Date: 20021122
Docket No.: IMM-4001-01
Neutral Citation: 2002 FCT 1206
Ottawa, Ontario, this 22nd day of November, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
HORVATH ZSUZSANNA, VARADI ATTILA, VARADI AKOS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket No.: IMM-4002-01
AND BETWEEN
VARADI, ATTILA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Facts:
1. Before the Court are two applications for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Refugee Division"), dated July 18, 2001, wherein it was determined that the applicants were not Convention refugees.
2. The applicants, Attila Varadi, Zsuzsanna Horvath, Attila Varadi (Jr), and Akos Varadu, are citizens of Hungary. They arrived in Canada on October 23, 1999, and claimed refugee status on the basis of a well-founded fear of persecution by reason of their ethnicity, namely, being Roma. Their hearing before the Refugee Division was held on December 6, 2000, and May 1, 2000. Zsuzsanna Horvath (the "female applicant"), was designated to represent the interests of the minor claimants Attila Varadi (Jr) and Akos Varadu,
3. The evidence of Mr. Attila Varadi (the "main applicant"), is that he and his family continually suffered discrimination in employment, education, and in daily life as a result of their ethnicity.
4. The main applicant provided evidence in his Personal Information Form (PIF) narrative that one night, in January 1991, a group of skinheads came to his settlement by cars and motorbikes with chains and baseball bats. These skinheads screamed in the applicant's court-yard nasty anti-gypsy taunts and threw stones and pieces of bricks into their house. The applicant reported the incident to the police who said they would look after it. The main applicant states that nothing was done by the police.
5. The main applicant's PIF narrative relates that a similar incident occurred approximately two years later. When reported to the police, they came to the scene and looked around, took notes and said they would look after the unknown attackers but never found them.
6. The main applicant's PIF narrative also relates the following two incidents, which occurred in October 1995 and the fall of 1996. In 1995, four police officers came to the applicants' home early in the morning and arrested the main applicant and removed him to the police station. When his wife attended the police station she was told that the main applicant was not there and she was pushed down the stairs by an officer. She was seven months pregnant at the time. In the fall of 1996, the main applicant was on his way home from work with his wife when he was stopped, dragged out of his car, handcuffed and taken to the police station where he was accused of stealing a car. He was locked up, interrogated and beaten. He was detained until 3:00 a.m. when the police determined that he had not stolen the car.
7. The main applicant also states in his PIF narrative that his children have suffered continuous humiliation and ostracization in school. The older son would come home crying every day from school. He was frequently beaten by racist Hungarian peers.
8. The applicants also allege that between 1996 and 1998 they were constantly harassed by security guards who were guarding a nearby nut settlement. When the applicants were in the area these security guards would set their dogs on them. In the spring of 1998, the applicant's mother-in-law was bitten by one of these dogs.
9. Following this incident, the applicants moved from Bohomye to Lengyeltoti. There, they still had a troubled life. The oldest son, Attila Varadi, was humiliated and beaten at school and was scared to go and come back from school alone. When complaints were lodged, the only suggestion by the school authorities was to move the children to another school. The applicant states that the only other school in the area was a school for mentally challenged children. In 1999, when the son was accused of theft, the applicants took him out of school.
10. The applicants claim that they fear the skinheads and the police and that there is no state protection.
The Board's Decision
11. The Refugee Division determined the applicants not to be a Convention refugees for the following reasons:
(1) The applicants did experience discrimination in their lives in Hungary but not persecution. In the Refugee Division's view these experiences fail to satisfy the pattern of systematic infliction of injury or punishment that describes and defines persecution.
(2) The Refugee Division also found that the applicants failed to satisfy the burden of presenting clear and convincing evidence that state protection is unavailable to them. The Refugee Division noted that although police protection in Hungary is far from perfect, perfect protection cannot be expected.
Issues
(1) Did the Board err in ignoring documentary evidence?
(2) Did the Board err in finding that the applicant would face discrimination and not persecution if he returned to Hungary?
(3) Did the Board err in finding that state protection is available to the claimant?
Standard of Review
12. Questions of law in such applications are governed by the standard of correctness. [See Pushpanathan v. Canada [1998] 1 S.C.R. 982.] With respect to the findings and conclusions of fact, a court on judicial review will intervene only when the findings and conclusions of fact are patently unreasonable. [See Conkova v. Minister of Citizenship and Immigration [2000] F.C.J. No. 300, on line: QL, p. 2, at para. 5.]
13. The issue of "discrimination vs. persecution" is a question of mixed law and fact. The applicable standard of review for questions of mixed law and fact was considered by Richard J., as he then was, in Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), where he applied the standard of patent unreasonableness. At page 763 of his reasons he wrote:
Given my conclusion that the Refugee Division is a specialized tribunal to which this court should accord considerable deference, when reviewing its findings on questions of law and questions of fact the standard of judicial review to be applied is patent unreasonableness. In Canadian [1979] 2 S.C.R. 227">Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation [1979] 2 S.C.R. 227, at p. 237, the Supreme Court applied the standard of patent unreasonableness and gave some indication as to its meaning:
...was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?
I agree with the above reasons and, for the purpose of this judicial review, I will adopt the patent unreasonableness standard of review for questions of mixed law and fact.
Submissions and Analysis
Did the Board err in ignoring documentary evidence?
14. The applicants submit that the Refugee Division relied solely on documentary evidence supplied by the RCO and entirely ignored the documentary evidence put before it by the applicants. I do not agree. It is accepted law that the Refugee Division need not cite in its reasons all of the documentary evidence before it. A presumption exists to the effect that all documentary evidence is taken into consideration. [See Florea v. Canada (M.C.I.), [1993] F.C.J. No 598 (FCA) on line: QL.] Further, the Refugee Division may select, as part of its role and expertise, the evidence that it prefers. [See Tawfik v M.E.I., (1993), 137 F.T.R. 43, MacKay J.]
15. The applicants specifically contend that the Refugee Division ignored a 1997 US Department of State document which reported that skinhead violence was a serious and growing problem. The respondent contends that the Refugee Division relied on information contained in the 1999 US State Department report which indicated that the skinhead assaults were in decline in the past few years. In my view, it was appropriate for the Refugee Division, given its expertise and role, to prefer this more contemporaneous documentary evidence over other country condition documention before it. I find nothing on the record to support the applicants' contention that the Refugee Division did not consider all of the documentary evidence before it. This evidence is not specific to the applicants but rather general in nature and, in the circumstances, there was no requirement that it be dealt with expressly in the reasons.
Did the Board err in finding that the applicant would face discrimination and not persecution if he returned to Hungary?
16. The applicants contend that the Refugee Division erred in failing to consider all of the evidence properly before it and particularly failed to consider the cumulative effect of the incidents suffered by the applicants.
17. In Sagharichi v. Canada (Minister of Employment and Immigration), (1993) 182 N.R. 398 at para. 3, the Federal Court of Appeal explains the distinction between incidents of discrimination and those of persecution:
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 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, 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.
18. In its reasons the Refugee Division accepted certain aspects of the applicants' evidence. It accepted that the attacks by the skinheads did occur and that the main applicant was detained. The Refugee Division had difficulty with other aspects of the applicants' allegations. It rejected the dog bite incident on the basis of contradictory evidence. It also concluded that the evidence with respect to the discrimination suffered by the children in school did not support a finding of persecution. In its reasons the Refugee Division stated:
...The children were not denied education and the parents, in their Port of Entry (POE) interview stated only that the children were 'bothered' in school. The panel prefers the POE notes and the documentary evidence which acknowledge discrimination in schools in Hungary and refutes the allegation of the claimant, in their oral testimony, that the children were persecuted in school...
19. In my view, the Refugee Division did proceed with a careful analysis of the evidence produced and a proper balancing of the various elements contained therein. It recognized that there exists both societal and police discrimination against the Roma in Hungary. However, the Refugee Division concluded that the discrimination the applicants face does not cumulatively constitute persecution. This determination on the evidence is neither capricious nor unreasonable.
Did the Board err in finding that state protection is available to the claimant?
20. It is submitted by the applicants that, in its analysis, the Refugee Division only looked at the police's response with respect to the incidents involving the skinhead attacks. They claim that it failed to take into account the treatment that the applicants received at the hands of the police and that the failure to consider these incidents with the police, when analysing the issue of state protection, led the Refugee Division to an erroneous finding that state protection is available to the applicants. This allegation is unfounded. The Refugee Division did consider this aspect of the evidence in its reasons. At page 3 of its decision, the Refugee Division noted that the applicant was arrested and detained twice because he was suspected of car theft. The Refugee Division also noted that the principal applicant was roughly treated while in custody.
21. The applicants submit that, despite the evidence that the state has been making attempts to protect the Roma minority, the evidence also indicates that the state did not actually provide this protection for the applicants. The applicants therefore argue that the Refugee Division erred by failing to consider the effectiveness of state protection. Further, the applicants argue that the police were not only unable to protect them but were also agents of persecution based on the applicants' contention that "... the police has a free hand and do what they want to do".
22. I do not accept the applicants' submissions on state protection. The Refugee Division did consider in its reasons how the police treated the main applicant on both occasions when he was arrested on suspicion of car theft. The Refugee Division also analysed in significant detail the two incidents, one in 1991 and one in 1993, that involved skinheads. I note that the police did attend at the scenes and investigated. The Refugee Division concluded that the police did not fail to respond to complaints of the applicants. The Refugee Division further found that the applicants failed to diligently seek state protection from available resources provided in Hungary. It also relied on documentary evidence which describes serious attempts on the part of the Hungarian government to curb the problem of racial violence and discrimination against minorities. The Refugee Division concluded that there is state protection for the applicants in Hungary.
23. The Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 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. Mr. Justice Hugessen, of the Federal Court of Appeal, in Villafranca (1992), 150 N.R. 232, 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.
25. In this case, the Refugee Division acknowledged that "success" is not the criteria by which police protection can be measured. On the evidence, I am of the view that the Refugee Division's conclusion on state protection for the applicants in Hungary to be reasonably open to it.
Conclusion
26. I am satisfied that the Refugee Division did not err in assessing the well foundness of the fear of persecution as required by the Supreme Court of Canada in Ward, supra. In my view, the conclusions drawn by the Refugee Division were reasonably open to it on the record before it. I further find that the applicants have not demonstrated that there was any omission or oversight by the Refugee Division that would justify the intervention of this Court.
Page: 11
27. For the above reasons the two applications for judicial review will be dismissed.
28. The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS:
1. The two applications for judicial review of the decision of the convention Refugee Determination Division of the Immigration and Refugee Board dated July 18, 2001, are dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4001-01 and IMM-4002-01
STYLE OF CAUSE: Horvath Zsuzsanna et al. v. MCI and Varadi, Attila v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 27, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: November 22, 2002
APPEARANCES:
Elizabeth Jaszi & Thomas Zweibel FOR APPLICANT
Tamrat Gebeyehu & Neeta Logsetty FOR RESPONDENT
SOLICITORS OF RECORD:
Elizabeth Jaszi FOR APPLICANT
1267A St. Clair Ave. W.
Unit #1
Toronto, Ontario M6E 1B8
416-656-3999 & 416-221-9777
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place
Suite 2400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6
416-973-9665 & 416-952-6812
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