Date:
20120907
Docket:
IMM-1954-12
Citation:
2012 FC 1065
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
September 7, 2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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FLORIAN BARANYI
FLORIANNE 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
applicants’ argument relies mainly on the collective experience of Roma in
Hungary and not on their personal history that was assessed by the Refugee
Protection Division (RPD). Its analysis was thoughtful and transparent and is
not reviewable.
[2]
A
reading of the hearing transcript also shows that the RPD was faithful to the
applicants’ testimony in its analysis. This Court, because of its reviewing
role, cannot simply substitute its factual assessment for that of the RPD on
this issue (Sagharichi v Canada (Minister of Employment and Immigration),
[1993] FCJ No 796, 182 NR 398 (QL/Lexis) (FCA).
II. Introduction
[3]
This
is an application for judicial review in accordance with subsection 72(1) of
the Immigration
and Refugee Protection Act,
SC 2001, c 27 (IRPA), of a decision by the RPD dated January 20,
2012, that the applicants are 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
[4]
The
applicants, Florian Baranyi, 44 years old, and his spouse, Florianne Baranyi,
43 years old, are citizens of Hungary and are of Roma ethnicity.
[5]
The
applicants allege that they were the subject of harassment in several aspects
of their life because of their ethnicity.
[6]
The
applicants allege that they were attacked in 2009 by six member of the
Hungarian Guard, an extreme right-wing paramilitary group. On that occasion,
the police apparently refused to intervene because the applicants did not know
the identity of the attackers, but they purportedly accompanied them to a bus
stop to ensure their safety.
IV. Decision under review
[7]
The
RPD was of the opinion that the harassment the applicants were the subject of
does not amount to persecution, but to discrimination. To come to this
conclusion, the RPD referred to the Handbook on Procedures and
Criteria for Determining Refugee Status written by the
United Nations High Commissioner for Refugees (Handbook). It noted that the
applicants were never deprived of housing or prevented from working despite the
alleged acts of discrimination.
[8]
The
RPD also found that state protection was available. After an analysis of the
documentary evidence, the RPD acknowledged that Roma are discriminated against
with respect to education, housing and employment. It was nevertheless of the
opinion that, according to the documentary evidence, the Hungarian state took
measures to fight discrimination and remedies are now available to Roma.
[9]
Regarding
fear of persecution by the Hungarian Guard, the RPD acknowledged this extremist
group’s violence towards Roma. The RPD pointed out, however, that the Hungarian
state banned the group in 2009. The RPD admitted that members of the group then
reorganized themselves into other organizations, but that the Hungarian
government intensified its efforts to protect Roma, amending the legislation
several times to fight heinous crimes by groups acting under the guise of the
uniform. Again referring to the documentary evidence, the RPD noted that
proceedings were commenced against members of the Hungarian Guard.
[10]
The
RPD therefore found that the applicants did not rebut the presumption of state
protection. To that end, it also noted that their fear that the Hungarian Guard
infiltrated the police is without merit according to the documentary evidence.
The RPD noted, by this very fact, that, after the incident of April 2009, the
applicants did not require medical care and that the police did not refuse to
intervene. In fact, the applicants were unable to identify the attackers, which
is why the police were not able to investigate. Nevertheless, police officers
accompanied them to a bus stop after the incident to ensure their safety.
V. Issue
[11]
Is
the RPD’s decision reasonable?
VI. Relevant statutory
provisions
[12]
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. Position of the parties
[13]
The
applicants claim that the RPD improperly assessed their testimony with respect
to the consequences of the discrimination by reason of their ethnicity that
they were the subject of. Thus, it erred by not considering the cumulative impact
of those acts as amounting to persecution. The applicants, by this very fact,
argue that extensive documentary evidence corroborates their allegations that
they are at risk of persecution by reason of their ethnicity. The same
documentary evidence apparently indicates that the state of Hungary is not
capable of effectively protecting its Roma citizens from extremist groups like
the Hungarian Guard.
[14]
The
respondent submits that the applicants were, at the most, victims of
discrimination, not persecution. However, he argues that state protection is
the primary issue in this case and that it is determinative, regardless of the
Court’s finding on the discrimination issue. On this point, the respondent
argues that the documentary evidence addresses the measures put in place by the
Hungarian state to fight discrimination of Roma. Furthermore, police officers
allegedly protected the applicants during the incident of 2009, but, because
they could not identify their attackers, the police could not arrest the attackers.
VIII. Analysis
[15]
Issues
regarding the RPD’s factual assessment call for a certain degree of deference
and are to be reviewed on the standard of reasonableness (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708).
Persecution and
discrimination
[16]
This
Court has recognized that the cumulative impact of a series of discriminatory
practices can amount to persecution (Munderere v Canada (Minister of
Citizenship and Immigration), 2008 FCA 84).
[17]
In
this case, the RPD unequivocally decided the issue of the cumulative
discrimination alleged by the applicants by applying the cumulative principle
correctly, referring explicitly to sections 54 and 55 of the Handbook.
[18]
The
RPD, however, noted the following facts in support of its negative finding with
respect to persecution:
a. The
female applicant abandoned her studies on her own initiative, encouraged by her
parents because of the discrimination suffered at the hands of professors and
other students;
b. The
female applicant attended a normal Hungarian and non-segregated school;
c. The
female applicant worked planting trees;
d. The
male applicant had his own business for several years before declaring bankruptcy;
e. Even
though he alleged that he suffered discrimination at the hands of his employer
in the wood cutting field, the male applicant never complained to his employer;
f. The
applicants owned their house.
[19]
In
this case, the RPD did not err in law as stated by the applicants. It truly
examined the cumulative impact of the discriminatory practices in accordance
with the teachings of this Court. It nevertheless found, by reason of its
factual assessment, which, it should be noted, it is master of, that there was
discrimination. On this point, the applicants did not establish that the
findings of fact made by the RPD are arbitrary and unjustified. (Reference was
also made to Csonka v Canada (Minister of Citizenship and Immigration),
2012 FC 1056 at paragraph 68 and the Obiter at the end of the decision.)
[20]
A
reading of the hearing transcript also shows that the RPD was faithful to the
applicants’ testimony in its analysis. This Court, because of its reviewing
role, cannot simply substitute its factual assessment for that of the RPD on
this issue (Sagharichi, above).
[21]
Furthermore,
the RPD, referring to the documentary evidence, found that measures to fight
discrimination were put in place by the Hungarian government.
[22]
It
should be noted that this finding depends on the context to be carefully
assessed by the trier of facts. Thus, slightly different facts cannot result in
the same finding because discriminatory practices may achieve, in other
circumstances, according to the evidence as a whole, a degree amounting to
persecution.
State protection
[23]
Subsequently,
the RPD found, alternatively, that Hungarian state protection was available to
the applicants.
[24]
It
is well established that the protection offered by a state need not be perfect
and that it is up to the applicants to demonstrate that it is unavailable to
them (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689; Kovacs v
Canada (Minister of Citizenship and Immigration), 2010 FC 1003).
[25]
In
this case, the RPD objectively recognized the situation of Roma in Hungary and
the discrimination that they are the subject of in the fields of education,
social services and employment. Nevertheless, the RPD provided a list of the
measures put in place by the Hungarian government to fight discrimination
against minorities. The RPD noted that, throughout the many years during which
the applicants allege having been discriminated against by reason of their
ethnicity, they never tried to file a complaint with the competent authorities.
[26]
Regarding
the attack against the applicants in 2009, the RPD accepted that the hatred
against Roma is such that some are subject to attacks by heinous extremist
groups. Nevertheless, the RPD was of the opinion, after a thorough study of the
documentary evidence, that protection is available through police forces put in
place to investigate attacks against Roma (RPD decision at paragraph 26).
[27]
The
RPD also determined that the applicants’ fear that the police had been
infiltrated by extremist groups is unfounded with respect to the documentary
evidence. In fact, a tribunal was created with the specific objective of
investigating complaints against police with the purpose of improving the work
of the police. Similarly, the RPD stated that police officers who are found
guilty must be held accountable for their actions.
[28]
The
RPD pointed out that the applicants, because they were unable to identify their
attackers, did not enable police to investigate. The police simply offered them
protection to the bus stop.
[29]
Under
these circumstances, with respect to the documentary evidence, it was
reasonable for the RPD to find that the applicants, by that one complaint
attempt, did not rebut state protection (Kallai v Canada (Minister of
Citizenship and Immigration), 2010 FC 729).
[30]
These
are factual findings that are not open to judicial review because they are
justified and not arbitrary with respect to the evidence in the record.
[31]
The
applicants’ argument relies mainly on the collective experience of Roma in
Hungary and not on their personal history that was assessed by the RPD. Its
analysis was thoughtful and transparent and is not reviewable.
IX. Conclusion
[32]
In
light of the foregoing, the RPD’s decision is reasonable. The application for
judicial review is, as a result, dismissed.
ORDER
THE COURT ORDERS
the
dismissal of the applicants’ application for judicial review. No question of
general importance is certified.
“Michel M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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