Date: 20040915
Docket: IMM-6402-03
Citation: 2004 FC 1250
BETWEEN:
ZOLTAN OZVALD
EDIT OZVALDNE KOVACS
CSABA OSVALD
GABOR LAMPERT
REKA OZVALD
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This judicial review proceeding involves a challenge by the Ozvald family, citizens of Hungary, to the denial of their refugee claims by the Refugee Protection Division (the tribunal) in its July 28, 2003 decision finding they were not Convention refugees nor persons in need of protection. They had alleged a well-founded fear of persecution in Hungary because of the Roma ethnicity of Mrs. Ozvald.
[2] As I read the tribunal's decision, it turns on its ruling of adequate state protection in Hungary for its Roma citizens. The tribunal also decided the claimants had a viable internal flight alternative ("IFA"), a finding against which counsel for the applicants directed several serious criticisms which I do not find necessary to resolve because the IFA issue is not dispositive of this judicial review application.
[3] The tribunal's determination of adequate state protection was made against the background of the following tribunal statement under the heading "Allegations" of its decision:
Mrs. Edit Kovacs Ozvadne states that she suffered discrimination since her childhood. Her first child was born in 1985 and she married her first husband after a few years. She was divorced shortly thereafter. She then met Zoltan who was Hungarian yet his parents and family allegedly never accepted that he was marrying a Roma.
The principal claimants allege that their children are being victims of discrimination and the claimants also recount an episode when Csaba was injured and required medical attention.
In October 2001, skinheads attacked Mr. Zoltan as he was coming home from work. Mr. Zoltan and the rest of the family decided that they could no longer live in Hungary and left for Canada where they claim refugee protection.
[4] The tribunal accepted Mrs. Ozvaldne was of Roma ethnicity but added having accepted that fact "does not automatically determine that all claimants are Convention refugees" because "the documentary evidence does not suggest that there is systematic persecution of the Roma in Hungary". The tribunal stated the well-founded fear of the claimants must be assessed given their particular circumstances.
[5] Moreover, the tribunal made a finding of fact the claimants did not make any complaints to the police, and, in particular, for the physical aggression of October 2001.
[6] I reproduce below the tribunal's analysis on state protection:
On the issue of state protection, the panel considered the credibility issues of the case and the objective evidence before it. Since lack of state protection is an issue, which the claimants have alleged, the Tribunal expects clear and convincing evidence that state protection would not be reasonably forthcoming [citing the Supreme Court of Canada's judgment in Canada (Attorney General) v. Ward, [1993], 2 S.C.R. 689]. Furthermore, since the documentary evidence does not indicate a complete breakdown of state apparatus, it is expected that evidence for the allegations be substantiated. A claimant is required to approach the state for protection since it is believed that this protection might be reasonably forthcoming. It is expected that evidence be provided to the panel if the state protection assumption is to be rebutted.
[7] The tribunal then quoted Justice Nadon's decision in Kante v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 525 (T.D.), to the effect the burden of proof lies with the applicants, that is, they must satisfy the tribunal the claims meet the subjective and objective tests which are required in order to have a well-founded fear of persecution and an applicant must come to a hearing with all of the evidence the applicant is able to offer and he or she believes necessary to prove his claim.
[8] The tribunal then tackled certain allegations made by the applicants concerning the availability of state protection for the Roma in Hungary. The tribunal wrote the following on this question:
The claimants state that the rights of the gypsies are not respected and that the government does nothing to safeguard the gypsies. The documentary evidence does not support these allegations. Particularly recent evidence there is a clear indication that the judicial process is working in Hungary and that violence against the gypsy is not being tolerated and action against such perpetrators occur increasingly more often and complaints brought forth by gypsies against police harassment are more frequent. The panel also considered the fact that the claimants did not make any complaints to the police, especially for the physical aggression of October 2001. The burden is on the claimants to put forth-convincing evidence to buttress their claim. The Tribunal prefers to accept the evidence from reliable sources as to availability of state rotation and not the allegations of the claimant. As for the allegations that skinhead attacks are not being dealt with by police, unfortunately for the claimant the documentary evidence does not support his claim. The courts have ruled on attacks, which have a racist connotation. In addition the government, via the self-governing authority does provide free legal aid for persons who qualify. The documentary evidence also indicates that the minorities are increasingly becoming confident in the judicial process. There are an increasing number of complaints that are being forwarded to the competent offices by members of the Hungarian minority. In areas such as Budapest, the evidence shows that there are several organisms that protect the Roma rights and can also initiate queries themselves to the appropriate office to obtain redress. The Tribunal is also aware, from its specialized knowledge, that Hungary has adopted an article in the Penal Code that established a new offence for individuals or groups involved with hate crimes.
Moreover, the jurisprudence has already indicated that with regard to the Hungarian minorities and state protection, it is reasonably expected that claimants try to exhaust the internal possibilities of redress before requesting refugee status abroad. On this point the international jurisprudence seems to follow the reasoning outlined in the Canadian case law.
The tribunal is aware that there can be a certain level of discrimination against the minorities in Hungary, however, it does not believe that this amounts to persecution.
Furthermore, the Hungarian government is aware of the difficulties of the gypsy and steps are being taken to provide programs targeted towards the gypsies to improve their standard of life. The evidence also suggests that the government is taking steps to increase the cultural awareness of the police staff. [emphasis mine]
[9] Counsel for the applicants argued a number of errors in the tribunal's decision which I enumerate:
(a) an error by the tribunal holding it is necessary there be a complete collapse of the state apparatus (and it is the applicant's burden to that effect) as a necessary condition to show state protection is not available;
(b) the documentary evidence establishes state protection for the Roma in Hungary is inadequate and ineffective focussing, in particular, on one document which is the April 2002 study by the Roma Human Rights Centre which he alleges was not taken into account or into consideration by the tribunal because of its fixation on the complete breakdown of the state apparatus. In addition, counsel for the applicants said the documents referred to by the tribunal on state protection were dated, i.e., were for the year 2000 or earlier;
(c) the tribunal ignored evidence of state complicity at the hands of the police who fail to provide effective protection to the Roma, who fail to investigate Roma complaints, who tolerate attacks against the Roma and who are generally indifferent to the fate of the Roma; in some cases the Hungarian police are the perpetrators of persecution against the Roma;
(d) the tribunal ignored the applicants' explanation why no complaint was made afer the October 2001 attack against Mr. Ozvald. The reason he did not do so was because his skinhead attackers threatened to kill the entire family if he made a complaint;
(e) the tribunal erred in taking into account free legal aid as an indicia of state protection; and
(f) the tribunal erred in its discrimination vis persecution analysis.
ANALYSIS
[10] At this stage, it is well to recall what Justice Laskin, as he then was, wrote in Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102 and Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875.
[11] In Woolaston, supra, he wrote the following at page 108:
I am unable to conclude that the Board ignored that evidence and thereby committed an error of law to be redressed in this Court. The fact it was not mentioned in the Board's reasons is not fatal to its decision. It was in the record to be weighed as to its reliability and cogency along with the other evidence in the case, and it was open to the Board to discount it or to disbelieve it. [emphasis mine]
I am satisfied upon a review of the entire record that what has been presented has an error of law is properly a matter of fact upon which no appeal lies to this Court.
[12] In Boulis, supra, Justice Laskin the following at page 885:
The Parliament of Canada has made it clear, in my opinion, that the granting of asylum should rest not on random or arbitrary discretion ...but rather that a claim to the Board's favourable interference may be realized through evidence upon which the relevance and cogency of which the Board is to pronounce as a judicial tribunal. The Board has thus been charged with a responsibility which has an executive one. The right of appeal to this Court is proof enough that the carrying out of this responsibility was not to be unsupervised. At the same time, the Board must be accorded the trust in its careful and fair dealing with the cases that come before it for section 15(1)(b) relief that its status as an independent Court of Record demands. Its reasons are not to be read microscopically; it is enough if they show a grasp of the issues that are raised by section 15(1)(b) and of the evidence addressed to them, without detailed reference. The record is available as a check on the Board's conclusions. [emphasis mine]
[13] I am of the view this judicial review application must be dismissed for the following reasons.
[14] First, if the tribunal's decision on state protection is read as a whole and in context, I do not think a conclusion can be fairly drawn the tribunal erred by insisting on a complete breakdown of state apparatus as a precondition for a determination as to the adequacy of state protection. Counsel for the applicant is reading the tribunal's decision microscopically. I am of the view the tribunal well understood the principles underlying state protection as evidenced by such cases as Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232 and Re Kadenko et al. v. Minister of Citizenship and Immigration (1996), 143 D.L.R. (4th) 532 (F.C.A.).
[15] Second, the documentary evidence on the adequacy and effectiveness of state protection for the Roma in Hungary is not as portrayed so starkly by counsel for the applicants who have me believe the documentary evidence tells me the Court had regard to several recent reports from leading human rights organizations and other documentary evidence which do not support the tribunal's conclusion. In addition, the tribunal specifically considered the European Roma Rights Centre document as exhibit P-16 (see tribunal decision note 30).
[16] Moreover, it is on the type of evidence referred to by the tribunal that several judges of this Court have endorsed positive findings of state protection for the Roma in Hungary. I cite the following:
(a) Bordas v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 9 (T.D.), where Justice Pinard, reviewing the evidence, came to the conclusion the Board did not err in finding the applicant, a citizen of Hungary and of Roma ethnicity, had failed to rebut the general presumption the state is able to provide protection to its citizens given the lack of clear, convincing evidence of the state's inability to do so. Justice Pinard, quoting well-known jurisprudence, stated the tribunal was not required to mention every piece of evidence in its reasons and it was open to the Board to prefer some documentary evidence to other documentary evidence with respect to country conditions and state protection;
(b) Justice O'Reilly's decision of April 2004 in Orban et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 559.;
(c) Justice O'Keefe's decision in Balla v. Canada (Minister of Citizenship and Immigration), [2003] F.C. 1436;
(d) Justice Blais' decision in Szucs v. Canada (Minister Citizenship and Immigration), [2000] F.C.J. No. 1614 (T.D.); and
(e) Justice Simpson's decision in Pal v. Canada (Minister of Citizenship and Immigration), [2003] F.C.T. 698.
[17] Third, it is not fair to say as counsel for the applicants put it the tribunal ignored evidence of state complicity at the hands of the police. A review of the documentary record in this case shows this issue was thoroughly canvassed in those documents. The case at hand is simply an example of the tribunal weighing documentary evidence and preferring some documents over the testimony of the applicants and other documentary evidence. I note none of the applicants implicated the police in their allegations of persecution or discrimination.
[18] Fourth, similarly, a review of the transcript shows the tribunal was well aware of the applicants' explanation why no complaint was made after the October 2001 attack against Mr. Ozvald. The tribunal's questioning around the October 2001 attack satisfies me it appreciated the nature of the threat and weighed it against other circumstances. It could reasonably come to the conclusion lack of complaint did not meet the test stated by the Federal Court of Appeal in Kadenco, supra.
[19] Fifth, the tribunal did not err in taking into account free legal aid available to Roma as an indicia of state protection. (See, Pal, supra.)
[20] Sixth and finally, the tribunal did not err in its discrimination versus persecution analysis. The attack on Mr. Ozvald was the only incident he referred to and while Mrs. Kovacs' evidence was stronger, it cannot be said, on balance, the tribunal erred on this point when the applicable jurisprudence is taken into account.
[21] For all of these reasons, this judicial review application is dismissed. The applicants proposed a certified question related to the IFA. Since I was not required to deal with the IFA, no certified question flows from my decision.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
SEPTEMBER 15, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6402-03
STYLE OF CAUSE:
ZOLTAN OZVALD, EDIT OZVALDNE KOVACS, CSABA OSVALD, GABOR LAMPERT, REKA OZVALD
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: August 5, 2004
REASONS FOR ORDER : Lemieux J.
DATED: September 15, 2004
APPEARANCES:
Me Michael Dorey
Michael Dorey & associés
194, rue St-Paul ouest, Suite 215
Montréal (Québec) H2Y 1Z8 FOR APPLICANTS
Me Michel Pépin
Department of Justice Canada
Guy-Favreau Complex
200 René-Lévesque Blvd. West
East Tower, 5th Floor
Montreal, Quebec H2Z 1X4 FOR RESPONDENT
SOLICITORS OF RECORD:
Michael Dorey & Associés
Montreal, Quebec FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT