Docket: IMM-1823-13
Citation:
2014 FC 510
Ottawa, Ontario, May 27,
2014
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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MARIO GYULA VARGA
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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]
What does it take to be a refugee? Is it enough to
simply prove that one is a Hungarian Roma? Mr. Varga’s counsel came perilously
close to making that submission. One of the reasons Mr. Varga’s asylum claim
was dismissed was that the Member of the Refugee Protection Division [RPD] of
the Immigration and Refugee Board of Canada was of the view that there was
adequate state protection in Hungary. Counsel submits that the analysis of
state protection was unreasonable. Indeed, it seems to me that her submission
is that the only reasonable assessment of country conditions in Hungary is that
each and everyone one of its 200,000 to 500,000 citizens of Roma background has
a well-founded fear of persecution for reasons of race, and that on the balance
of probabilities, each and every one’s life is at personal risk, or that each
and every one is at risk of cruel and unusual treatment or punishment.
[2]
If it be so, then Hungary is a failed state. Yet
it is not.
[3]
The Board Member, who heard Mr. Varga’s case, as
well as that of his mother and half-brother, dismissed his application on two
grounds: credibility and state protection. This is the judicial review of that
decision.
I.
Standard of Review
[4]
There is no controversy as to the standard of
review. The Board Member’s findings with respect to credibility and assessment
of state protection are based on reasonableness. This means that the Member is
entitled to deference, even if another member might have come to a different
conclusion. That, in itself, does not make the decision under review
unreasonable.
[5]
Mr. Varga’s application, together with that of
his mother, Agnes Kiss, and his half-brother, Rafael Kiss, were heard together.
Two grounds were asserted. They were all victims of domestic violence at the hands
of Mr. Varga’s father, who had been Ms. Kiss’ common-law partner until 1999.
They also feared persecution by the Hungarian Guard, or its successors,
Neo-Nazis and skinheads.
[6]
Although it is not in the record, counsel agreed
that the claims of Ms. Kiss and her son Rafael were accepted on the grounds of
domestic violence. While the Member’s finding that Mr. Varga was not at
serious risk from his father, her findings of credibility in that regard have
considerable bearing on her doubts that the racially motivated attacks he
recounted actually occurred.
[7]
During the hearing, Mr. Varga vacillated back
and forth with respect to his relationship with his father, who indeed assisted
him in obtaining a passport. He, now an adult, conceded that he did not
personally fear his father but rather feared for his mother and younger
brother.
[8]
One of the reasons he is no longer in touch with
his father is because (a variation on an old theme) his dog ate his cell phone in
which his father’s number was stored.
[9]
Turning to matters of race, the Member found,
quite justifiably, that Mr. Varga’s story improved with time. It began by being
bullied at school. He was then attacked and spent time in a hospital. He
reported his attack to the doctors. They, or he, may have reported it in turn
to the police. They may or may not have taken a report. He claims his efforts
to obtain a copy of the medical report were futile. It was not unreasonable for
the Member to reject that allegation.
[10]
Mr. Varga’s credibility was properly put in
doubt, and the Member was entitled to call for corroboration (Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302, [1979] FCJ No 248 (QL); Ahortar
v Canada (Minister of Employment and Immigration), (1993) 65 FTR 137,
[1993] FCJ No 705 (QL).
[11]
The Member was not satisfied that the attacks
asserted by Mr. Varga actually occurred. Consequently, there is nothing in his
past history in Hungary which would suggest that he would be personally at risk
if returned to Hungary. His claim has to be based on similarly situated
individuals.
II.
State Protection
[12]
One incident of note is that Mr. Varga’s father
beat his mother some years after they had separated. She complained to the
police and a criminal charge was laid. It appears that the matter did not
proceed because although subpoenaed, Mr. Varga’s father did not appear in court.
It seems he could not be convicted in absentia. Ms. Kiss was unable to
provide the authorities with his then current address. He is a violent pimp who
spent his time in Hungary and neighbouring countries.
[13]
Although this attack may not have been racially
motivated, it does serve as evidence that the police do come to the aid of Roma
citizens.
[14]
James C. Hathaway, The Law of Refugee Status,
1991, amply summarizes in a headnote, “persecution as the sustained or systemic violation of basis human rights
resulting from a failure of state protection.”
[15]
In this case, factions within the country are
the alleged perpetrators, and not the State itself. In Rajudeen v Canada
(Minister of Employment and Immigration), [1984] FCJ No 601 (QL), a
decision of the Federal Court of Appeal, Mr. Justice Heald, both for himself
and Mr. Justice Hugessen, reverted to dictionary definitions of persecution, as
the Immigration and Refugee Protection Act contains none. He said:
Accordingly, ordinary dictionary definitions
may be considered. The Living Webster Encyclopedic Dictionary defines
"persecute" as:
"To harass or afflict with repeated
acts of cruelty or annoyance; to afflict persistently, to afflict or punish
because of particular opinions or adherence to a particular creed or mode of
worship."
The Shorter Oxford English Dictionary contains
inter alia, the following definitions of "persecution":
A particular course or period of
systematic infliction of punishment directed against those holding a particular
(religious belief); persistent injury or annoyance from any source.
[16]
In concurring reasons, Mr. Justice Stone said:
It is, I think, proper that this expression of
underlying policy be taken account of in determining whether refugee status has
been extended to cover a particular case. Obviously, an individual cannot be
considered a "Convention refugee" only because he has suffered in his
homeland from the outrageous behaviour of his fellow citizens. To my mind, in
order to satisfy the definition the persecution complained of must have been
committed or been condoned by the state itself and consist either of conduct
directed by the state toward the individual or in it knowingly tolerating the
behaviour of private citizens, or refusing or being unable to protect the
individual from such behaviour.
[17]
This case turns, as Mr. Justice Stone said, on
whether Hungary refuses or is unable to protect Mr. Varga. This leads us to the
seminal decision of the Supreme Court in Canada (Attorney General) v
Ward, [1993] 2 S.C.R. 689, and the many cases which follow. Although some are
concerned with current trends, Hungary is a functioning democracy, and it was
incumbent upon Mr. Varga to establish with clear and convincing evidence that
the State was unwilling or unable to protect him in a meaningful way.
[18]
Counsel for Mr. Varga has cited fourteen recent
cases of this Court which have been granted judicial review with respect to
Hungarian Roma (Hercegi v Canada (Citizenship and Immigration), 2012 FC
250; Balogh v Canada (Citizenship and Immigration), IMM-1892-12; Sebok
v Canada (Citizenship and Immigration), 2012 FC 1107; Orgona v Canada
(Citizenship and Immigration), 2012 FC 1438; Varadi v Canada
(Citizenship and Immigration), 2013 FC 407; Budai v Canada (Citizenship
and Immigration), 2013 FC 552; Majoros v Canada (Citizenship and
Immigration), 2013 FC 421; Muntyan v Canada (Citizenship and
Immigration), 2013 FC 422; Beri v Canada (Citizenship and Immigration),
2013 FC 854; Moczo v Canada (Citizenship and Immigration), 2013 FC 734; Gulyas
v Canada (Citizenship and Immigration), 2013 FC 254; Ignacz v Canada
(Citizenship and Immigration), 2013 FC 1164; Horvath v Canada
(Citizenship and Immigration), 2013 FC 95 and Molnar v Canada
(Citizenship and Immigration), 2013 FC 296).
[19]
The Minister has only been able to muster up five
recent decisions in which judicial review has been dismissed (Botragyi v
Canada (Citizenship and Immigration), IMM-13187-12; Dudu v Canada
(Citizenship and Immigration), IMM-6686-13; Horvath v Canada
(Citizenship and Immigration), 2012 FC 253; Riczu v Canada (Citizenship
and Immigration), 2013 FC 888 and Ruszo v Canada (Citizenship and
Immigration), 2013 FC 1004).
[20]
What conclusion, if any, can we draw from these
statistics? Each case turns on the particular history of the claimant, the
record, the adequacy of the analysis by the Tribunal and, indeed, the
appreciation of that evidence by various judges of this Court (Banya v Canada (Citizenship and Immigration), 2011 FC 313, [2011] FCJ No 393 (QL), at para 4.
[21]
The Member dealt with state protection issues in
42 carefully reasoned paragraphs. It is not necessary to analyze each and every
fact she cited.
[22]
She has been criticized for her use of
statistics. She referred to a report where the European Roma Rights Centre
registered 61 attacks against Roma or their property between January 2008 and
September 2012. She acknowledged that there may well have been under-reporting.
It was submitted that she should have referred to other documentation which
indicates that violence is on the rise. However, on a thorough read of the
record, the tipping point of serious possibility has not been reached.
[23]
She noted there is a rise of right wing
extremist groups such as the disbanded Hungarian Guard and the rhetoric of one
particular party, Jobbik.
[24]
She recognized ongoing challenges with societal racism,
as well as the response of the Government. Her assessment of Hungary was mixed. There were local failures to provide effective policing but this does
not amount to a lack of state protection unless it is part of a broader pattern
of state inability or refusal to provide protection. There was no such
pervasive evidence in her opinion.
[25]
There was evidence of police orders putting an
end to the marching of vigilante groups and the persecution of those involved
in racial acts of violence.
[26]
The Member did not simply rely on good
intentions, which have not come to fruition, but concluded that there is,
objectively, at the present time, adequate state protection.
[27]
Counsel for the Minister submits that I am being
asked to reweigh the evidence. I agree.
[28]
The issue is not whether another Member of the
RPD may have come to a different conclusion. The issue is whether the decision
is reasonable. I find that it is.
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