Date:
20130812
Docket:
IMM-7516-12
Citation:
2013 FC 860
Ottawa, Ontario,
August 12, 2013
PRESENT: The
Honourable Mr. Justice Roy
BETWEEN:
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GYORGY BENCSIK, GYROGYNE
BENCSIK, EDINA BENCSIK, VIKTOR BENCSIK, GYORGY BENCSIK
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Panel), rendered on July 5,
2012, which denied refugee status to Mr. Gyorgy Bencsik, together with his wife
and three children (the applicants). This application is made pursuant to
section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27
(the Act).
[2]
The
applicants raise two issues on this application, both concerning state
protection. First, did the Panel apply the correct test with respect to state
protection? Second, did the Panel err in its application of the test?
[3]
The
applicants did not press a third ground, concerning an earlier allegation of
bias against the Panel. There was no argument presented to that effect, and the
matter is considered abandoned.
I. Facts
[4]
Given
the nature of the grounds raised by the applicants and the conclusion I have
reached, it will not be necessary to delve into the facts of this case. A short
summary will suffice for our purpose.
[5]
The
applicants are citizens of Hungary of Roma ethnicity. They arrived in Canada on April 24, 2011 and initiated a refugee claim, based on persecution they were
subjected to in Hungary. A number of specific incidents of violence are the
basis for the refugee claim. It appears that five physical assaults took place
between 1998 and 2009, with reports being made to the police on two or three
occasions.
II. Decision impugned
[6]
The
Panel chose to deal with the application solely on the basis of state
protection. The decision did not turn on credibility, whether the incidents
took place or whether they are enough to open the door to the application of
sections 96 and 97 of the Act.
[7]
Having
assumed that the applicants have been victims of violent attacks by skinheads,
the Panel goes on to find that they would benefit from state protection if they
return to Hungary.
[8]
The
presumption of state protection can be rebutted, but that will require clear
and convincing evidence on the part of the applicants. Actually, the burden is
made heavier if the country under consideration is a well functioning country.
[9]
There
appeared to be some uncertainty as to the test the Panel sought to apply. It seems
to have found that a test of “whether the state is in effective control of its
territory, has military, police and civil authority in place, and is making
‘serious efforts’ to protect its citizens” was considered (para 30, Panel
decision).
[10]
The
Panel considered documentary evidence regarding Hungary from which it seems to
have found that state protection exists. While acknowledging ancient and deep
seeded prejudices against Romani people, the Panel found that efforts have been
made in Hungary to address the issue. More police resources have been
dedicated, avenues of redress have been created, and some groups known to
inflict mistreatment on Roma are being monitored by the authorities.
[11]
Without
claiming that the human rights situation is ideal, the Panel is satisfied that
state protection is available. To be more precise, the Panel finds that the
evidence falls short of establishing that state protection is unavailable.
Given the laws and redress mechanisms, Hungary is willing to protect the Roma
(para 45). Thus, the Panel appears to find sufficient state protection in that
there are in place laws and redress mechanisms.
[12]
The
panel also suggests a measure of effectiveness in law enforcement when it
states at the end of paragraph 45:
… The evidence of convictions, police responses to
crime, and other state actions in the documentary record shows that Roma are
being defended by the state in practice. The protection is imperfect, but not,
I find, inadequate.
However, the only evidence offered
in support of such a statement seems to be four arrests in August 2009. This
comes after the Panel had reckoned that the failure by the applicants to go to
the police is not implausible, given that the applicants “believed that the
police could not help them with these problems” (para 33). After all, attacks
are committed by unidentifiable assailants. That, however, leaves the issue of
the adequacy of the measures, or their effectiveness in a quandary.
III. Standard of review
[13]
The
parties disagreed on what the standard of review ought to be. The applicants
claim that the standard of correctness applies to the issue of the test to be
used to determine the existence of state protection. Is it sufficient that
efforts be made, or is something more required, something in the nature of a
measure of effectiveness for state protection to be available and adequate?
Once the test has been identified, the applicants argue that reasonableness
will be the standard against which the evidence about state protection will be
measured.
[14]
The
respondent counters that either issue is reviewable on a reasonableness
standard. He insists that deference is owed to the decision-maker.
IV. Arguments
[15]
In
essence, the applicants argue that the state protection test used by the Panel
is wrong in that state protection must be efficient, without being perfect, in
order to satisfy our law. On that account, they contend that the Panel’s
decision is deficient because it did not establish that measures taken abroad
have been efficient. Such decision is reviewable on a correctness standard. The
Panel’s decision should be quashed also because it did not use the right test
and could not satisfy the proper test, which makes the decision unreasonable.
[16]
The
respondent takes the opposite view. The evidence proffered by the applicants
was neither clear nor convincing that state protection was not available.
Perfection cannot be achieved. The respondent did not offer case law to counter
the jurisprudence submitted on behalf of the applicants. Instead, he sought to
distinguish cases.
V. Analysis
[17]
I
believe that this case has to be sent back for redetermination.
[18]
This
Panel has chosen to take for granted that the incidents involving these
applicants have taken place and are sufficient to open the door to the application
of section 96 of the Act, concentrating its attention on the issue of state
protection.
[19]
It
is not easy to establish the test the panel purports to follow here. At one
point, it speaks of protection “adequate though not necessarily perfect”; a few
lines later, it speaks in terms of “serious efforts” (para 30). Yet, later it
speaks in terms of state protection being unavailable as being the test (para
45). In that same paragraph, the Panel finds that “protection is imperfect, but
not, I find inadequate.”
[20]
The
evidence noted by the Panel reflects the existence of laws and mechanisms, but
seems to be satisfied with the arrest of four suspects in August 2009, who were
subsequently charged. Similarly, the monitoring by Hungarian authorities of the
Hungarian Guard, a nationalist group, seems to have produced charges of some
sort in 2009 and 2010. The reader is left without knowing what happened to
those charges and indeed what they were about. Nothing recent on the adequacy
of state protection is presented in support of the rejection of the
application.
[21]
As
has been often repeated since 2008, courts acting on judicial review cannot be
subservient to the determination of decision makers even though deference is
required where the standard of review is reasonableness. It is not unhelpful to
quote again paragraph 47 of Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190:
[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.
[22]
Here,
the reasons for the decision remain unclear as to the test that was applied as
well as to the sufficiency of the evidence found in support of the Panel’s conclusion
that the evidence was not clear and convincing enough to rebut the presumption
of state protection.
[23]
In
Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador
(Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Nurses’ Union],
the Court quoted with approval the Federal Court of Appeal in Canada Post
Corp. v Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 FCR 221,
in agreeing that reviewing courts should ask whether “when read in light of the
evidence before it and the nature of its statutory task, the Tribunal’s reasons
adequately explain the bases of its decision” (Nurses’ Union at para
18). At the end of the day, the test will be whether the reviewing court
understands why the decision was made:
… In other words, if the reasons allow the reviewing
court to understand why the tribunal made its decision and permit it to
determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
Nurses’ Union at para 16.
[24]
With
respect, I have not been able to conclude that the reasons for the decision in
this case meet that test.
[25]
There
have been many different judgments rendered by this Court in the last few
months concerning the state protection for Romani people in Hungary. That suggests that a case-by-case analysis is particularly important as a
difference in circumstances might well generate a different outcome. The
abundant case law on refugee status seekers of Roma ethnicity of the last few
months is an illustration of the need for precise findings and analysis.
[26]
In
the case at bar, it is not clear what test for state protection was applied
and, perhaps more importantly, the reasoning leading to the decision is too
generic to allow this reviewing court “to determine whether the conclusion is
within the range of acceptable outcomes.” As was noted recently by my colleague
Justice Simon Noël, in Horvath v Canada (minister of Citizenship and
Immigration), 2013 FC 788 [2013] FCJ No 852 (QL), yet another case
involving a family of Roma ethnicity from Hungary, state protection cannot be
determined in a vacuum. He referred to the factors to be taken into account,
suggesting that a simplistic analysis might not suffice. He cited Justice Zinn
in Ortega v Canada (Minister of Citizenship and Immigration), 2009 FC
1057 at para 24, [2009] FCJ No. 1295 (QL), to the effect of that “[t]he
willingness and ability of states to protect their citizens may be linked to
the nature of the persecution in question. In short, context matters”. I share
that view.
[27]
As
a result, the application for judicial review succeeds and the matter should be
remitted back to a differently constituted Panel. My Reasons for judgment
should not be taken as having taken a view as to whether the applicants are
entitled to refugee status. This is an issue that is entirely in the province
of the new Panel that will have to take a fresh look to this application.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is granted.
2.
The
matter is remitted to a differently constituted Panel for a new determination.
3.
No
question is certified.
“Yvan Roy”
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