Docket: IMM-1082-17
Citation:
2017 FC 948
Ottawa, Ontario, October 25, 2017
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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ROLAND
HOMENSZKI
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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]
The applicant is a citizen of Hungary who claims
having experienced persecution in Hungary due to its Roma ethnicity throughout
his entire life, including racism and harassment from right-wing extremists. He
is challenging the reasonableness or legality of a negative Pre-Removal Risk
Assessment [PRRA] decision of a Senior Immigration Officer [Officer] dated
January 25, 2017. The Officer found that the applicant did not meet the
definition of a Convention Refugee or person in need of protection, pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], as he provided insufficient evidence to show that he is more
likely than not to face persecution, or that there is a personalized risk should
he return to Hungary.
[2]
The applicant fled Hungary for Canada in 2001
after allegedly suffering from a serious attack by Neo-Nazis which left him
severely injured. He filed a first claim in Canada in 2003. He was then represented
by a lawyer apparently known to mishandle Roma refugee claims. The claim was
denied, which led to his departure to Hungary in 2003. He now claims the
situation has deteriorated: he could not find work, had difficulty finding
housing and feared Neo-Nazi groups who targeted Roma in Miskolc, his home town.
He experienced the same abuse in Debrecen where he lived between 2006 and 2008.
In December 2013, the applicant and his wife moved to Miskolc where systematic
targeting of Roma allegedly begun. The applicant claims being beaten up by
Neo-Nazis in April 2016. He did not go to the hospital due to his lack of
insurance, and did not approach the police because of police brutality against
Roma. In August 2016, the applicant and his family were evicted from their
home, and all experienced some violent treatment. The applicant brought his
wife to the hospital since she was allegedly bleeding, and she was only
registered as a “high-risk pregnancy.” When
going back to the hospital with further bleeding, she would have been told to
come back when the baby was ready to be born. The family was able to seek
shelter with a relative, but could not register the child in school due to
their lack of a legal address. After seeking help from the Roma Minority
Council, the applicant was provided with food, but was also advised to leave
the country, since Children’s Aid would likely come and get the children, after
being notified by the authorities of the family’s homelessness. As such, the
applicant and his family left for Canada in September 2016. They all made
refugee claims. In light of his previous demand, he was unable make a second
refugee claim, and was therefore issued a deportation order in September 2016.
He submitted a PRRA application which was dismissed on January 25, 2017 and is the
object of the present judicial review.
[3]
The applicant seeks review of the impugned
decision essentially because the Officer erred in his assessment of
personalized risk and availability of state protection, while he failed to
consider whether an oral hearing was appropriate. The respondent submits that,
overall, this case rests on mere disagreements with the way the Officer weighed
the evidence, while there was no obligation to conduct an oral hearing.
[4]
The present application is dismissed. The
impugned decision is reasonable. Whether the issue related to the failure to
convoke an oral hearing is examined under the correctness or the reasonableness
standard, there is no reason to intervene.
[5]
On a preliminary note, the Officer stated the substandard
representation that the applicant received from his previous lawyer should not
be considered for this assessment, adding that the applicant had had ample
opportunity to amend his Personal Information Form [PIF] or correct his
testimony at the time of the initial claim. While the Officer’s last remark is
somewhat questionable, its conclusion is not unreasonable since it is not the
PRRA Officer’s mandate to review any adverse finding made in 2003 by the
Refugee Protection Division [RPD] as a result of bad counsel representation.
[6]
Be that as it may, the applicant submits the
Officer failed to consider that an oral hearing was required as per section 167
of the Immigration and Refugee Protection Regulations, SOR/2002-227
[IRPR]. The applicant admits that the Officer did not expressly find a lack of
credibility, but suggest that one is nonetheless made implicitly. I agree with
the respondent that an oral hearing was not required. In fact, the Officer made
no credibility findings; instead, he was simply weighing the evidence of risk,
and reasonably found it insufficient. There is nothing in the impugned decision
that indicates that the Officer implicitly made credibility findings.
[7]
Before this Court, the applicant focused most of
his attack on the reasonableness issue. The applicant submits that the Officer ignored
relevant evidence or otherwise failed to provide
sufficient reasons for finding that the applicant did not face a personalized
risk that he would not be persecuted because he is a Roma and that there was
adequate state protection. The respondent replies that the Officer considered
all relevant evidence and provided sufficient reasons for supporting its
conclusion that the applicant has provided insufficient evidence to show that
he is more likely than not to face persecution, or that there is a personalized
risk should he return to Hungary. I agree with the respondent.
[8]
In the case at bar, the Officer specifically
considered the applicant’s allegation of being beaten up in April 2016, and his
subsequent refusal to go to the hospital or the police. The Officer notes that
more had to be done for the applicant to avail himself of state protection in a
democratic state like Hungary. The applicant had to do more than simply show
that he went to some police officers and that his efforts were unsuccessful.
Evidence indicated that, although not perfect, Hungary can provide adequate
protection if the applicant seeks it. Furthermore, the Officer specifically examined
the evidence related to the forced eviction in Miskolc. He acknowledged that the
city and the government started an eviction process in 2014 and property was
demolished in 2016. Yet, he concluded that the applicant has failed to provide
evidence that he was personally targeted during the city wide evictions and
demolition campaign. Evidence also showed that the applicant was made aware of
the eviction a year in advance. With respect to the violence suffered in the
course of the eviction, the Officer noted that the applicant’s family did not
seek medical attention, except for his wife, while the latter’s record does not
indicate trauma or bleeding. She was indeed not refused medical attention
despite her Roma ethnicity. The Officer also specifically considered the risk
of homelessness upon return to Hungary. He concluded that no objective evidence
was filed to support statements that, even if the applicant finds an apartment
upon his return, he will be subject to evictions, and then will be homeless and
vulnerable to attacks from extremists and police and subject to arbitrary fines
and imprisoned. The Officer also concluded that the evidence was insufficient
to convince him that far-right extremist activity and hatred against the Roma
was on the increase. The Officer acknowledged that the articles submitted speak
of incidents of violence and discrimination against the Roma in Hungary, but
could not be convinced that the applicant would personally risk such treatment.
[9]
Overall, the Officer acknowledged the
applicant’s difficult situation in Hungary, but found that he had provided
insufficient objective evidence that he experienced serious systematic and
repetitive discrimination amounting to persecution. Plus, the evidence showed
that state protection was reasonably available and effective. The applicant has
not discharged the presumption that the State of Hungary is capable of
protecting his nationals in light of the functioning state apparatus. This
conclusion is supported by the evidence on record and is not unreasonable in
the Court’s opinion. The arguments made by the applicant are unfounded.
[10]
The applicant argues that the Officer has
engaged in a selective analysis of the country conditions and that the Officer’s
findings are based on speculation or not supported by the evidence on record,
such as the fact that the applicant can go to the police; that there have been
moderate improvements with respect to controlling far-right extremist activity;
that the government has deployed numerous initiatives to counter racism and
discrimination against the Roma population; and that the applicant has not
provided objective evidence with respect to the increased risk faced by
homeless people. In the Court’s opinion, there was no selective analysis of the
evidence. Indeed, the Officer was allowed to conclude that the evidence was not
sufficient to show that the discrimination against Roma did not amount to
persecution and that the applicant had failed to prove that he was personally
at risk. The Officer did not need to refer to every piece of evidence submitted
for his decision to be reasonable. With respect to homelessness and the risk of
far-right extremism, the reasons attest consideration of the issue. The Officer
actually acknowledged that the articles submitted speak of incidents of
violence and discrimination against the Roma in Hungary.
[11]
I agree with the respondent that the present
attack is merely a disagreement on the interpretation of conflicting documentary
evidence respecting the country conditions in Hungary. The Officer could very
well accept that the evictions occurred, and yet still reject the fact the
applicant was personally targeted. The Officer could also conclude that
city-wide evictions did not amount to persecution. In any event, the Officer
concluded that the applicant has not rebutted the presumption of state
protection. This finding is not unreasonable. The state protection does not
need to be perfect, as long as it is adequate. This is a question of fact
within the realm and specialized expertise of the Officer. Indeed, looking at
the evidence, the Officer found that, despite clear incidents of discrimination
against the Roma, the State of Hungary was making efforts to bring about
changes. As a democratic state, Hungary is presumed capable of protecting its
nationals. I am satisfied that the Officer based this decision on the evidence
submitted: he actually specifically referred to the articles and the 2015 USDOS
Human Rights Report.
[12]
As stated by the Federal Court of Appeal in Hinzman
v Canada (Citizenship and Immigration), 2007 FCA 171 at para 41 [Hinzman],
“refugee protection is meant to be a form of surrogate
protection to be invoked only in those situations where the refugee claimant
has unsuccessfully sought the protections of his home state” (see also Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689 at 709, 103 DLR (4th) 1 [Ward
cited to SCR]). There is presumption that States are capable of protecting
their citizens – particularly when the State is democratic (see Ward at
725; Hinzman at 54; Canada (Minister of Employment and Immigration) v
Villafranca, 99 DLR (4th) 334 at 337, 1992 CanLII 8569 (FCA)). To rebut the presumption, “clear and convincing confirmation of a
state’s inability to protect must be provided” (see Ward at 724). This presumption
applies equally to cases where an individual claims to fear persecution by
non-state entities, like far-right extremist groups, and to cases where the State
is alleged to be a persecutor (see Hinzman at para 54). As such, “the fundamental requirement in refugee law
that claimants seek protection from their home State before going abroad to
obtain protection through the refugee system” (Hinzman at para 62). “[…] In the case of a developed democracy,
the claimant is faced with the burden of proving that he exhausted all the
possible protections available to him” (see Hinzman at para 57;
see also Canada (Citizenship and Immigration) v Kadenko, 143 DLR (4th) 532, 1996 CanLII 3981 (FCA) [Kadenko
cited to DLR]).
[13]
As a final note, the applicant did not submit
any evidence that he ever sought state protection: he never attempted to
complain to the police after the violent attacks, nor did he take any other
steps to get state help. The reason for this was that the police attacks Roma.
When dealing with a State that has functioning political and judicial
institutions, the refusal of certain police Officers to take action cannot in itself make the State incapable of doing so
(see Kadenko at 534). As such, the Officer could reasonably conclude
that the applicant did not rebut the presumption of adequate state protection
in Hungary: he did not show that he exhausted all the possible protections
allowed to him. This issue is therefore determinative of the case, regardless
of the Officer’s analysis of Hungary’s efforts to protect Roma. I must therefore
conclude that the Officer’s assessment of the availability of state protection was
reasonable.
[14]
For the above reasons, the present judicial
review application is dismissed. There is no question of general importance
warranting certification.
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