Date:
20121213
Docket:
IMM-3045-12
Citation:
2012 FC 1475
Ottawa, Ontario,
December 13, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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CSABA MOLNAR, CSABANE MOLNAR,
EVELIN MOLNAR, CSABA MOLNAR JR, KINGA MOLNAR and
AMANDA EDIT MOLNAR
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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]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision from the
Refugee Protection Division of the Immigration and Refugee Board of Canada (Board),
dated February 29, 2012, in which it refused the applicants’ claim for refugee
protection under sections 96 and 97 of the Act.
Factual
Background
[2]
Mr.
Csaba Molnar (the principal applicant), his wife Mrs. Csabane Molnar (the
secondary applicant), and their minor children, Evelin, Csaba Jr., Kinga and
Amanda Edit Molnar (the minor applicants) are all citizens of Hungary. They are of Roma ethnicity and claim refugee protection pursuant to sections 96
and subsection 97(1) of the Act. The secondary applicant has been appointed the
representative of the minor applicants.
[3]
The
applicants left Hungary because of events that took place in January 2009. The
principal applicant’s cousin Tomi, who was said to live with them, allegedly
worked for the Hungarian mafia (also referred to as the Raffael family). On
January 16, 2009, the mafia allegedly asked Tomi to play with a rich Budapest businessman against whom he lost 6 million forints (approximately $27,500). The
mafia allegedly held Tomi accountable for the debt and threatened him. The
principal applicant allegedly helped Tomi with a portion of the debt, but both
he and Tomi were assaulted when they repaid only a portion of the money owed,
and were told that they had two (2) weeks to gather the rest. The principal applicant
claims that a few days after this incident, a member of the Raffael family
contacted Tomi to advise him that if the debt was not repaid, the principal
applicant would be required to hand over his house. The principal applicant was
also allegedly threatened that he and his family would be killed if he
contacted the police or could not repay the debt.
[4]
The
principal applicant’s cousin Tomi is allegedly missing since that day. On
February 1, 2009, a member of the Raffael family allegedly went to the
applicants’ home asking to see Tomi. Fearing for his life, the principal
applicant lied about Tomi’s whereabouts. Following this visit, the applicants
allegedly fled to Budapest and hid until arrangements were made to come to Canada.
[5]
During
the hearing, the principal applicant added that he was also afraid of the
Hungarian Guard because he was allegedly assaulted by Guard members in 2007
(Tribunal Record, Vol 3, pp 584-85). The principal applicant alleged that he
went to the police but that nothing was done.
[6]
At
the hearing before the Board, the secondary applicant claimed that, after her
C-section in 2007, her fallopian tubes were tied against her will. She claimed
she went to the police but that nothing was done (Tribunal Record, Vol 3, p
607).
[7]
During
the hearing, the principal applicant testified that his children, the minor
applicants, were treated differently in school than the other Hungarian
children, and were segregated by their teachers (Tribunal Record, Vol 3, p
594).
[8]
The
applicants fled Hungary on March 17, 2009 and arrived in Canada on the same date. They sought asylum upon arrival at the airport.
[9]
The
applicants’ former counsel had allegedly failed to translate their Personal
Information Forms (PIF) for them prior to filing them. The applicants met with
their current counsel on March 28, 2011. The applicants’ current counsel
provided them with their PIFs and amended versions were provided to the Board.
[10]
The
Board heard the applicants’ claim on December 8, 2011.
Impugned
Decision
[11]
In
a decision rendered on February 29, 2012, the Board found that the applicants
were not Convention refugees or persons in need of protection under sections 96
and 97 of the Act because they failed to rebut the presumption of state
protection. The Board indicated that the determinative issue was whether the
applicants’ fear was objectively reasonable, for which it considered the
availability of state protection, whether the applicants took all reasonable
steps to avail themselves of that protection, and whether they had provided
clear evidence of the state’s inability to protect them. The Board concluded
that the applicants had not. The Board also drew a negative conclusion with
regards to the applicants’ credibility.
Issue
[12]
The
main issue in this case is whether the Board erred in the analysis of
credibility and state protection?
Standard of
Review
[13]
The
Board’s assessment of state protection is a mixed question of fact and law, and
as such is reviewable on a standard of reasonableness (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]; Hinzman
v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at para 38,
282 DLR (4th) 413 [Hinzman]; Balogh v Canada (Minister of Citizenship
and Immigration), 2012 FC 216 at para 9, [2012] FCJ No 230 (QL)).
Consequently, the Court will be concerned with “the existence of justification,
transparency and intelligibility within the decision-making process”, as well
as “whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.” (Dunsmuir, above,
at para 47).
Analysis
[14]
At
hearing before this Court, the applicant argued that the Board has unfairly
relied on the PIF in its decision because the applicant was not asked to swear
to its truthfulness. This situation would stem from information provided by an
earlier legal representative with respect to the PIF translation. In any event,
it is clear from the record that the Board indicated from the outset that the
PIF could be updated and amended if required during the hearing (Tribunal
Record, p 567). The Court also notes that the issues raised by the Board were
not solely in respect of the PIF but it relied on the applicant’s testimonies
which contained contradictions and provided different versions (Tribunal Record,
pp 7, 9 and 10). The Court cannot agree with the applicant that the Board
committed an error.
[15]
Although
the Court recognizes that a refugee claimant’s sworn testimony is presumed to
be true, in the present case, there were reasons to doubt the veracity of the
applicants’ testimonies and rebut the presumption of truthfulness. These
inconsistencies went to the heart of their claim as initially stated, namely
fear of the Hungarian mafia. The Court finds the credibility findings were
indeed reasonable given the important omissions and inconsistencies in the
applicants’ testimonies and written narrative.
[16]
The
applicants mentioned that Hungarian claimants are bound to fail because the Board’s
analysis will always establish that Hungary is a democracy with a central
government and the ability to enforce legislation and other initiatives to
protect its citizens. The Court cannot agree with this contention – the fact
that Hungary is a democracy and a functioning state part of the European Union
and member of the Council of Europe merely creates an assumption that state
protection is available and adequate (Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689, 103 DLR (4th) 1 [Ward]). The Court recalls that each
case must be decided on its own merit. Although the Court agrees with the
applicants that if an applicant has tried to obtain state protection to no
avail, or adduced evidence that demonstrate that state protection is
inadequate, an applicant could succeed in rebutting this assumption. However,
as discussed below, this is not the case.
[17]
The
applicants contend that, in certain circumstances, it is not reasonable to
expect applicants to seek state protection before leaving their country.
However, this is not applicable to the present case which is clearly
distinguishable from the case of Melo v Canada (Minister of Citizenship and
Immigration), 2008 FC 150 at para 10, 165 ACWS (3d) 335 [Melo],
referred to by the applicants. In Melo, above, the father of the
applicant was a police commissioner himself and was the source of the
persecution. It was clearly unreasonable to expect the applicant to seek
protection from his persecutor. Additionally, the applicant had provided
evidence explaining why seeking protection would not be reasonable. In the
present case, the applicants have not adduced evidence that seeking state
protection would be unreasonable. While the applicants claim the mafia
threatened them not to go to the police, the Court is not satisfied that this
is an indication that state protection is inadequate.
[18]
The
applicants further indicated that they should not bear the burden of going to
agencies other than the police to seek protection, other cases have expressed a
different view, indicating that state run or state funded agencies are an
appropriate recourse for protection which should be sought out, if reasonable
to do so (see for instance Nagy v Canada (Minister of Citizenship and
Immigration), 2002 FCT 281, 112 ACWS (3d) 933 and Zsuzsanna v Canada
(Minister of Citizenship and Immigration), 2002 FCT 1206, 118 ACWS (3d)
707). However, this argument fails as the evidence before this Court indicates
that the applicants did not attempt contacting the police with their recent
alleged problems with the mafia.
[19]
The
applicants argued that their case was akin to that of Mohacsi v Canada (Minister of Citizenship and Immigration), 2003 FCT 429, 122 ACWS (3d) 534 [Mohacsi].
However, the Court finds that there are significant differences between the
applicants’ circumstances and the ones set out in Mohacsi. The
applicants in Mohacsi had been beaten, detained and harassed by the
police, had suffered housing discrimination and been forced to live in a gypsy
ghetto without running water, their nephew had been killed by skinheads for
fishing without a licence, and they sought redress from the police, the state
and the media but to no avail. Furthermore, the applicants’ testimonies in Mohacsi
corroborated each other. In the present case, the applicants’ testimonies
contradicted each other. Further, in Mohacsi, the Board had made
capricious findings of credibility and had completely ignored contradictory
documentary evidence which again is distinguishable from the present case.
[20]
Indeed,
on the basis of the evidence adduced, the Court is of the opinion that the Board’s
decision was reasonable. Although the Board drew negative conclusions on the
applicants’ credibility, it nonetheless was satisfied that they were of Roma
ethnicity and therefore possibly subjected to discrimination in Hungary. Therefore, the Board pursued its analysis beyond the negative credibility findings
to come to the conclusion that there was adequate state protection in these
circumstances, and that the applicants had not adduced credible evidence to the
contrary. The Board referred to several documents and did not limit its
analysis to only those which supported its final position – instead, it
acknowledged that Hungarian initiatives are still, to this day, not always
implemented successfully, and that the country still struggles with issues of
discrimination.
[21]
However,
and contrary to the applicants’ assertions, the Board addressed these issues in
its analysis and referred to evidence of successful operational implementation
such as police reactions to attacks on Romani communities to increase community
safety (Tribunal Record, Board’s reasons, p 15, para 36); the state taking
action when complaints on corrupt police are made (Tribunal Record, Board’s
reasons, para 40, p 16); and employment programs for Romas yielding concrete
results (Tribunal Record, Board’s reasons, para 42, p 16). In addition, the Board
noted that the principal applicant was able to work and received social
benefits from the state during periods when he could not work. It was
reasonable for the Board to take this information to mean that the principal
applicant did not suffer discrimination from the state.
[22]
Thus,
the Court cannot agree with the applicants that the Board ignored evidence and
engaged in a highly selective approach to its analysis of the evidence and that
it did not analyse the meaningful protection at the operational level,
preferring to focus on initiatives, legislation and commitments. The Court is
of the view that the Board’s decision on state protection is reasonable as it
did not engage in generalizations without considering the specific evidence
before it, nor did the Board refer only to efforts or good intentions without
considering actual implementation and results.
[23]
It
was reasonable for the Board to mention that Hungary is taking measures to
implement the standards that are mandated as a member of the European Union and
that, although the state protection may not be perfect, it continues to be
adequate. To that effect, the Court agrees with the observations of Justice
Rennie in Onodi v Canada (Minister of Citizenship and Immigration)
2012 FC 1191 at para 16, [2012] FCJ No 1267 (QL):
[16] The applicants submit that state
protection cannot be adequate because the applicant was attacked recently and
violent attacks against Roma and Jews are increasing. However, no country can
offer its citizens perfect protection. It is not sufficient for a refugee
claimant to show that the government’s efforts have not always been successful:
Canada (Minister of Employment and Immigration) v Villafranca,
[1992] FCJ No 1189.
[24]
In
conclusion, it was open to the Board to find that the preponderance of the
evidence supported the conclusion that state protection was available (Horvath
et al v Canada (Minister of Citizenship and Immigration), 2012 FC 253 at
para 16, [2012] FCJ No 275 (QL)).
[25]
It
is the Court’s opinion that the Board’s decision falls with the reasonable
structure of Dunsmuir, above. The issue of state protection being
determinative, the Court’s intervention is therefore not warranted.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. No questions for certification were proposed by the parties, and
none arise in the case at bar.
“Richard Boivin”
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