Date:
20130325
Docket:
IMM-3871-12
Citation:
2013 FC 299
Ottawa, Ontario,
March 25, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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IMRENE NAGY
HELENA MERCEDESZ HORVATH
(A.K.A. HELENA MERCEDES
HORVATH)
(a minor)
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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]
The
principal applicant, Ms. Imrene Nagy, and her eight-year-old daughter, Helena,
applied for judicial review of a decision of the Refugee Protection Division of
the Immigration and Refugee Board [Board], dated March
15, 2012, rejecting the applicants’ claim for refugee protection pursuant to
sections 96 and 97 of the Immigration
and Refugee Protection Act,
SC 2001, c 27 [IRPA]. This decision was made following a de novo hearing
of a claim which was originally decided by the Board on November 3, 2010, and
subsequently overturned on judicial review before this Court. The basis for
this Court’s intervention was the Board’s failure to deal with
the principal
applicant’s claim that she faced a risk of persecution on
account of
her daughter’s partial Roma ethnicity (IN v Canada (Minister of
Citizenship and Immigration),
2011 FC 723, [2011] FCJ No 919).
Background of
the Refugee Claim
[2]
The
principal applicant lived in a small town called Panda in Hungary. She was married to a police officer from 1987 to 2000 and, throughout their
marriage; she was threatened, verbally assaulted and physically abused by her
husband. However, she was reluctant to report the abuse to the police because
her husband was a police officer in their town. After their divorce, the
applicant’s husband obtained custody of their two children.
[3]
In
2003, she began a relationship with a Hungarian Roma. The principal applicant
alleges that as her former husband found out about her relationship with a
Roma, he became verbally and physically abusive with the applicant and her
partner, and threatened to deny the applicant her visitation rights with the
children.
[4]
In
May 2004, the principal applicant gave birth to her younger daughter, Helena.
She alleges that after the birth of her daughter, her ex-husband started
harassing and threatening her again as he did not want his children to be
associating with Roma during their visits at the applicant’s home.
[5]
The
principal applicant alleges that in October 2008, her husband decided to meet
with her ex-husband to settle the matters with him. The principal applicant’s
husband never returned from the meeting and the family’s efforts to find him
were unsuccessful. After her husband’s disappearance, the applicant decided to
make arrangements to leave Hungary. She and her daughter arrived in Canada on October 20, 2008 and immediately sought refugee protection.
The Board’s
Decision
[6]
Although
the principal applicant originally claimed protection based on her fear of her
abusive ex-husband in Hungary, the issue raised during the de novo
hearing was mainly that of state protection. The Board set out the principal
issues as follows: i) whether the discrimination allegedly suffered by the
principal applicant amounted to persecution, and ii) whether there is adequate
state protection in Hungary or whether there is clear and convincing evidence
of the state’s inability to protect the applicants.
Discrimination vs
Persecution
[7]
The
Board stated that in the applicants’ Personal Information Form [PIF] narrative they failed to identify any
specific incidents relating to persecution they faced in Hungary arising out of the minor child’s ethnicity as Roma.
[8]
At the hearing
before the Board, the principal applicant testified regarding discriminatory
treatment against her daughter and herself that was the basis of their alleged
fear of persecution. Two main incidents were relied upon in support of the
applicants’ claim. First, the principal applicant testified that
her daughter attended daycare for approximately one year prior to leaving Hungary, and the principal applicant felt that daycare workers were distancing themselves
from her and were ostracizing her. The Board found that the applicant’s
suspicion was not based on any evidence. The child did not verbalize any
difficulties she was presumably having at the daycare and no other evidence
supported this allegation.
[9]
Second,
the principal applicant alleged that the medical attention given to her
daughter was substandard. She referred to a number of incidents where her
daughter and herself were deprived of adequate medical care either because the
doctor did not take enough time to examine them, systematically saw non-Roma patients
ahead of them, or failed to visit her daughter at their home although he had
promised to. On the basis of this evidence, the Board was not satisfied that
the medical care provided to the principal applicant or her daughter was either
discriminatory or persecutory.
[10]
Moreover,
the principal applicant alleged that discrimination against Roma was present in
schools and workplaces and that her daughter may face discrimination in her
schooling and future job prospects. The applicants argued that Roma people face
a high degree of discrimination in all facets of life in Hungary and such discrimination cumulatively amounts to persecution.
[11]
The
Board noted that the applicant’s daughter was enrolled in daycare in Hungary and that the principal applicant herself was employed and had no impediments to
finding adequate housing. In sum, insufficient reliable and probative evidence
was adduced to indicate that either the principal applicant or her daughter,
who was seven years old at the time of the hearing, would be unable to obtain
employment in the future.
[12]
As
for the allegation of persecution, the Board stated that as per Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at para 63,
persecution has been ascribed the meaning of “sustained or systemic violation of
basic human rights demonstrative of a failure of state protection”; the Supreme
Court found that “to be considered persecution, the mistreatment suffered or
anticipated must be serious.” The Board concluded that in light of the
objective documentary evidence relating to the current issues of discrimination
faced by the Roma in Hungary, the discrimination the applicants may have faced
or may face is not tantamount to persecution as it does not threaten their
fundamental rights but rather affects the quality of their existence in their
home country.
Availability of State Protection
[13]
Coupled
with the Board’s finding that the evidence did not disclose that the
applicant’s faced a serious risk of persecution was its finding that the
applicants failed to establish that, should they require it, they would not be
able to obtain state protection against the discrimination that Roma people
admittedly face in Hungary. In fact, the applicants did not demonstrate that
the denial of their human rights was indicative of a failure of state
protection because such protection was not sought.
[14]
The
Board noted that in light of the documentary evidence, Hungary is a democratic state where free and fair elections are held and a relatively
independent and impartial judiciary is in place. As a result, “[t]he Board is not obliged to
prove that [the state] can offer the applicant effective state protection,
rather, the applicant bears the legal burden of rebutting the presumption that
adequate state protection exists by adducing clear and convincing evidence
which satisfies the Board on a balance of probabilities” (Sanchez v Canada (Minister of
Citizenship and Immigration),
2011 FC 491 at para 31, [2011] FCJ No 610).
[15]
The
Board acknowledged that the country documentation confirmed the principal
applicant’s allegation that some members of the police are discriminatory
against Roma. However, the Board found that there are recourses and remedies
available to the applicants if faced with such a situation and that the state
takes action when complaints are made. Having examined the availability of
state protection against anti-Roma discrimination according to the documentary
evidence (including Response
to Information Request [RIR],
HUN103566.E, 22 September 2010), the Board concluded as follows:
I would be remiss if I did not acknowledge and
consider that there is information in the documentation to indicate that there
is widespread reporting of incidents of intolerance, discrimination and
persecution of Romani individuals in Hungary. However, weighted against this is
persuasive evidence that indicates that Hungary candidly acknowledges its past
problems, and is making serious efforts to rectify the treatment of minorities
in that country, especially in the case of the Roma. The Board recognizes that
there are some inconsistencies among several sources within the documentary
evidence; however, the preponderance of the objective evidence regarding
current country conditions suggests that, although not perfect, there is an
adequate state protection in Hungary for Roma who are victims of crime, police
abuse, discrimination and persecution, that Hungary is making serious efforts
to address these problems, and that the police and government officials are
willing and able to protect victims.
[16]
The
Board referred to a number of legal and institutional measures taken by the
Hungarian government to improve the situation of the Romani minority, such as
the Parliamentary Commissioner for National and Ethnic Minority Rights
(Minority Ombudsman) and the Roma Integration Department within the Ministry of
Social Affairs and Labour (RIR,
HUN103566.E, 22 September 2010 and RIR, HUN103232.E. 15 October 2009). The
Board also stated that Hungary has taken a number of initiatives relating to
the situation of the Roma as regards education, employment, housing, health and
political representations (RIR, HUN103267.E. 16 October 2009).
[17]
In
addition, the Board referred to the Independent Police Complaints Board [IPCB] as a further available
recourse. The IPCB is an independent board in charge of reviewing complaints
against police action which violate fundamental rights, and its recommendations
to the head of the National Police can be referred to the courts if not
accepted or reported to the Parliament. The Board noted that the European Roma
Rights Centre described the IPCB as a credible and independent watchdog to
ensure accountability of police and has called for the government to ensure the
IPCB’s independence and strengthen its mandate (United States. 8 April 2011.
Department of State “Hungary” Country Reports on Human Rights Practices for
2010).
[18]
The
Board also reviewed the 2009 report of the European Commission against Racism
and Intolerance [ECRI]
and found that although progress had admittedly been slow in reducing discrimination
against Roma people, as a member of the European Union [EU], Hungary was
responsible for upholding a number of various standards to maintain its
membership in the Union and the evidence showed that efforts had been made in
this sense.
[19]
In
conclusion, the Board determined that the applicants failed to rebut the
presumption of adequate state protection with clear and convincing evidence as
there was insufficient evidence to conclude that such protection would not be
forthcoming if they required it and availed themselves of it.
Issue and
Standard of Review
[20]
The
sole issue raised in this application for judicial review is whether the Board
erred in finding that the applicants failed to rebut the presumption of state
protection.
[21]
Neither
party addressed the question of the applicable standard of review in their
written submissions. However, the jurisprudence is well-established that the issue of the Board’s
interpretation of “persecution” and the documentary evidence pertaining to
state protection findings typically involve question of mixed fact and law that
require a tribunal to interpret its enabling statute, and are therefore to be
evaluated against the standard of reasonableness (see Carillo v Canada (Minister of
Citizenship and Immigration),
2008 FCA 94, [2008] FCJ No 399; Lozada v Canada (Minister of
Citizenship and Immigration),
2008 FC 397, [2008] FCJ No 492; and Tamas v Canada (Minister
of Citizenship and Immigration), 2012 FC 1361 at paras 21-22, [2012] FCJ No
1675).
[22]
In reviewing
the Board’s decision using a standard of reasonableness, the Court is required
to consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, Khosa
v Canada (Minister of Citizenship and Immigration), 2009 SCC 12 at para 59.
Analysis
[23]
Quite
obviously, the documentary evidence regarding the adequacy of
anti-discrimination state action in Hungary is contradictory in many respects
and the question remains unresolved in recent decisions of the Board’s and in
this Court’s recent jurisprudence. My understanding of the case law cited by
both parties is that, while the objective documentary
evidence allows
for a determination either way, the reasonableness of the
decision as a whole depends on the circumstances of each case, whether due
consideration is given to the nature and extent of the alleged persecutory
discrimination and whether the Board meaningfully assessed the most relevant
contradictory evidence concerning the current and actual living
conditions for the Romani people (Bors
v Canada (Minister of Citizenship and Immigration), 2010 FC 1004 at paras 53-54,
58, 70-73, [2010] FCJ No 1242 [Bors]; Rezmuves
v Canada (Minister of Citizenship and Immigration), 2012 FC 334 at paras
11-13, [2012] FCJ No 374; Hercegi v Canada (Minister of Citizenship and
Immigration), 2012 FC 250 at paras 4-5, [2012] FCJ No 273 [Hercegi]).
[24]
In
this case, the applicants essentially take issue with the Board’s assessment of
the documentary evidence. They rightfully submit that “[w]here a tribunal determines the
applicant has failed to take steps to seek protection this finding is only
fatal to the claim if the tribunal also finds that protection would have been
reasonably forthcoming. A determination of reasonably forthcoming requires that
the tribunal examine the unique characteristics of power and influence of the alleged
persecutor on the capability and willingness of the state to protect.” (Mendoza v Canada (Minister of Citizenship and Immigration), 2010 FC 119 at
para 33(6), [2010] FCJ No 132 [Mendoza]).
[25]
For
the reasons that follow, although I agree with the applicants that the Board’s
review of the documentary evidence is cursory, and at points superficial, I
find that, overall, the Board reasonably and intelligibly explained its finding of state protection
given its acknowledgement of the evidence indicating discrimination against
Roma persists in Hungary. The Board did not base its decision on a selective
citing of the evidence and properly justified its decision in light of the
applicants’ subjective evidence in this case.
[26]
The
applicants submit that the Board misconstrued the evidence by relying on the
“efforts” and “measures” of the Hungarian state to enact laws and policies in
the face of evidence that such laws and policies have been ineffective and of
little practical effect for the victims. It is submitted that the Board failed
to address other issues disclosed in the documentary evidence regarding the
limited scope of action of institutions such as the IPCB or the Minorities
Ombudsman, the reluctance of courts to acknowledge non-material damages, and the
ineffectiveness of the government’s initiatives to address issues of Roma
education, employment, housing and healthcare.
[27]
These issues
were raised by counsel for the applicants before the Board. It is well-established
that “the Board is presumed to have considered all of the evidence before it
and need not mention every piece of evidence. […] However, the more important
the evidence that is not mentioned, the more willing a court may be to infer
from silence that a tribunal made a finding of fact without regard to the
evidence.” (Horvath v Canada (Minister of Citizenship and Immigration),
2013 FC 95 at para 36, [2013] FCJ No 117). I am not convinced that the Board
would have reached a different conclusion in the circumstances of this case had
it specifically discussed all of the above-mentioned points.
[28]
The onus was
not on the Board in this instance. It was on the applicants to demonstrate, on
a balance of probabilities and based on relevant, reliable and convincing
evidence, that their home country provides inadequate state protection (Giovani
Ipina Ipina v Canada (Minister of Citizenship and Immigration), 2011 FC 733
at paragraph 5, [2011] FCJ No 924 [Giovani]). Furthermore,
the test developed by the jurisprudence of this Court asks whether the state
protection is adequate, although “effectiveness”, like a state’s “serious
efforts” at the operational level to protect its citizens, remain relevant
considerations (Gilvaja, above, at para 39; Flores v Canada (Minister
of Citizenship and Immigration), 2008 FC 723 at para 8, [2008] FCJ No 969; Carillo v Canada (Minister of
Citizenship and Immigration),
2008 FCA 94 at para 38, [2008] FCJ No 399). In this case, the points raised by
the applicants in the documentary evidence were not sufficiently clear and
convincing to establish that their state’s efforts would result in inadequate
protection or that the state is unwilling to protect them.
[29]
Besides,
while I agree with the applicants that some of the elements in the Board’s
analysis, such as Hungary’s obligation to abide by the requirements of EU
membership or the Hungarian Supreme Court’s ruling upholding the dissolution of
the Hungarian Guard, are non-persuasive to the question of whether there is
adequate state protection for the applicants, this does not affect the overall
reasonableness of the Board’s decision.
[30]
The
applicants argue that in Hercegi, above, in finding that the
Board’s analysis of state protection was flawed and unreasonable, this
Court has recently ruled that
“the evidence is overwhelming that Hungary is unable presently
to provide adequate protection to its Roma citizens.” It is
worth noting that as per Mendoza, above, at para 33(3), “each case is sui generis so while state protection may have been
found to
be available in Mexico, maybe even in a particular state,
this does not
preclude a court from finding the same state to offer
inadequate protection
on the basis of different facts.” Furthermore, the Board is
not precluded to consider the applicant’s own attempts to seek state protection
in its analysis, even though a negative finding is not always fatal to the
claim.
[31]
In Bors,
above, at paras 67 and 71, the Court stated that:
The fact that
the Hungarian state is making efforts to head toward improving the situation of
the Roma is clear from the evidence. Nevertheless, in this case, the
seriousness of the danger and the incidents of violence that the applicant and
his family have had to face, the extremes to which the family has had to reduce
itself by hiding, in addition to the frequency or continuation of the incidents
and the span of time over which the incidents had to have taken place show that
the state does not seem to have shown that it can effectively protect them.
[…]
The subjective
evidence in the applicant’s testimony is consistent with the objective
documentary evidence as a whole, filed in the record, pertaining to the
protection provided by Hungary. In this regard, the documentary evidence could
corroborate the applicant’s narrative if the facts of this narrative had been
considered as a whole by the decision-maker. The PRRA officer erred by not at
least considering the facts in the applicant’s testimony.
[emphasis
added]
[32]
By
contrast, in the case at bar, the applicants did not convince me that the Board
ignored any relevant documentary evidence that would have corroborated the applicants’ allegations of past and future persecution.
Moreover, the Board reasonably found that the applicants’ evidence did not
disclose a serious possibility of discrimination that would amount to persecution
and the applicants did not take issue with this finding.
[33]
Accordingly,
this judicial review will be dismissed. The parties did not raise a question
for certification and none arises from this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed.
2. There
is no question for certification.
"Jocelyne
Gagné"
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