noted that the family “alleged that they
made complaints to the police, and the police did not help them”. The
RAD found that it would be reasonable to expect them to have sought redress by
reporting the alleged inaction of the police to the appropriate agency. The RAD
noted that the family was “resourceful” and that
they would be expected to be resourceful upon return to Hungary.
[15]
The RAD concluded, based on the documentary
evidence, that if the family were returned to Hungary they would have adequate
state protection if they reported a crime and, if dissatisfied with the police
response, that they would have recourse to other authorities. The RAD provided
several pages of excerpts from the National Documentation Package regarding,
among other things, programs for the recruitment of Roma police, the process
for making complaints about police, and the work of the Equal Treatment
Authority. The RAD found that the reports on these initiatives demonstrated “results on the ground”. The RAD noted, “[a]lthough not perfect, the RAD finds that the evidence
demonstrates that Hungary’s progressively evolving measures/actions to provide
protections for its citizens, including Roma, are actually having an impact
operationally on the ground.” The RAD added that the evidence shows that
police investigate crimes against Roma and that perpetrators are held
accountable when there is sufficient evidence.
[16]
The RAD agreed with the family’s submissions
that serious efforts to provide state protection is not the test for adequate
state protection. The RAD found that based on all the evidence, Hungary is
doing more than making efforts; it has enacted legislation, put an
infrastructure in place to enforce the law, has a functioning police force, has
recourse mechanisms for police inaction and has implemented many related
programs. The RAD found that the objective documents on the record show
positive results for several operational programs to address discrimination
against Roma.
[17]
The RAD concluded that the family had not
rebutted the presumption of adequate state protection with clear and convincing
evidence and that adequate state protection would be forthcoming if they were
to need and diligently seek state protection upon return to Hungary.
III.
The Issues
[18]
The Applicant, Zsolt Poczkodi, argues that the
decision is not reasonable: the RAD erred in finding that the discrimination the
family experienced did not cumulatively amount to persecution; and, the RAD
erred in its state protection analysis by failing to apply the correct test and
relying on efforts rather than demonstrated operational adequacy; and, by
ignoring the country condition documents and jurisprudence submitted by the
family.
IV.
The Standard of Review
[19]
The decision of the RAD is reviewed on the
standard of reasonableness as all the issues raised relate to matters of mixed
fact and law. It is well established that, where the standard of reasonableness
applies, the role of the Court is to determine whether the decision “falls within ‘a range of possible, acceptable outcomes which
are defensible in respect of the facts and law’ (Dunsmuir, at para. 47).
There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome” (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 SCR
339). Deference is owed to the decision maker. The Court will not re-weigh the
evidence or remake the decision.
[20]
In Majlat v Canada (Minister of Citizenship
and Immigration), 2014 FC 965, [2014] FCJ No 1023, Justice Mary Gleason
summarized the notion of deference, following a comprehensive analysis of the
reasonableness standard of review. Justice Gleason explained, at para 24, that “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.”
A.
The Applicant’s Submissions
[21]
Zsolt Poczkodi acknowledges that the
determinative issue for both the RPD and RAD was state protection, but submits
that the RAD erred in failing to consider whether the discrimination faced by
the family in education, employment and housing on a cumulative basis amounted
to persecution and in finding that it did not. He submits that given the RADs
findings regarding the extent of discrimination against Roma, this finding is
not justified. He submits that had the RAD found that the family suffered
persecution, the state protection analysis would be different.
[22]
Zsolt Poczkodi further submits that the RAD
erred in its assessment of the adequacy of state protection. Although it
correctly stated the test of adequate state protection, the RAD did not apply
the correct test; rather, it focussed on improvements and efforts. The RAD
ignored documentary evidence and the jurisprudence cited by the family where
the Court has found that Roma are persecuted and that state protection is not
adequate at the operational level. Zsolt Poczkodi submits that this Court has
found that the same initiatives relied on by the RAD in the present case to be
inadequate state protection in other cases.
[23]
He submits that the jurisprudence has established
that only reasonable efforts are required to seek state protection and that the
burden on the family to seek state protection should be assessed in the context
that persecution of Roma is widespread and police do not respond to complaints
from Roma. He asserts that the RAD acknowledged that the police did not
investigate the family’s complaints.
[24]
He also argues that the RAD erred in considering
the resourcefulness of the family as an element of its assessment of state
protection. He also argues that the RAD’s reference to the family’s
resourcefulness suggests some bias or pre-determination of the claim. He argues
that if fleeing Hungary demonstrates resourcefulness, and if that same
resourcefulness is relied on to expect him to seek state protection in Hungary,
then all refugees would be similarly “resourceful”
and the RAD would not fairly assess the claims.
B.
The Respondent’s Submissions
[25]
The Respondent submits that the RAD considered
all the evidence and applied the principles from the jurisprudence, but was not
satisfied that the family would face a serious risk of persecution if returned
to Hungary or that state protection would not be available, if the family
needed and sought state protection.
[26]
The Respondent submits that the RAD did not
ignore the evidence or jurisprudence submitted by the family. The RAD addressed
the voluminous country condition documents and concluded that the
discrimination faced in housing, education and employment by Roma in Hungary
was indeed discrimination, but not rise to the level of persecution. The RAD
considered the family’s evidence of discrimination both separately and
cumulatively, noting that this issue was squarely raised in the family’s appeal
to the RAD and was squarely addressed.
[27]
The Respondent notes that the RAD engaged in a
detailed analysis of the country condition documents regarding Roma in Hungary
and of the family’s particular circumstances. The analysis demonstrates that
the RAD did not rely on efforts and improvements but on the outcomes of the efforts
made by the Hungarian government to address discrimination. The RAD’s
assessment of the country condition documents, particularly those found to be
objective, support the finding that Hungary was both willing and able to
provide protection when protection is actually sought. The RAD noted the “mixed evidence” but found that the objective evidence
does not support the conclusion that all Roma will face persecution and that
state protection is not adequate.
[28]
The Respondent further submits that the RAD
reasonably found that the family did not rebut the presumption of adequate
state protection, noting that their account of seeking protection following two
separate assaults was not found to be entirely credible.
[29]
With respect to the RAD’s comment about the
resourcefulness of the family, the Respondent’s position is that this was
simply a comment and not an additional element of the state protection
analysis. In any event, a refugee claimant’s efforts to seek state protection
are a highly relevant consideration.
[30]
The Respondent refutes the serious allegation of
bias against the RAD, which arises from the RAD’s comment on the
resourcefulness of the family, noting that it does not come close to meeting
the high threshold to establish a reasonable apprehension of bias established
in Committee for Justice and Liberty v Canada (National Energy Board)
[1978] 1 S.C.R. 369 at 394, 68 DLR (3d) 716 [Committee for Justice and Liberty].
V.
The RAD did not fail to consider whether the
discrimination recounted by the family amounted to persecution
[31]
The RAD did not fail to assess whether the
discrimination experienced by the family in housing, education, employment and
in entering public places ‒ which were the bases of their claim before
the RAD ‒ amounted to persecution either separately or cumulatively. The
RAD’s lengthy analysis shows that it clearly considered this issue. The RAD
painted a rather bleak picture of the challenges faced by Roma in Hungary. It
did not gloss over the “mixed” evidence, yet
reasonably found this did not amount to persecution for this family.
[32]
Zsolt Poczkodi’s reliance on jurisprudence which
has found that discrimination in housing, employment, education and access to
medical services for Roma claimants constitutes persecution does not lead to
the conclusion that this decision of the RAD must be found unreasonable. The
decision of the RAD is based on the circumstances of the family and the
evidence presented. Each case is determined on its own merits. In the present
case, the RAD found, based on the evidence provided, that the family had been
able to obtain housing, despite their eviction in Milscolk, that education was
not denied to their sons, that they had not demonstrated that essential medical
services were denied to them, and that the adult family members had been
employed.
[33]
Moreover, the RAD’s finding that the
discrimination experienced by the family did not amount to persecution need not
be addressed given that the determinative issue for both the RPD and the RAD
was the adequacy of state protection. Even if the RAD had found that the
family’s experiences individually or cumulatively amounted to persecution, the
outcome would have been the same based on the finding that state protection is
adequate; the family had not rebutted the presumption of adequate state
protection with clear and convincing evidence.
[34]
As Justice O’Keefe found in Dawidowicz v
Canada (Minister of Citizenship of Immigration), 2014 FC 115 at para 27, 23
Imm LR (4th) 61:
[27] The Board was therefore correct to
approach the issue the way it did. Having found adequate protection, there was
no need to go on to consider whether the cumulative acts of discrimination
amounted to persecution since such a finding could not have changed the result.
VI.
The RAD did not err in its assessment of state
protection for this family
[35]
The RAD decision, as noted above, is lengthy and
comprehensive. The RAD correctly noted the principles from the prevailing
jurisprudence, including that there is a presumption of adequate state
protection, the onus rests on the refugee claimant to provide clear and
convincing evidence that state protection is not adequate for them, that state
protection need not be perfect, that local failures alone do not demonstrate
inadequate state protection, and that a claimant must make reasonable efforts
to access state protection ‒ which are proportional to the level of
democracy in the state before seeking the protection of another country.
[36]
The jurisprudence with respect to state
protection is extensive. The RAD’s decision reflects the relevant principles
including those noted above. These principles start from the premise that
refugee protection is considered to be surrogate or substitute protection in
the event of a failure of national protection (Canada (Attorney General) v
Ward, [1993] 2 S.C.R. 689 at 709, 103 DLR (4th) 1). The presumption that a
state is capable of protecting its citizens is only rebutted by clear and
convincing evidence that state protection is inadequate or non-existent; the
evidence must be “relevant, reliable and convincing
evidence which satisfies the trier of fact on a balance of probabilities that
the state protection is inadequate” (Flores Carrillo v Canada
(Minister of Citizenship and Immigration), 2008 FCA 94 at para 30, [2008] 4
FCR 636).
[37]
Adequate state protection does not mean perfect
state protection, but the state must be both willing and able to protect (Bledy
v Canada (Minister of Citizenship and Immigration), 2011 FC 210 at para 47,
[2011] FCJ No 358 (QL)). State protection must also be adequate at the operational
level (Henguva v Canada (Minister of Citizenship and Immigration), 2013
FC 483 at para 18, [2013] FCJ No 510 (QL); Meza Varela v Canada (Minister of
Citizenship and Immigration), 2011 FC 1364 at para 16, [2011] FCJ No 1663
(QL)).
[38]
As noted more recently by Justice Gascon in Galamb
v Canada (Minister of Citizenship and Immigration), 2016 FC 1230 at paras
32- 33, [2016] FCJ No 1220 (QL):
[32] It is not disputed that the
appropriate test in a state protection analysis commands an assessment of the
adequacy of that protection at the operational level. The state protection test
must focus not only on the efforts of the state but also on actual results:
“[i]t is what state protection is actually provided at the present time that is
relevant” (Hercegi v Canada (Citizenship and Immigration), 2012 FC 250
at paras 5-6 [emphasis in the original]). A state protection analysis must not
just consider governmental aspirations. Stated otherwise, for a protection to
be adequate, it must amount to a protection that works at the operational
level. To measure the adequacy of state protection, the RAD has to consider the
state’s capacity to implement measures at the practical level for the persons
concerned (Bakos v Canada (Citizenship and Immigration), 2016 FC 191 [Bakos]
at paras 26 and 29; Juhasz v Canada (Citizenship and Immigration), 2015
FC 300 at para 44; Molnar v Canada (Citizenship and Immigration), 2015
FC 273 at para 46).
[33] Efforts made by a government to
achieve state protection may, of course, be relevant to the question of whether
operational adequacy has been achieved. However, actual results in terms of
what is concretely accomplished by the state must also be assessed (Kovacs v
Canada (Minister of Citizenship and Immigration), 2015 FC 337 [Kovacs]
at paras 71-72). While “[a]dequacy remains the standard”, what is adequate
“will vary with the country and the circumstances” (Kovacs at para 72).
[39]
The RAD noted that Hungary is a functioning
democracy. While democracy alone does not ensure effective state protection, it
is a relevant factor.
[40]
In addition, the onus on a claimant to seek
state protection varies and is commensurate with the state’s ability and
willingness to provide protection (Sow v Canada (Minister of Citizenship and
Immigration), 2011 FC 646 at para 11, [2011] FCJ No 824 (QL) at para 10; Kadenko
v Canada (Minister of Citizenship and Immigration), [1996] FCJ No 1376 (QL)
at para 5, 143 DLR (4th) 532 (FCA)).
[41]
In Ruszo v Canada (Minister of Citizenship
and Immigration), 2013 FC 1004, 440 FTR 106, the Chief Justice explained at
para 33 that a claimant cannot simply rely on their own belief that state
protection will not be forthcoming without testing it:
[33] In this regard, doubting the
effectiveness of state protection without reasonably testing it, or simply
asserting a subjective reluctance to engage the state, does not rebut the
presumption of state protection . . . In the absence of a compelling or
persuasive explanation, a failure to take reasonable steps to exhaust all
courses of action reasonably available in the home state, prior to seeking
refugee protection abroad, typically will provide a reasonable basis for a
conclusion by the RPD that an applicant for protection did not displace the
presumption of state protection with clear and convincing evidence.
[Internal citations omitted]
[42]
As noted above, each case must be decided on its
own facts. On judicial review, the issue is whether the RAD made findings which
are reasonable based on the evidence before the RAD with respect to the
claimant. The jurisprudence which has resulted in different conclusions
regarding the adequacy of state protection for other Roma in Hungary must be
assessed with this in mind. The Court applies the same principles, but
different results may be reached in different cases due to different facts and
circumstances.
[43]
As noted by Justice Boswell in Dinok v Canada
( Minister of Citizenship and Immigration), 2014 FC 1199 at para 32, [2014]
FCJ No 1246 (QL):
32 Consequently, the mere fact that a
finding of adequate state protection was held to have been made unreasonably in
Hercegi and other cases does not necessarily mean that the Board’s
decision in this case was unreasonable. As Mr. Justice Russell observed in Molnar
v Canada (Citizenship and Immigration), 2012 FC 530 at para 105, [2012] FCJ
No 551 (QL):
The Hungarian situation is very
difficult to gauge. Much will depend upon the facts and evidence adduced in
each case, and on whether the RPD goes about the analysis in a reasonable way.
Where it does, it is my view that it is not for this Court to interfere even if
I might come to a different conclusion myself.
[44]
In the present case, the RAD reasonably
concluded that state protection was adequate and that the family had not
rebutted the presumption of adequate state protection with clear and convincing
evidence.
[45]
The RAD provided a detailed assessment of the
country condition documents regarding state protection. The RAD acknowledged
the family’s submissions regarding the jurisprudence and the documents
submitted, which Zsolt Poczkodi argues were more recent and demonstrated a lack
of state protection. The RAD’s analysis of all the reports led it to conclude
that the legislation and other initiatives were producing results “on the ground”. The RAD’s reasons reflect that it
understood the difference between efforts and operational adequacy of state
protection. As noted above, the RAD concluded “[a]lthough
not perfect, the RAD finds that the evidence demonstrates that Hungary’s
progressively evolving measures / actions to provide protection for its
citizens, including Roma, are actually having an impact operationally on the
ground.”
[46]
Although Zsolt Poczkodi argues that the RAD
accepted that he and his family had made complaints to the police and the
police did not respond, this is not an accurate characterization of the RAD’s
decision. The RAD stated that the family alleged they had complained to the
police and that the police did not help. The RAD did not dwell on the evidence
of the efforts made by the family to seek police protection. The RPD, however
had probed the evidence and had found Bertalan Poczkodi had not reported his
beating to the police and that Zsolt Poczkodi did not provide the police with
sufficient details of his assault, although he knew the name of his attacker
and had reported to the police in a different location from where it took place
and where the family lived. As noted above, the RPD had found that the family’s
reports to the police were not credible. The family did not challenge these
credibility findings in their appeal to the RAD.
[47]
The RAD found that it would have been reasonable
for the family “in their particular situation and
circumstances” to have sought redress from the alleged police inaction
from the appropriate organisation. In this context, the RAD noted that the
family was resourceful.
[48]
The record supports the RAD’s finding that the
family did not meet the onus to take reasonable steps in their circumstances to
seek state protection first from the police and subsequently by seeking
recourse from oversight agencies.
VII.
The RAD did not show any reasonable apprehension
of bias by commenting that the family was resourceful
[49]
I note that Zsolt Poczkodi now submits that
there was not a “strong” apprehension of bias,
but has not resiled from this allegation completely. There is no merit in his
submission that the RAD showed any reasonable apprehension of bias by
commenting that the family showed resourcefulness in coming to Canada. The
RAD’s comment was made in the context of assessing whether the family had taken
reasonable steps to access state protection, before seeking the protection of
Canada. The RAD is entitled to consider all the circumstances, which include
the ability of refugee claimants to seek state protection. In my view, the
RAD’s comment about their resourcefulness is related to their ability to seek
state protection.
[50]
The test for bias was established by Justice de
Grandpré, writing in dissent, in Committee for Justice and Liberty at
394:
[…] the apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information […]
[T]hat test is “what would an informed person, viewing the matter realistically
and practically—and having thought the matter through—conclude. Would he think
that it is more likely than not that [the decision-maker], whether consciously
or unconsciously, would not decide fairly.
[48] In R v S (RD),
[1997] 3 S.C.R. 484, 151 DLR (4th) 193 [RDS], at para 113, Justices
L’Heureux- Dubé and McLachlin referred to the test and noted that the threshold
for a finding of real or perceived bias is high, explaining that “an allegation
of reasonable apprehension of bias calls into question not simply the personal
integrity of the judge, but the integrity of the entire administration of
justice.” The Court cautioned that allegations of bias are serious and should
not be made lightly. The same principles apply to allegations against other
decision makers.
[51]
A reasonable apprehension of bias requires more
than an allegation based on a passing comment in the decision. The allegation
must be accompanied by cogent evidence (RDS at paras 114, 117). In this case,
there is no evidence at all to suggest that an informed person would have a
reasonable apprehension of bias.
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