Docket: IMM-1551-13
Citation:
2014 FC 498
Ottawa, Ontario, May 26,
2014
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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MIKLOS LASZLO IVANCSIK
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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]
There is widespread discrimination against Roma
in Hungary; of that there can be no doubt. However, the issue in this judicial
review is whether the decision of a member of the Refugee Protection Division
of the Immigration and Refugee Board of Canada which held that Mr. Ivancsik was
neither a refugee within the meaning of the United Nations Convention and s. 96
of the Immigration and Refugee Protection Act, nor a person in need of
Canada’s protection under s. 97 of the Act, was unreasonable.
[2]
In brief, it was found that the discrimination
faced by Mr. Ivancsik did not amount to persecution and because of the
availability of state protection, he would not be at undue risk should he be
returned to Hungary.
[3]
The decision turns upon the distinction between
discrimination on the one hand and persecution on the other, as well as on the
availability of state protection. However, counsel for the applicant points out
that between paragraphs 7 and 8 of the reasons, the Member had inserted the
heading “Determinative Issues” and that paragraph 8 reads: “The determinative issues are credibility, discrimination vs.
persecution, and state protection.”
[4]
However, there were no actual adverse findings
of credibility set out in the Reasons. There is reference to the recounting of an
event concerning Mr. Ivancsik’s neighbour being unreliable because the
information was hearsay, but that is a far cry from a finding that he was not
credible.
[5]
Counsel for the applicant submits that we must
take the words at face value. It follows that credibility issues must have
permeated the Member’s thinking, even though she did not set out what those
issues were. Therefore, the decision is unreasonable in accordance with Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[6]
I find this reasoning to be somewhat circular.
Credibility has to be considered in every refugee claim. The Member was merely
stating the obvious. Furthermore, one begins with the rebutable presumption
that the applicant is telling the truth (Maldonado v Canada (Minister of
Citizenship and Immigration), [1980] 2 FC 302, [1979] FCJ No 248 (QL)). The
Member never said that this presumption was rebutted.
[7]
This leaves us with discrimination versus
persecution, and state protection.
I.
Discrimination versus Persecution
[8]
Although Mr. Ivancsik, as a Roma, may well have
been denied educational opportunities, and did not go past grade 8, he was
employed more or less regularly. The Member cannot be faulted for holding that,
looking forward, those events in the distant past did not forecast persecution.
[9]
He was attacked in 2009 on his way home from
work by a group of Neo-Nazis and again in 2011. In his amended Personal
Information Form, he added that in the summer of 2010 he had been thrown off a
bus by three members of the Hungarian Guard (the record shows that although the
Hungarian Guard had been banned by that time its successors carried on).
[10]
It was not unreasonable for the Member to hold
that these criminal assaults based on race did not add up to persecution. However,
even if they did, her analysis of state protection was satisfactory.
II.
State Protection
[11]
While good intentions to protect its citizens
are not enough, one cannot demand absolute perfection. The issue is adequacy,
and there is a presumption that must be rebutted with clear and convincing
evidence that the state was unwilling or unable to protect Mr. Ivancsik (Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689).
[12]
Counsel submitted a number of cases in which
this Court has held that the analysis done by various members of the RPD of
state protection in Hungary was inadequate. These cases depend on the personal
history of the applicants, country conditions, the rationale of the member, and
this Court’s assessment of those reasons.
[13]
The analysis of state protection is very
detailed. Although in one incident Mr. Ivancsik was shunned and insulted by the
local police, and in the other they refused to investigate on the basis that there
were no witnesses; he did not pursue the matter further. The record shows there
were NGOs available to assist him in pressing on, and that in many such cases this
assistance had been effective.
[14]
The Member’s reasoning in this case differs from
Biro v Canada (Citizenship and Immigration), 2012 FC 1120, [2012] FCJ No
1282 (QL) and Pinter v Canada (Citizenship and Immigration), 2012 FC
1119, [2012] FCJ No 1204 (QL). In those cases, the applicants’ credibility was
put in issue because the Member considered it was unreasonable for the
claimants to say the police did nothing.
[15]
One can find almost anything one wants in the country
conditions pertaining to Hungary. The question is whether the Member was
“cherry picking”. In my view, she was not. The United States Department of
State Reports on Human Rights Practices dealing with Hungary in 2012 points out
the government’s effective mechanisms to investigate and punish abuse and
corruptions. In its 2012 Report, Amnesty International reiterates that
discrimination against Roma remained entrenched. However, the Hungarian Civil
Liberties Union submitted complaints to the prosecutor regarding cases in which
the police had failed to investigate. The prosecutor ordered the police to
reopen some investigations. Canada’s Documentation Package with respect to the
Hungarian Guard shows steps that had been taken by the police, and some favourable
reaction by Roma and Jewish Groups.
[16]
While it is true that one need not be a hero,
and be killed to prove a point, it was not unreasonable for the member to find
that Mr. Ivancsik had prematurely simply walked away.
[17]
The Member referred to a 2008 report which was
not in the country conditions indicating that there had been 12 reported
attacks against Roma in that year. She was of the view that this was a fairly
low percentage given the population of the country. She should have referred to
later reports. However, those reports do not really change the situation.
Although the numbers are higher, they are spread out over a longer period and
do not indicate much of an increase in reported violence.
[18]
In conclusion, and considering the deference
owed to the Member, it cannot be said that the decision was unreasonable.
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