Docket: IMM-732-17
Citation:
2017 FC 1032
Ottawa, Ontario, November 10, 2017
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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ANITA BENKO
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PETER VASZILY
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BRENDA VASZILY
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NOEL PETER
VASZILY
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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
I.
Overview
[1]
The applicants, Ms. Anita Benko, her husband, Mr.
Peter Vaszily, and their two minor children, Brenda and Noel Peter, are all
citizens of Hungary and members of the Roma ethnic group. When they arrived in
Canada in March 2010, Ms. Benko and her family claimed refugee protection based
their fear of discrimination and violence in Hungary due to their Roma ethnicity.
In April 2012, a panel of the Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada dismissed their claim because of a lack
of well-founded fear and their failure to provide sufficient proof that state
protection was not available in Hungary.
[2]
Ms. Benko and her family then made a Pre-Removal
Risk Assessment [PRRA] application. In December 2016, a senior immigration
officer [Officer] rejected their PRRA application on the basis that they would
not be subject to risk of persecution, danger of torture, risk to life or of
cruel and unusual treatment or punishment if returned to Hungary [Decision]. Despite
the fresh evidence put forward by Ms. Benko and her family pertaining to
deteriorating circumstances in Hungary, the PRRA Officer confirmed the RPD’s
findings on the lack of evidence of risk and the availability of state
protection.
[3]
Ms. Benko and her family now seek judicial
review of the PRRA Officer’s Decision. They argue that the Decision is
unreasonable because the PRRA Officer erred in considering their new evidence
and in conducting the state protection analysis. They ask this Court to quash
the Decision and to send it back for redetermination by a different immigration
officer. The determinative issue before the PRRA Officer was the availability
of state protection in Hungary and, in this application for judicial review,
Ms. Benko and her family focused their submissions on this point.
[4]
Having considered the evidence before the PRRA Officer
and the applicable law, I can find no basis for overturning the Officer’s Decision.
The Decision was responsive to the evidence and the outcome is defensible based
on the facts and the law. It falls within the range of possible, acceptable
outcomes. There are no sufficient grounds to justify
this Court’s intervention, and I must therefore dismiss
the application for judicial review.
II.
Background
A.
The factual context
[5]
Ms. Benko and her family instituted refugee
claims based on allegations that, due to their Roma ethnicity, they suffered
discrimination in the areas of education, employment and entering public spaces
in Hungary, and that such discrimination amounted to persecution.
[6]
The catalyst of their flight from Hungary seems
to have been the death (in 2009) of Ms. Benko’s brother at the hands of Balog
Tibor, an anti-Roma Hungarian Guardsman who was subsequently jailed for the
crime following a police investigation. Ms. Benko was also purportedly
threatened in January 2010 by an unknown person, who warned her not to get
involved or to make a complaint to the authorities about the death of her
brother. According to Ms. Benko’s testimony before the RPD, she went to the
police following this threat. This was the only time she sought help from the Hungarian
authorities, as Ms. Benko and her family fled the country six weeks later.
[7]
Ms. Benko and her family were originally
represented before the RPD by counsel who was later found to have been
negligent in his assistance to many Hungarian Roma claimants and was
reprimanded by the Law Society of Upper Canada in 2015.
B.
The Decision
[8]
Having considered all the evidence, the PRRA Officer
found that Ms. Benko and her family provided insufficient new materials to demonstrate
that they will be persecuted in Hungary, or that state protection is not
available to them.
[9]
The PRRA Officer gave the RPD’s findings
considerable weight and pasted extensive passages from the RPD’s reasons into
the Decision. More specifically, the Officer noted the following findings made
by the RPD: 1) it solely relied on the amended narratives of Ms. Benko in light
of their counsel’s negligence in the preparation of their refugee claim; 2) it determined
that discrimination against people of Roma ethnicity in terms of employment,
education, housing and racially-motivated violence did not amount to
persecution; 3) the Hungarian state offered protection to Ms. Benko and her
family following the death of her brother, as a police investigation led to the
arrest, detention, conviction and imprisonment of Balog Tibor; 4) regarding Ms.
Benko’s own complaint, it was made to the police but Ms. Benko rapidly left the
country six weeks after the alleged threats against her, without exhausting all
avenues open to her; and 5) the evidence on country conditions suggested that,
although not perfect, state protection in Hungary was adequate for Roma who are
victims of crime, police abuse or discrimination. The RPD thus found that Ms.
Benko and her family had failed to rebut the presumption of state protection
with clear and convincing evidence and that she had not taken all reasonable
steps to avail herself of that protection before making a claim for refugee
protection.
[10]
In the Decision, the PRRA Officer did not
consider some documents pre-dating the 2012 decision of the RPD, as these did
not meet the definition of “new evidence” set
out in subsection 113(a) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA].
[11]
On the issue of persecution and state
protection, the PRRA Officer noted that, since Balog Tibor was released from
jail in July 2014, Ms. Benko or her family members have not reported any
incidents of harassment to the police. Ms. Benko’s mother and sister-in-law
claimed to be scared to go to the authorities because Ms. Benko had done so
before without success in 2010. However, Ms. Benko had stated at the RPD
hearing that the police had taken her report at the time and were investigating
the case when she chose to leave the country and elected not to follow up. The Officer
found the evidence insufficient to corroborate that the unknown individuals allegedly
harassing Ms. Benko’s family in Hungary were specifically related to the case
against Balog Tibor.
[12]
The PRRA Officer further observed that Ms. Benko
enumerated the same risks previously presented to the RPD and provided
insufficient evidence of new risk developments. The Officer acknowledged the
mixed evidence with respect to the level of discriminatory acts the Roma
community is exposed to and the effectiveness of state protection mechanisms.
However, the Officer found that the condition and many avenues of recourse
noted in the RPD’s reasons of 2012 were consistent with the documentary evidence
now provided by Ms. Benko.
[13]
On the issue of state protection, the PRRA Officer
determined that, in the absence of clear and convincing evidence to the
contrary, the state of Hungary is presumed to be capable of protecting its
nationals. The documentary evidence did not indicate that there is a total
breakdown of the state apparatus rendering the protection of individuals such
as Ms. Benko and her family inoperable. The Officer observed that they have not
lived in Hungary for over six and a half years and have provided insufficient
evidence that they could not avail themselves of state protection should they
be threatened by anyone.
[14]
The PRRA Officer thus found that Ms. Benko’s
evidence did not show that she and her family sought, and were then subsequently
denied, state protection. In addition, after having analyzed the evidence of
general conditions in Hungary and the state’s ability to protect its citizens,
the Officer concluded that the claimants had failed to show that state
protection would not be reasonably available to them if they returned to
Hungary.
C.
The standard of review
[15]
It is well-recognized that PRRA applications
involve questions of mixed facts and law, and that the standard of review
applicable in such cases is that of reasonableness (The Minister of
Citizenship and Immigration v Flores Carrillo, 2008 FCA 94 [Flores
Carrillo] at para 36; Hinzman v Canada (Citizenship and Immigration),
2007 FCA 171 [Hinzman] at para 38; Fares v Canada (Citizenship
and Immigration), 2017 FC 797 at paras 19-22; Galamb v Canada
(Citizenship and Immigration), 2016 FC 1230 [Galamb] at para 12).
Since the IRPA is the enabling statute that PRRA officers are mandated to
enforce, its interpretation and application thus fall within their core area of
expertise. In such circumstances, a high degree of deference is owed to the
PRRA officers’ factual findings and assessment of the evidence.
III.
Analysis
[16]
Ms. Benko and her family claim that the PRRA
Officer made numerous reviewable errors in his analysis of state protection. In
essence, they argue that the PRRA Officer failed to make reference to specific
evidence supporting his findings, ignored contrary evidence and erred in
relying heavily on the conclusions of the RPD. They submit that the evidence
did not allow the Officer to conclude to the effectiveness of state protection
in Hungary. They contend that, while Hungary’s efforts to protect its citizens
are relevant, they are neither determinative nor sufficient, and that there is
no adequate state protection at an operational level. They plead that extensive
evidence reflected the inability of Hungary to provide state protection and
that the PRRA Officer unreasonably overlooked it.
[17]
I disagree with the submissions of Ms. Benko and
her family.
[18]
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 (Galamb at paras 32-37). 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. 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 be assessed (Kovacs v
Canada (Citizenship and Immigration), 2015 FC 337 at paras 71-72).
[19]
I am satisfied that, in this case, the PRRA
Officer considered not only the efforts of Hungary to offer state protection to
Ms. Benko and her family, but also the results of the measures undertaken in
terms of investigations, prosecutions and convictions. Contrary to the
submissions made by Ms. Benko, I am not convinced that the PRRA Officer selectively
reviewed the documentary evidence. It instead appears from the Decision that
the Officer considered Hungary’s country documentation and the materials
submitted by Ms. Benko and her family. I concede that the Officer’s reasons are
brief and do not contain references to specific portions of the evidence, but
the PRRA Officer acknowledged that the evidence relating to the adequacy of
state protection in Hungary is mixed. The PRRA Officer also concluded that the concerns
of Ms. Benko and her family with the adequacy of state protection were
speculative, as they had not sought such protection themselves. In the end, and
on the basis of the evidence before him, the PRRA Officer gave more weight to
the documentary evidence relating to the adequacy of state protection than to
the concerns expressed by Ms. Benko and her family or to the documentary
evidence singled out by their counsel. Further to my review of the Decision and
of the record before the Officer, I am not convinced that this assessment was
unreasonable.
[20]
In this case, the PRRA Officer concluded that
Ms. Benko and her family did not show that state protection was unavailable to
them in Hungary. In my view, this conclusion was open to the Officer since the
Hungarian police had been responsive to the complaints made by Ms. Benko
regarding the death of her brother and the threats she had herself received. In
a case where state protection is an issue, the real question is whether,
considering the whole of the evidence about the state’s capacity to protect its
citizens, the claimants will be exposed to a serious risk of persecution if returned
to their home country. Given the evidence on the record, I find that the PRRA
Officer reasonably concluded that Ms. Benko and her family had failed to
satisfy that test.
[21]
I find the PRRA Officer’s reasoning to be transparent
and intelligible. This is not a case where the PRRA Officer failed to consider the
evidence provided or the contrary country conditions evidence. Quite the
opposite, the reasons specifically recognized the existence of mixed evidence.
I am mindful of the fact that the PRRA Officer did not refer to all the
voluminous documentary evidence before it. However, looking at the reasons as a
whole and having reviewed the record, I find that the Officer conducted a
reasonably thorough and balanced assessment of the evidence. It is necessary to
consider a particular claimant’s specific circumstances, in combination with
the general documentary evidence, in order to conclude whether that claimant
faces a risk of persecution (Olah v Canada (Citizenship and Immigration),
2017 FC 921 at para 15; Csoka v Canada (Citizenship and Immigration),
2017 FC 651 at para 28). In this case, there was insufficient individualized
evidence that related to the personal situation of Ms. Benko and her family in
Hungary to support a conclusion of risk and absence of state protection.
[22]
When reviewing a decision on the standard of
reasonableness, the analysis is concerned “with the
existence of justification, transparency and intelligibility within the
decision-making process”, and the PRRA Officer’s findings should not be
disturbed as long as the decision “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47). In conducting a reasonableness review of factual findings, it is
not the role of the Court to reweigh the evidence or the relative importance
given by the decision-maker to any relevant factor (Kanthasamy v Canada
(Citizenship and Immigration), 2014 FCA 113 at para 99). Under a
reasonableness standard, as long as the process and outcome fit comfortably
with the principles of justification, transparency and intelligibility, and the
decision is supported by acceptable evidence that can be justified in fact and
in law, a reviewing court should not substitute its own view of a preferable
outcome (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at para 17).
[23]
The question is not whether another outcome or
interpretation might have been possible. The question is whether the conclusion
reached by the PRRA Officer falls within the range of acceptable, possible
outcomes. A decision is not unreasonable because the evidence could have
supported another conclusion. Under the reasonableness standard, deference to
the decision-maker is a legal obligation for the reviewing court. The test for
reasonableness dictates that the reviewing court must start from the decision
and the recognition that the administrative decision-maker has the primary
responsibility to make the determination. The Court shall look at the reasons,
the record and the outcome and, if there is a justifiable explanation for the
outcome reached, it shall refrain from intervening.
[24]
Ms. Benko claims that the PRRA Officer’s reasons
can hardly fall within the range of acceptable outcomes considering how vague
they are, especially in the face of abundant documentation allegedly contained
in the record and contradicting the Officer’s findings. She contends that the
Officer’s findings are clearly unreasonable given the amount of evidence
proving that conditions have worsened for Roma in Hungary. Ms. Benko argues
that it is an error for a decision-maker not to explain why some evidence is
preferred over others (Dimitrijevic v Canada (Citizenship and Immigration),
2014 FC 719 at paras 32-33), especially when there is clearly contradictory
evidence to that relied upon in the reasons (Cech v Canada (Citizenship and
Immigration), 2016 FC 1312 at para 20; Abdillahi v Canada (Citizenship
and Immigration), 2015 FC 1202 at para 10; Aziz v Canada (Citizenship
and Immigration), 2015 FC 694 at paras 13-15).
[25]
I do not share the views expressed by Ms. Benko
and her family. Given that the state has prosecuted, convicted and sentenced
the agent of persecution, Balog Tibor, it was reasonable for the PRRA Officer
to determine that Ms. Benko and her family benefited from state protection. Regarding
the family members’ allegation of harassment by supposed henchmen of Balog
Tibor, the Officer was entitled to weigh the evidence and to take into account
that Ms. Benko’s family members were speculating as to who was behind the
threats. There is nothing unreasonable with the PRRA Officer’s finding that Ms.
Benko and her family had not submitted sufficient objective evidence of new
risk developments (Rangel Gomez v Canada (Citizenship and Immigration),
2013 FC 786 at paras 22-23). Besides, the purpose of the PRRA is not to
re-argue the basis of the refugee claim. Rather, it is premised on respect for
the negative refugee determination “unless there is new
evidence of facts that might have affected the outcome of the RPD hearing if
the evidence had been presented to the RPD” (Raza v Canada
(Citizenship and Immigration), 2007 FCA 385 at para 13).
[26]
Moreover, contrary to Ms. Benko’s submissions,
the documentary evidence on the record does report some improvements for Roma
in Hungary while describing continuing problems; it was thus reasonably open to
the PRRA Officer to arrive at his conclusion (Galamb at paras 38-51).
The fact that there is also evidence which continues to discuss problems faced
by Roma Hungarians does not render the Officer’s assessment of the evidence
unreasonable.
[27]
Ms. Benko and her family argue that evidence
pointing to deteriorating conditions for Roma in Hungary was not properly acknowledged
by the PRRA Officer. They rely on the finding of the Court in Djubok v
Canada (Citizenship and Immigration), 2014 FC 497 stating that the
more important the evidence that is not specifically mentioned and analyzed in
a decision-maker’s reasons, the more willing a court may be to infer that they
made an erroneous finding of fact without regard to the evidence. I accept
that. However, it is well-recognized that a
decision-maker is presumed to have weighed and considered all the evidence
presented to it unless the contrary is shown (Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ No 598 (FCA) (QL) at para 1). A failure to mention a particular piece of
evidence does not mean that it was ignored (Newfoundland Nurses at para 16), and a decision-maker is not required to refer to each and every piece of evidence supporting
its conclusions. There is also no need for decision-makers to specifically
refer to general documentary evidence (as opposed to evidence personalized to
the applicants’ situation) and explain how they dealt with it (Vargas Bustos
v Canada (Citizenship and Immigration), 2014 FC 114 at paras 35-38; Shen
v Canada (Citizenship and Immigration), 2007 FC 1001 at paras 4-6). It is
only when a tribunal is silent on evidence clearly pointing to an opposite
conclusion that the Court may intervene and infer that the tribunal overlooked
the contradictory evidence when making its finding of fact (Ozdemir v Canada
(Minister of Citizenship and Immigration), 2001 FCA 331 at paras 9-10; Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL)
[Cepeda-Gutierrez] at paras 16-17). However, Cepeda-Gutierrez does not stand for the proposition that the mere
failure of a tribunal to refer to an important piece of evidence that runs contrary to the tribunal’s conclusion necessarily renders
a decision unreasonable
and results in the decision being overturned. To the contrary, Cepeda-Gutierrez
says that it is only where the non-mentioned evidence is critical and squarely
contradicts the tribunal’s conclusion that the reviewing court may
decide that its omission means that the tribunal did not have regard to the
material before it.
[28]
This is not the case here. Contrary to the
submissions of Ms. Benko and her family, I do not find that this is a case
where evidence on the record directly contradicts an essential element of a
finding or where a decision is made without regard to the material before it (Sanchez Mestre v Canada (Citizenship and Immigration), 2015 FC 375 at para 15; Hernandez Montoya v Canada (Citizenship
and Immigration), 2014 FC 808 at para 36).
[29]
Ms. Benko and her family had the legal burden of
providing clear and convincing evidence that Hungary was unable to provide
adequate state protection (Flores Carillo at paras 18-19). It is settled law that Canadian courts must presume that state
protection is available in the country of origin of the refugee claimant,
particularly when the state is democratic, as is the case for Hungary. Clear and convincing evidence is needed to rebut this presumption of
state protection (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at 724-725),
and it requires more than showing that state protection is not perfect or not always
effective (Canada (Minister of Employment and Immigration) v Villafranca,
[1992] FCJ No 1189 (FCA) (QL) at para 7).
[30]
As stated by the Federal Court of Appeal in Hinzman,
“refugee protection is meant to be a form of surrogate
protection to be invoked only in those situations where the refugee claimant
has unsuccessfully sought the protections of his home state” (Hinzman
at para 41). As such, “the fundamental requirement in refugee law that claimants
seek protection from their home State before going abroad to obtain protection
through the refugee system” (Hinzman at para 62). In the case of a
developed democracy, the claimant is faced with the burden of proving that he or
she exhausted all the possible protections offered in the country of origin. It
is also trite law that applicants seeking refugee protection cannot simply
claim that they believe that state protection will not be forthcoming (Moya
v Canada (Citizenship and Immigration), 2016 FC 315 at para 75; Ruszo v
Canada (Citizenship and Immigration), 2013 FC 1004 at para 33). This claim
must be supported by evidence.
[31]
Ms. Benko also invokes Newfoundland Nurses to
argue that reasons are adequate only if they permit a reviewing court to
understand why the decision-maker decision made their decision. She submits that
the Officer did not explain why there was not enough information to show how
country conditions have worsened since 2012. Ms. Benko goes on to list in great
detail a number of documents that would support a negative finding of state
protection.
[32]
As I explained in Canada (Citizenship and
Immigration) v Abdulghafoor, 2015 FC 1020 at paras 30-36, Al-Katanani v
Canada (Citizenship and Immigration), 2016 FC 1053 [Al-Katanani] at
para 32 and Nguyen v Canada (Citizenship and Immigration), 2016 FC 1207 at
paras 34-39, the law relating to the sufficiency of
reasons in administrative decision-making has evolved substantially since Dunsmuir.
It is now trite law that the adequacy of reasons is no
longer a stand-alone basis for quashing a decision. In Newfoundland
Nurses, the Supreme Court provided guidance on how
to address situations where decision-makers provide brief or limited reasons. Reasons need not be fulsome or perfect, and need not address all of
the evidence or arguments put forward by a party or in the record (Newfoundland
Nurses at paras 16, 18).
[33]
Reasonableness,
not perfection, is the standard. Even when the reasons
for the decision are brief, or poorly written, the Court should defer to the
decision-maker’s weighing of the evidence, as long as it is able to understand
why the decision was made (Al-Katanani at para 32). Reasons do not need
to be lengthy either. Even a sentence or two can be enough to provide adequate
reasons (Vancouver International Airport Authority v Public Service Alliance
of Canada, 2010 FCA 158 at para 25). Short as they may be, reasons will be
sufficient if they “allow the reviewing court to assess
the validity of the decision” (Lake v Canada (Minister of Justice),
2008 SCC 23 at para 46).
[34]
In other words, sufficiency of reasons is not
measured by the pound. No matter the number of words used by a decision-maker
or how concise a decision may be, the test is whether the reasons are clear and
intelligible, and explain to the Court and the parties why the decision was
reached. The reasons for the decision need merely be
comprehensible, not comprehensive. Reasons are
sufficient if they “allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes” (Newfoundland
Nurses at para 16). In order to provide adequate reasons, “the decision maker must set out its findings of fact and the
principal evidence upon which those findings were based”, as well as “address the major point in issue” and “reflect consideration of the main relevant factors” (VIA
Rail Canada Inc v Canada (National Transportation Agency), [2001] 2 FC 25 (FCA)
at para 22). This is exactly what, in my opinion, the PRRA Officer did.
[35]
The reasons “must be read together with the outcome and serve the purpose of
showing whether the result falls within a range of possible outcomes” (Newfoundland Nurses at para 14). Reviewing courts may also look to the record for the purpose of assessing the
reasonableness of the outcome. In Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 [City of Edmonton], the Supreme Court has even recently posited that a tribunal’s failure to provide any reasons
does not, in itself, breach procedural fairness, and a reviewing court may
consider the reasons which could be offered in support of the decision
being reasonable (City of Edmonton at paras 36-38). As such, the current state of the law on
reasonableness review and the adequacy of reasons was set out in the Federal
Court of Appeal’s recent decision in Canada (Transport) v Canadian Union of
Public Employees, 2017 FCA 164 [CUPE]. In that decision, the Court restated
that a reviewing court must have regard to both the reasons given by the
decision-maker and the record before the decision-maker; furthermore, “for a decision to be upheld as being
reasonable, it may not even be necessary for the decision-maker to have
provided any reasons at all if the record allows the reviewing court to discern
how and why the decision was reached and the decision-maker’s conclusion is
defensible in light of the facts and applicable law” (CUPE at para 32).
[36]
In this case, the reasons enable me to
understand how the PRRA Officer reached his conclusion, and there is factual
foundation for reaching it. There is therefore no inadequacy of reasons.
IV.
Conclusion
[37]
For the above reasons, the Decision of the PRRA
Officer represents a reasonable outcome based on the law and the evidence
before it. In my view, the Officer reasonably concluded that state protection is
available to Ms. Benko and her family in Hungary, and that they would not be
exposed to a serious risk of persecution if they returned to Hungary. On a
standard of reasonableness, it suffices if the decision subject to judicial
review has the required attributes of justification, transparency and
intelligibility. This is the case here. Therefore, I cannot overturn the PRRA
Officer’s Decision and must dismiss this application for judicial review.
[38]
Neither party has proposed a question of general
importance for me to certify. I agree there is none.
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