Docket: IMM-2741-14
Citation:
2014 FC 1182
Ottawa, Ontario, December 9, 2014
PRESENT: The
Honourable Mr. Justice S. Noël
|
BETWEEN:
|
|
Gabor Tamas CSURGO,
Ildiko GEGENY,
Gabor Martin CSURGO
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an Application for leave to commence an
application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of Me Haig
Basmajian of the Refugee Protection Division [RPD] dated March 20, 2014, which
held that the Applicants were not Convention Refugees nor persons in need of
protection within the meaning of sections 96 and 97 of the IRPA.
II.
Facts
[2]
The Applicants, the principal Applicant, Gabor
Tamas CSURGO, his common-law partner, Idiko Gegeny and their young son, Martin
Csurgo, are Hungarian citizens of Roma ethnicity. They generally allege that
they were, through the years, subject to discrimination and racism at school,
work and in general.
[3]
In 2007, the main Applicant was beaten by
bouncers when attempting to enter a bar with friends and did file a complaint
with the police.
[4]
On September 11, 2011, the main Applicant’s best
friend was killed by a racist extremist.
[5]
In 2012, he got involved in different
socio-political organisations that aim to ameliorate the situation of Romas.
[6]
During a general assembly meeting in July 2012,
members from the Jobbik extreme right party attempted to gain Roma’s support in
exchange of financial considerations. The main Applicant is said to have
convinced his colleagues to refuse the Jobbik party’s offer.
[7]
Supporters of the Jobbik group subsequently made
an attempt on the life of the main Applicant on October 16, 2012, where the
latter was attacked by two skinheads armed with a knife, an incident for which
he was hospitalized. The Applicants all left Hungary six weeks later, while the
police was still investigating the attack.
[8]
They arrived in Canada on November 28, 2012.
[9]
They requested asylum on December 3, 2012.
III.
Contested Decision
[10]
The identities of the Applicants are not in
dispute.
[11]
The RPD is of the opinion that state protection
is the central issue of this case.
[12]
The RPD first explains that there is a presumption
that states are able to protect their citizens (Canada (Attorney General) v
Ward, [1993] 2 RCS 689 [Ward]), and that the burden of proof lies
with the Applicants to show the absence of state protection. The RPD recognizes
that, based on the documentary evidence provided, there are difficulties in
protecting Romas in Hungary, but that the government is aware of those
difficulties and is implementing mechanisms to rectify the situation.
Considering the evidence provided, the Applicants did not demonstrate in a
convincing way that there is an absence of state protection with regards to the
Applicants if they were to return to Hungary.
[13]
The RPD also takes into account the fact that
the main Applicant explained that police officers, on two occasions, took
notice of the incidents involving the main Applicant and made incident reports.
The main Applicant did not, however, submit those incident reports to the RPD
and maintained that nothing came out of those reports.
[14]
The RPD finally notes that the Applicants have
established themselves in Canada and that they have family here as well. They
put a lot of efforts into learning Canada’s official languages and integrated
themselves very well into the workforce. Although these are important aspects
of their case, the RPD does not have the jurisdiction to take them into account
in a refugee claim. Another proceeding could consider those important points.
[15]
The Applicants are therefore neither Convention
refugees nor persons in need of protection.
IV.
Parties’ Submissions
[16]
The Applicants submit that in analysing the
availability of state protection, the RPD had to focus on the actual
operational adequacy of state protection and not the willingness of the
government to address the issues. The Respondent replies that the Applicants
did not show that state protection was unavailable in Hungary, since no clear and convincing evidence was provided to that effect by the
Applicants.
[17]
The Applicants also raise the issue that the RPD
failed to assess whether the state is actually able to provide state protection
to the Applicants, with regards to their own experiences. They submit that the
RPD’s finding that the Applicants did not refute the presumption of state
protection in part because the Applicants left Hungary six weeks after
reporting the stabbing incident to the police is unreasonable. The Applicants
are of the opinion that this does not mean that adequate state protection would
have been forthcoming had they stayed in Hungary. They add that there is no
requirement to seek state protection where it would not be reasonably
forthcoming. The Respondent argues, however, that the Applicants failed to
rebut the presumption of the availability of state protection because they did
not seriously attempt to obtain state protection and because there is no evidence
of a complete breakdown of the State apparatus.
[18]
The Applicants also raise the point that the RPD
failed to analyse the impacts of Hungary’s measures on the protection of Romas
against extremist violence in light of the evidence cited by the RPD in its decision
that indicates that the measures taken have had little effects. The Respondent
responds that it is up to the RPD to weigh the evidence and evaluate the
situation in Hungary.
V.
Applicants’ Reply
[19]
The Applicants’ reply, first of all, to the
Respondent’s argument stating that the Applicants did not rebut the presumption
of state protection with respect to the Applicants’ position that the RPD
failed in its evaluation as to whether or not the efforts of the Hungarian
government translated into adequate operational protection. The Applicants
state that the Respondent’s position is without merit and has been rejected by
this Court in Kina v Canada (Minister of Citizenship and Immigration),
2014 FC 284, [2014] FCJ No 304 at para 53 [Kina]. The Applicants state that
this Court has reiterated on numerous occasions that the RPD errs when it does
not assess the operational adequacy of state protection. The intervention of
this Court is thus warranted.
[20]
Second, in response to the Respondent’s argument
that the Applicants failed to exhaust all of their recourses in Hungary before
demanding refugee protection in Canada (an argument raised in the Respondent’s
original memorandum, but not in their supplementary memorandum), the Applicants
argue that the unreasonable assessment by the RPD of the adequacy of state
protection prevented a meaningful evaluation of whether or not state protection
would have been reasonably forthcoming to the Applicants had they sought
recourses in Hungary.
VI.
Respondent’s Supplementary Memorandum
[21]
The Respondent’s supplementary memorandum mainly
reiterates their main arguments from their original memorandum, with the
exception of excluding their original argument stating that the Applicants did
not exhaust all of their recourses in Hungary before demanding refugee
protection in Canada.
VII.
Issue
[22]
The Applicants submit that the RPD’s state
protection analysis is unreasonable.
[23]
The Respondent submits the following issue:
- Was it reasonable to conclude that the
Applicants did not show that Hungary could not protect them?
[24]
After reviewing the parties’ submissions, I
agree with the Respondent’s formulation of the issue.
VIII.
Standard of Review
[25]
Both parties agree that the standard of review
is that of reasonableness. Indeed, the question as to whether or not it was
reasonable to conclude that the Applicants did not show that Hungary could not
protect them, an issue addressing state protection, raises questions of mixed
facts and law and is to be reviewed on a reasonableness standard (Ruszo v
Canada (Minister of Citizenship and Immigration), 2013 FC 1004, [2013] FCJ
No 1099 at para 22). The Court shall only intervene if it concludes that the
decision is unreasonable, where it falls outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9
at para 47).
IX.
Analysis
[26]
It is evident that the RPD’s decision, when
dealing with state protection in Hungary, does not concern itself with whether
or not the state protection shows operational adequacy. It limits itself to
enumerating the different measures being taken to show state protection, but it
does not explain how these measures actually provide adequate protection. The
willingness of the government in setting up measures is certainly a good
beginning, but it must also be that there are, in reality, offering an
actualized protection. The jurisprudence of this Court on such a matter is well
established (Horvath v Canada (Minister of Citizenship and Immigration),
2013 FC 95; Gulyas v Canada (Minister of Citizenship and Immigration),
2013 FC 254; Buri v Canada (Minister of Citizenship and Immigration),
2014 FC 45; Katinszki v Canada (Minister of Citizenship and Immigration),
2012 FC 1326; Biro v Canada (Minister of Citizenship and Immigration),
2012 FC 1120; Hercegi v Canada (Minister of Citizenship and Immigration),
2012 FC 250; Garcia Bautista v Canada (Minister of Citizenship and
Immigration), 2010 FC 126; Lopez v Canada (Minister of Citizenship and
Immigration), 2010 FC 1176). Moreover, Justice Mosley’s analysis in E.Y.M.V.
v Canada (Minister of Citizenship and Immigration), 2011 FC 1364 at para 16
applies to the case at bar:
The Board did not provide any analysis of the
operational adequacy of the efforts undertaken by the government of Honduras and international actors to improve state protection in Honduras. While state’s efforts are
indeed relevant to an assessment of state protection, they are neither
determinative nor sufficient (Jaroslav v Canada (Minister of Citizenship and
Immigration), 2011 FC 634, [2011] FCJ No 816 at para 75). Any efforts must
have “actually translated into adequate state protection” at the operational
level (Beharry v Canada (Minister of Citizenship and Immigration), 2011
FC 111 at para 9).
[27]
Does that error make the RPD decision
unreasonable? The Applicants have presented evidence of a 2007 incident
involving the main Applicant, which shows that the police involvement did not
trigger any result. A complaint was filed with the police after the main
Applicant was assaulted by bouncers at a bar; the aggressors from the bar were
identified. After six months, the police decided that nothing could be done.
The credibility of the Applicants is not questioned, as both counsel noted, but
the RPD criticized the main Applicant for not having filed the report or
obtained the documentation. In fairness to the Applicants, the documentation of
events that occurred seven years ago is not easy to obtain and more so when it
was unforeseen then that it could have been useful in 2014.
[28]
The most recent event of 2012, where the main
Applicant was attacked and stabbed in the stomach by two individuals in a
public street in Budapest shows some actualization of police involvement. While
the main Applicant was in the hospital, the police went to him to ask for his
version of the events and to begin an investigation. The Applicants left Hungary six weeks after the stabbing incident and did not do any follow up with the police
as to the status of the investigation.
[29]
As noted in the RPD decision, at paragraphs 11
and 12, Hungary does show weaknesses with the state protection of the Roma
minority, but notes that it is establishing remedies to improve this sad
situation (« cette situation malheureuse »). It went on to enumerate what was
being done.
[30]
Having concluded on the poor status of the state
protection in Hungary and what was being done to improve it; it then became
essential for the RPD to review what was actually being effectively done. As
mentioned above, it did not.
[31]
As seen in paragraphs 15 and 16 of its decision,
the RPD, in effect, blames the main Applicant for not submitting a police
report of the incidents of 2007 and 2012 in order to demonstrate that the
Applicants did not show that there was an absence of state protection. Under
the present circumstances, this is partly unfair (the incident of 2007 goes
back seven years ago and the credibility of the main Applicant is not in
question). The RPD itself did conclude that state protection was inadequate,
that measures were being taken, but did not comment on the operational adequacy
of these measures as the jurisprudence of this Court requires.
[32]
It may be, at the next hearing, that the
evidence will show that the investigation of 2012 has produced tangible
results, whatever this may be, but at the present, the flaw in not doing a
proper assessment of the operational adequacy of the state protection prevails
and is fatal. For these reasons, the RPD’s decision is unreasonable.
X.
Conclusion
[33]
For the reasons mentioned above, the application
for judicial review is granted.
[34]
The parties were invited to submit questions for
certification, but none were proposed.
Email this Content