Date: 20010604
Docket No.: IMM-2409-00
Neutral Citation: 2001 FCT 581
Ottawa, Ontario, this 4th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
ROZSA BELA, ROZSA BELANE, ROZSA EVA,
ROZSA BELA ROLAND and ROZSARICHARD
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the March 28th, 2000 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, (the CRDD), determining
that the applicants are not Convention Refugees pursuant to subsection 2(1) of the Immigration Act.[1]
Facts
[2] The applicants, Bela Rozsa, his spouse and three children, citizens of Hungary and of Roma ethnicity, claim to have a well founded fear of persecution based on harassment and discrimination they suffered for being Roma in Hungary.
[3] The applicants arrived in Canada on December 28, 1998. The CRDD heard their claim for refugee status on November 19, 1999 and on March 28, 2000 determined that the applicants were not Convention Refugees.
[4] The applicant, Bela Rozsa, the principal witness at the hearing, testified to a number of incidents, that the applicants contend, taken cumulatively, amount to persecution.
[5] In May 1989, the applicant, Bela Rozsa, submits that while on his way home, he was verbally abused and beaten by five skinheads because he was Roma. The Police came to the scene and told him he could make a formal complaint if he obtained a medical report, but that it was unlikely that anything would come of the complaint because the attackers were unknown. The applicant did not seek medical attention after this incident.
[6] In January 1991, the applicant was sitting on a train when three skinheads approached him and asked him for a light. They sat beside him and started to verbally abuse him because of his Roma ethnicity. When the applicant left the compartment to go to the platform, the skinheads pushed him off the train as it was leaving the station. Several toes had to be amputated because of his fall. Someone called for an ambulance and the ambulance attendants called the Police who interviewed the applicant at the hospital. Eventually the applicant received a report from the Police stating that the investigation was closed because the assailants were never found.
[7] In the winter of 1997, the applicant was on his way home from work when the police stopped him for identification. When he asked what else they wanted from him, they took him aside and beat him for talking back and then let him go. He went to the police station to make a complaint. The police followed him there and one of the police officers threatened to kill his family if he reported him. The applicant chose not to report him.
[8] In January 1998, five or six skinheads surrounded the applicant at a subway station. When a bystander, another Roma, threatened to call the police, the skinheads left him alone.
[9] The applicant and his family then moved to a small village hoping for a more peaceful life but received death threats if they did not move from the village. Nothing came of the threats, but one night, local skinheads threw bottles at their house and yelled at them to move out. The applicants returned to Budapest.
[10] Finally, the applicant, Bela Rozsa, submitted that he endured numerous insults and other humiliations. He was often called names and refused service in stores. His children were discriminated against and called names at school. When the applicant and his spouse complained that their daughter Eva was beaten, the teachers denied that they saw the incident. When the family travelled on public transportation people insulted them and avoided them. On occasion, the applicant, a hardwood floor layer, could not work because Hungarian customers did not want a Romani to work in their houses. The applicant stated that he and his family fear returning to Hungary because the persecution of the Roma is very strong in Hungary now and the police cannot and do not want to protect Roma from attacks by skinheads and racists.
The CRDD's decision
[11] The CRDD found the principal applicant, Bela Rozsa, to be generally credible and trustworthy. The panel accepted that the claimant and his family had run-ins with skinheads, racists and the Police, as stated in the PIF narrative and confirmed and amplified in the viva voce evidence, without necessarily agreeing with some of the applicant's conclusions and assumptions.
[12] The CRDD found the applicants not to be Convention refugees for the following reasons:
the incidents recounted in support of their claim to refugee status, while constituting discrimination, did not amount to persecution whether considered singularly or cumulatively; and the applicants did not demonstrate the inability of the state to provide adequate protection.
Standard of Review
[13] All questions of law, in such applications, are governed by the standard of correctness, as enunciated by Mr. Justice Bastarache in Pushpanathan[2]. Findings of fact, however, are subjected to the patently unreasonable standard as stated by Mr. Justice Décary in Aguebor:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.[3]
Issues
1. Was it reasonably open to the CRDD to find that the applicants were not convention refugees based on the evidence adduced?
2. Do the applicants demonstrate that the CRDD committed a reviewable error in arriving at its decision?
Analysis
[14] The applicants contend that the CRDD erred in failing to consider all the evidence properly before it and failed to consider the cumulative effect of the incidents suffered by the applicants while in Hungary and, in so doing, unreasonably concluded that the applicants were not convention refugees. The applicants advanced that the CRDD only superficially considered these incidents and very briefly disposed of them.
[15] The applicants further contend that the CRDD ignored a medical report, and thereby erred in failing to consider the seriousness of the harm that resulted from the incident in January 1991 when Bela Rozsa was pushed from the train by skinheads.
[16] The principal applicant expressed fear and distrust of the Police and argued before the CRDD that the Police cannot and do not want to protect the Roma.
[17] In weighing the evidence before it, the CRDD made the following findings:
The panel accepts that the claimants experienced discrimination in Hungary. Documentary evidence confirms the claimant's testimony about the discrimination they faced in employment, education, housing and in social situations.
(...)
In our view, the claimants' experiences in education. employment, housing and social situations, even on a cumulative basis, fall far short of being "sufficiently serious" or "inflicted for such a long time." In our view, the evidence does not support the contention that the claimants core human rights have been denied in a systematic way.
(..)
Recent and reliable documentary evidence does not support the proposition that the Roma population is persistently and systemically targeted for serious harm by skinheads.[4]
[18] I am satisfied that this application must fail. I find that the conclusions drawn by the CRDD were reasonably open to it. In applying the standard of review in such cases, it is useful to consider the reasons of the Appeal Division of this Court in Sagharichi v. Canada (Minister of Employment and Immigration), where the Court considered the dividing line between persecution and discrimination:
It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.[5]
[19] I find that the CRDD in the case at bar, did carefully assess and analyze the evidence before it and, in my view, did properly balance the various elements contained in the said evidence.
[20] Throughout its reasons, the CRDD referred to documentary evidence submitted by the applicants as well as the documents submitted to the panel by the Refugee Claim Officer, which it was free to consider, particularly with regards to country conditions.
[21] I do not accept the contention of the applicant that the CRDD did not consider the medical report submitted, describing the seriousness of injuries he sustained following the train incident. Firstly, the CRDD accepted that the incident did occur and the record reflects that the panel accepted the evidence of the applicant on this matter. Secondly, it was not necessary for the CRDD to refer to every piece of evidence before it in its reasons. I would add, this is particularly so when the incident in question, as is the case here, is not contested.
[22] In his claim for refugee status, the principal applicant alleges that the Police could not and did not protect him and his family, because of his Roma ethnicity. I will not repeat the incidents relied upon by the applicant to sustain his argument, suffice it to say they are those incidents already mentioned above in these reasons.
[23] On this last issue, the CRDD determined that the applicants were unable to advance clear and convincing proof of the state's inability to protect them. The Supreme Court of Canada in Ward[6] held that a subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced.
[24] The Federal Court of Appeal dealt with the issue of state protection in Kadenko et al. v Canada (Solicitor General):
...Once it is assumed that the state (Israel in this case) has political and judicial institutions capable of protecting its citizens, it is clear that the refusal of certain police officers to take action cannot in itself make the state incapable of doing so. The answer might have been different if the question had related, for example, to the refusal by the police as an institution or to a more or less general refusal by the police force to provide the protection conferred by the country's political and judicial institutions.
(...)
When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.[7]
[25] Mr. Justice Hugessen, of the Federal Court of Appeal, in Villafranca[8] stated that no democratic government can guarantee the protection of all its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective in protecting persons in his particular situation.
[26] The CRDD, in its reasons found that the documentary evidence chronicles widespread discrimination against the Roma in Hungary. However, the CRDD further noted that the documentary evidence also describes serious attempts on the part of the Hungarian government to curb the problem of racial violence and discrimination against minorities and the increasing court enforcement of Roma rights. The CRDD concluded that the applicants do not face a serious possibility of persecution if they were to return to Hungary.
[27] I am satisfied that the CRDD did not err in assessing the well foundedness of the fear of persecution, as required by the Supreme Court of Canada in Ward. The objective component of the bipartite test requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
[28] Having reviewed the materials before the Court and the jurisprudence, and having heard the parties, it is my view that the conclusions drawn by the CRDD were reasonably open to it. I further find that the applicants have not demonstrated that there was any omission or oversight by the CRDD that would justify the intervention of this Court.
[29] For the above reasons, this application for judicial review will be dismissed.
[30] The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. the application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated March 28, 2000, is dismissed.
"Edmond P. Blanchard"
Judge
[1]
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Immigration Act, R.S.C. 1985, c. I-2
2. (1) In this Act, "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country,
...
|
Loi sur l'immigration, L.R.C. 1985, c. I-2.
2. (1) Les définitions qui suivent s'appliquent à la présente loi. « réfugié au sens de la Convention » Toute personne :
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
[...]
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[2] Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R., 982.
[3] Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 at para. 4, (C.A.) online: QL (FCJ).
[4] CRDD's Decision, Applicant's Record, Tab 3, at pp. 10, 12 and 13.
[5] (1993), 182 N.R. 398 (C.A.).
[7] (1996), 143 D.L.R. (4th) 532 (F.C.A.) at pp. 533 and 534.
[8] (1992), 150 N.R. 232.
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