Date: 19990628
Docket: IMM-3746-98
OTTAWA, Ontario, the 28th day of June 1999
PRESENT: The Honourable Mr. Justice Rouleau
Between:
CSABA BEDE, BALAZS SZIGETI,
KATALIN IBOLYA BEDENE MASZINKOW
Applicants
And:
THE MINISTER
Respondent
ORDER
[1] The application for judicial review is dismissed.
P. ROULEAU
JUDGE
Certified true translation
M. Iveson
Date: 19990628
Docket: IMM-3746-98
Between:
CSABA BEDE, BALAZS SZIGETI,
KATALIN IBOLYA BEDENE MASZINKOW
Applicants
And:
THE MINISTER
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for leave and to commence an application for judicial review pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the Act), against a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the panel) dated June 29, 1998, which determined that the applicants are not Convention refugees.
[2] Katalin Ibolya Bedene Masznikow, her son Balazs Szigeti and her husband Csaba Bede are citizens of Hungary. They arrived in Canada and claimed refugee status on October 12, 1997. They claim a fear of persecution by reason of their Gypsy ancestry.
[3] According to the evidence on the record, the applicant and her husband are of Gypsy ancestry on their mothers" side. The female applicant"s father is Russian and her husband"s father is Hungarian. The applicant also claims to have been humiliated and harassed in Hungary because of her Russian name from her father.
[4] Mr. Bede attended school from 1972 to 1982. He worked for a construction firm in Debrecen from 1982 to 1990 and as a streetcar driver in that city from 1990 to April 1997.
[5] Mrs. Bedene attended school from 1971 to 1979. She worked in a food processing factory in Debrecen from 1983 to 1990 and joined her husband as a streetcar driver from 1990 to April 1997.
[6] Mrs. Bedene"s son from a previous marriage attended primary school in Debrecen from 1989 to 1997. His father was an ethnic Hungarian.
[7] The female applicant claims that her mother was beaten to death during a demonstration for Gypsies" rights which they both attended in December 1995.
[8] The female applicant states that her father"s gravestone was vandalized on two occasions. She states that when she and her family tried to remove the paint from the stone after the second incident, they were threatened and attacked by five young men.
[9] After her mother"s death, the female applicant claims that she started to attend meetings of Gypsies and demonstrations for equal rights. She claims that it was because of this that she was beaten in a streetcar by a group of men in March 1996, and that Hungarian nationalists attacked and ransacked the family"s apartment and beat them in 1996 and 1997. She states that the police mocked them during the incidents.
[10] The female applicant submits that it was also for this reason that her son was beaten at school in May 1996 and spent two weeks in hospital. She claims that he suffered from shock and for the next few months, he was afraid that he would be attacked again.
[11] The female applicant claims that in September 1996, a group of people set fire to the streetcar her husband was in. She says that he had to be hospitalized. She claims that her family was subsequently threatened. They filed a complaint with the police who mocked them.
[12] The female applicant says that they were fired from their jobs because of their Gypsy ancestry and were subsequently unable to find work.
[13] The applicant and her husband claim that after they filed complaints about the arbitrary and illegal treatment they received from the authorities, they were arrested by the police, detained and beaten for one week.
[14] The female applicant submits that in 1997, the village authorities announced their decision to force all Gypsies to go to live in another region. She claims that approximately 300 Gypsies demonstrated against this decision and that several of them, including the applicants, were beaten.
[15] The Board determined that the documentary evidence revealed that over the last few years, the Hungarian government has introduced a series of legislative amendments to improve the underprivileged situation of Gypsies in that country. It accordingly found that the applicants did not prove that they were treated differently from other Hungarians, that they had suffered any persecution within the meaning of the Convention or that they had a reasonable chance of persecution for one of the reasons stated in the Convention.
[16] The issue is the following: were the applicants persecuted or was there a reasonable chance they would be persecuted in their country of origin for one of the reasons set out in the Convention?
[17] The applicants claim that the panel acted in an capricious manner, without regard to all of the evidence, when it found that they did not establish that [TRANSLATION] "they were treated differently from other Hungarians". The applicants also allege that they do not have to establish this fact and that this finding is accordingly an irrelevant consideration. Therefore, they claim that the panel erred in law by imposing on them a burden a proof other than the one provided in the Act .
[18] The applicants submit that the panel gave no indication of how it determined that the treatment the applicants received did not constitute persecution and did not support a reasonable fear of persecution. The applicants argue that on the basis of the facts they presented, they established that they have a reasonable fear of persecution if they were to return to Hungary.
[19] The applicants submit that the panel merely noted, based on certain parts of the documentary evidence, that efforts were being made in Hungary to improve the situation of Gypsies. They claim that there is no nexus between the panel"s reasons and the facts established in the evidence, let alone with its conclusion. Last, the applicants allege that the panel clearly erred in finding that Mrs. Bedene"s fear by reason of her nationality was not well-founded in the instant case.
[20] The respondent submits that the Board could properly reject the applicants" claim because they did not discharge their burden of proving a well-founded fear of persecution based on one of the reasons set out in the Convention. The respondent submits that in order to be determined a Convention refugee, a claimant must first prove a subjective fear of persecution for one of the reasons listed in subsection 2(1) of the Act , and then establish the objective basis for this fear, as stated in Ward, [1993] 2 S.C.R. 689.
[21] The respondent claims that the simple benefit of the doubt on the issue of the subjective fear of persecution is not sufficient for Convention refugee status to be granted. The respondent submits that In order to determine if the alleged fear of persecution is objectively well-founded, the existing conditions in the country of origin must be examined (Chan v. M.E.I., [1995] 3 S.C.R. 593) and the claimant"s fear of persecution at the time of the hearing must be assessed. He adds that it is also possible to have regard to any changes in the country of origin (Longia v. Canada , [1990] 3 F.C. 288 (F.C.A.)). The respondent submits that in the instant case, even if the Board did not expressly conclude that the applicants" testimony was not credible, the panel could properly reject their claim on the basis of the objective situation in Hungary. He submits that it was open to the Board to prefer the objective documentary evidence over the applicants" testimony (Zhou v. M.E.I. , A-492-91, July 18, 1994 (F.C.A.)). The respondent stated that since Ward, a claimant must provide clear and convincing proof of the state"s inability to protect, except in situations of complete breakdown of the state"s apparatus.
[22] The respondent argues that in the case at bar, the female applicant admits that she generally did not go to the police because she feared them. The respondent submits that she accordingly did not discharge her burden of proving that the Hungarian state was unable or unwilling to protect her family.
[23] The applicants are asking this Honourable Court to allow the instant application for leave to commence an application for judicial review.
[24] The Board"s finding that there was no subjective or objective fear of persecution in the instant case appears reasonable. Persecution is defined as a period of systematic infliction of injury or punishment (see Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129), which does not appear to describe the situation experienced by the applicants based on the evidence adduced by them. Despite the fact that they were certainly humiliated and even tortured in Hungary, this does not constitute persecution within the meaning of the Convention. The documentary evidence demonstrates that the authorities have made many attempts to better protect the Gypsies and seems to indicate that over the last few years, the Hungarian government has introduced a series of legislative amendments to improve the underprivileged situation of Gypsies in that country. In light of the objective situation in Hungary, it accordingly seems that the applicants face no risk of persecution if they were to return to their country of origin.
[25] The application for judicial review is dismissed.
P. ROULEAU
JUDGE
OTTAWA, Ontario
June 28, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3746-98
STYLE OF CAUSE: CSABA BEDE et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 22, 1999
REASONS FOR ORDER OF ROULEAU J.
DATED JUNE 28, 1999
APPEARANCES:
YVES GRAVEL FOR THE APPLICANTS
THI MY DUNG TRAN FOR THE RESPONDENT
SOLICITORS OF RECORD:
YVES GRAVEL FOR THE APPLICANTS
THI MY DUNG TRAN FOR THE RESPONDENT
Morris Rosenberg
Deputy Attorney General of Canada