Date: 20031125
Docket: IMM-2817-02
Citation: 2003 FC 1382
Ottawa, Ontario, this 25th day of November, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
GABOR SZORENYI
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), dated May 15, 2002, wherein it was determined that the applicant was not a Convention refugee.
[2] The applicant requests an order for a writ of certiorari quashing the decision of the Board and an order for a writ of mandamus compelling a newly constituted tribunal to consider the applicant's refugee claim.
Background
Introduction
[3] The applicant is a citizen of Hungary. He arrived in Canada on October 27, 2000 and made a Convention refugee claim. His claim is based on membership in a particular social group, namely homosexuals.
[4] In June 1998, the applicant claims he was beaten up after speaking to a young man at a disco. He states that he was not badly hurt and did not report the incident to the police as he did not think they would care.
[5] In April 1999, the applicant was fired from his job when his boss learned that he was gay. When people in his hometown found this out, he claims that they gave him and his parents a lot of trouble and after a while became more aggressive. He claims that he became very afraid and tried not to go out on the street unless it was absolutely necessary.
[6] In January 2000, the applicant was returning from the grocery store when he claims he was attacked and beaten. He testified that he was taken to an emergency ward and the next day went to the police with his parents. He stated that the police did not seem interested in doing anything because there were no witnesses. Neither the applicant, nor his parents followed up with a complaint.
[7] The applicant claims he stayed in his apartment for several weeks, but went out in February 2000 and was attacked again and thrown into a river. He did not report this attack as he did not believe it would be of any use.
Reasons of the Immigration and Refugee Board, Convention Refugee Determination Division
[8] A hearing was held on March 26, 2002. By reasons dated May 15, 2002, the Board determined the applicant not to be a Convention refugee.
[9] The Board determined that the applicant has failed to establish, on a balance of probabilities, that he has a well-founded fear of persecution. Although the Board accepted that the applicant is a homosexual and that homosexuals face discrimination in Hungary, it was not satisfied that homosexuals in Hungary are persecuted or that state protection is not available to them.
[10] In the Board's opinion, sexual minorities in Hungary have been slowly, but surely advancing their rights through the courts and legislation since 1961. While many aspects of the law remain discriminatory, the Board found that similar challenges face many minorities in their struggle for equality before the law.
[11] Beyond the legal framework, the Board noted that Hungary also has several organizations that provide a variety of services for sexual minorities. The Board believes that their existence points to a burgeoning non-governmental movement set up to assist gays and lesbians in a variety of ways.
[12] While the documentary evidence indicated a few instances of physical attacks on homosexuals, the Board found that "a perusal of the documents did not reveal repetitive and persistent denial of core human rights." The Board also found there to be evidence of homophobic attitudes among some politicians, members of the judiciary, police, medical profession and society. However, in the Board's opinion, this has not translated into persecution for gays in Hungary.
[13] In the Board's opinion, the applicant had not provided "clear and convincing" evidence to rebut the presumption of state protection. Having effective control of its territory, with no complete breakdown of state apparatus, the Board was of the opinion that the state is making serious efforts to provide protection. The Board noted that local failures to provide effective policing do not amount to lack of state protection. It also noted that the applicant did not make any efforts to seek protection beyond the initial report to the police, nor did he complain to a higher authority or seek out the many organizations that offer legal advice. The Board found that in the circumstances of the case, it was reasonable for the applicant to have sought further assistance. The Board found the applicant did not make an effort to acquire a copy of his medical report to submit to the police which would have buttressed his claim of assault. The applicant stated he was unaware of the aforementioned organizations. The Board did not find his explanation to be satisfactory.
[14] Accordingly, the Board found the applicant not to be a Convention refugee. This is the judicial review of the decision of the Board.
Applicant's Submissions
[15] The applicant submits the standard of review of the Board's decision in this case is reasonableness simpliciter.
[16] The applicant submits that the Board's findings in regard to the availability of state protection was unreasonable. The applicant submits that subjectively, he felt that state protection was not available and that objectively, the documentary evidence reveals that state protection in Hungary is often not available for minorities, including sexual minorities. It is submitted that the applicant knew of no other avenue of redress other than to contact the police and that his actions in seeking state protection were consistent with his knowledge and were reasonable. It is submitted that it is unreasonable for the Board to expect the applicant to seek state protection which the documentary evidence indicates may not have been available and which, to his knowledge, would not be available. The applicant submits that the Board's finding imposes an unreasonable burden on an applicant which exceeds the overall requirements of the definition of "refugee".
[17] The applicant submits that the Board's finding in regard to the overall situation of homosexuals in Hungary was unreasonable. The applicant points to case law which establishes that being barred from making a living because of membership to a social group is a violation of a core human right. In light of the documentary evidence that homosexuals are commonly fired because of their sexual orientation, the applicant submits that the Board's finding that there was not repetitive and persistent denial of core human rights of homosexuals in Hungary was unreasonable and therefore constitutes a reviewable error.
Respondent's Submissions
[18] The respondent denies that the applicant fled from persecution in Hungary.
[19] The respondent submits that the applicant failed to show clear and convincing evidence that the state was unable to protect him. As such, the Board's finding on state protection is reasonable and the Board's assessment and weighing of the evidence on this issue does not disclose any reviewable error.
[20] The respondent submits that the Board conducted a careful and proper analysis of the evidence adduced in deciding whether the incidents described by the applicant went beyond harassment and constituted persecution. The respondent argues that the Board's finding regarding persecution was reasonable.
Issues
[21] The issues are as follows:
1. Did the Board err in its finding regarding the availability of state protection?
2. Did the Board err in its finding regarding the overall situation of homosexuals in Hungary?
Relevant Statutory Provision
[22] Subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, states:
|
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
"réfugié au sens de la Convention" Toute personne:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
Analysis and Decision
[23] The issues raised by the applicant require this Court to review the Board's decision on a standard of reasonableness simpliciter (see Yousaf v. Canada (Minister of Citizenship and Immigration), 2002 FCT 475). It is therefore not the role of this court to reweigh factors or substitute its view for that of the Board, but rather, to assess whether the decision is "clearly wrong" or unreasonable in all the circumstances (see Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 on the meaning of reasonableness simpliciter).
[24] Issue 1
Did the Board err in its finding regarding the availability of state protection?
The applicant states that he was beaten up in June 1998, but he did not report the incident
to the police as he did not think they would care. In January 2000, he was attacked and beaten and had to seek medical attention. The next day he and his parents went to the police to report the incident and he stated that the police did not seem interest in doing anything as there were no witnesses. Then in February 2000 he was attacked and thrown into the river. He did not report this incident to the police as he did not believe it would be of any use.
[25] To establish a lack of state protection, an applicant must meet an evidentiary burden. In Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (C.A.) (QL), leave to appeal to S.C.C. refused, [1993] 2 S.C.R. xi, the Federal Court of Appeal wrote:
The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid . . . or that the government itself is in some way prevented from giving it.
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of 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. . . .
[26] In Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689, the Supreme Court of Canada wrote at pages 724 to 726:
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. 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.
. . .
. . . 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. . . .
[27] The applicant must provide clear and convincing proof of the state's inability to provide protection. As noted earlier, the applicant did not report two of the three incidents where he was attacked to the police.
[28] Basically, the applicant based the state's inability to provide protection on two points:
1. Similarly situated individuals let down by state protection;
2. His own testimony of past personal incidents in which state protection did not materialize.
[29] The applicant in his affidavit states at paragraphs 3 and 4:
During the hearing I remember being asked about seeking the help of the police. I had told the panel that I had gone to them after I was badly beaten but that they have ignored me. I had also told the panel that from what I had heard from other men in my situation, was that the police would never help them. I had also seen from other people, even those that are not gay, that it is very hard to get protection by the police.
Because of this, when I tried to get help from the police and I got no response, everything that I was told by people was confirmed and I saw no point in trying again. After all others had tried and they had not been successful, why would I be. I had no idea of how to seek help from the authorities in my situation other then to approach the police. Once that failed I did not know where to go.
While it is possible for a refugee claimant to use the testimony of similarly situated individuals to establish a lack of state protection (see Ward, supra), it was not "clearly wrong" for the board to conclude the applicant had failed to do so on the evidence tendered. The statements made by the applicant in his PIF and affidavit regarding "other men in [his] situation" do not constitute clear and convincing proof of the state's inability to protect homosexuals.
[30] The applicant states that his testimony shows past personal incidents where police protection did not materialize. As noted earlier, the applicant stated that he only reported one incident to the police and there were no witnesses to the incident. He states that the police did not seem interested in doing anything because of the lack of witnesses. It does not appear that the applicant did anything further than file the initial report. He did not seek further assistance from other organizations. He stated that he was not then aware of the other organizations, but the Board did not accept this explanation.
[31] The applicant argues it was unreasonable for the Board to expect him to seek assistance from organizations that he, at the time, did not know existed. I cannot agree.
[32] A long line of cases in this Court have found it reasonable for a Board to require claimants to exhaust avenues of protection and redress in addition to the police where it has been available (see Pal v. Canada (Minister of Citizenship and Immigration), 2003 FCT 698). Contrary to the applicant's argument, it is not an unreasonable burden to require claimants to take all reasonable steps to ensure their protection. On the facts of this case, I am satisfied that the Board's finding that "it was reasonable for the claimant to have sought further assistance" does not warrant my intervention.
[33] Consequently, I am of the view that the Board did not make a reviewable error in this respect. The Board's decision was one that it could have reached on the evidence that was before it and thus, was a reasonable decision.
[34] Issue 2
Did the Board err in its finding regarding the overall situation of homosexuals in Hungary?
The Board found that homosexuals in Hungary face discrimination but the Board was not satisfied that homosexuals are persecuted in Hungary nor that state protection is not available to them. Based on my analysis of Issue 1, a review of the transcript and the filed material, I am of the opinion that the Board's finding in relation to the overall situation of homosexuals in Hungary was reasonable.
[35] The Board dealt with the applicant's argument regarding the denial of core human rights in its decision. It stated that its perusal of the documents did not satisfy it that there existed repetitive and persistent denial of core human rights of homosexuals in Hungary. This finding was open to the Board based on the evidence before it and does not warrant intervention by this Court
[36] The application for judicial review is dismissed.
[37] The applicant proposed the following serious question of general importance for my consideration for certification:
When determining whether a claimant's actions in seeking or failing to have sought protection of his home authorities were objectively reasonable, should the decision maker examine the said actions in light of all the circumstances and knowledge of the claimant at the time of the said actions, or should the decision maker consider whether such actions were reasonable in light of all the evidence, documentary and otherwise, available to the tribunal at the time of the proceeding?
I am not prepared to certify this question. For a question to be certifiable, it must be serious, of general importance and it must be determinative of the appeal (see Samoylenko v. Canada (Minister of Citizenship and Immigration) (1996), 116 F.T.R. 144 (T.D.) and Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.)). I am not satisfied that the proposed question meets these criteria.
ORDER
[38] IT IS ORDERED that the application for judicial review is dismissed and no question will be certified.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
November 25, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2817-02
STYLE OF CAUSE: GABOR SZORENYI
- and -
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, May 27, 2003
REASONS FOR ORDER AND ORDER OF O'Keefe J.
DATED: Tuesday, November 25, 2003
APPEARANCES:
Ms. Wennie Lee
FOR APPLICANT
Mr. David Tyndale
FOR RESPONDENT
SOLICITORS OF RECORD:
Wennie Lee
North York, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT