Date:
20130620
Docket:
IMM-6803-12
Citation:
2013 FC 693
Ottawa, Ontario,
June 20, 2013
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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ROLAND KOTAI
ROLAND KOTAI
LAURA KOTAI
KATALIN BALOGH
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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
applicants seek judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of the decision
of the Refugee Protection Division of the Immigration and Refugee Board
of Canada (the Board), dated June 12, 2012, which found that
the applicants were not Convention refugees nor persons in need of protection
pursuant to sections 96 and 97 of the Act. For
the reasons that follow, the application is dismissed.
Background
[2]
The
applicants, the Kotai family, include the principal applicant, his wife, and
their two children. The applicants are Hungarian citizens of Roma ethnicity.
They arrived in Canada in 2010 seeking refugee protection due to the racism and
discrimination they had experienced in Hungary. The applicants described one
incident of vandalism of their home in 2010 when a brick was thrown at the
window. The police responded, but the applicants could not identify the perpetrators
and no arrests were made. The applicants also described an incident in 2010
when four skinheads accosted them, called them “dirty gypsies”, and spat at
them. This incident was not reported to the police. The applicants also alleged
that one of their children was placed in a segregated Roma kindergarten class
and that the mother had experienced insensitive treatment by doctors during the
birth of her son.
The
decision under review
[3]
The
Board found that the determinative issue was state protection. The Board noted
that the applicants feared the Hungarian Guard and skinhead groups in Hungary and acknowledged the specific incidents the applicants alleged but concluded that
the applicants had failed to rebut the presumption of adequate state protection
with clear and convincing evidence. The Board noted that the applicants had
contacted the police on one occasion and that the police had responded. With
respect to their allegations of discrimination in education, and poor treatment
during the birth of the younger child, the Board noted that the applicants had
not sought any recourse, for example, to the Equal Treatment Authority, nor had
they made any complaints to other authorities.
[4]
Although
the majority of the Board’s decision is a description of the programs and
initiatives in Hungary which are intended to address discrimination and
violence against Roma people, many of which are not relevant to the applicant’s
circumstances, the Board did focus on the applicants’ particular experiences in
determining whether they would face persecution upon their return.
[5]
The
Board acknowledged that the documentary evidence of the government’s efforts to
protect the Roma is mixed, that right-wing extremism incites violence against
the Roma, and that Roma face discrimination and persecution on many levels.
However, the Board found that in the particular circumstances, the applicants
had not demonstrated that state protection was so inadequate that they need not
have approached the authorities at all or that they need not have sought
assistance from other authorities, including the Minorities Ombudsman’s Office
or the Independent Police Complaints Board.
[6]
The
Board also acknowledged that the country condition documents support the view
that protection is not perfect and many areas require improvement. The Board
added that there was no evidence of a complete breakdown of the state and there
was evidence of the serious efforts underway to improve the situation of the
Roma. The Board considered whether the state was able to protect the applicants
to the degree reasonable in the circumstances, noting that the police had
responded when called. There was no evidence that the past personal experience
of the applicants would lead them to believe that state protection would not be
adequate or reasonably available if they returned to Hungary.
[7]
The
Board noted that the fact that the police did not arrest anyone following the
vandalism on the applicants’ home could be due to many factors, including lack
of identification by the applicants.
The
Issues
[8]
The
applicants submit that the decision is unreasonable on five grounds: first,
that the police should have investigated the vandalism despite the lack of
identifiable suspects and their failure to do so and their failure to prevent
such attacks, which are increasing in frequency, demonstrates a lack of state
protection; second, that the onus on an applicant to rebut the presumption of
state protection must be considered in the context of the spectrum of
democracy; third, that the Board failed to consider the increase in racist
violence and the heightened need for protection; fourth, that the other
agencies referred to by the Board to address discrimination and persecution of
Roma are not relevant or effective; and, fifth, that the Board misstated and
misapplied the test for state protection.
[9]
The
respondent submits that the Board considered all of the country condition
evidence, acknowledged that it was mixed, and focussed its consideration on
whether the applicants had rebutted the presumption of state protection within
that context (i.e. within the democracy spectrum). The respondent submits that
the Board’s decision is reasonable.
Standard
of Review
[10]
The
applicable standard of review of the decision of the Board is reasonableness
which calls for deference. The role of the Court on judicial review
is not to substitute any decision it would have made but to “determine if the
outcome ‘falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law’: Dunsmuir, at para 47. There may be more than one reasonable outcome.
However, as long as the process and the outcome fit comfortably with the
principles of justification, transparency and intelligibility, it is not open
to a reviewing court to substitute its own view of a preferable outcome”: Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1SCR 339 at para 59.
Is
the Board’s decision reasonable?
[11]
While
the applicants have raised five grounds to support their position that the
decision is not reasonable, all the grounds are related to each other and to
how the Board assessed the adequacy of state protection and the applicant’s
efforts to rebut the presumption of state protection.
[12]
With
respect to the police response to the incident of vandalism, which did not
result in any arrests, the applicant relies on Pinter v Canada (Minister of Citizenship and Immigration), 2012 FC 1119, where Justice
Zinn noted at paragraph 14:
“Further, I note that accepting a report of criminal
conduct does not establish adequate police protection when no steps are taken
to investigate the complaint. If police had no obligation to investigate a
complaint where the assailant was unknown, their job would be remarkably
easier. ”
[13]
I
note that in Pinter, Justice Zinn identified several reasons to allow
the application for judicial review other than due to the assessment of state
protection. In that case, the applicants alleged that they had to overcome
resistance to even file the report and that the police did not make any effort
to investigate. In the present case, the applicants indicated that the police
did respond and took statements from the female applicant and her parents.
There is no suggestion that the police resisted taking their report or
indicated that they would not follow up, only that no suspects were identified.
[14]
The
applicants’ submission that the police have an obligation to prevent racist
attacks against Roma, in addition to responding to incidents after the fact,
and that their failure to do so establishes a lack of state protection, imposes
an unrealistically high standard on the police and could make the obligation on
refugee claimants to avail themselves of state protection, to the extent that
state protection is available, meaningless. The prevention of all crime is
simply not possible. The evidence of recent violence, which the applicant
submits shows that police failed to prevent and protect, was considered by the
Board. The Board found that there was no evidence of a complete breakdown of the
state nor did the recent violence demonstrate that there was no state
protection to the extent that this would absolve the applicants of their onus
to seek state protection. The Board noted the initiatives underway in an effort
to deter and prevent racist attacks and also acknowledged that there was room
for improvement.
[15]
I
agree that not all democratic countries provide the same level of democracy
and, as noted by the applicants, there is a “democracy spectrum”. The onus on
an applicant to rebut the presumption of state protection is commensurate with
the level of democracy in the country.
[16]
As
noted by Justice Rennie in Sow v Canada (Minister
of Citizenship and Immigration), 2011 FC 646
at paras 9-11:
[9] In a democratic country there is
a presumption that a state can protect its own citizens. As such, the
onus is on the applicant to rebut this presumption and prove the state’s
inability to protect through “clear and convincing” evidence: Canada
(Attorney General) v Ward [1993] 2 S.C.R. 689 at para 50; Hinzman v Canada
(Citizenship and Immigration), 2007 FCA 171 at paras 43-44; Zepeda v
Canada (Minister of Citizenship and Immigration), 2008 FC 491 at para 13.
[10] This principle, however, does not
stand in isolation. It is tempered by the fact that the presumption
varies with the nature of the democracy in a country. Indeed, the burden
of proof on the claimant is proportional to the level of democracy in the state
in question, or the state’s position on the “democracy spectrum”: Kadenko v
Canada (Minister of Citizenship and Immigration) [1996] FCJ No 1376 at para
5; Avila v Canada (Minister of Citizenship and Immigration), 2006 FC 359
at para 30; Capitaine v Canada (Citizenship and Immigration) 2008 FC 98
at paras 20-22.
[11] Democracy alone does not ensure
effective state protection. The Board must consider the quality of the
institutions providing that protection. As well, the Board must look at
the adequacy of state protection at an operational level and consider persons
similarly situated to the applicant and their treatment by the state: Zaatreh
v Canada (Citizenship and Immigration), 2010 FC 211 at para 55.
[17]
In
the present case, the Board’s reasons as a whole indicate that it considered
the “mixed” evidence about the initiatives underway in Hungary and their effectiveness, and that this mixed evidence provided the context within which the
Board assessed the adequacy of state protection and the applicant’s efforts to
seek state protection.
[18]
The
Board canvassed the programs, policies, mechanisms, and institutions in Hungary that address discrimination, several of which had no application to the
circumstances of the applicants, but do demonstrate the range of initiatives
underway. The Board acknowledged that despite these initiatives, the Roma still
face discrimination, including from the police who may not always respond and
are sometimes the perpetrators of discrimination. However, the government has
taken measures to deal with corrupt, incompetent police officers.
[19]
The
Board also canvassed the educational system and noted that if the children
faced discrimination, the applicants could have sought recourse through the
Equal Treatment Authority, a body which provides recourse to members of
national and ethnic minorities with interactions with the authorities.
[20]
With
respect to the applicant’s submission that the Board failed to consider the
documentary evidence of recent increases in violence against Roma, which
demonstrates that state protection is inadequate and that the applicants would
face this violence upon their return, I note that the Board specifically
referred to the US Department of State Report, 2010, among other country
condition documents, which did indicate that violent and racially motivated
attacks were continuing. The Board referred to the public’s concern about the
racially-motivated violence and again noted that the government had established
a process to hold police accountable where they abuse their power or fail to
address racist violence.
[21]
As
the applicants submit, the Board referred to many agencies that would not have
been of benefit to them. I agree that many of the Board’s references to
measures implemented in Hungary to address racism, including the Minorities
Ombudsman and the Equal Treatment Authority, would not have any role in the
direct protection of Roma against violence. However, these agencies may have
been a resource with respect to the applicants’ concerns about the segregated
kindergarten class or the mistreatment in the hospital.
[22]
Both
the applicant and respondent agree that the police are primarily responsible
for state protection against violent attacks.
[23]
As noted by Justice de Montigny in Katinszki v Canada (Minister of Citizenship and Immigration), 2012 FC 1326, [2012] FCJ 1444 at para
15, it is the police that have the responsibility for the protection of
citizens:
[15]
The jurisprudence of this Court is very clear that the police
force is presumed to be the main institution mandated to protect citizens, and
that other governmental or private institutions are presumed not to have the
means or the mandate to assume that responsibility. As Justice
Tremblay-Lamer aptly stated in Zepeda v Canada (Minister of Citizenship and
Immigration), 2008 FC 491, [2009] 1 F.C.R. 237 at paras 24-25:
24
In the present case, the Board proposed a number of
alternate institutions in response to the applicants’ claim that they were
dissatisfied with police efforts and concerned with police corruption,
including National or State Human Rights Commissions, the Secretariat of Public
Administration, the Program Against Impunity, the General Comptroller’s
Assistance Directorate or through a complaints procedure at the Office of the
Attorney General (PGR).
25
I am of the view that these alternate institutions do not
constitute avenues of protection per se; unless there is evidence to the
contrary, the police force is the only institution mandated with the protection
of a nation’s citizens and in possession of enforcement powers commensurate
with this mandate. For example, the documentary evidence explicitly
states that the National Human Rights Commission has no legal power of
enforcement (“Mexico: Situation of Witness to Crime and Corruption, Women
Victims of Violence and Victims of Discrimination Based on Sexual
Orientation”).
See also: Risak v Canada (Minister of Employment and Immigration), [1994] FCJ no 1581, 25 Imm LR (2d) 267
at para 11.
[24]
The police are the key players with respect to the applicants’
experience and concerns about racially-motivated crime and crime in general. The
Board assessed the adequacy of state protection for the applicants in the
context of the circumstances the applicants had faced, i.e. that the applicants
had experienced two incidents and had sought police assistance on one occasion
and the police had responded.
[25]
With
respect to the test for state protection, the applicants allege that the Board
correctly set out the test only once at paragraph 11, and thereafter set out
the wrong test and applied the wrong test.
[26]
At
paragraph 11 of the decision, the Board noted:
“A claimant must show that they have taken all
reasonable steps in the circumstances to seek protection, taking into account
the context of the country of origin, the steps taken, and the claimant’s
interactions with the authorities. In determining whether protection is
adequate, it is important to analyse not merely whether a legislative and
procedural framework for protection exists, but also whether the state, through
the police or other authorities, is able and willing to effectively implement
that framework.”
[27]
Later
in the decision the Board commented that:
“It would be remiss for me to state that the
government’s efforts have eradicated corruption, however, based on the
preponderous (sic) of documentary evidence before me, and the circumstances
particular to this case, I find that Hungary is making serious efforts to
address the issues of corruption and criminality.” [my emphasis]
[28]
The
Board also acknowledged the inconsistencies in the documentary evidence,
however, the objective evidence of country conditions suggested that, while not
perfect, Hungary is making “serious efforts to address these problems,
and that the police and government officials are both willing and able to
protect victims.” [my emphasis]
[29]
The
Board further stated that state protection must be adequate and that no
government can guarantee the protection of all of its citizens at all times,
concluding as follows: “Consequently, as long as the government is taking serious
steps to provide or increase effective protection for individuals then the
individual must seek state protection.”[my emphasis]
[30]
The
applicant submits that the Board focussed on serious efforts and serious steps,
which is not the test, rather than focussing on the willingness and current
ability of the government to provide adequate state protection.
[31]
The Supreme Court of Canada set out the rationale underlying the
international refugee protection regime in Canada (Attorney General)
v Ward, [1993] 2 S.C.R. 689 at para 18. That regime is meant to be
relied upon when the protection one expects from the state in which the person
is a national is unavailable, and even then, only in certain situations. It is
considered to be surrogate or substitute protection in the event of a failure
of national protection. Persecuted individuals are required to first approach
their home state for protection before the responsibility of other states
becomes engaged.
[32]
There is a presumption that a state is capable of protecting its
citizens. The presumption can be rebutted by clear and convincing
evidence that state protection is inadequate or non-existent: Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 FCR 636 [Carrillo].
Such evidence must be reliable and have probative value; claimants “must adduce
relevant, reliable and convincing evidence which satisfies the trier of fact on
a balance of probabilities that the state protection is inadequate”: Carrillo,
above, at para 30.
[33]
The
jurisprudence has established that serious efforts of state protection are not
sufficient when there is no willingness or ability to provide adequate state
protection. The standard is adequate state protection, not perfection.
However, willingness on its own is not enough.
[34]
As
noted by Justice Kelen in Jaroslav v Canada (Minister of Citizenship and
Immigration), 2011 FC 634 at para 75, “Serious efforts by the state to
provide protection are relevant to, but not determinative of, the question of
whether protection is adequate. No standard of perfection is required.”
[35]
In
Cosgun
v Canada (Minister of Citizenship and Immigration), 2010 FC 400 at
para 52, Justice Crampton summed up the approach as follows:
[52] Based on the foregoing review of the cases cited by the
parties, I agree with the Respondent that the law is now well-settled that the
appropriate test for assessing state protection is whether a country is able
and willing to provide adequate protection. In short, a claimant for protection
under sections 96 or 97 of the IRPA must establish, with clear and convincing
evidence, and on a balance of probabilities, the inability or unwillingness of
the state to provide adequate protection. This burden of proof remains the same
regardless of the country being assessed, although the evidentiary burden required
to rebut the presumption of adequate state protection will increase with the
level of democracy of the state in question. (Carrillo, above, at paras.
25 and 26.)
[36]
In
Bledy v Canada (Minister of Citizenship and
Immigration), 2011 FC 210, [2011] FCJ 358
at para 47, Justice Scott noted:
[47] However, as this Court has pointed out on a number of
occasions, the mere willingness of a state to ensure the protection of its
citizens is not sufficient in itself to establish its ability. Protection must
have a certain degree of effectiveness: see Burgos v Canada (Minister of Citizenship and Immigration), 2006 FC 1537, 160 ACWS (3d) 696; Soto v Canada (Minister of Citizenship and Immigration), 2010 FC 1183 at para 32. As such, an
applicant can rebut the presumption of state protection by demonstrating either
that a state is unwilling, or that a state is unable to provide adequate
protection: see Cosgun v Canada (Minister of Citizenship and
Immigration), 2010 FC 400 at para 52.
[37]
Although
the Board referred to state protection many times and used different wording,
when the terms “serious steps” and “serious efforts” are read in their context,
it is apparent that the Board had the correct test for state protection in
mind, and was aware that both ability and willingness to provide adequate state
protection are necessary. The Board applied the correct test to the
circumstances of the applicants and assessed the applicants’ efforts to rebut
the presumption of state protection in the context of the “democracy spectrum”.
[38]
The applicants submit that the present circumstances are very
similar to those in Molnar v Canada (Minister of Citizenship &
Immigration), 2013 FC 296 [Molnar],
where this Court allowed the application for judicial review. In Molnar,
the applicants recounted several incidents of violence over the years. The
applicants made one attempt to report an incident and the police would not take
the report.
[39]
In Molnar, Justice Gagné found that the Board failed to
engage in a case specific and meaningful analysis of the evidence that
supported the applicant’s position and did not assess the mixed evidence,
similar to the mixed evidence in the present case, with a view to the
applicant’s situation. As a result, Justice Gagné noted that she was unable to assess
whether the Board had ignored relevant evidence.
[40]
The present case can be distinguished from Molnar. The
applicants reported one incident to the police and the police attended and took
a report. In addition, the Board consistently referred to the circumstances of
these applicants in assessing whether they had taken reasonable steps to rebut
the presumption of state protection in the context of the mixed evidence that
was before the Board. The Board referred extensively to evidence in support of
the applicant’s position as well as evidence of the initiatives underway to
address racism and discrimination. I cannot conclude that the Board ignored
relevant evidence.
[41]
The country conditions do not suggest that the situation is so
bleak that all Roma, regardless of their particular circumstances, should not
be expected to make reasonable efforts to seek state protection before seeking
refugee protection in another country.
Conclusion
[42]
The
Board considered the extensive and conflicting documentary evidence and considered
the circumstances of the applicants in that context. Although there is
jurisprudence from this Court which has found that there is inadequate state
protection for the Roma in Hungary, and as a result, the onus on the particular
applicants to rebut the presumption of state protection is low or non-existent,
each case must be determined on its facts. Moreover, the role of the Court is
not to re-weigh the evidence or re-make the decision of the Board in the
absence of an error on its part. In the present case, the Board’s decision that
there was adequate state protection for these applicants and that these
applicants had not rebutted the presumption of adequate state protection with
clear and convincing evidence was reasonable. The Board did not ignore or
misconstrue the evidence before it. The Board considered a wide range of
documents, referred to the key documents, and set out its findings in a
transparent manner to support the decision it reached.
[43]
The
application for judicial review is dismissed. No question was proposed for
certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application is dismissed
2. There is no question for
certification.
"Catherine M.
Kane"
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