Date:
20121121
Docket:
IMM-2890-12
Citation:
2012 FC 1349
Ottawa, Ontario,
November 21, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
PALNE
KEMENCZEI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 7 March 2012 (Decision), which refused the Applicant’s application to be
deemed a Convention refugee or a person in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 77-year-old female of Roma ethnicity. She is a citizen of Hungary. She arrived in Canada on 9 February 2010, and claimed refugee protection the next
day on the basis that she fears persecution in Hungary due to her Roma
ethnicity. In support of her application, she submitted a narrative in her Personal
Information Form (PIF), as well as documentary materials about conditions faced
by Roma people in Hungary.
PIF Narrative
[3]
The
Applicant summarized the persecution she faced in Hungary in a paragraph
attached to her PIF:
Me and my family left Hungary because I am an old
woman, my husband past (sic) away long ago, and I don’t want to live the
rest of my years in fear. I lived through the second world war as a child and
that’s when I learned about fear and suffering. There is a lot of cities where
the racism is in the open. A lot of racism men joined together and formed a
racist group guardsmen. Where I lived with my children is a town called
Sajoszentpeter. These groups came into our town often dressed in black, and
even their looks brought fear into my heart. Even at my age I had to leave (sic)
through the humiliation that was daily against me, at stores, doctors and
shopping places because my origin was gypsy. At nights (sic) they thrown
(sic) thing (sic) at my window, I was afraid to sleep most of the
time because I never know (sic) when they would break my door down. Here
I feel safely (sic) because here there is no racism and discrimination.
I really would like to spend my years here with my family because I found peace
here.
Documentary Evidence
[4]
The
Applicant submitted multiple documents discussing the treatment of Roma in Hungary, as well as other country conditions materials. These documents included:
•
IRB
National Documentation Packages for Hungary dated 31 October 2011 and 20 April
2011;
•
A
document titled “Hungary” which is undated and for which the author is unclear;
•
Amnesty
International’s Annual Report from 2011 and 2010 on Hungary;
•
IRB
Responses to Information Requests HUN103566.E
•
An
article titled “Attacks against Roma in Hungary: January 2008 – July 2011” from
the European Roma Rights Centre;
•
A
package titled “Hungary: Violent attacks against Roma” prepared by Amnesty
International in May 2011;
•
An
article titled “Violent Attacks Against Roma in Hungary” by Amnesty
International.
[5]
These
materials discuss the racism and discrimination faced by Roma in Hungary, and the state machinery that is in place to deal with these problems. There have
been racially-motivated violent attacks and murders of Roma people, as well as
systemic discrimination against Roma. Recommendations have been made as to how Hungary should deal with this problem, and some efforts have been made. The police
generally do investigate these attacks, but there is difficulty in the
Hungarian criminal law system in recognizing hate crimes.
[6]
The
RPD held an oral hearing on 19 January 2012, and rejected the Applicant’s claim
on 2 March 2012.
DECISION
UNDER REVIEW
[7]
The
RPD rejected the claim because the Applicant did not objectively have a
well-founded fear of persecution and because she failed to rebut the
presumption of state protection.
Fear of Persecution
[8]
The
RPD reviewed the Applicant’s oral testimony in regards to the persecution she
faced in Hungary. The Applicant stated that people threw things at her home,
and that her son-in-law was beaten several times. However, she was never
injured. She said she called the police about the things being thrown at her
house, but they never showed up. The RPD noted that the Applicant did not
provide any evidence to corroborate the attacks.
[9]
The
RPD noted the Applicant has several medical problems, but that she has no
complaints about the medical care she received in Hungary. She also did not
provide evidence that she received an inadequate education or inadequate
accommodation. The RPD concluded that, on an objective basis, she does not have
a well-founded fear of persecution if returned to Hungary, and that there is no
serious possibility she would be persecuted if returned to Hungary.
State Protection
[10]
The
RPD also found that the Applicant had failed to rebut the presumption of
adequate state protection available to her in Hungary. The RPD reviewed
pertinent case law, and said that unless a state is in complete breakdown, it
is presumed capable of protecting its citizens. The burden was on the Applicant
to persuade the RPD, on a balance of probabilities, that protection in Hungary is inadequate. The onus is on the Applicant to approach the state for protection;
it is the adequacy of the protection that is at issue, rather than its
effectiveness. The state’s legislative and procedural framework for protection
is an important consideration, as are the efforts made to protect citizens at
an operational level.
[11]
The
RPD stated that “[l]ess than perfect protection is not a basis to determine
that a state is either unwilling or unable to offer reasonable protection,” and
that state protection is proportional to the level of democracy that exists in
any given state. Since Hungary is a democracy, there is a strong presumption of
state protection. The Applicant must do more than simply show she went to the
police and that her efforts were futile; she must have exhausted all courses of
action available to her. The failure of local authorities to act does not mean
that the state, as a whole, has failed to protect its citizens, unless it is
part of a broader pattern of refusal to provide protection.
[12]
The
RPD found that the documentary evidence before it demonstrates that Hungary is a democracy with a relatively independent and impartial judiciary, and that it
has in place a functioning security force to uphold the laws of the country.
The evidence indicates that Hungary has a history of discrimination against
Roma people, but that Hungary is attempting to correct this problem. The RPD
referred to a report of thd European Commission against Racism and
Intolerance, which refers to a number of initiatives adopted by the
Hungarian government. For example, the Hungarian government has taken steps to
limit the activities of political organizations with xenophobic agendas. The
Hungarian government has also attempted to criminalize hate speech, and
although these attempts have been unsuccessful there are other laws that may be
used in hate-motivated crimes. It has also provided human rights training to
police departments.
[13]
The
Hungarian government has introduced legislation to combat racial
discrimination, in particular The Equal Treatment and Promotion of Equal
Opportunities Act. This Act prohibits discrimination and sets up a body to
ensure compliance. Minorities also have recourse with respect to
unconstitutional practices. In 2007, the Hungarian Parliament enacted The
Decade of Roma Inclusion Programme Strategic Plan, which sets out specific
goals to improve Romani access to education.
[14]
The
RPD noted that the European Commission Against Racism and Intolerance found
that progress has been slow in reducing discrimination against Roma people in Hungary. Desegregation in schools remains a major problem, but the Hungarian government has
made significant efforts to combat it by, for example, providing scholarship
programs, regulating the way local authorities divide classes, and introducing
diagnostic tests to take better account of cultural and socio-economic
differences between students.
[15]
The
RPD found there is evidence that the unemployment rate among Roma is as high as
70%, and they are often discriminated against in the labour market. It also
noted, however, that the Hungarian government provides vocational training
programs aimed primarily at Roma, although the effectiveness of these programs has
been questioned. The RPD also discussed Romani housing problems.
[16]
The
RPD accepted the documentary evidence, and found it suggested that though
racism is a problem in Hungary, the government is making serious and genuine
efforts to address it. State protection is not perfect, but it is adequate. The
RPD found the Applicant had failed to rebut the presumption of state
protection, and that she is not a Convention refugee or person in need of
protection pursuant to sections 96 or 97 of the Act.
STATUTORY
PROVISIONS
[17]
The
following provisions of the Act are applicable in this proceeding:
|
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;
[…]
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
[…]
|
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;
[…]
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.
[…]
|
ISSUES
[18]
The
Applicant raises the following issues in this application:
a.
Whether
the RPD’s evaluation of the Applicant’s oral evidence was reasonable in that
the RPD drew an unreasonable negative inference of credibility;
b.
Whether
the RPD’s finding that there was adequate state protection was reasonable;
c.
Whether
the RPD’s erred in finding that the discrimination suffered by the Applicant
did not amount to persecution;
d.
Whether
the RPD failed to provide adequate reasons.
STANDARD
OF REVIEW
[19]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[20]
In
Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review
on a credibility finding is reasonableness. Further, in Elmi v Canada
(Minister of Citizenship and Immigration), 2008 FC 773, at paragraph 21,
Justice Max Teitelbaum held that findings of credibility are central to the
RPD’s finding of fact and are therefore to be evaluated on a standard of review
of reasonableness. Finally, in Wu v Canada (Minister of Citizenship and
Immigration) 2009 FC 929, Justice Michael Kelen held at paragraph 17 that
the standard of review on a credibility determination is reasonableness. The
standard of review applicable to the first issue in this case is
reasonableness.
[21]
The
standard of review applicable to the second issue is reasonableness. In Pacasum
v Canada
(Minister of Citizenship and Immigration), 2008 FC 822 at
paragraph 18, Justice Yves de Montigny held that state protection is a
question of mixed fact and law to be evaluated on the standard of
reasonableness (see also Estrada v Canada (Minister of Citizenship and
Immigration), 2012 FC 279; Canada (Minister of Citizenship and
Immigration) v Abboud, 2012 FC 72). Further, the Federal Court of Appeal
held in Hinzman v Canada (Minister of Citizenship and Immigration), 2007
FCA 171 that the standard of review on a state protection finding is
reasonableness.
[22]
The
issue of the RPD’s interpretation of “persecution” is a question of mixed fact
and law that involves a tribunal interpreting its enabling statute (see Sow v Canada (Minister of Citizenship and
Immigration),
2011 FC 1313 at paragraphs 17-21). The Supreme Court of Canada stated in Smith
v Alliance Pipeline Ltd, 2011 SCC 7 at paragraphs
26-34 that such a question is to be reviewed on a reasonableness standard.
Further, the RPD’s persecution analysis goes to the interpretation of evidence.
The third issue is reviewable on a reasonableness standard (Alhayek v Canada (Minister of Citizenship and Immigration), 2012 FC 1126 at paragraph 49).
[23]
In
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 [Newfoundland Nurses], the Supreme
Court of Canada held at paragraph 14 that the adequacy of reasons is not a
stand-alone basis for quashing a decision. Rather, “the reasons must be read
together with the outcome and serve the purpose of showing whether the result
falls within a range of possible outcomes.” With respect to this issue, the
adequacy of the reasons will be analysed along with the reasonableness of the
Decision as a whole.
[24]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ARGUMENTS
The Applicant
Credibility
[25]
The
Applicant submits that no adverse finding of credibility was made by the RPD,
but if one may be inferred by paragraphs 8-9 of the Decision then the Applicant
submits that the RPD erred in this regard. The Federal Court of Appeal has held
that oral evidence does not necessarily have to be corroborated by documentary
evidence, and to arrive at a negative credibility finding on this basis is a
reversible error (Attakora v Canada (Minister of Employment and Immigration),
[1989] FCJ No 444 (FCA) at 2). A failure to provide corroborating
documentation may be a finding of fact, but it does not relate to the
Applicant’s credibility in the absence of other evidence (Mahmud v Canada
(Minister of Citizenship and Immigration), [1999] FCJ No 729 at page
4; Ahortor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 705 at page 9 [Ahortor]).
[26]
When
an applicant swears to the truth of something there is a presumption that those
allegations are true unless there is reason to doubt their truthfulness (Maldonado
v Canada (Minister of Employment and Immigration), [1980] 2 FC 302).
The Applicant submits that any inconsistencies found by the RPD had to be
supported by the evidence; it could not simply choose to disbelieve the
Applicant’s testimony without providing a valid reason.
[27]
In
Ahortor, above, the Federal Court found it to be an error for the RPD to
find that an applicant was not credible because he was not able to provide documentary
evidence supporting his claims. The Applicant submits that if the RPD made a
negative inference about the Applicant’s credibility, it erred in the same
manner in the Decision as the decision-maker did in Ahortor. The RPD
used an absence of evidence to make a negative credibility finding against the
Applicant, and this is a reviewable error (Mui v Canada (Minister of
Citizenship and Immigration), [2003] FCJ No 1294 at 8-9; Ledezma
v Canada (Minister of Citizenship and Immigration), [2005] FCJ No 103;
Hercegi v Canada (Minister of Citizenship and Immigration), 2012 FC 250
[Hercegi] at paragraph 3).
State Protection
[28]
The
Applicant submits that the RPD ignored evidence that Roma people do not receive
adequate state protection in Hungary. The Applicant points to Hercegi, where
Justice Roger Hughes said at paragraph 5:
The reasons do not address the issue of state
protection properly. They do not show whether, and if so, what, the Member
considered as to provisions made by Hungary to provide adequate state
protection now to its citizens. It is not enough to say that steps are being
taken that some day may result in adequate state protection. It is what state
protection is actually provided at the present time that is relevant. In the
present case, the evidence is overwhelming that Hungary is unable presently to
provide adequate protection to its Roma citizens.
[29]
The
Applicant further submits that the RPD did not properly explain why state
protection in Hungary is adequate. The RPD was required to justify its findings
and provide an analysis of the measures taken by the Hungarian government (EYMV
v Canada (Minister of Citizenship and Immigration), 2011 FC 1364 at
paragraphs 15-16), and it did not do so in this Decision. The Applicant further
submits that, as in Rezmuves v Canada (Minister of Citizenship and
Immigration), 2012 FC 334, the RPD failed to review and acknowledge the
documentary evidence presented by the Applicant indicating a lack of state
protection.
[30]
The
Applicant submits that the RPD was required to assess the objectivity of her
well-founded fear of persecution, regardless of credibility (Alexandre-Dubois
v Canada (Minister of Citizenship and Immigration), 2011 FC 189).
She further submits that the RPD paid lip service to the attempts being made by
the Hungarian government to fight discrimination, but misapplied the legal test
from Ward, above. The Ward decision says that an applicant may
advance evidence of similarly situated individuals let down by the state’s
protection arrangement, and that an applicant does not have to risk being harmed
in seeking protection.
[31]
The
Applicant points to the decision in Mohacsi v Canada (Minister of
Citizenship and Immigration), 2003 FCT 429, where Justice Luc
Martineau said at paragraph 56:
It is also wrong in law for the Board to adopt a “systemic”
approach which may have the net effect of denying individual refugee claims on
the sole ground that the documentary evidence generally shows the Hungarian
government is making some efforts to protect Romas from persecution or
discrimination by police authorities, housing authorities and other groups that
have historically persecuted them. The existence of anti-discrimination
provisions in itself is not proof that state protection is available in
practice: “Ability of a state to protect must be seen to comprehend not only
the existence of an effective legislative and procedural framework but the
capacity and the will to effectively implement that framework” (Elcock v.
Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 116 at
121). Hungary is now considered a democratic nation which normally would be
considered as being able to provide state protection to all its citizens (Ward,
supra). Unfortunately, there are still doubts concerning the
effectiveness of the means taken by the government to reach this goal.
Therefore, a “reality check” with the claimants’ own experiences appears
necessary in all cases.
[32]
Further,
in Hernandez v Canada (Minister of Citizenship and Immigration), 2007
FC 1211, Justice Michel Shore said at paragraph 13:
As
stated by Mr. Justice Edmond Blanchard in Burgos v. Canada (Minister of Citizenship and Immigration), 2006 FC 1537 (F.C.):
[36]
However, when it considers the issue of state protection, the Court cannot
require that the protection currently available be perfectly effective. The
following excerpt written by Mr. Justice James Hugessen in Villafranca v.
M.E.I., [1992] F.C.J. No. 1189 (F.C.A.) (QL), sets out this principle:
On
the other hand, where a state is in effective control of its territory, has
military, police and civil authority in place, and makes serious efforts to
protect its citizens from terrorist activities, the mere fact that it is not
always successful at doing so will not be enough to justify a claim that the
victims of terrorism are unable to avail themselves of such protection.
[37]
In spite of this, the mere willingness of a state to ensure the protection of
its citizens is not sufficient in itself to establish its ability. Protection
must nevertheless have a certain degree of effectiveness (Bobrik v. M.C.I.,
[1994] F.C.J. No. 1364 (T.D.) (QL)).
.
. .
[42]
By determining that there was adequate protection in Mexico and that the
applicants could have made a complaint following the incidents of August 21,
2005, and October 2, 2005, the Board rendered an unreasonable decision, in that
it failed to take into consideration that the situation of the applicants was
aggravated on both occasions when they made complaints to two different
authorities. This conclusion is contrary to the principle established by the
Supreme Court in Ward, according to which an applicant does not have to “risk
his or her life seeking ineffective protection of a state, merely to
demonstrate that ineffectiveness”. This error warrants intervention by this
Court insofar as this determination could not stand up to a probing
examination.
[33]
The
Applicant submits the jurisprudence discussed above has been applied to the
situation of Roma people in Hungary (Kovacs v Canada (Minister of
Citizenship and Immigration), 2010 FC 1003). The jurisprudence
demonstrates that the RPD did not properly consider the issue of state
protection available to Roma people in Hungary. The Decision does not address
the real issue, which was the adequacy of the protection available (Hercegi,
above).
[34]
The
Applicant further submits that the RPD ignored certain pertinent evidence in
regards to state protection. This included:
i.
The
observations concerning conditions in Hungary at paragraph 28 of the Decision;
ii.
The
Applicant’s oral and documentary evidence;
iii.
The
fact that the police are the agents of persecution;
iv.
Other
documentary evidence that was before the RPD.
The
Applicant submits that this was important evidence, and the Decision should be
set aside because the RPD ignored it (Toro v Canada (Minister of Employment
and Immigration), [1981] 1 FC 652 (CA); Horvath v Canada
(Minister of Citizenship and Immigration), 2001 FCT 398 (FCTD)).
[35]
The
Applicant argues that the need to refer and analyse a specific piece of
evidence increases with the importance of the evidence (Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration), (1998) 157 FTR 35 (TD)).
The RPD should have acknowledged the evidence that was contrary to its
Decision, and it should have indicated in its reasons the impact of this
evidence on the claim (Gondi v Canada (Minister of Citizenship and
Immigration), 2006 FC 433 at paragraph 16; Jones v Canada (Minister of Citizenship and Immigration), 2006 FC 405 at paragraphs
14-18).
[36]
The
RPD erroneously considered the state’s “willingness” to protect, while paying
no attention to the state’s “ability” to protect. The existence of
anti-discrimination measures and counselling services does not go to the
state’s ability to protect Roma people from violent attacks (see Elcock v Canada (Minister of Citizenship and Immigration), 175 FTR 116 (FCTD)).
Persecution
[37]
The
Applicant submits that the RPD also erred by classifying the violent acts
committed against the Applicant as “discrimination” rather than “persecution.” Discrimination
involves a deprivation of certain things in relation to other people, but it
does not include acts of criminal violence, which amount to persecution. This
distinction is important to the Applicant; the mandate of many of the
organizations discussed by the RPD is to reduce discrimination against Roma
people; this does not provide the Applicant with protection from the violence
she experienced (Molnar v Canada (Minister of Citizenship and Immigration),
2002 FCT 1081).
Adequacy of Reasons
[38]
The
Applicant submits that the Decision does not provide adequate reasons,
specifically in relation to the distinction between discrimination and
persecution, as well as the adequacy of state protection. There is a duty on
the RPD to set out its findings of fact and explain the major issues at hand (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817). The Applicant submits that the RPD did not fulfill this duty, and
requests that the Decision be quashed and sent back for reconsideration.
The Respondent
State
Protection
[39]
The
Respondent submits that the RPD’s finding that the Applicant had not rebutted
the presumption of state protection was made after consideration of all the
evidence, and it was reasonable.
[40]
The
RPD noted that the Applicant said she called the police after things were
thrown at her home, but that the police never came. No evidence was produced to
corroborate the attack, and it was open to the RPD to evaluate the Applicant’s
testimony how it saw fit, considering the other circumstances of her claim. The
onus is on the Applicant to seek state protection, and the test for protection
is adequacy, not perfection.
[41]
The
RPD also considered the documentary evidence before it. It noted that Hungary has a long history of discrimination against Roma, and that the country is trying
to correct the situation through different initiatives. Progress has been slow,
and the RPD reviewed some of the criticisms of the measures currently being
taken. The RPD also considered the lack of objective evidence that the
Applicant had sought protection, and although there is no legal requirement
that an applicant produce corroborative evidence, it is more difficult for an
applicant to rebut the presumption of state protection without it (Cosgun v Canada (Minister of Citizenship and Immigration), 2010 FC 400 at paragraph 53).
The Respondent submits it was reasonable for the RPD to take this into account
as part of its state protection analysis.
[42]
The
jurisprudence dictates that a state is presumed to be capable of protecting its
citizens (Ward, above at 724). The presumption is not rebutted just
because an Applicant can point out problems in the protection offered by the
state. It has been accepted that no government can guarantee the protection of
all its citizens at all times (Canada (Minister of Employment and
Immigration) v Villafranca, (1992) 99 DLR (4th) 334 (FCA)
at 337 [Villafranca]).
[43]
The
Applicant cited much jurisprudence where this Court found the RPD erred in its
consideration of state protection of Roma in Hungary. However, the Court has
also come to contrary conclusions about Hungary. The Respondent reminds the
Court that judicial review turns on the unique facts of each matter that comes
before it.
[44]
The
Applicant cites the case of Hercegi; however, this decision was
distinguished in Kis v Canada (Minister of Citizenship and Immigration),
2012 FC 606 at paragraphs 14 and 17 [Kis]. In Kis, the Court
found it was reasonable for the RPD to conclude that the programs put in place
by the Hungarian government constituted “serious and genuine efforts” to ensure
state protection was adequate. The RPD’s findings in this case were similar to Kis;
it noted a variety of government undertakings to increase the effectiveness of
state mechanisms.
[45]
The
RPD also specifically considered the negative aspects of the situation for Roma
in Hungary. It acknowledged areas of remaining concern, such as education,
employment, and housing. It was open to the RPD to conclude that, although not
perfect, there was adequate protection in Hungary for Roma, and that Hungary has been making serious efforts to deal with racism against Roma people. As long as
the RPD took into account important evidence that contradicted its conclusions,
there is no requirement for it to specifically refer to every piece of evidence
or pertinent passage from cited sources (Velez v Canada (Minister of
Citizenship and Immigration), 2010 FC 923 at paragraph 33; Matte
v Canada (Minister of Citizenship and Immigration), 2012 FC 761 at
paragraphs 114-117; Horvath v Canada (Minister of Citizenship and
Immigration), 2012 FC 253 at paragraphs 15-17). This is what the RPD
did, and its Decision was within the bounds of reasonableness.
[46]
A
refugee claimant must take all reasonable steps to seek protection in their
home country before seeking international surrogate protection (Ward at
709). The Respondent agrees with the Applicant that she need not risk her life
to demonstrate inadequate state protection, but she must demonstrate that her
subjective fears have an objective basis (Macias v Canada (Minister of
Citizenship and Immigration), 2010 FC 598 at paragraph 14; Dannett
v Canada (Minister of Citizenship and Immigration), 2006 FC 1363 at
paragraphs 34-42). The RPD considered the Applicant’s claim that rocks were
thrown at her house, that the police never arrived after she called them, and
that her son-in-law was beaten up. It found that there was no clear evidence
that she was refused police assistance. The country condition documentation
also showed that the Hungarian police receive training in dealing with
minorities. The RPD also noted there was recourse available to the Applicant if
she was dissatisfied with the services she received from the police. It is not
sufficient for the Applicant to state that she has been a victim of crime or
discrimination; she must demonstrate a lack of state protection (Ward at
paragraphs 51-52).
[47]
It
is a fundamental concept of international refugee law that national protection
must take precedent over international protection (Cosgun, above, at
paragraph 50). The presumption of state protection will not be rebutted by an
applicant demonstrating a “subjective reluctance to engage the state” (Kim v
Canada (Minister of Citizenship and Immigration), 2005 FC 1126 at
paragraph 10; Sanchez v Canada (Minister of Citizenship and Immigration),
2008 FC 134 at paragraphs 9 and 12; Paguada v Canada (Minister of
Citizenship and Immigration), 2009 FC 351 at paragraph 24). It is
also not enough for the Applicant to show that the Hungarian government has not
always been effective at protecting persons in her particular situation (Villafranca,
above).
[48]
Further,
refugee claimants from democratic countries have a heavier burden when
attempting to demonstrate that they have exhausted all the resources available
to them before claiming refugee status (Hinzman, above, at paragraph
57). Hungary is a functioning democracy, and the Applicant’s failure to seek
state protection is fatal to her claim (Camacho v Canada (Minister of
Citizenship and Immigration), 2007 FC 830). The RPD committed no
reviewable error in coming to this conclusion.
Adequacy of Reasons
[49]
Just
because the RPD did not recite all of the evidence before it does not mean that
evidence was ignored. The Decision suggests that the totality of the evidence
was considered (Parmar v Canada (Minister of Citizenship and Immigration),
(1997) 139 FTR 203; Moskvitchev v Canada (Minister of Citizenship and
Immigration), [1995] FCJ No 1744 (TD)). The Applicant is asking the
Court to microscopically review the Decision, when the Decision ought to be
read as a whole (Ayala v Canada (Minister of Citizenship and Immigration),
2008 FC 1258 at paragraph 8; Boulis v Canada (Minister of Manpower and
Immigration), [1974] S.C.R. 875).
[50]
As
stated by the Federal Court of Appeal in Hassan v Canada (Minister of
Employment and Immigration), (1992) 147 NR 317 (FCA), “the mere fact
that some of the documentary evidence is not mentioned in the Board’s reasons
is not fatal to its decision.” Reasons are adequate when the decision-maker
sets out its findings of fact and the principle evidence upon which those
findings were made (VIA Rail Canada Inc v National Transportation Agency,
[2001] 2 FC 25 (FCA) at paragraphs 21-22). The RPD fulfilled this
obligation in rendering the Decision.
[51]
The
Respondent submits that a functional approach should be taken in analyzing the
adequacy of reasons; the inquiry is not abstract, but should address the live
issues in the case (R v Dinardo, 2008 SCC 24 at paragraph 25).
The Applicant must show the deficiencies in the reasons prejudiced her right of
judicial review (Za’rour v Canada (Minister of Citizenship and Immigration),
2007 FC 1281 at paragraph 20); she has not done so in this case. Deference
requires that the matter not be examined microscopically (Ayalal v Canada (Minister of Citizenship and Immigration), 2012 FC 183), and reasons are to be
reviewed in the context of the evidence, submissions, and process (Veerasingam
v Canada (Minister of Citizenship and Immigration), 2012 FC 241).
[52]
The
Decision in this case informs the Applicant as to why her application was
refused, and how the RPD weighed the evidence that led it to its conclusion.
The reasons demonstrate the factors considered, and how the RPD conducted its
analysis. As such, the reasons are adequate (Ragupathy v Canada (Minister of Citizenship and Immigration), 2006 FCA 151 at paragraphs
13-15). Essentially, the Applicant is simply complaining that she would have
weighed the evidence differently, and this is not a reviewable issue. The
Respondent requests that this application be dismissed.
ANALYSIS
[53]
At
the judicial review hearing before me in Toronto, the Applicant formally
withdrew the credibility and the discrimination/persecution grounds for review.
In any event, it is my view that this Decision stands or falls on the RPD’s
state protection analysis. This is because, while the RPD may have had concerns
about the Applicant’s corroborative evidence for the violence she suffered in Hungary, it did not elaborate sufficient reasons for refusing the claim apart from its
adequate state protection finding.
[54]
In
paragraph 14 of the Decision, the RPD correctly sets out the nature of the
exercise before it:
In determining, whether protection is adequate, it
is important to consider whether a legislative and procedural framework for
protection exists, and also whether the state, through police or other
authorities, is able and willing to effectively implement that framework. A
state must engage in serious efforts to protect its citizens at the operational
level.
[55]
As
the RPD points out, the Applicant fears the Hungarian Guard and she says the
state cannot, or will not, protect her from attacks against her and her family.
Notwithstanding this clear statement, the RPD engages in a significant amount
of discussion in its state protection analysis about matters such as employment
and education which, as a 77-year-old woman in poor health, have nothing to do
with the Applicant’s case.
[56]
When
it comes to the operational adequacy of the state’s ability or willingness to
protect the Applicant against fascist and racist violence, the RPD has very
little to say in its analysis:
The report also notes that the government is taking
active steps to change the attitude and treatment of members of the police
force toward minorities, especially Roma. Training in human rights, basic
freedoms, tolerance and how to deal with on the spot cases involving minority
groups is being provided both at the police academy and medium level in-service
police training.
[57]
In
my view, this analysis runs counter to what the RPD is obliged to do. The
analysis is about a legislative and procedural framework (steps) that the
government of Hungary has attempted to implement. It is not about the
operational adequacy of those steps.
[58]
There
was before the RPD a 2008 ECRI Report on Hungary which, at paragraphs 67 and
68, refers to specific reports of violence against Roma, “including some
incidents of police brutality against Roma,” and which suggests that the
Hungarian authorities need to do a better job “to introduce systematic and
comprehensive monitoring of all incidents that may constitute racist
violence….”
[59]
The
suggestion here is clear that the Hungarian authorities either have no idea of
the extent of the violence that Roma people are subjected to, or have
deliberately chosen not to monitor it. This kind of evidence brings into
question the operational adequacy of any legislative and procedural framework
that Hungary may have introduced to deal with violence against Roma people. Yet
the RPD in this case fails to address this issue and does not attempt to
grapple with the need to consider “whether the state, through the police or
other authorities, is able and willing to effectively implement that
framework,” which the RPD acknowledges it had to do when addressing state protection
in Hungary.
[60]
In
my view, the RPD’s analysis does not address what Justice Mosley has called
“operational adequacy.” See EYMV, above, at paragraph 16. This renders
the Decision unreasonable.
[61]
On
this basis alone, I think the matter must be returned for reconsideration.
[62]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
- The
application is allowed. The Decision is quashed and the matter is
returned for reconsideration by a differently constituted RPD.
- There is
no question for certification.
“James Russell”
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