Date: 20110614
Docket: IMM-75-11
Citation: 2011 FC 686
Ottawa, Ontario, June 14, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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LASZLO ISTVAN BURANDIK AND
IREN BURANDIK
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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 ORDER AND ORDER
[1]
The
basis of Mr. and Mrs Burandik’s claim for refugee status is that he was
persecuted in Hungary because of
his Jewish faith. He submits that this persecution would continue were he
returned there. The member of the Refugee Division of the Immigration and
Refugee Protection Board who dismissed their claim was somewhat ambiguous as to
whether she accepted that Mr. Burandik is Jewish. She found that he would not
be perceived to be Jewish and that, in any event, Budapest was both a
viable internal flight alternative and a place which offered state protection.
ISSUES
[2]
The
issues which arise in this judicial review of that decision are:
a. Was the
finding that Mr. Burandik would not be perceived to be Jewish reasonable?
b. Was the finding
that Budapest was an
internal flight alternative predicated on the assumption that Mr. Burandik
would not be perceived to be Jewish?
c. Was the
finding that Budapest was an
internal flight alternative reasonable should he be perceived to be Jewish?
d. Was the
finding that state protection was available in Budapest predicated
on the assumption that Mr. Burandik would not be perceived to be Jewish?
e. Was the
finding that state protection would be available in Budapest reasonable
should he be perceived to be Jewish?
STANDARD OF REVIEW
[3]
It
is common ground that the decision is to be reviewed against the standard of
reasonableness. The issue is not whether I agree with the decision, but rather
whether it meets the standard summarized in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, where it was said at paragraph 47:
Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting
a review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
CREDIBILITY
[4]
Questions
posed by the member during the board hearing reflect a concern as to whether
Mr. Burandik is in fact Jewish. He provided no corroboration whatsoever from
any synagogue or Jewish organization in Hungary. His faith,
or Jewish state of mind, developed from his grandparents, who raised him until
he was 12. They were not born Jewish, but converted. He does not know whether
their conversion was official. When he was 12, he returned to live with his
parents who were not Jewish. He never joined any Jewish organization because of
a fear of persecution.
[5]
Even
in Canada, he has
never set foot in a synagogue. For the two months leading up to his hearing, he
attended services at the Crown of Messiah, a messianic congregation based in Prince
Albert.
According to documents Mr. Burandik provided, the congregation describes itself
as:
Shalom! We’re a messianic congregation of
Jews and gentiles who are disciples of the Messiah Yeshua and lovers of God’s
Torah.
[6]
There
is nothing in the record from religious authorities as to where this
congregation fits in the religious spectrum, but I note that “Yeshua” is the
Aramaic name for Jesus.
[7]
In
his Personal Information Form, Mr. Burandik set forth why he fears the
Hungarian Guard, skinheads, and indeed Hungarians at large. He described a
number of incidents which took place over many years in various places in Hungary, not only in
Komaron where he primarily lived, but also in Budapest.
[8]
He
testified that his name would not be perceived in Hungary as an indicator
of his Jewish faith. He suggested that anonymous people attacked him because he
had told some of these so-called friends he was Jewish. It turns out, however,
that his so-called friends were from a far-right faction and passed the word on
to others. The member had difficulty accepting this explanation.
[9]
The
member found that anti-Semitism is present in Hungary and growing.
Anti-Semitic rhetoric flows from the Jobbik political party and from many
individuals. However, violence is extremely rare. There is some risk in public
Jewish settings.
[10]
The
crucial credibility finding is at paragraph 29 of the decision:
The principal claimant, Mr. Laslo
Burandik, claims many incidents of violence in Komarom. This may be the case,
but it is evidence that is completely at odds with the country documentation as
to anti-Semitic acts toward individuals. So I find that there may be other
reasons for why the claimant was attacked. But be that as it may, I find, based
on the objective evidence in this case, the claimants would not be at serious
risk of persecution or harm in Budapest, for the following reasons.
[11]
There
is a rebuttable presumption that Mr. Burandik was telling the truth (Maldonado
v Canada (Minister of Employment and Immigration), [1980] 2 FC 302, 31 NR
34 (FCA)).
[12]
In
the end-result, the member did not disbelieve Mr. Burandik’s claim that he is
Jewish, but attributed the violent attacks and job discrimination to some other
unknown cause. Graffiti was plastered on walls but this in and of itself does
not constitute persecution.
[13]
In
the circumstances, I am left to deal with the findings that Mr. Burandik is
Jewish and that he was subjected to violence and discrimination, but that, for
the most part, those who acted against him were not aware that he was Jewish.
These findings were not unreasonable.
INTERNAL FLIGHT
ALTERNATIVE AND STATE PROTECTION
[14]
The
decision maker found “but be that as it may…” the claimants would not be at
serious risk of persecution or harm in Budapest. I take this
to mean that they would not be at serious risk even if perceived to be Jewish.
[15]
The
applicants rely most strongly on the advanced unedited version of the United
Nations Human Rights Committee Report of 25 October 2010 in which the Committee
expressed concern at virulent and widespread anti-Roma statements, and
indications of rising anti-Semitism. It recommended that more specific measures
should be taken, including prosecution of members of the Magyar Guarda, which
by that point had already been disbanded by government order.
[16]
It
was submitted that this report, which was referred to by the member, trumps all
the other reports to which she also referred. In my view, I am being asked to
reweigh the evidence. The member referred to a number of reports, including the
United States Department of State Country Report dated March 2010. She found
that, in the main, police investigated the incidents and made arrests.
Incidents of attacks on individuals in Budapest were being
fully investigated by the police.
[17]
She
concluded therefore that Budapest was both a viable
internal flight alternative and a place where state protection was available. Budapest was a viable
place for the Burandiks to live as he had worked there before, and he has not,
with clear and convincing evidence, established that adequate state protection
would not be available (Canada (Attorney General) v Ward, [1993] 2 SCR
689, 103 DLR (4th) 1). Again, these findings were not unreasonable.
[18]
It
was submitted that the plight of Jews is getting worse in Hungary. Evidence to
that effect is not and should not be before me as a judicial review is based on
the material before the decision maker, with a few exceptions which have no bearing
here. If the situation has worsened, the Burandiks will have an opportunity to
make their case at the pre-removal risk assessment stage.
ORDER
FOR REASONS
GIVEN:
THIS COURT
ORDERS that
1.
The
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”
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