Docket:
IMM-4635-11
Citation:
2012 FC 233
Toronto,
Ontario, February 22, 2012
PRESENT: The Honourable Mr.
Justice Zinn
BETWEEN:
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ZOLTAN
ISTVAN MOLNAR
KRISZTINA
KORONCZAYNE MOLNAR
ROBERT KAROLY
KORONCZAY
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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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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The applicants seek to set aside the decision of the Refugee Protection
Division of the Immigration and Refugee Board that found that they were neither
Convention refugees nor persons in need of protection under the Immigration
and Refugee Protection Act, SC 2001, c 27. For the reasons that follow,
their application is dismissed.
Background
[2]
Zoltan Molnar and his sister, Krisztina Molnar, are both Roma, and
Hungarian adults. They based their applications for refugee protection on that
of their mother, Veronika Kalocsai, who was the principal applicant before the
Board. She feared her ex-husband and the consequences of being Roma. Robert
Karoly Koronczay is Krisztina’s infant son and he based his application on that
of his mother.
[3]
The Board considered Ms. Kalocsai’s claim for refugee protection
separate to that of these applicants. It concluded that she was as diligent as
she could have been in seeking state protection from her ex-husband. The Board
cited several portions of the documentary evidence and concluded that there was
“a serious possibility that [Ms. Kalocsai] would be persecuted by her former
husband if returned to Hungary.” It noted that this finding was based not only
on the allegations of domestic abuse, but also on the fact that the perpetrator
is involved with a neo-Nazi group. State protection was available, but it was
not reasonable for her to obtain it. As a result, her claim for refugee
protection was accepted.
[4]
Zoltan’s claim was not accepted. The Board noted that he did not submit
a separate Personal Information Form (PIF) narrative and that he did not
testify at the hearing. His mother’s testimony indicated that while he may
have suffered discrimination in terms of abuse by his father, he had never been
harmed. On occasion he would get slapped on the face by his father, but it was
nothing serious. The Board found that unlike his mother, he never required
medical attention and never went to the police. In sum, “[t]here was no
evidence adduced to lead the Board to conclude that what he suffered was
tantamount to persecution.” Also, there was no evidence which persuaded the
Board that the state was unable to protect Zoltan.
[5]
Krisztina’s claim was rejected, together with that of her son. She did
not testify but she did submit a PIF narrative separate from that provided by her
mother. The Board noted that according to her mother’s testimony Krisztina was
not harmed by her father. In fact, it was found that she married and moved
away. With respect to the allegations that she received discrimination
relating to her schooling, her employment and treatment of her husband, it was
found that there was no denial of basic human rights which equated to
persecution. Even though the PIF indicated that Krisztina’s son was once
grabbed by neo-Nazis, there was no evidence of this. As it had for Zoltan, the
Board decided that state protection was available.
Issues
[6]
The issues raised in this application are:
1. Did the Board misconstrue the evidence
before it and come to an unreasonable conclusion relating to Zoltan’s fear of
persecution?
2. Did the Board misconstrue the evidence
before it and come to an unreasonable conclusion relating to Krisztina’s fear
of persecution?
Analysis
Decision Respecting
Zoltan
[7]
The Board found that Zoltan had never been harmed, never required
medical attention and never sought police protection. This, according to the
applicants, was an erroneous finding made without regard for the material
before it. They cite different passages in the PIF of Ms. Kalocsai, summarized
below, which state the opposite. It was submitted that the Board accepted
these statements; however, it is noted that they appear in the decision under
the heading “Allegations” and I cannot find that they were accepted by the
Board as fact; they were merely a recitation of the allegations made by the
claimants in their PIF narratives.
·
In October 2006 his mother was attacked on the way to the subway
station. “Zoltan tried to protect me, he was injured, getting cut and beaten
(Record, page 43 para 11).”
·
“Zoltan was treated in the E&R Minor Surgery department
(Record, page 43 para 12).”
·
“Zoltan and I moved to escape my former husband’s calls and
visits. We went to the police… (Record, page 44 para 14).”
·
“May 2008: We were assaulted while I was going to medical
treatment with Zoltan (Record, page 44 para 15).”
·
“We reported the attack, providing police medical reports of our
injuries (Record, page 44 para 16).”
·
“Spring 2009: … Our house was watched continuously by one or two
black dressed people, or we were followed by them, wherever we went (Record,
page 44 para 18).”
·
“[My ex-husband] said, his duty is to kill us… He said he doesn’t
have to kill us, if we leave the country ourselves (Record, page 44 para 18).”
·
“The police did not start any investigation. We begged them, but
they told us they don’t want to interfere in a family argument (Record, page 44
para 18).”
·
“[Zoltan] started receiving threatening phone calls again
(Record, page 45 para 21).”
[8]
The Board’s statement relating to Zoltan’s alleged persecution is found
at paragraph 36 of the reasons:
[36] The principal claimant’s son’s claim is based on
the allegations of his mother. He did not submit a separate narrative. He did
not testify and the testimony of his mother indicated that, while he may have
suffered discrimination, in terms of abuse at the hands of his father, he had
never been harmed. In fact, as stated above, he attempted to come to the aid
of his mother and lived with her during the timeframe described by his mother.
His mother testified that, on occasion, his father would slap his face, but
nothing serious. He never required any medical attention, nor did he ever go to
the police. There was no evidence adduced to lead the Board to conclude that
what he suffered was tantamount to persecution.
[9]
First, other than the occasional slap to the face, there was no evidence
that Zoltan was directly harmed at the hand of his father. Second, the Board
cannot be faulted for stating that Zoltan never required medical attention or
that he never went to the police. The transcript illustrates the following
interaction between the Board and Zoltan’s mother at page 376 of the Certified Tribunal
Record:
PRESIDING MEMBER: Did [Zoltan] ever require any medical attention?
PRINCIPLE CLAIMANT: No.
PRESIDING MEMBER: Did he ever go to the police?
PRINCIPLE CLAIMANT: No.
[10]
The Board preferred the oral evidence over the evidence in the PIF as it
was entitled to do. Further, the Board’s finding that the harm suffered by
Zoltan was not tantamount to persecution is purely a question of weight and is
not a matter for this Court’s intervention.
[11]
When it turned to consider state protection, the Board found that the
circumstances of the mother’s case were not the same as Zoltan’s and found on a
balance of probabilities that state protection was available for him. It is
relevant to note that Zoltan’s mother seemed to have always been the principle
target of the attacks and that the police had labelled her problems as a
“marital dispute.” Those were not circumstances present in Zoltan’s case. The
only evidence relating to Zoltan that was arguably not at the hand of his
father or at his instigation was not of such magnitude that the Board’s finding
that he was not subjected to persecution can be said to be unreasonable.
[12]
Accordingly, I find that the Board’s conclusions that Zoltan’s harm was
not tantamount to persecution and that there was state protection available for
him, were reasonable findings in the circumstances of the case.
Decision Respecting
Krisztina
[13]
The applicants challenge the Board’s finding that Krisztina did not face
persecution. They submit that having been denied adequate education at a young
age, which today leads to a loss of adequate employment, amounts to
persecution. They highlight that the minor applicant was, at one point,
prevented from getting a health card, putting his life in danger. Also, the
government failed to provide support payments to Krisztina, denying her basic
government support. Moreover, Krisztina and her late Hungarian husband used to
be discriminated on a daily basis for being a “mixed racial couple.” The
applicants submit that the Board failed to consider those factors, rendering
its decision unreasonable: Agalliu v Canada (Minister of
Citizenship and Immigration), 2005 FC 1035.
[14]
They also submit that the Board failed to consider the statement in
Krisztina’s PIF that “My husband’s family insulted me saying: I am the reason
why he died. They threatened me saying I will pay the price for their loss.”
At paragraph 17 Krisztina says that she, her son, and the family they were
living with would receive threats by neo-Nazis “once or twice a week.”
[15]
In the applicants’ view, the Board failed to articulate the basis for
Krisztina’s fear. They submit that Krisztina and her son “are not simple Roma
fleeing problems all Roma face, they have a unique set of circumstances, which
the panel has simply failed to consider…” The applicants then highlight
different portions of the documentary evidence relating to their objective fear
and submit that the Board failed to provide reasons in that regard.
[16]
I disagree with all of these submissions. A review of the decision
reveals that the Board did not fail to consider the circumstances particular to
Krisztina’s case. Its statements relating to her persecution are found at
paragraphs 11 and 37 of the reasons, as follows:
She also
alleges, according to the narrative of her [PIF], that she received
discriminatory treatment when her son was a newborn, however eventually they
were able to acquire the proper health card and other documents.
…
With respect
to the principal claimant’s daughter [Krisztina] she, too, did not testify. However,
in addition to relying on her mother’s PIF, her allegations are summarized
above. According to her mother’s testimony, she too was not harmed. In fact,
she got married and moved away. With respect to her allegations regarding the
discriminatory treatment she received during her school years, her employment
and the treatment at the hands of her late husband’s family, again there was no
evidence adduced that would constitute a denial of basic human rights,
tantamount to persecution. There was no evidence adduced with respect to her
son, although his mother’s PIF indicates that on one occasion he was grabbed by
Neo Nazis.
[17]
The threat of Krisztina’s late husband that she would “pay the price for
their loss” does not necessarily amount to a risk to her life or a risk of
cruel and unusual treatment or punishment. The Board was under no obligation
to mention it.
[18]
Further, the finding that the evidence adduced was not tantamount to
persecution related purely to the weighing of the evidence and this Court
cannot intervene. The applicants have not rebutted the presumption that the
Board failed to consider any evidence: Florea v Canada
(Minister of Employment and Immigration), [1993] FCJ No 598.
Agents of
Persecution and State Protection
[19]
Lastly, I wish to make a few comments about the submissions made at the
hearing that the Board focused its decision only on the ex-husband as the agent
of persecution and failed to consider the plight of Roma in Hungary.
[20]
A review of the transcript indicates that in the very brief submissions
made by counsel for these applicants at the hearing and he focused on the
actions of the ex-husband and the “family” nature of the dispute. Having
failed to make any material representations as to the situation of Roma
generally, it hardly lies in his mouth to now fault the Board for doing the
same. In any event, the evidence that was tendered of risk as Roma, outside
the relationship with the former husband and father, was scant. The applicants
were given the opportunity to testify before the Board and chose not to do so.
The Board Member very clearly indicated at the commencement of the hearting
that the relevant issues were “discrimination versus persecution, and state
protection.” Having failed to provide any testimony of their own on either
point, and knowing that their mother’s claim focused on the spousal abuse she
suffered, they can hardly be surprised by the result.
[21]
The applicants proposed the following question for certification which
relates to the Board’s focus on the ex-husband as the agent of persecution:
“If the Board is addressing testimony with respect to a particular agent of
persecution does the testimony provided in answer address all agents of
persecution?” I agree with the respondent that this is not a question of
general importance, even if the other conditions of a certified question were
satisfied. I shall not certify any question.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application is dismissed
and no question is certified.
"Russel
W. Zinn"
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