Ottawa, Ontario, April 13th, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
JANOS ROBERT KERTES
and
CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the Board) dated May 25, 2005 that the applicants were not Convention refugees or persons in need of protection because there was adequate state protection in Hungary.
Facts
[2] The applicants, a 42 year-old mother (principal applicant) and her 20 year-old son, are citizens of Hungary of Roma ethnicity. The applicants first claimed refugee protection in Canada in February 1998 and returned to Hungary following their refusal in March 2000. On return to Hungary, the applicant claims to have been persecuted because of her Roma ethnicity and was refused state protection when it was sought. Specifically, the applicant claims:
1. on return to Hungary on March 23, 2000, she was insulted, humiliated and strip searched by authorities at the airport; and
2. on the 5th or 6th of June 2000, she was harassed by two men while she attended her son's soccer match. The men followed her home, assaulted her and attempted to rape her before her son screamed for help. She sought police protection which was not forthcoming because they did not believe her story. She sought medical attention and requested a record of examination which was refused. This event prompted the applicant to flee Hungary and seek protection once again in Canada.
[3] Ms. Kertes fled Hungary with her son and entered Canada on June 24, 2000, claiming refugee protection on arrival. On July 19, 2001 the applicant started a relationship with Mr. George Vanyo, whom she married in Toronto on September 16, 2001.
[4] Ms. Kertes' ex-husband, Mr. Zoltan Lakatos, learned of her return to Canada and desired her to live with him. Having remained illegally in Canada following his refused refugee claim, Mr. Lakatos was arrested by Canadian authorities and deported to Hungary, where he was incarcerated for two years by reason of previous criminal charges. After his release from Hungarian custody in 2004, Mr. Lakatos threatened Ms. Kertes that he would kill their 24-year old daughter Timea residing in Hungary if Ms. Kertes continued to live with her new husband in Canada. He demanded she return to Hungary to live with him.
The decision under review
[5] The Board concluded that Ms. Kertes established her identity and was a credible witness, for which reason it accepted her evidence that she was harassed in Hungary because of her ethnicity, that on one occasion she sought police protection in Hungary which was not forthcoming, and that she feared her ex-husband would harm their daughter unless she returned to Hungary to live with him. The panel rejected Ms. Kertes' refugee claim because it concluded that state protection was available in Hungary, that she failed to rebut the presumption of state protection, and that she was obliged to avail herself of protection from Hungarian authorities beyond her single police complaint before seeking refugee protection in Canada, which she did not do.
Issues
[6] Two issues are raised on this application:
1. Did the Board err in finding adequate state protection exists in Hungary? ; and
2. Did the Board fail to assess Mr. Kertes' claim to be a person in need of protection apart from her claim to be a Convention refugee?
Analysis
Standard of Review
[7] The standard of review for a decision of the Board on a question of state protection is reasonableness simpliciter. (Chaves v. Canada(Minister of Citizenship and Immigration) (2005), 45 Imm. L.R. (3d) 58 (F.C.) at paragraph 11 per Justice Danièle Tremblay-Lamer.) Absent the complete breakdown of the state apparatus, the onus lies on the applicant to tender clear and convincing evidence to rebut the presumption of state protection on a balance of probabilities. (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 50 per Justice LaForest.)
[8] When deciding a question of state protection, the Board makes findings of fact which can be set aside only if they are patently unreasonable. These findings must be assessed against the legal test for state protection, which is a mixed question of fact and law reviewable on the reasonableness standard. (Muszynski v. Canada(Minister of Citizenship and Immigration), 2005 FC 1075 at paragraphs 7 and 8 per Justice Eleanor Dawson.)
Issue No. 1: Did the Board err in finding adequate state protection exists in Hungary?
[9] The applicant submits that the Board erred when it found that state protection in Hungary was available to the applicant because:
(a) it ignored documentary evidence that was important, relevant and contradictory to its conclusion that Hungary adequately protects its Roma citizens; and
(b) it failed to assess the availability of state protection to victims of domestic abuse.
(a) Documentary evidence
[10] The applicant states the Board's analysis on state protection was inadequate, citing the decision of Justice Luc Martineau in Mohacsi v. Canada(Minister of Citizenship and Immigration), [2003] 4 F.C. 771 (T.D.) where he stated at paragraph 45:
¶ 45 Clearly, the analysis made by the Board was perfunctory and renders its finding on the issue of state protection unreasonable. First, the Board has completely failed to consider the contradictory documentary evidence concerning state protection, the applicants' efforts to obtain state protection and the refusal of the authorities at various levels to act.
[11] The Board examined credible documentation on prevailing conditions in Hungary. The United Kingdom's Operational Guidance Notes on Hungary show that the Roma minority suffers discrimination that falls short of persecution. The U.S. Department of State's Country Reports on Human Rights Practices in Hungarygives contradictory evidence about state protection for the Roma, but generally reports that the state is trying to protect Roma. In this case, the Board member does not have to make reference to this contradictory evidence because the overwhelming evidence is that the government of Hungary, including the police, is seriously trying to provide the Roma with state protection.
(b) Victims of domestic abuse
[12] The Board did not fail to assess the availability of state protection in relation to the applicant's fear of spousal abuse or domestic violence. The D.O.S. report is evidence that the government of Hungary has taken serious measures to curb violence against women and domestic abuse. Moreover, the evidence in this case is that the Hungarian police acted on the applicant's daughter's complaint on March 1, 2004 that she was assaulted by her father. After she was assaulted by her father, she went to the police in Budapest and a detailed police report is in the record. The police began an investigation which was discontinued eight months later because the police did not receive sufficient proof of the offence. This evidence demonstrates that the police were available and taking action with respect to domestic violence. Moreover, the applicant's husband had been imprisoned, which shows that the police are protecting society from the husband.
Conclusion
[13] On the evidence before the Board, it was reasonable to conclude that Hungary provides adequate state protection for persons like the principal applicant as a Roma and as a potential victim of domestic abuse. I agree with counsel for the applicants that the reasons for the Board's decision are deficient, but in the circumstances of this case, I cannot conclude that the decision itself could have been decided otherwise. Accordingly, I must sustain the decision.
[14] The parties did not propose a question of general importance for certification, and none is certified.
JUDGMENT
THIS COURT ORDERS that:
This application for judicial review is dismissed.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3908-05
STYLE OF CAUSE: JANOSNE KERTES ET AL
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 6, 2006
APPEARANCES:
Peter Ivanyi FOR APPLICANT
Deborah Drukarsh FOR RESPONDENT
Mr. John Pro
SOLICITORS OF RECORD:
Rochon Genova
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT