Docket: IMM-1651-13
Citation:
2014 FC 785
Ottawa, Ontario, August 8, 2014
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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SANDORNE LAKATOS
RICHARD KEVIN LAKATOS
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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]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), of a decision rendered by Ken Atkinson of the
Refugee Protection Division of the Immigration and Refugee Board (the RPD or
the Board), refusing the refugee protection claims made by Sandorne Lakatos (the
principal Applicant) and her minor son, Richard Kevin Lakatos. The decision was
rendered on February 6, 2013.
[2]
For the reasons set out below, I have come to
the conclusion that this application for judicial review ought to be dismissed.
I.
Facts
[3]
The principal Applicant is a citizen of Hungary born in 1958. She is of Roma ethnicity. Her son, also of Roma ethnicity, was born
in 1998. The principal Applicant is also the mother of three other children,
who are now adults and are not part of the present claim.
[4]
The principal Applicant alleges she had been
living in the town of Miskolc all her life when, in April 2011, local government
agents told her she would have to relocate to Kiss Tokaj on June 10, 2011. She
claims that Kiss Tokaj was designated as a town where Roma were being moved to
reduce the Romani population of Miskolc. The Romani community complained, but
nothing was done. According to the principal Applicant, a nearby Romani family
who had received a notice of removal and had not left their residence were
handcuffed and forced to move.
[5]
The principal Applicant asserts that on June 10,
2011, the day after she came to Canada, her son Norbert, who was still in
Hungary (he came to Canada in October 2011), indicated that the furniture had
been taken by the authorities and that another notice of removal was posted on
the door.
[6]
The principal Applicant also refers to other alleged
incidents of persecution because of both her and her family’s Roma ethnicity.
She claims that in 2009 her minor son was hit by a teacher at school, as a
result of which he had to receive medical attention, and that he was
persistently bullied because of his ethnicity. Each time, the principal Applicant
approached the school authorities, but nothing happened. She alleges she was
even told by the school principal that wherever she went, no one would believe
her because of her ethnicity.
[7]
The principal Applicant also states that in the
summer of 2010, her husband went to the Roma self-government because he had
been experiencing problems with Hungarian Guardsmen and skinheads, but he was told
nothing could be done. In September 2010, it is alleged that armed Hungarian
Guardsmen broke into their home, yelled racial slurs, broke furniture,
threatened to kill the children, and attacked the principal Applicant’s
husband, splitting his scalp open (an injury for which he claimed to have received
medical attention). The Applicant also claims that Guardsmen told them they had
six months to move. In January 2011, it is alleged that the principal Applicant’s
husband was attacked by the same four men and he reported the attack to the
police, but was told that without any individual identification of the
attackers, they could not do anything.
[8]
The principal Applicant’s husband left for Canada in January 2011 and apparently also made a claim for refugee protection. They have
been separated since that time and they do not intend to resume living
together.
[9]
As for the principal Applicant, she arrived in Canada with her minor son on June 9, 2011 and made a claim for refugee protection that same
day.
II.
Decision under review
[10]
The RPD acknowledged the Applicants’ identity
and Roma ethnicity, but was not convinced that the principal Applicant was
forced to leave her apartment because of her ethnicity. While she indicated she
could not submit the notices of removal because they had been left in the
apartment, the RPD concluded that her allegation that she thought she had been
asked to move because of her ethnicity was not persuasive. Further, while she
alleged that her brother was also removed, the RPD noted that she did not have
much contact with him since coming to Canada.
[11]
Regarding proof of the medical treatments
received by her husband following the attack during the summer of 2010, the principal
Applicant alleges that she left the doctor’s report in her apartment and that
it would be impossible for her to obtain another report from the doctor. The principal
Applicant also claims the doctor’s report regarding her minor son’s medical
treatment after being hit by a teacher was left in the apartment. No attempt
was made to obtain these reports, allegedly because the doctors would not send them.
[12]
According to the RPD, these allegations are
contradicted by the documentary evidence, which states that doctors must notify
the police when treating a victim of crime-related injuries and that victims of
violence can obtain a medical report. The RPD is also of the opinion that it is
difficult to determine exactly how the events occurred and what weight should
be given to them without the reports.
[13]
The RPD then turned to the issue of state
protection, stating that the principal Applicant had failed to rebut the
presumption that a state is capable of protecting its citizens with clear and
convincing evidence. It then goes on to describe the legal framework regarding
state protection:
•
This protection need not be perfect;
•
It is important to consider whether a
legislative and procedural framework for protection exists;
•
A state must engage in serious efforts to
protect its citizens at the operational level;
•
The burden to prove an absence of state
protection is directly proportional to the level of democracy of that state;
•
A failure by the local authorities to provide
protection does not mean that the state as a whole is incapable of protecting
its citizens.
[14]
Turning to the documentary evidence regarding Hungary, the RPD notes that Hungary is a democracy. It also underlines that the government has
enacted a new Fundamental Law as well as more than 20 Cardinal laws in 2011
that could undermine the country’s democratic institutions and that a number of
documents submitted by the principal Applicant indicate that the new
legislation does not protect basic human rights. However, other documentary
evidence highlights that Hungary is indeed a democracy.
[15]
While it was submitted that the state protection
for Roma was ineffective, the RPD indicates that documentary evidence shows
that the country is attempting to correct this discrimination, citing among
others, the report of the European Commission against Racism and Intolerance
adopted in June 2008. In fact, efforts have been made to limit and ban
activities of right-wing xenophobic political organizations and to curtail
abuse by the police by increasing the recruitment of Roma police officers and
by setting up the Independent Police Complaint Committee. The RPD also mentions
that the Hungarian criminal code includes provisions against incitement to
hate-inspired violence and that these types of crimes are seriously punished.
In 2011, operations were also conducted to eliminate corruption within law
enforcing agencies and an anti-discrimination legal service network that offers
legal aid to Roma has been put into place. However, legal clinics have been
found to be inaccessible for many Roma and the network’s lawyers rejected some
Roma cases.
[16]
The principal Applicant indicated that they had
not reported the attack of 2010 because the attackers had told them they would
find out if they did. The principal Applicant however alleged that her husband
reported the 2011 incident, but had not obtained a copy of the police report
since she thought no report was made. The RPD rejected this hearsay evidence
and concluded there was no persuasive evidence that the principal Applicant or
her family had approached the police at all. For all of the above, the RPD
concluded that she had not rebutted the presumption of state protection.
[17]
While the RPD mentions that education is
generally less accessible for Roma children and that school facilities for Roma
were in considerably worse condition than those having non-Roma majorities, it
concluded that there was no persuasive evidence that the principal Applicant
was denied education because of her Roma ethnicity.
[18]
The RPD also reviewed documentary evidence on
the employment opportunities for Roma and underlined that the unemployment rate
for Roma was high. However, programs to alleviate unemployment were implemented
in recent years. Consequently, the RPD found that there was no persuasive
evidence to the fact that the principal Applicant was denied employment based
on her ethnicity.
[19]
Finally, many legislations and resolutions have
recently been enacted and measures have been taken to thwart racial
discrimination in areas such as employment, social security, health and
education. While some critics have been disputing the actual effectiveness of
these measures, a decrease in crime rates and trends in the country suggests
that the state protection has been effective.
[20]
The RPD concludes that while Hungary has faced difficulties in the past regarding discrimination towards Roma, the
documentary evidence shows that, even if not perfect, the state protection is
however, adequate and effective. Consequently, the principal Applicant has not
been able to rebut the presumption of state protection and cannot be found to
be a refugee or a person in need of protection. The same conclusion applies to
the principal Applicant’s minor son.
III.
Issues
[21]
This application raises two issues:
A.
Did the RPD err in finding the principal Applicant
not credible?
B.
Was the RPD’s state protection finding
unreasonable?
IV.
Analysis
[22]
It is well established that credibility findings
attract a standard of reasonableness, since the RPD had the privilege of seeing
and hearing the principal Applicant’s representations and reviewing the
evidence she submitted. As such, these findings must be reviewed by this Court
with a high degree of deference.
[23]
As for state protection, it is also trite law
that the applicable standard of review is reasonableness since it is a question
of mixed fact and law.
[24]
Accordingly, the Court shall not intervene if
the “decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”:
Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
A.
Did the RPD err in finding the principal Applicant
not credible?
[25]
The principal Applicant argues that the RPD
erred in impugning her credibility essentially because of a lack of
corroboration and supporting evidence. Quoting from a number of decisions,
counsel submitted that the absence of documentation is not sufficient, in and
of itself, to make a negative credibility finding.
[26]
Applicants are no doubt presumed to be telling
the truth in an RPD hearing: see, for ex., Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at paras 6-8. As such,
failure to provide corroborating evidence will not normally be sufficient to
impugn credibility, even if it is a factor that can be taken into
consideration. That being said, it will be otherwise when the RPD does not
accept an applicant’s explanation for failing to produce evidence when it would
reasonably be expected to be available. As my colleague Justice Zinn stated in Ryan
v Canada (Minister of Citizenship and Immigration), 2012 FC 816 at para 19:
Further, although there is a presumption that
sworn evidence is true and cannot be undermined by a lack of corroborative
evidence, there is an exception. The exception is triggered when a tribunal
does not accept the applicant's explanation for failing to produce evidence
when it would reasonably be expected to be available…
See also: Del Carmen Gonzalez
Cabrera v Canada (Citizenship and Immigration), 2011 FC 1445 at para 44;
Rojas v Canada (Minister of Citizenship and Immigration), 2011 FC 849 at
para 6.
[27]
This is precisely the situation here. First, the
Board could reasonably expect the Applicants to have the notice to vacate their
apartment to support their allegations that they had been forced to move out
due to their ethnicity. After all, the principal Applicant’s son was at the
apartment after the principal Applicant left for Canada and she still has
family in Hungary. In the absence of any documentation, her allegation that she
was moved because they are Roma is pure speculation and the Board was entitled
to find that there is no persuasive evidence to support her claim.
[28]
The same is true of the Board’s finding with
respect to the lack of medical documentation. The principal Applicant testified
that the doctor’s reports in relation to both her husband’s and son’s injuries
were left in the apartment. She further testified that she did not know she
would need such a document and made no efforts to obtain a copy, because the
doctor would not have sent it. Furthermore, she felt the doctor would not have
notified the police about her husband’s injuries. Yet, as the Board noted, the
available objective documentary evidence clearly states that doctors must
notify police when they treat someone with crime-related injuries by filling
out a report and submitting it to them. Moreover, the Board further noted that
the documentary evidence indicated medical records are kept by hospitals and
clinics for approximately 30 to 50 years, and that patients can make a request
in writing or authorize someone else to obtain a copy for them. In those
circumstances, the Board could reasonably reject the explanations given by the principal
Applicant and conclude that it was difficult to determine exactly how these
events occurred and whether any injuries were suffered. The Applicants failed
to both provide acceptable documents or a reasonable explanation for their
absence.
B.
Was the RPD’s state protection finding
unreasonable?
[29]
The Applicants submit that the RPD applied the
wrong test since it failed to analyze the factual effectiveness and the success
of the efforts made by the Hungarian authorities. The principal Applicant
further argues that the RPD merely relied on general evidence and boilerplate
analysis, and failed to consider contradictory evidence and the principal Applicant’s
particular situation. According to the Applicants, the Board’s findings with
respect to the level of democracy existing in Hungary contradicts the
documentary evidence as well as a number of cases from this Court where it was
found that the Roma cannot expect state authorities to protect them. The
principal Applicant also argues that the Board erred in setting aside her
hearsay evidence that her husband made a police report, without providing any reasonable
basis for doing so.
[30]
I agree with the Applicants that the Board’s
analysis with respect to state protection is not free from ambiguity and
appears to focus on the “serious efforts” made by
the Hungarian authorities and on the steps taken at the legislative and
operational levels to protect the Roma. Yet it is now well established that
good intentions and efforts are insufficient if they do not translate into a
reasonable measure of protection. Summarizing the evolution of the
jurisprudence on this matter, my colleague Justice Strickland stated the
following in Beri v Canada (Minister of Citizenship and Immigration),
2013 FC 854 at paras 35-36:
[35] State protection need not be perfect, but
it must be adequate, and “only in situations in which state protection ‘might
reasonably have been forthcoming’ will the claimant's failure to approach the
state for protection defeat his claim” (Ward, above, at para 49; Da
Souza v Canada (Citizenship and Immigration), 2010 FC 1279 [Da Souza]
at paras, 15, 18). Adequate state protection involves more than making
“serious efforts” to address problems and protect citizens (Garcia v Canada (Minister of Citizenship & Immigration), 2007 FC 79, [2007] 4 FCR 385 (FC)).
[36] Instead, the focus of the RPD must be on
what is actually happening in a country, that is, evidence of actual or
operational level protection, and not on efforts that a state is endeavouring
to put in place. As stated in Hercegi v Canada (Minister of Citizenship and
Immigration), 2012 FC 250 at para 5 [Hercegi], regarding the
Hungarian Roma applicants in that case:
[5] […] It is not enough to say
that steps are being taken that some day may result in adequate state
protection. It is what state protection is actually provided at the present
time that is relevant. In the present case, the evidence is overwhelming that Hungary is unable presently to provide adequate protection to its Roma citizens. I repeat
what I wrote in Lopez v Canada (Minister of Citizenship and Immigration),
2010 FC 1176 (CanLII), 2010 FC 1176 at paragraphs 8 to 11:
8
Another error of law is with respect to
what is the nature of state protection that is to be considered. Here the
Member found that Mexico "is making serious and genuine efforts" to
address the problem. That is not the test. What must be considered is the
actual effectiveness of the protection.
[…]
See also: Orgona v Canada (Minister of
Citizenship and Immigration), 2012 FC 1438, at para 11; Majoros v Canada
(Minister of Citizenship and Immigration), 2013 FC 421, at para 18; Gulyas v
Canada (Minister of Citizenship and Immigration), 2013 FC 254, at para 46; Budai
v Canada (Minister of Citizenship and Immigration), 2013 FC 552, at para 19; Olah
v Canada (Minister of Citizenship and Immigration), 2013 FC 606.
[31]
To be fair, the RPD acknowledged that there is
evidence contradicting its overall conclusion of adequate protection. For
example, it quoted a number of documents from non-governmental organizations,
as well as Responses to Information Requests, suggesting that the new
Fundamental Law and Cardinal laws do not protect basic human rights (para 25),
that discrimination and prejudice within the police are considered a general
problem that will continue until there are structural reforms (para 27), that
the legal offices of an anti-discrimination legal service network were located
in the larger cities and were inaccessible to Roma living in deep poverty (para
33), that courts increasingly used the provision of the criminal code on racism
to convict Roma (para 34), that Romani students are often segregated at school
and/or placed in less well equipped facilities (para 37), and that unemployment
is higher for Romani (para 39).
[32]
Nevertheless, the RPD concluded that, “although not perfect, there is adequate state protection in
Hungary and that Hungary is making changes at the operational level to deal
with the problem of racism against Roma” (para 44). This general
conclusion appears to be based on efforts and measures taken instead of actual
effectiveness. For example, the Board states (at para 26) that Hungary is
attempting to correct its historical discrimination against the Roma people and
is taking steps to limit and ban the activities of right-wing political
organizations, and that there is no evidence that these initiatives are more
than efforts or that they bear fruit. The Board also reports (paras 28, 30-31)
that efforts to curtail abuse by the police have been made, by increasing the
recruitment of Roma police officers, setting up the Independent Police
Complaint Committee and providing training in human rights, but there is no
evidence that these measures have helped to thwart discrimination from police
forces towards Roma. The Board mentions (paras 29, 41) that the criminal code
includes provisions against hate-inspired violence, that laws were enacted in
2010 broadening the range of views whose expression is illegal, and that
significant legislation has been introduced to combat racial discrimination,
but again there is not a word as to the effectiveness or the impact of these
legislative measures. Finally, the Board describes (paras 42-43) a number of
measures taken by the government to eradicate discrimination in various fields
(education, health, employment, housing, etc.) but does not indicate whether
these have resulted in any significant changes at the operational level.
[33]
Despite these shortcomings, I am unable to find
in favour of the Applicants. It is insufficient for applicants to rely solely
on documentary evidence of flaws in state protection apparatus if they have
failed to avail themselves of whatever protection is available. Applicants must
approach their state for protection where state protection might reasonably be
forthcoming, and it is only in a situation of complete breakdown of the state
apparatus that this requirement will be lifted: Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, at 754. In Canada (Minister of
Citizenship and Immigration) v Flores Carillo, 2008 FCA 94, the claimant
was not able to rebut the presumption of state protection based on one
unsuccessful attempt to seek out protection from local police officers. In the
case at bar, the Board could reasonably find that the Applicants had not fully
demonstrated the inadequacy of the mechanisms of state protection available to
them. The principal Applicant gave evidence that they did not contact the
police after the alleged attack by four Guardsmen in their apartment in the
summer of 2010. As for the alleged attack against her husband, the principal
Applicant could only testify that her husband told her he reported the matter
to the police. This was clearly insufficient to establish that protection was
not reasonably forthcoming, despite the flaws identified in the state
protection in Hungary.
V.
Conclusion
[34]
For all of the above reasons, I am of the view
that this application for judicial review must be dismissed. The Board could
reasonably find that the Applicants are not credible and had not established
that they had been persecuted because of their ethnicity. The Board could also
determine, subsidiarily, that the Applicants failed to rebut the presumption of
state protection, despite some flaws in its analysis of that concept.
[35]
No question has been submitted for certification
purposes, and none will be certified.
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