Docket: IMM-4103-13
Citation:
2014 FC 956
Toronto, Ontario, October 8, 2014
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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LASZLO CSERKUTI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board [Board], dated May 7, 2013, finding that the applicant was neither a
Convention refugee nor a person in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act], on
the grounds that he did not rebut the presumption of state of protection and
that a viable internal flight alternative [IFA] exists for the applicant in
Hungary.
[2]
The applicant is a Hungarian citizen who was the
victim of a large human trafficking ring in Canada. Mainly a victim of Attila
Kolompar, he is not an ethnic Roma and describes himself as Magyar. He comes
from Papa, a small town situated around 200 kilometres from Budapest. In 2010,
he provided a witness statement to the Royal Canadian Mounted Police [RCMP].
His statement was provided as evidence to support the charges brought in Canada against the Hungarian organized crime group who were involved with trafficking in human
beings for Hungary. Kolompar pleaded guilty to the charges. In 2012, the
applicant appeared on the sentencing day to provide his victim impact
statement. The applicant fears that if he returns to Hungary, he would be
harmed by the Roma he implicated in crimes in Canada or by their family members
or other members of their criminal organization.
[3]
On May 7, 2013, the Board refused the
applicant’s claim for protection. The Board found that the applicant failed to
rebut the presumption of state protection with clear and convincing evidence. The
Board noted that the documentary evidence showed that various members of the
criminal organization had been charged with crimes in Hungary which indicates that the authorities prosecute those suspected of crimes, including those
the applicant fears. The Board also noted that Hungarian police had protected
the family members of another victim and that the applicant would be able to
access a witness protection program if necessary. Further, the Board indicated
that while there were problems with regards to police corruption and
deficiencies, these problems were not systemic and civilians had various modes
of redress if they were victim of police abuse. The Board also found that the applicant
would have an IFA in the city of Budapest as there was no credible evidence
that the individuals the applicant fears have any affiliation with criminals in
Budapest nor any credible evidence that they would know that the applicant
returned to Hungary or would attempt to locate him there. The Board added that
considering the educational and work background of the applicant, it would not
be unduly harsh for him to relocate to Budapest.
[4]
The point in issue in this case is whether the
Board fully considered and properly reviewed the evidence with regards to both
state protection and internal flight alternative. As this point is a question
of mixed fact and law, it is reviewable on the reasonableness standard (Dunsmuir
v New Brunswick, 2008 SCC 9; Canada (Citizenship and Immigration)
v Khosa, 2009 SCC 12).
[5]
The applicant submits that the impugned decision
is unreasonable. According to the applicant, the Board failed to consider the
effective nature of Hungary’s measures and instead only considered the efforts
made. This constitutes a reviewable error: Fazekas v Canada (Citizenship and Immigration), 2013 FC 694 [Fazekas] at para 9; Kina v Canada (Citizenship and Immigration), 2014 FC 284 at paras 49-50; Tar v Canada (Citizenship and Immigration), 2014 FC 767 at paras 75-79. The applicant further
argues that the Board failed to fully consider the documentary evidence which
contradicts the Board’s findings and did not properly review the evidence with
regards to the effectiveness of the measures taken by Hungary. In particular, the applicant’s counsel referred the Court during his oral
submissions to documents appended to the applicant’s affidavit in this judicial
review proceeding.
[6]
In turn, the respondent submits that the Board’s
decision is reasonable. Hungary is a functioning democracy and the applicant
therefore had a heavy onus to show that he shouldn’t be required to exhaust all
the recourses available domestically. While the applicant did indicate a
reluctance to approach the state for protection, the respondent argues that
there was not sufficient evidence to show that protection would be unavailable.
The respondent also submits that the applicant did not provide a reasonable
explanation for why he would not have an IFA in Budapest nor why it would be
unreasonable for him to move to Budapest. Finally, the respondent argues that
due consideration was given to the evidence submitted by the applicant and it
was open to the Board to conclude that the evidence was not clear and
convincing.
[7]
Before me, the applicant’s learned counsel,
relying on 2012 newspaper clippings, stated in reply that if the criminal
organization was able to hire a “hitman” to murder the victims of the human trafficking
ring in Hamilton (the project was never carried), he will never be safe in his
home country.
[8]
I find that the Board’s decision is reasonable
and constitutes an acceptable outcome in light of the evidence on record and
applicable legal principles. It is not the function of the Court to re-evaluate
the evidence that was before the Board, nor to come to my own conclusion with respect
to the allegations made by the applicant in his affidavit submitted in support
of the present application for judicial review.
[9]
First, contrary to what the applicant submits,
it is clear from a reading of the Board’s reasons that it fully considered the totality
of the evidence, including the effectiveness of the measures taken by Hungary. The Board repeatedly refers to the results of various measures, including the
protection the police provided to family members of one of the victims
(decision at para 28), the results of the operations aimed at eliminating
corruption within law enforcement agencies (decision at paras 35-38), the
increased identification of human trafficking victims (decision at para 40) and
the crime and sentencing rates in Hungary (decision at para 42). Unlike in Fazekas,
above, the Board considered the success level of the measures, not only their
existence. The Board also noted that the applicant recognized that the police
might investigate if he had problems with the people he feared and that some of
these people were already being prosecuted for unrelated crimes (decision at
paras 25-27). Indeed, the Board recognizes that evidence criticizing the
effectiveness of state protection exists, and that there are some problems,
notably police corruption and deficiencies (decision at paras 31, 42). However,
the Board comes to the conclusion that Hungary is making important efforts to
remedy these problems, efforts that have concrete results, and that state
protection, while not perfect, is adequate in the circumstances. This
conclusion is supported by the evidence and it not unreasonable.
[10]
Secondly, the Board’s conclusion with regards to
the IFA is also reasonable. The Board found that no credible evidence had been
submitted showing that the individuals feared by the applicant have any
connections to criminals or criminal organizations outside of Papa or that they
would know that the claimant returned to Hungary or would attempt to locate him
there. The Board indicated that the only evidence was speculative, remote and
unsubstantiated. The inference made by the Board is supported by the
applicant’s testimony, which indicated that he was not personally threatened prior
to his appearance in court in the sentencing of Mr. Kolompar, and there was no credible
evidence that the Kolompar family would be looking for him after his
appearance. The Board also indicated that if the applicant entered the witness
protection program, he could benefit from such measures as personal protection,
change of identity and change of residence. In addition, the Board found that
the educational and work background of the applicant showed that he would be
able to readjust to life in a different locality of Hungary and that it would
not be unduly harsh for him to reside in Budapest. The Applicant has not shown
that these findings were not reasonable.
[11]
For these reasons, the present application must
fail. Counsel did not raise any question of general importance.
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