Date: 20040921
Docket: IMM-6241-03
Citation: 2004 FC 1293
Ottawa, Ontario, September 21, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
BELA RACZ D.O.B. 1964, BELANE RACZ D.O.B. 1966,
BELA RACZ JR D.O.B. 1987, PETER RACZ D.O.B. 1991
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 74 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Refugee Division), dated July 4, 2003, in which the Refugee Division determined that the applicants were not Convention refugees or persons in need of protection.
BACKGROUND
[2] The applicants are all Hungarians of Roma ethnicity. They claim refugee status on the basis of persecution related to their race and ethnicity. Each of the adult applicants filled out a Personal Information Form (PIF), from which the facts claimed will be summarized below.
[3] Bela Racz (D.O.B. 18-10-1945) (applicant #1) was born and raised in the town of Polgar in Hungary. He studied to become a commercial painter. Married at the age of 19 to Irma Algacs, a.k.a. Belane Racz (D.O.B. 5-7-1948) (applicant #2), he has four children, two daughters still in Hungary and two sons who are also parties to this application.
[4] Bela Racz (D.O.B. 1-11-1964) (applicant #3) is the son of applicants #1 and #2. He described in his PIF the discrimination he suffered in school. He was humiliated by his teachers in grade school, and beaten by other students in vocational school. During his military service, he was humiliated, given menial chores and assaulted on two occasions.
[5] He was married in 1984 to Edit Horvath (D.O.B. 1-10-1966), a.k.a. Belane Racz (applicant #4). When she was pregnant with their first child, she was attacked by skinheads who pushed her to the ground and kicked her. On the same day, she was taken to the hospital where she gave birth prematurely to their son Bela. Threats and minor attacks in the street by skinheads and ethnic Hungarians occurred frequently.
[6] The infant children of applicants #3 and #4, Bela (D.O.B. 6-10-1987) and Peter (D.O.B. 10-2-1991) are also applicants in this judicial review.
[7] Applicants #3 and #4 decided to leave; they came to Canada in August 2000.
[8] Robert Racz (D.O.B. 21-06-1975) (applicant #5) is also the son of applicants #1 and #2. He is married to Barna Ilona, a.k.a. Robertne Racz (D.O.B. 17-02-1975) (applicant #6); together they have a daughter, Brigitta Racz (D.O.B. 3-5-1997), a minor, also an applicant in this judicial review.
[9] Applicants #5 and #6, together with the parents of applicant #5, applicants #1 and #2, decided that it would be better to come to Canada for their own safety. The parents sold their house to pay for all of their tickets. They arrived in Canada on March 25, 2001, and claimed refugee status on arrival.
ISSUES
[10] The applicants raised several issues. I believe that two issues are sufficient to deal with this application:
1) Did the Board member base her decision as to credibility on perverse and capricious findings of fact, without regard for the material before her?
2) Did the Board member apply the wrong test with respect to state protection?
ANALYSIS
1) Did the Board member base her decision as to credibility on perverse and capricious findings of fact, without regard for the material before her?
[11] Credibility is a matter of factual determination, and our Court has long stood by the principle that it will not interfere in decisions based on credibility findings, unless these findings are perverse and capricious such that the decision becomes patently unreasonable.
[12] The Board member has of course much latitude in weighing the evidence. She may prefer one piece of evidence over another.
[13] The Board is entitled to take into account discrepancies between the applicants' PIF and the notes taken by the immigration officer on the applicants' arrival.
[14] Maybe the panel spent much time on those discrepancies; nevertheless the inferences regarding facts omitted from the notes of the immigration officer are not perverse or capricious. It has to be mentioned that relying on the immigration officer's notes, there is no mention by Bela Racz that he has been himself victim of a specific act of persecution; the references are to his wife and children. If the decision was based only on those discrepancies, I would be more concerned, but the panel made an in depth analysis of the facts, and this is one element among many.
[15] The Board member makes an erroneous finding of fact, when she states in her decision that 8 months elapsed between the last attack on the applicants and their arrival in Canada. In fact, it was two months for applicants #1 and #2 (and one month for applicants #5 and #6). The last attack reported for applicant #2 is January 15, 2001; the last attack for applicant #6 was in February 2001. The applicants landed in Canada on March 25, 2001. Applicants #1 and #2 explained that they had to sell their house in order to pay for the plane tickets not only for themselves but also for their son Robert (applicant #5) and his family. The Board did not find the explanation reasonable "in view of their alleged fear and having a son who is a refugee claimant in Canada".
[16] It was not unreasonable to arrive to that conclusion.
[17] The Board draws a negative inference from the fact that applicants #1 and #2 did not apply for asylum in November 2000, but rather went back to Hungary despite years of alleged persecution. Applicant #2 explains that her son and his wife depend on her to take care of their daughter, it was open to the Board to draw a negative inference from that return to Hungary.
[18] The applicants provided a police report and a doctor's report which were found to have no probative value.
[19] Given that the police's report and the doctor's report are based on what the applicants told them, it is not, in my view, corroboration but hearsay and the panel was entitled to assign no probative value to the claimants' documents, given the credibility findings on the claimants themselves.
[20] This Court should not interfere with the findings of fact made by the panel unless they were perverse or capricious. This Court is not entitled to substitute its opinion to the panel's one. Whether I would have render a different decision is not the test.
[21] I consider that the panel made a few errors of fact, but those errors do not amount to an unreasonable decision. In my view, those errors do not justify this Court's intervention.
2) Did the Board member apply the wrong test with respect to state protection?
[22] In recent years, our Court has had a number of judicial applications related to the situation of the Roma in the state of Hungary. While the decision as to the credibility of the applicants and their own history of persecution is factual, particular to each applicant and in some measure subjective, the issue of whether the state of Hungary extends sufficient protection to its Roma citizens should be an objective question - either protection is afforded to Roma citizens by their national state, or not. Yet on this very issue, our Court has been deeply divided, despite the similarity of the evidence presented on the country situation.
[23] In several cases (Szucs v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1614 (F.C.T.D.); Orban v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 681 (F.C.); Olah v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 623 (F.C.T.D.); Pal v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 894(F.C.T.D.); Bela v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 902 (F.C.T.D.)), the Court ruled that it was open to the Board, based on the evidence before it, to find that the state offered sufficient protection to its Roma citizens. Although there had been reports of police indifference and even police brutality towards Roma people, the state of Hungary was making great strides in ensuring fairer conditions to Roma people and educating the police force consequently. The office of the Prosecutor General and Roma self-government organizations are often cited as examples of additional resources the Roma can turn to if they are dissatisfied with the way the police have treated them.
[24] Another line of authority (Sarkozi v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 973 (F.C.T.D.);Elemer v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1021 (F.C.T.D.); Mohacsi v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 771 (T.D.); Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339 (T.D.); Polgari v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 957(F.C.T.D.)) finds that insufficient attention has been paid to the plight of the applicant himself in seeking to avail himself of the protection of the state against criminal acts. Improving the general conditions for the Roma people is one thing, but the task of protecting the citizen against criminal activities is still the domain of the police. If the police are unwilling or unable to provide that protection, or are downright hostile or abusive, then the state is not offering the victim of persecution the protection he or she deserves.
[25] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada concluded that persecution could be inflicted by parties other than the state; what needed to be determined in such an instance, was whether the state offered sufficient protection against this persecution of which it was not an accomplice:
¶ 52 In summary, I find that state complicity is not a necessary component of persecution, either under the "unwilling" or under the "unable" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. I recognize that these conclusions broaden the range of potentially successful refugee claims beyond those involving feared persecution at the hands of the claimant's nominal government. As long as this persecution is directed at the claimant on the basis of one of the enumerated grounds, I do not think the identity of the feared perpetrator of the persecution removes these cases from the scope of Canada's international obligations in this area.
[26] The Board member is the one who weighs the evidence, and on the issue of state protection, a mixed question of fact and law, the standard of review would be reasonableness. The reasonable decision is defined not as the decision the reviewing Court would have made, but rather as a decision that can be reasonably supported by the facts before the Board. (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247).
[27] As we have noted earlier, this Court is divided on the issue of the state protection afforded to the Roma people. Reasonable arguments can be made for both cases.
[28] During the course of the hearing, the Board member asked several times whether the applicants had approached the Prosecutor General or the Roma organizations. The applicants consistently answered in the negative, stating that they had no access to the Prosecutor General, and that the Roma organizations did not exist for these purposes. The documentary evidence does not support this view and the panel applied the appropriate test. The Court's intervention is therefore not justified.
ORDER
THIS COURT ORDERS that:
- This application for judicial review be dismissed.
- No question for certification.
"Pierre Blais" J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-6241-03
STYLE OF CAUSE:
BELA RACZ D.O.B. 1964, BELANE RACZ D.O.B. 1966,
BELA RACZ JR D.O.B. 1987, PETER RACZ D.O.B. 1991
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: September 15, 2004
REASONS FOR ORDER
AND ORDER BY: Blais J.
DATED: September 21, 2004
APPEARANCES BY: Ms. Amina Sherazee
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
Ms. Amina Sherazee
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent