Date: 20010518
Docket: IMM-3363-00
Neutral Citation: 2001 FCT 508
BETWEEN:
ATTILA CSABA VARGA and GABOR BUSI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants seek judicial review of a Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) decision dated May 3, 2000, wherein the Board determined that the applicants did not qualify for Convention refugee status.
[2] The issues are:
1) Whether the Board erred by failing to conduct a meaningful analysis of whether the treatment the applicants suffered constituted discrimination or persecution by failing to provide a definition of persecution versus discrimination; and
2) Did the Board err by ignoring or misconstruing evidence in determining whether state protection was available to the applicants?
[3] The applicants are each citizens of Hungary who base their claims on their membership in a particular social group: sexual orientation. The Board found the applicants credible. The Board found that the applicants had suffered societal discrimination that could not be categorized as persecution. The Board reviewed several of the incidents and beatings suffered by the applicants. The Board did not mention two threats to their lives. Furthermore, it did not seek to compare the incidents and whether they met the definition of persecution as set out in Rajudeen v. Canada (M.E.I.), [1984] F.C.J. No. 601 (C.A.), where Heald J. set out dictionary definitions of "persecution" from both The Living Webster Encyclopedic Dictionary and The Shorter Oxford English Dictionary. In that case, Justice Heald stated at page 6:
Based on the evidence of this case, it is clear to me that this applicant was persecuted over a lengthy period of time in Sri Lanka because of his religious beliefs as well as his race. This Court as well as the Supreme Court of Canada has made reference in a number of cases to the subjective and objective components necessary to satisfy the definition of Convention Refugee. The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear. On this record, I find the evidence capable of only one conclusion, namely, that this applicant had a fear of persecution which was clearly well-founded.
[4] The Board erred in not analysing the evidence in light of the definition of persecution and particularly as to whether there was persistent or systematic infliction of punishment over a period of time. However, the Board did not base its decision on persecution but rather based it on the fact that state protection was available to the applicants. Accordingly, the Board's error in its review of persecution is not a reviewable error since state protection is only relevant in cases where applicants have been persecuted. The Board then concluded that the applicants are not Convention Refugees.
[5] The Board stated at page 6 of its decision:
... there are redress mechanisms in place that could have been accessed by these two young men.
At page 7 of its decision, the Board then concluded as follows:
Most importantly, after reviewing the case at hand, the panel finds that the state itself has not been complicit in the discriminatory experiences that the claimants have faced. There is no persuasive evidence before the panel that the State of Hungary is unable or unwilling to offer them protection should they seek it. The claimants have failed to rebut the presumption that state protection is available to homosexuals in Hungary.
The Convention Refugee Determination Division finds that the claimants failed to seek the protection of their country of origin in order to address the issues of discrimination they allege to have faced in Hungary.
[6] The evidence with respect to the redress mechanisms is not very strong. The witness on behalf of the applicants had said there were organizations from which the applicants could have sought assistance. However, he then stated that there were no government organizations that the applicants could have turned to for redress. The Board referred to Exhibit R-2, which made reference to three organizations in Hungary (The Rainbow Association for Gay Rights, the Lambda Budapest Friends Association and the Homerosz Association) that had filed a joint petition to the Constitutional Court to declare unconstitutional the unjustified discrimination of homosexuals contained in the Hungarian Penal Code.
[7] The applicants stated that, to their knowledge, there were no organizations to which they could turn, however, they did not appear to have looked into the matter. Furthermore, there was reference by the Board in its decision to the Habeas Corpus organization which provides legal aid to various persons, including homosexuals.
[8] The applicants rely on two incidents which, counsel submits, demonstrate that state protection was not available to them. In the first incident, which is not mentioned by the Board, the applicants went to the police in order to complain about beatings and threats they had received. The applicants stated that they were told that the police could not watch them all the time. It is understandable that the Board did not discuss this incident in its reasons, since full time "body guard" type protection is not available to persons living in Canada either.
[9] The second incident is mentioned by the Board in their review of the facts. This incident involved the applicants stopping a passing police car after having just suffered a brutal attack at the hands of five or six males. The police laughed at them, told them they had ‘got what they deserved' and drove off.
[10] The Board reviewed the legislative changes made by Hungary in order to avoid discrimination of homosexuals, and also analysed the applicants' witness' evidence to the effect that these changes were "mere window dressing".
[11] The Supreme Court of Canada decision in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 (SCC) sets out the test for showing lack of state protection. Justice La Forest described a situation where the state has not admitted they cannot protect its nationals. He went on to say at 69:
Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.
[12] The applicants submit that their testimony with respect to lack of police assistance meets the above requirement. In my view, one such incident is not sufficient to show clear and convincing evidence that there is a lack of state protection. Rothstein J.A. dealt with the standard of proof in Xue v. Canada (M.C.I.) (2000), 10 Imm. L.R. (3d) 301 (F.C.T.D.) at paragraphs 5 to 12. In that case, the Board had stated:
In other words, to find that the state is unable to protect the claimant, I must be convinced, not just persuaded on a balance of probabilities.
Rothstein J.A. concludes at paragraph 12:
Having regard to the approach expressed by Dickson C.J.C. in Oakes, i.e. that in some circumstances a higher degree of probability is required, and the requirement in Ward that evidence of a state's inability to protect must be clear and convincing, I do not think that it can be said that the Board erred in its appreciation of the standard of proof in this case.
...
Although, of course, the Board does not make reference to Oakes or Bater, and while it would have been more precise for the Board to say that it must be convinced within the preponderance of probability category, it seems clear that what the Board was doing was imposing on the applicant, for purposes of rebutting the presumption of state protection, the burden of a higher degree of probability commensurate with the clear and convincing requirement of Ward. In doing so, I cannot say that the Board erred.
I do not agree with the applicants' suggestion that the Board ignored or misconstrued the evidence with respect to lack of police interest, and it was open to the Board make this finding based on the record before me. The applicants failed to provide a clear and convincing basis to support their assertion that the Board erred in its finding that state protection is available to the applicants.
[13] The application for judicial review is dismissed.
"W. P. McKeown"
JUDGE
Ottawa, Ontario
May 18, 2001