Date: 20040810
Docket: IMM-5241-03
Neutral citation: 2004 FC 1097
BETWEEN:
TIBOR CZIPPAN
TIBORNE CZIPPAN
DAVID CZIPPAN
NAPSUGAR CZIPPAN
SZILARD CZIPPAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
Introduction
[1] The applicants, a family of Hungarian Roman, were found, by a member of the Refugee Protection Division of the Immigration and Refugee Board (the Panel) to be neither refugees nor persons in need of protection. The Panel found, that the principal applicant's experiences did not amount to persecution; that the principal applicant was not credible; and that the applicants had not rebutted the presumption of state protection.
[2] Despite the standard of reviewing varying between reasonableness simpliciter and patent unreasonableness, depending on which issue is being considered, the applicants failed to meet the applicable standard on each issue.
Background
[3] The principal applicant based the family's claim on the following summarized allegations:
- that he was forced to sell his three shoe stores because of assaults, threats and extortion by hooligans, about which the police refused to follow up on his complaint;
- that police visited his home because of their suspicions that he was using his truck to transport stolen goods; the police sexually assaulted his wife on one of these visits;
- that ethnic Hungarian truckers tried to force him to quit his trucking business, that they had assailants break into his home and sexually assault his 12-year-old daughter;
- that skinheads punched, kicked and left him unconscious, for which injuries he received medical treatment.
[4] The Panel held that many of the events surrounding the refugee claim related to business strife The Panel noted that, if the events happened, they may be discriminatory but they did not amount to persecution.
[5] The Panel concluded, based on objective documentary reports and on the fact that the family's children seemed to have no problems at school due to their ethnicity, that the social climate in Hungary had changed significantly with regards to Romas.
[6] The Panel reviewed the objective evidence on skinhead violence. The expert evidence was that skinhead violence is not a significant problem in Hungary and that the government protects citizens from skinheads.
[7] With respect to state protection, the Panel noted the significant body of evidence that police treatment of Romas had improved significantly in the past few years. The "country evidence" confirms that there are a number of state agencies and other organizations which provide a meaningful resource for dealing with complaints by Romas.
[8] Against this background, the Panel drew adverse inferences from the applicants' failure to make any efforts to obtain the two police reports referred to in their PIF. The Panel drew an adverse inference from the failure to obtain the medical report left with the principal applicant's parents
[9] The Panel reviewed the evidence of the existence of state protection. It held that the applicants' failure to take reasonable steps to engage all facets of state protection constituted failure to discharge the onus of establishing that state protection was unavailable to them.
Analysis
[10] With respect to the issue of the existence of persecution, the standard of review is reasonableness simpliciter. Sagharichi v. Canada (Minister of Employment and Immigration) [1993] FCJ No. 796.
[11] The Panel engaged in a careful analysis of the factual context of business strife, anti-competitive behaviour and ethnic animosity. It then applied this analysis to the issue of whether the events were so serious and systemic as to constitute persecution as distinct from discrimination. There is nothing unreasonable in the Panel's analysis or conclusions.
[12] The Panel found the principal applicant not to be credible, particularly in regards to the police and the skinhead attacks. On credibility findings the standard of review is patent unreasonableness.
[13] The applicants said the Panel erred. They relied on Toth v. Canada (Minister of Citizenship and Immigration), 2001 FCT 149, for the principle that, absent reasons to question testimony, there is no reason to require corroboration. The applicants rely on the principle that the applicant is presumed to be truthful when giving sworn evidence.
[14] The presumption of truthfulness does not mean that Board members are not entitled to conduct their task with a critical eye; nor does the presumption excuse an applicant from producing reasonably available documentation. In this case, the applicants made no efforts to produce either the police reports or the medical reports relied on by them. The Panel was entitled to approach the testimony with an element of care.
[15] The applicants' story has a number of inconsistencies. For example, in the Memorandum of Fact and Law, the applicants rely on the alleged rape attempt of the daughter perpetrated by the police. In the PIF, hooligans are the alleged wrongdoers; in the affidavit filed in this Court, it is racist truckers who are to blame.
[16] Against all of this background, the Panel's conclusions on credibility cannot be said to be patently unreasonable. The adverse inference drawn were more than reasonable.
[17] Regarding state protection, the credibility findings impact on the issue of whether the applicants attempted to fully engage the organs of state protection. In addition, since the conclusion on state protection involves a question of mixed fact and law, the standard of review is reasonableness simpliciter.
[18] The country reports show that from time to time there were incidents of police discrimination against Romas. The Panel's conclusion that the results of Hungarian authorities' attempts to sensitize the police to Roma issues "appears to be the elimination of racial bias by police" is likely an exaggeration.
[19] However, that comment must be read in context. If it had been the critical finding, it would be suspect. It is not critical - it was rhetorical. The Panel did not ignore evidence, pro and con, of police attitudes, but it did properly note the preponderance of objective evidence that there was no systemic police bias.
[20] The Panel properly individualized its analysis of state protection to these applicants and to their own conduct. Its conclusion that the applicants had not engaged the protection of the state coupled with its credibility findings establishes that its conclusions were reasonable.
[21] The Molnar case (Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339, 2002 FCT 1081) is properly distinguishable because, in the present case, there is no acceptable evidence that the police were the perpetrators or transgressors. Molnar is only applicable where the authorities are not only unresponsive to complaints but also the very source of the persecution from which there is no adequate available recourse. Such is not the case here.
[22] The reasoning of Simpson J. in Pal v. Canada (Minister of Citizenship and Immigration), 2003 FCT 698, is more relevant to this case.
[23] The Panel committed no error in its conclusion that the presumption of state protection had not been rebutted.
[24] For these reasons, this application for judicial review must be dismissed.
[25] The parties are in agreement that there is no question to be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5241-03
STYLE OF CAUSE: TIBOR CZIPPAN et al v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, JULY 21, 2004
REASONS FOR ORDER: The Honourable Mr. Justice Phelan
DATED: August 10, 2004
APPEARANCES:
Mr. Peter G. Ivanyi FOR THE APPLICANTS
Ms. Marina Stefanovic FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Peter G. Ivanyi
Toronto, Ontario FOR THE APPLICANTS
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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