Date: 20001003
Docket: IMM-6248-99
BETWEEN:
SANDOR SZUCS
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the Immigration and Refugee Board's decision (the "Board") rendered on December 1, 1999, wherein the Board determined that the Applicant was not a Convention refugee.
Facts
[2] The Applicant is a 29-year-old citizen of Hungary who claims status as a Convention refugee on the basis of a well-founded fear of persecution because of his membership in a particular social group, the Roma/Gypsy of Hungary.
[3] The Applicant has completed 12 years of education and has been continuously employed since leaving school in 1988. The Applicant also served in the armed forces where he was promoted to the rank of sergeant.
[4] The Applicant claims that he suffered discrimination in school, social situations and in the workforce because of his race and appurtenance to the Roma of Hungary. An example of discrimination the Applicant claims that he suffered in the workforce is that when he joined the army, he was given the worst possible jobs, including the cleaning of toilets.
[5] The Applicant also recounted four attacks perpetrated against him by skinheads. He claims that, in 1985, when he was 14 years old, skinheads hit him in the head and kicked him in the ribs. A second incident occurred in 1988 and as a consequence, the Applicant suffered an injury to his eye which resulted in impaired vision for two weeks. The Applicant also claims that a third incident resulted in a broken leg. As for the last incident, the Applicant claims that it occurred in October 1998 and that he and a group of friends, including his girlfriend, were beaten up. He alleges that he sustained injuries to his face and his car was vandalized.
[6] The Applicant claims that he did not report the first two incidents to the police because he did not think it would help his situation. As for the later incidents, the Applicant alleges that the police were called to the scene but did nothing to investigate the incident or to find the perpetrators.
Law relating to state protection
[7] In order to determine if an Applicant is a "Convention refugee", the Board has to determine if the Applicant has a well-founded fear of persecution. The Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 723, stated the test to establish fear of persecution as follows:
| As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134: |
| 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. |
[8] The Supreme Court also explained that the state's inability to protect should be considered at the stage of establishing whether a fear is "well-founded". The Supreme Court held that: "The test is in part objective; if a state is able to protect the claimant, then his or her fear is not, objectively speaking, well-founded". The Supreme Court further held that: "The position reflected in the UNHCR Handbook, therefore, is that acts by private citizens, when combined with state inability to protect, constitute "persecution"." The Supreme Court stated that clear and convincing confirmation of a state's inability to protect must be provided in order to conclude to a state's inability to protect.
1. Did the Board err in assessing the evidence and concluding that adequate and reasonable state protection was available to the Applicant?
[9] The Applicant claims that the Board erred in failing to accept the uncontradicted testimony of the Applicant, or making any reference to counsel's 36 page written submissions, that the Hungarian police in general refuses to adequately protect the Roma.
[10] I cannot accept this submission. The Board is entitled to rely on documentary evidence in preference to the testimony provided by a claimant. See Zhou v. Canada (M.E.I.), July 18, 1994 (A-492-91), Victorov v. Canada (M.C.I.), June 14,1995 (IMM-5170-94), Arutinova v. Canada (M.C.I.), January 11, 2000 (IMM-1664-99).
[11] The Board is also entitled to give more weight to documentary evidence, even if it finds the Applicant trustworthy and credible: Dolinovsky.v. Canada (M.C.I), November 5,1999 (IMM-1664-99).
[12] Furthermore, the Board does not have to mention each and every piece of evidence submitted. In Florea v. Canada (M.E.I), June 11, 1993 (A-1307-91) the Federal Court of Appeal stated at paragraph 1:
| The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed. |
[13] In the case at bar, there is evidence that the Board took into account the evidence submitted by the Applicant but decided to prefer other documentary evidence when it said at page 4 of the Board's decision:
| The documentary evidence supports the claimant's assertion that he did not get help from the police. Other documentary evidence, however, points to the fact that significant changes are being made in the police/Roma relationship. |
[14] The Applicant contends that the Board erred by failing to give reasons why, if documentary evidence supported the Applicant's assertion that he did not get help from police, the Board preferred contradictory evidence which did not support that assertion. The Applicant also submits that the Board erred by failing to give reasons why the Board found unreasonable the Applicant's assertion that he did not report the 1998 incident to the police because he believed that the police were not interested in finding perpetrators.
[15] As stated in Cepeda-Gutierrez v. Canada (M.C.I) (1998), 157 F.T.R. 35 at paragraph 16:
| On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (M.E.I) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.). That would be far to onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. |
| [Emphasis added] |
[16] I respectfully disagree with the Applicant's claim that the board failed to give reasons why it preferred documentary evidence over the Applicant's assertion and why it found the Applicant's assertion unreasonable.
[17] At pages 4 and 5 of the decision, the Board cited various extracts from the documentary evidence that showed the efforts of the police and the state to improve relationship between the police and the Roma. These extracts are the Board's explanations why it preferred the documentary evidence over the Applicant's assertion that he did not get help from police and why it could not find the Applicant's assertion reasonable in view of the documentary evidence. These are sufficient reasons. I find that the Board was entitled to weigh and give preference to the documentary evidence.
[18] The Applicant submits that the Board erred in concluding that the Applicant's assertion that he did not follow up the 1998 incident to the police because he believed that the police were not interested in finding perpetrators was unreasonable by relying on an incident which took place a year after the incident referred to by the Applicant.
[19] The Board has to evaluate the evidence relating to the Applicant's country of origin at the time of the hearing; Canada (M.E.I). v. Malgorzata (1991), 13 Imm. L.R. (2d) 262, (F.C.A.). Thus, the Board did not err when it determined, in light of the evidence, that the Applicant's assertion regarding the willingness of the police to offer protection was unreasonable. The Board was entitled to examine all evidence of the state's effort to protect the Roma in order to conclude whether state protection was available. It was reasonable for the Board to conclude in light of the evidence that police protection was available to the Applicant should he return to Hungary and therefore it was reasonable for the Board to conclude that it could not accept the Applicant's assertion to the contrary.
[20] Considering the circumstances of this case, I conclude that the Board did not err in handling the evidence and in assessing the evidence as a whole. The Board was entitled to weigh the evidence before it and determine its cogency and reliability.
2. Did the Board err in its interpretation and application of the law relating to state protection?
[21] The Board concluded as follows at page 6 of its decision:
| Taking guidance from Zalzali, the panel finds that adequate protection was available to the claimant. He was not able to provide the panel with "clear" and "convincing" evidence of a lack of state protection available to him because he is a Roma. Given the relevant evidence, the panel finds, on a balance of probabilities, that the claimant has not faced serious or sustained harm. But even if the claimant has faced such harm that subjectively gives rise to fear, he is obliged to exhaust the avenues of protection open to him in his country before seeking surrogate protection. He has not done so. |
[22] The fact that the Board did not explain on which part of Zalzali it was taking guidance from, is not an omission that warrants the intervention of this Court. It is obvious from the Board's decision that it understood the test applicable in order to determine state protection and that it applied the test correctly. I find that the Board was guided by the right law principles when it examined the evidence and that it did not err on the issue of applying the test in Ward, supra.
[23] The Applicant claims that the Board erred in concluding that the Applicant had to exhaust the avenues of protection open to him in his country before seeking surrogate protection.
[24] It has been established in Ward, supra, that the Applicant has a duty to approach his country of origin where state protection might reasonably have been forthcoming or where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities.
[25] In N.K. v. Canada (M.C.I.) (1996), 143 D.L.R. (4th) 532 (F.C.A.), the Federal Court of Appeal explained how the state's ability to protect will be assessed. The Federal Court of Appeal stated at paragraph 3:
| Once it is assumed that the state (Israel in this case) has political and judicial institutions capable of protecting its citizens, it is clear that the refusal of certain police officers to take action cannot in itself make the state incapable of doing so. The answer might have been different if the question had related, for example, to the refusal by the police as an institution or to a more or less general refusal by the police force to provide the protection conferred by the country's political and judicial institutions. |
| In short, the situation implied by the question under consideration recalls the following comments by Hugessen J.A. in Minister of Employment and Immigration v. Villafranca1: |
| No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation... |
| When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. |
[26] In Jane Doe v. Canada (M.C.I.), November 21, 1996 (IMM-1514-95), Rothstein J. held that a claimant should be required to take all steps reasonable in the circumstances to seek protection in the country of origin. The Court also held at paragraph 1:
| In this case the seeking of protection had to be considered not only in the context of the country of origin in general but also with respect to all the steps the Applicant did take and the interaction the Applicant had with the authorities in the very unusual circumstances of this case. |
[27] Thus, in the case at bar, the Board had to determine if state protection was reasonably forth coming for the Applicant in Hungary. In determining the availability of state protection, the Board was also entitled to examine all reasonable steps the Applicant had taken in the circumstances to seek protection of his state of origin.
[28] The Board concluded that police protection would be available to the claimant should he require it in the future but also that additional protection was available from other organizations. The Board found that for more serious and persistent forms of discrimination like eviction from housing, persistent unemployment due to discrimination or other serious harm, there was a network of government and government sponsored organizations throughout Hungary which assist without charge those so threatened.
[29] The evidence established that the Applicant had never tried to seek help from either the Ombudsman, NGO's or through minority self-government. I find that the Board, in requiring the Applicant to exhaust these avenues of protection in addition to police protection, was asking the Applicant to take reasonable steps in order to ensure his protection.
[30] I find that the Board's conclusion on the issue of state protection was reasonable and that its conclusion was well supported by the evidence in view of the circumstances of this case.
[31] This application for judicial review is dismissed.
[32] Neither counsel has suggested a question for certification.
Pierre Blais
Judge
Ottawa, Ontario
October 3, 2000
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