Date:
20120907
Docket:
IMM-1226-12
Citation:
2012 FC 1064
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
September 7, 2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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SANDOR
BARANYI
ZSUZSANNA
BALAZS
RICAHRD
BARANYI
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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
I. Preliminary
[1]
The
Refugee Protection Division (RPD) expressly acknowledged the situation of
violence against the Roma community that still exists in Hungary.
[2]
Nevertheless,
in its assessment of the evidence, the RPD found that state protection, far
from being perfect, is improving through the efforts of the Hungarian
government (Kovacs v Canada (Minister of Citizenship and Immigration),
2010 FC 1003).
[3]
Further,
the RPD personalized the objective analysis to the applicants’ specific
situation before determining the availability of state protection since findings
of the availability of state protection depend on the context of each case (Raja
v Canada (Minister of Citizenship and Immigration), 2005 FC 1335).
II. Introduction
[4]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the IRPA), of a decision
by the RPD dated January 10, 2012, that the applicants were not Convention
refugees as defined in section 96 of the IRPA or persons in need of
protection under section 97 of the IRPA.
III. Facts
[5]
The
applicants, Sandor Baranyi, principal applicant, his spouse Zsuzsanna Balazs and
their son Richard Baranyi, 17 years old, are Hungarian and Romani citizens.
[6]
The
applicants allege a fear of persecution from the Hungarian Guard, an extreme
right‑wing paramilitary group.
[7]
For
nearly 20 years, after the fall of the communist regime, the applicants allege
that they were subjected to harassment in several areas of their daily life,
including education.
[8]
Their
son Richard was apparently harassed during his primary and secondary education
because of his ethnicity. This harassment resulted in a significant delay in
his education.
[9]
At
the beginning of October 2009, Ms. Balazs tried to complain to the school authorities
about the harassment experienced by her son. Apparently, in return, she was
beaten by children.
[10]
On
October 2, 2009, Sandor Baranyi’s car was apparently vandalized. When he
was repairing it, individuals beat him and injured his head. He made a
complaint after the incident, but given that he could not identify his aggressors,
the police told him that they could not continue their work. They protected him
while he was repairing his car.
[11]
November
27, 2009, the applicants left Hungary for Canada where they filed a refugee
claim.
IV. Decision under review
[12]
The
RPD determined that there was a lack of credibility given the lack of
information written on the applicants’ Personal Information Form (PIF). The RPD
criticized the applicants of enhancing their narrative during the hearing by
adding, among other things, details surrounding the circumstances of the incident
on October 2, 2009.
[13]
The
RPD is of the view that the applicants were victims of discrimination and not persecution
because the cumulative effects of the discriminatory acts would not reach the
level of persecution. Therefore, in its view, the delay in young Richard’s
education would be a result of factors other than his ethnicity.
[14]
In
an objective sense, the RPD is of the view, in light of the documentary
evidence, that Hungarian state protection is available to the Roma. It
implemented measures to fight discrimination against ethnic minorities.
[15]
The
RPD found that the applicants had not availed themselves of state protection since
they had never complained to the authorities about the treatment they
experienced.
V. Issue
[16]
Is
the RPD’s decision reasonable?
VI. Relevant statutory
provisions
[17]
The
following provisions of the IRPA are relevant:
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Convention
refugee
96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion,
(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
(b) not having a country
of nationality, is outside the country of their former habitual residence and
is unable or, by reason of that fear, unwilling to return to that country.
Person
in need of protection
97. (1) A person
in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of Article
1 of the Convention Against Torture; or
(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced by
the person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Définition
de « réfugié »
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne 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 :
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité
de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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VII. Positions of the parties
[18]
The
applicants claimed that the RPD erred in its assessment of their testimony by questioning
their credibility on the basis that their PIF lacked detail. Thus, the
applicants submit that a significant amount of
documentary evidence corroborates their allegations that they are subject to a risk of persecution because of
their ethnicity. The same documentary evidence would indicate that the state of
Hungary is not able to effectively protect its Romani citizens.
[19]
With
respect to Richard’s situation, the applicants submitted that the RPD did not
address the evidence that the adolescent had psychological problems because of
the mistreatment he experienced at school.
[20]
The
respondent argued that the RPD assessed the applicants’ credibility properly in
noting that they had not left the country at the first opportunity. It argued
that the applicants were, at most, victims of discrimination and not of persecution.
In addition, the documentary evidence outlined the measures put in place by
Hungary to protect the Roma. Further, the police apparently protected the
applicant during the incident on October 2, 2009, but since he could not identify
his attackers, the police could not arrest them.
VIII. Analysis
[21]
The
applicable standard of review in questions of mixed fact and law is reasonableness
(Dunsmuir v New Brunswick, 2008 SCC 9, (2008) 1 SCR 190; Newfoundland
and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, (2011) 3 SCR 708).
[22]
Given
the RPD’s recognized expertise, this Court must show deference. In this regard,
the Court’s review must be limited to the justification, intelligibility and transparency
of the decision (Dunsmuir, above, at para 47).
[23]
At
the outset, the Court notes that the RPD questioned the applicants’ credibility.
In doing so, it showed complete transparency, making explicit reference in its
decision to the evidence that undermined the applicants’ credibility.
[24]
Although
the RPD accepted their testimony about the other discriminatory acts that the
applicants stated they experienced, it explained that the omissions affected
the central issues of the claim.
[25]
Further,
the RPD criticized the applicants’ unwillingness to leave Hungary despite the
long period of persecution. In fact, the applicants, after a stay in Slovakia,
returned to Hungary.
[26]
In
this respect, the Court acknowledged that the applicant’s failure to leave
their country of origin, when given the opportunity, diminishes the credibility
of a fear of persecution (Huerta v Canada (Minister of Employment and
Immigration), (1993) FCJ No 271 (QL/Lexis) (FCA); Manirazika v Canada (Minister
of Citizenship and Immigration), 2009 FC 1309).
Persecution and
discrimination
[27]
The
main problem in this case is whether the nature of the mistreatments experienced
by the applicants, namely, whether they can be qualified as persecution because
of their cumulative effect.
[28]
The
RPD correctly established the applicable law by referring to the Handbook on
Procedures and Criteria for Determining Refugee Status, written by the United
Nations High Commissioner for Refugees (Handbook), which states:
(c) Discrimination
54. Differences in the treatment of various groups
do indeed exist to a greater or lesser extent in many societies. Persons who
receive less favourable treatment as a result of such differences are not necessarily
victims of persecution. It is only in certain circumstances that discrimination
will amount to persecution. This would be so if measures of discrimination lead
to consequences of a substantially prejudicial nature for the person concerned,
e.g. serious restrictions on his right to earn his livelihood, his right to
practise his religion, or his access to normally available educational
facilities.
55. Where measures of discrimination are, in
themselves, not of a serious character, they may nevertheless give rise to a
reasonable fear of persecution if they produce, in the mind of the person
concerned, a feeling of apprehension and insecurity as regards his future
existence. Whether or not such measures of discrimination in themselves amount
to persecution must be determined in the light of all the circumstances. A
claim to fear of persecution will of course be stronger where a person has been
the victim of a number of discriminatory measures of this type and where there
is thus a cumulative element involved.
(Reference is also made to the decision
Csonka v Canada (Minister of Citizenship and Immigration), 2012 FC 1056,
at para 68, and the Obiter at the end of the decision.)
[29]
In
this regard, the applicants did not demonstrate that the RPD’s reasoning is tainted
by a reviewable error. The RPD analyzed the situation of the applicant before deciding
on the issue of the nature of the alleged acts:
[Translation]
[21] As stated at the hearing, the panel
does not question that the applicants may have been the victims of regrettable,
even unacceptable, statements of a certain form of discrimination in their
country because of their ethnicity. However, despite their ethnicity, the
applicants had a basic education. The evidence has not established that they
were deprived of employment or housing because of their ethnicity. As to
counsel’s argument that their 17-year-old son is only in secondary II because
of the discrimination he was subject to, the panel points out that the documentary
evidence suggests that factors such as poverty, the parents’ level of
education, the location of the parents’ residence may be responsible for this
type of situation. [Emphasis added]
[30]
It
is true that young Richard’s situation could have been more thoroughly analyzed
by the RPD and that a many children are victims of the scourge of social exclusion,
which significantly impacts development. Nevertheless, in this case, the
applicants did not persuade the RPD, according to the evidence submitted, that
Richard was persecuted because of his ethnicity. They did not establish a link
between the harassment and the delay in his education.
[31]
Although
the documentary evidence that the applicant referred to indicated that Roma
children are excluded and discriminated against because of ethnicity, it cannot,
in itself, support a well-founded subjective fear of persecution. In this case,
the RPD relied, as it is at liberty to do, only on extraneous factors in the documentary
evidence that could be responsible for Richard’s situation with respect to
education. This is justified in light of the evidence it cited.
[32]
In
light of the available evidence, this Court cannot reverse the RPD’s decision
without overstepping its role of review in doing so, although
it is sensitive to the voice of young Richard, seventeen years old, in secondary
II in Quebec, who dreams of becoming a security guard [Translation] “to protect
people” (Tribunal Record at p 228).
[33]
This
Court still wishes to reiterate that the line between persecution and discrimination
can be very fine. This case is unique given the statements discussed above.
Therefore, different conclusions could be drawn, even in regard to facts with
minimal differences, because the assessment is primarily factual.
State Protection
[34]
Despite
the problems of credibility it was faced with, the RPD still conducted an
objective analysis of the situation of the Roma to determine that state protection
was available.
[35]
The
applicants mainly argue that the RPD did not refer to the documentary evidence
supporting their allegations. The Court cannot accept that argument. On the
contrary, the RPD explicitly recognized the violent situation against the Roma community
that still exists in Hungary (RPD decision at para 29).
[36]
Nevertheless,
in its review of the evidence, it found that state protection, far from being
perfect, was improving though the efforts made by the Hungarian government (Kovacs,
above).
[37]
In
addition, the RPD personalized the objective analysis to the applicants’
specific situation before finding that state protection was available because
the finding on the availability of state protection depends on the context of
each matter (Raja, above).
[38]
In
fact, the RPD found that the police did not refuse to protect the applicants
after the incident on October 2, 2009, but because the applicants could not
identify the attackers, an investigation could not be conducted. This decision
is reasonable (Kallai v Canada (Minister of Citizenship and Immigration),
2010 FC 729).
[39]
Further,
in making that decision, the RPD did not distort the applicable principles of state
protection by reducing them to a question of ease, as the applicants claim.
[40]
Thus,
the RPD noted that the applicants never sought to report the discriminatory acts
they experienced for more than twenty years.
IX. Conclusion
[41]
In
light of the above reasons, the RPD’s decision is reasonable. Accordingly, the
application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that the
applicants' application for judicial review be dismissed. There is no question
of general importance to certify.
"Michel M.J.
Shore"
Certified true
translation
Catherine Jones,
Translator
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