Docket: IMM-1412-13
Citation:
2014 FC 892
Ottawa, Ontario, September 18, 2014
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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ROMEO MECI
ANIKO MECINE VASVARI
DANIEL STEFAN MECI
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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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JUDGMENT AND REASONS
[1]
The applicants seek judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the RPD), dated January 16, 2013, which held that they were
not Convention refugees nor persons in need of protection within the meaning of
sections 96 and 97 of the Immigration and Refugee Protection Act, (SC
2001, c 27) (the Act).
[2]
For the reasons that follow, the application is
dismissed.
I.
Background
A.
The Applicants’ Refugee Protection Claim
[3]
The principal applicant, Romeo Meci, his wife,
Anik Mecine Vasvari, and their minor son, Daniel Stefan Meci, are citizens of Hungary. Mr. Meci is, however, of Albanian ethnicity and a naturalized citizen of Hungary. The family lived in Budapest before leaving for Canada on June 8, 2011.
[4]
Two days after their arrival in Canada, the applicants sought refugee protection under sections 96 and 97 of the Act. They
alleged a fear of persecution by right-wing extremists in Hungarian society
because of Mr. Meci’s origins.
[5]
In support of that claim, Mr. Meci stated that,
beginning in February 2008, he was subjected to humiliation, harassment,
discrimination and physical violence up to a point where he and his family
feared for their lives and decided to leave Hungary. In particular, he claimed
that he was the victim of a number of incidents, including physical assaults,
death threats as well as damages to his property.
[6]
The first incident occurred in February 2008
when he was attacked by an unknown group of men based on what he believed was
discrimination due to his Albanian origins. Mr. Meci did not, at the time,
seek assistance or protection from the police as he feared for his safety. The
second incident took place on March 15, 2011. Mr. Meci was assaulted by
members of the Hungarian Guard (the Guardsmen) after noticing his foreign
accent. They threatened to kill him if he did not leave Hungary with his family. Mr. Meci sought no medical or police assistance after this assault. In
the following two months, Mr. Meci and his family received several death
threats and on May 20, 2011, Mr. Meci was severely beaten by the same group of
Guardsmen, leaving him unconscious. He was found by a police officer who took
him to the police station where he filed a report.
[7]
On June 3, 2011, a police officer visited the applicants’ home to
recommend withdrawing the police report relating to the May 20, 2011 incident.
When asked by the applicants whether some form of police protection could be
expected, the police officer stated that the police did not have the capacity
to accommodate such a request.
[8]
As indicated above, the applicants left Hungary for Canada on June 11, 2011 and applied for refugee protection on June 13, 2011.
B.
The Decision Under Review
[9]
The applicants’ claim was dismissed on January 16, 2013. The attacks on Mr. Meci and the applicants’ fear of persecution in Hungary were not discussed by the RPD. The RPD did not review the events that lead
to the refugee claim. Rather, the focus was on the existence of a viable
Internal Flight Alternative (IFA) and the rebuttal of the state protection
presumption.
[10]
With regard to the IFA, the RPD found
that no evidence was provided in order to establish that people of Albanian
ethnicity are targeted by the Guardsmen across Hungary. The RPD found that the
documentary evidence adduced by the applicants referred to the discrimination
and persecution of the Roma minority in Hungary and not to other groups, such
as Albanians.
[11]
As a result, the RPD concluded that it was not unreasonable for
the applicants to relocate away from Budapest to a place where minorities other
than the Roma are not specifically the object of nationalistic persecution. In
particular, the RPD found that Mr. Meci had failed to explain why the Guardsmen
would try to locate him anywhere in Hungary and kill him or how they would know
where he and his family had relocated.
[12]
On state protection, the RPD found that
the applicants had failed to rebut the presumption of state protection. In
particular, it ruled that Mr. Meci, after having been informed, following the
May 20, 2011 incident where he was severely beaten, that the police did not
have the capacity to accommodate his request for protection, had failed to seek
protection from higher police or government authorities. The RPD concluded
that no clear and convincing evidence was adduced of the state’s unwillingness
to protect the applicants or of the inadequacy of state protection in Hungary.
II.
Issue and Standard of Review
[13]
The issue raised by this judicial review application
is whether the RPD, in concluding as it did, committed a reviewable error as
contemplated by section 18.1(4) of the Federal Courts Act, RSC, 1985, c
F-7.
[14]
The applicants contend that the RPD’s findings
in relation to the IFA were unreasonable and were reached in violation of
procedural fairness. They also claim that the RPD misapplied the legal test
regarding state protection and that its finding regarding the applicants’
failure to rebut the presumption of state protection was unreasonable.
[15]
As I have come to the conclusion that there is
no basis to interfere with the RPD’s state protection finding, it will not be
necessary to determine whether the RPD’s IFA finding warrants intervention from
this Court.
[16]
In coming to that conclusion I have applied the
standard of reasonableness. Indeed, issues related to state
protection are questions of mixed fact and law which, given the RPD’s expertise
on this subject matter, attracts deference (Montero Velez v Canada (Public
Safety and Emergency Preparedness), 2013 FC 589, at para 22; Romero
Davila v Canada (Minister of Citizenship and Immigration), 2012 FC 1116, at
para 26; Nzayisenga v Canada (Minister of Citizenship and
Immigration), 2012 FC 1103 at para 25; Gulyas v Canada (Minister
of Citizenship and Immigration), 2013 FC 254, 429 FTR 22, at para 38).
[17]
This standard of review, as is well established,
means that the Court shall not interfere with the RPD’s decision unless it
lacks justification, transparency and intelligibility and falls outside the
range of possible, acceptable outcomes, defensible in fact and in law (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 47).
III.
Analysis
A.
Introduction
[18]
As I have previously indicated, I am of the
view, after a careful review of the record and consideration of the parties’
written and oral submissions, that the applicants’ judicial review application
must be dismissed as I am unable to conclude that the RPD’s finding regarding
state protection is unreasonable. As the presumption of state protection has
not been rebutted, there is no need to consider whether the RPD erred in
finding that a viable IFA was available to the applicants.
[19]
As stated by this Court in Katinszki v Canada
(Minister of Citizenship and Immigration), 2012 FC 1326, 421 FTR 107 at
paragraph 12, a finding of state protection normally precedes an analysis with
respect to an IFA because if the state is able and willing to protect a refugee
claimant, there is no need to consider whether there is a particular area in
that state where that claimant would be safe.
[20]
The notion of an IFA consists of the two-prong
test : the RPD must be satisfied, on a balance of probabilities, that there is
no serious possibility of the refugee claimant being persecuted in the part of
the country in which it finds an IFA exists and that the conditions in that
part of the country are such that it would not be unreasonable for the claimant
to seek refuge there (Rasaratnam v Canada (Minister of Employment and
Immigration), [1992] 1 FC 706 (C.A.), [1991] FCJ No. 1256 (QL), at para 10;
Katinszki, above, at para 11; Ramirez v Canada (Minister of
Citizenship and Immigration), 2010 FC 600, at para 4).
[21]
The first prong of that test requires the
refugee claimant to demonstrate that the state is unable to protect him or her
in the proposed IFA. To that extent, there is an overlap between the state
protection and IFA analyses as a finding that there is no serious
possibility of persecution may flow either from a low risk of persecution or
the presence of state resources to protect the claimant (Katinszki, above
at para 12; Velasquez v Canada (Minister of Citizenship and Immigration),
2010 FC 1201, at para 16).
[22]
As a result, even accepting that the RPD’s IFA
finding is fatally flawed in some respect, as contented by the applicants, such
outcome would not be dispositive of the present application, as the RPD found
that the applicants had not rebutted, with clear and convincing evidence, the
presumption that the state of Hungary was able and willing to protect them from
possible persecution.
[23]
The fact that the RPD proceeded first to an IFA
analysis is not fatal either as its decision must be read as a whole (Katinszki,
above at para 12; Newfoundland and Labrador Nurses' Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 14; Lainez
v Canada (Minister of Citizenship and Immigration), 2011 FC 707, at para
21).
B.
There is No Basis to Interfere with the RPD’s
State Protection Finding
[24]
The applicants’ challenge of the RPD’s state
protection finding is two-fold: first, they claim that the RPD applied the
wrong legal test and, second, they submit, in the alternative,
that the finding was made without regard for the evidence the RPD had before it
and was, therefore, unreasonable.
(1)
The RPD Applied the Correct State Protection
Legal Test
[25]
The applicants first contend that the RPD
applied the wrong test in requiring evidence of a “complete
breakdown” of the state’s apparatus as the only
way to rebut the presumption of state protection.
[26]
I disagree. The RPD did state that there was no
evidence that Hungary was in a state of complete breakdown but this statement
was clearly made to support its finding that the presumption of state
protection was applicable to the applicants. Nowhere in its state protection
analysis did the RPD indicate that this presumption was not rebuttable and that
the lack of evidence of a complete breakdown in Hungary’s institutions was the
end of the analysis. Quite the contrary, the RPD went on to say that the
applicants were required, in such context, to provide direct, relevant and
compelling evidence of the state’s inability or unwillingness to protect them.
[27]
This is entirely consistent with the current
state of the law which provides that, absent a complete breakdown of the state
apparatus, it is presumed that state protection is available for a refugee
claimant and that to rebut this presumption, the claimant must provide clear
and convincing evidence of the state’s inability or willingness to provide
adequate – not perfect - protection (Carrillo v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, at para 19; Ruszo v
Canada (Minister of Citizenship and Immigration), 2013 FC 1004, at para
29; Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, at para 52).
[28]
The RPD’s approach to the state protection
analysis is equally consistent with the principle that refugee
protection is meant to be a form a surrogate protection, invoked only in
situations where a refugee claimant has unsuccessfully sought the protection of
his home state (Ward, above, at para 18).
[29]
Therefore, I see no basis for intervention on
the applicants’ first alleged error regarding the RPD’s state protection
finding.
(2)
The RPD’s State Protection Finding Was not
Unreasonable
[30]
The applicants submit that the RPD’s state
protection finding was unreasonable on the ground that it ignored evidence on
the state’s inability to adequately protect victims of hate crimes, such as
them. They claim that the RPD ignored as well Mr. Meci’s evidence concerning
his reluctance to go to the police.
[31]
The RPD essentially concluded that the
applicants had not succeeded in rebutting the presumption of state protection
by reason of the fact that they had made no attempts to seek assistance from
higher police authorities or other government agencies and that the evidence
provided did not establish that seeking such assistance would have been
objectively unreasonable.
[32]
It is well settled that the presumption of state
protection is not rebutted by simply submitting a large volume of opinion
evidence or by the refugee claimant’s perception that he or she could not avail
himself or herself of state protection (Smith v Canada (Citizenship
and Immigration), 2012 FC 1283, 420 FTR 256 at par 50-51). Rather, the
claimant needs to show that he or she has exhausted the available avenues of
state protection or that it would have been objectively unreasonable for him or
her to do so (Hinzman v Canada (Minister of Citizenship and
Immigration), 2007 FCA 171, at para 56).
[33]
The fairly recent case of Ruszo, above,
is particularly helpful here as it concerned Hungarian refugee claimants of
Roma ethnicity, the largest minority group in Hungary which, according
to country documentation, has been - and is still – largely persecuted and
discriminated against. The RDP concluded in that case that the claimants had
failed to demonstrate that they had taken all objectively reasonable steps to
avail themselves of state protection and to provide compelling or persuasive
evidence to explain their failure to do more than make a single attempt to seek
protection from the police. As a result, the RPD dismissed the claimants’
refugee claim.
[34]
This Court’s Chief Justice ruled this
finding to be reasonable. In so doing, he applied the following principles:
a.
The onus is on refugee claimants to demonstrate,
with clear and convincing evidence, the state’s inability or unwillingness to
provide adequate protection (Ruszo, above at para 29);
b.
In discharging this burden, refugee claimants
may demonstrate that they are either unable to obtain adequate state protection
or, by reason of a well-founded fear of persecution, unwilling to avail
themselves of the protection of their home state (Ruszo, above at para
30);
c.
With respect to the “inability” branch of the
test, it is not sufficient to simply demonstrate that there has been some local
failures of the police to provide state protection; nor is it sufficient to
make a mere assertion of a subjective reluctance to engage the state or to
doubt the effectiveness of state protection without reasonably testing it (Ruszo,
above at paras 31 and 33);
d.
What is required at this stage of the analysis
is evidence that all objectively reasonable efforts were unsuccessfully made by
the claimants to exhaust all courses of action reasonably available to them
before seeking refugee protection (Ruszo, above at para 32);
e.
Absent a compelling or persuasive explanation,
the failure to make those efforts prior to seeking refugee protection will
typically provide the RPD with a reasonable basis to conclude that the
presumption of state protection has not been displaced (Ruszo, above at
para 33);
f.
As for the “unwillingness” branch of the test,
refugee claimants must show that it was objectively reasonable for them not to
have sought the protection of their home state; their reluctance in doing so
must be based on well-founded fears (Ruszo, above at para 34); and
g.
A subjective perception that one would simply be
wasting one’s time by seeking police protection or by addressing local police
failures by pursuing the matter with other sources of police protection would
not constitute compelling or persuasive evidence in this regard, unless the
refugee claimant has unsuccessfully sought police protection on multiple
occasions (Ruszo, above at para 51).
[35]
In Ruszo, the refugee claimants left Hungary for Canada as a result of a number of incidents. They reported one of those incidents to
the police but the police did not take action. The RPD found that the
claimants had not demonstrated that they had taken all reasonable steps to seek
state protection in relation to that incident. It reached that conclusion by
noting that the claimants had not asked to speak to a police supervisor, had
not gone to a different police station, had not complained to the local Roma
self-government about lack of police assistance and had not complained to any
other authority in Hungary. In sum, the RPD found that the claimants had only
made one attempt to report the incident and then failed to pursue the matter
further (Ruszo, above at para 37).
[36]
In the present case, when asked why he had not
approached higher police authorities or other government agencies after having
been told by a police officer that the police would not take action in relation
to the May 20, 2011 incident, Mr. Meci explained that this “would not get anything” as everybody was aware that “the police would have the same people in higher levels of
authority”.
[37]
In fact, the evidence in the present case is
that not only did Mr. Meci not approach higher police authorities or other
government agencies but that he never, on his own at least, reported to the
police the various incidents that lead to the applicants departure to Canada. The only incident that was reported was the assault of May 20, 2011, and this only
as a result of Mr. Meci being brought to a police station by a police officer
following the incident.
[38]
Based on Ruszo, it cannot be said that it
was not open to the RPD to conclude that making additional attempts to obtain
state protection would have been objectively unreasonable. Mr. Meci’s
explanation for not making these attempts amounts to saying that it would have
been a waste of time to seek police protection or to address local police
failures by pursuing the matter with other sources of police protection. In
the absence of evidence that Mr. Meci had unsuccessfully sought police
protection on multiple occasions, it was open to the RPD, as it was in Ruszo,
to conclude that this explanation did not constitute clear, compelling or
persuasive evidence that it was objectively reasonable for the applicants not
to have sought the protection of their home state.
[39]
The applicants claim that state protection
would, in any event, have been ineffective given evidence that the Hungarian
police and judiciary are affected with racism and prejudice and are therefore
reluctant to assist victims of hate crimes. The applicants’ argument in this
regard is based on their assessment of the country documentation.
[40]
It is worth reminding that the role of this
Court is not to interfere with factual conclusions reached by the RPD, nor is
it to re-weight the evidence before it (Canada
(Minister of Citizenship and Immigration) v Thanabalasingham, 2003 FC 1225, [2004] 3 FCR 523 at para 102, Selliah v Canada (Minister of Citizenship and Immigration) 2004 FC
872, 256 FTR 53 at para 38; Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] SCJ No. 12
at para 59).
[41]
The RPD assessed this evidence and found no
reference to any other minority group than the Roma being the target of the
Guardsmen. What is striking about the country documentation on record is that
it discusses, predominantly, the situation of the Roma minority in Hungary and in particular, the discriminatory reluctance of the police to assist Roma
victims of hate crimes. Most of the cases referred to by the applicants, both
in their written and oral submissions, also concern Hungarian refugee claimants
of Roma ethnicity. The case of Katinszki, above, on which the
applicants placed significant reliance, is one of them.
[42]
Apart from the Hungarian Jewish minority, there
is very little reference in the country documentation to the faith of other
minority groups in Hungary. To the extent that it does refer to it, the groups
at risk are identified as those that are perceived to be hostile to the
Hungarian cause. As the Minister points out, the applicants have not provided
any evidence to suggest that they would be perceived in this manner.
[43]
In such context, it was open to the RPD, whose
task it was to assess that objective evidence, to conclude that it did not
support the applicants’ claim that it was objectively unreasonable for them to
seek state protection or that, in any event, state protection would have been
inadequate.
[44]
In sum, even assuming that the RPD committed a
reviewable error in concluding, at the IFA stage of its analysis, that there
was no serious possibility that Mr. Meci be identified as a foreigner in other
parts of Hungary and that he and his family be, therefore, persecuted, the
applicants still had to establish that the state would not be able to protect
them. Hungary is a democratic state. Therefore, the applicants had the onus
of rebutting the presumption that their home state would be able and willing to
protect them. The RPD found that they had failed to do so.
[45]
Again, and keeping in mind that it is not the
role of this Court to substitute its own opinion to that of the RPD, I see no
reason to interfere with this finding as I am of the view that it was
reasonably open to the RPD, based on the evidence before it and the applicable
legal principles, to conclude as it did.
[46]
This application for
judicial review is therefore dismissed.
[47]
Neither party has proposed a question of general
importance. None will be certified.
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