Date: 20030915
Citation: 2003 FC 1062
OTTAWA, ONTARIO, MONDAY, THIS 15TH DAY OF SEPTEMBER, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
TIBOR BANDULA, TIBORNE TUNDE BANDULA
(a.k.a. TIBORNE TUNDE BANDULA KOTAI), ZSOLT BANDULA
and TIBOR (Jr.) BANDULA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Tibor Bandula (the "male Applicant"), his wife Tiborne Tunde Bandula (the "female Applicant") and their fourteen year old twin sons, Zsolt Bandula and Tibor (Jr.) Bandula (the "minor Applicants"), all citizens of Hungary, arrived in Canada in September 2001. They claim Convention refugee status on the grounds of a well-founded fear of persecution based on their Roma ethnicity.
[2] The Applicants also base their claim on that of the female Applicant's brother, Zsigmond Kotai. Mr. Kotai's Convention refugee claim was heard at the same time as the Applicants' claims and he was originally a party to this application for judicial review. However, he discontinued his application on September 19, 2002.
[3] A hearing was held before the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") to determine the Applicants' claim and that of Mr. Kotai. While accepting that the Applicants were Roma and that they experienced varying forms of discrimination in Hungary, the Board concluded that:
· the discrimination suffered by the Applicants and Mr. Kotai did not constitute persecution; and
· state protection was available to the Applicants, but they did not fully avail themselves of the avenues of complaints and resources available to them in Hungary.
[4] As a result, in a decision dated June 6, 2002, the Board found that the Applicants were not Convention refugees. The applicants are seeking a judicial review of that decision.
Issues
[5] The Applicants raise the following issues:
1. Did the Board err in its analysis of discrimination versus persecution?
2. Did the Board err in its analysis of state protection?
Analysis
[6] For the reasons that follow, I am of the view that this application should not succeed.
Issue #1 (a): Did the Board err in its analysis of discrimination v. persecution?
[7] In the Applicants' submission, the Board erred by unduly restricting the scope of persecution and failing to adequately address whether the discrimination cumulatively amounted to persecution. In particular, the Applicants submit that:
· Beatings, acts of violence, death threats, psychological violence and serious economic deprivations may all be components of persecution (Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675 (C.A.), aff'd [1995] 3 S.C.R. 593; Porto v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 881 (T.D.) (QL); Munoz v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1824 (T.D.) (QL); Bragagnini-Ore c. Canada (Secrétaire d'État),[1994] A.C.F. no 143 (T.D.) (QL); Lerer v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 31 (T.D.) (QL); Ammery v. Canada (Secretary of State), [1994] F.C.J. No. 676 (T.D.) (QL)).
· The Board was under a duty to consider whether repeated acts of harassment in the past may lead to a serious possibility of persecution in the future (Bobrik v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1364 (T.D.) (QL); Yip v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1529 (T.D.) (QL)).
[8] It is helpful to begin with the conclusions that this court has reached. with respect to the definition of "persecution". They are as follows:
· Persecution requires an affliction of repeated acts of cruelty or a particular course or period of systematic infliction of punishment (Sagharichi v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 796 (C.A.) (QL), leave to appeal dismissed [1993] S.C.C.A. No. 461 (QL); Rajudeen v. Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 601 (C.A.) (QL)).
· Discriminatory acts may constitute persecution where those acts are "sufficiently serious and occur over such a long period of time that it can be said that the claimants' physical or moral integrity is threatened" (N.K. v. Canada (Solicitor General), [1995] F.C.J. No. 889 at para. 21 (T.D.) (QL)).
· It is an error of law for the Board to fail to consider evidence that in itself does not constitute persecution, but forms part of a pattern of persecution (Retnem v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 428 (C.A.) (QL); Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49 (C.A.) (QL); Porto, supra; Yip supra.
[9] In more general terms, the Board must look beyond any single act of discrimination to the cumulative effect of the actions alleged by the refugee claimants. The question is whether the Board respected these guiding decisions. A review of the Board's decision shows that it understood the relevant law and reviewed the testimony of the Applicants appropriately.
In its reasons, the Board recognized that it is an error to fail to assess whether incidents of discrimination cumulatively constitute persecution. The Board then made the following finding on this issue:
In the panel's view, the verbal abuse at school faced by all the claimants does not amount to persecution. There is no substantial evidence to indicate that any of their fundamental rights were ever denied. They had faced some physical harm from hooligans and skinheads. The panel will address the issue of state protection in the following paragraph. In the matters related to the economic situation of their youth, the discrimination at work and at school, the panel finds that these do not amount to persecution.
[10] Having reviewed the testimony presented by the Applicants concerning the treatment that they claim amounts to persecution, I conclude that the Board's ultimate conclusion that the discrimination experienced by the Applicants at work and at school did not constitute persecution was not unreasonable or capricious.
[11] Moreover, even taking into account the physical attack on the male Applicant in 1997, it was reasonably open to the Board to conclude that the Applicants did not have a well-founded fear of persecution. This physical attack took place in August 1997; the Applicants did not leave Hungary until September 2001. There was no evidence that the male Applicant was subjected to further attacks during those four years. As a result, I am of the view that this single attack, which took place more than four years before the Applicants fled Hungary, is not sufficient to support a conclusion that the Applicants have a well-founded fear of persecution in Hungary because of their Roma ethnicity.
Issue #1 (b): Is the persecution, if any, experienced by Mr. Kotai relevant?
[12] The Applicants submit that the persecution experienced by Mr. Kotai continues to be pertinent to the remaining family members' claims and any errors made by the Board with respect to Mr. Kotai's claim impact on them. Acts directed against a family member can be considered persecutory acts against the claimant himself (Arguello-Garcia v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 635 (T.D.) (QL); Madelat, supra; Surujpal v. Canada (Minister of Employment and Immigration), [1985] F.C.J. No. 326 (C.A.) (QL)). In the Applicants' view, the Board's decision that the experiences of Mr. Kotai amounted to discrimination and not persecution was entirely unreasonable.
[13] Significant portions of the evidence related to the treatment of Mr. Kotai, whose claim is not part of this application. Although it has been held that ill treatment of family members has constituted persecution, the cases cited by the Applicants on this point are distinguishable. None of the cases deals with a situation where the family member in question was found not to be a Convention refugee and is not challenging that finding. Moreover, the nature of the ill treatment of the family members in Arguello-Garcia, supra and Surujpal, supra was much more severe than that in the present case and the applicants themselves also suffered ill treatment.
[14] Therefore, the ill treatment of Mr. Kotai should be afforded little weight given that Mr. Kotai is not challenging the Board's negative determination of his Convention refugee claim. As a result, even considering the treatment of Mr. Kotai, I am of the view that the Board's conclusion that the Applicants (a group that does not include Mr. Kotai) did not suffer persecution was not unreasonable or capricious.
Issue #2: Did the Board err in its analysis of state protection?
[15] In the Applicants' submission, the Board erred:
· by ignoring credible evidence that Mr. Kotai was persecuted by the police on at least fifteen occasions and that the male Applicant had been refused protection by the police. Where the police choose to do nothing, it is equivalent to stating that they are unable to provide protection (Kraitman v. Canada (Secretary of State), [1994] F.C.J. No. 1063 (T.D.) (QL)).
· by preferring selective documentary evidence over that of credible claimant-specific and reliable documentary evidence without explaining its preference (Balogh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 809, [2002] F.C.J. No. 1080 (T.D.) (QL); Munkoh v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 863 (T.D.) (QL)).
· by failing to consider the Applicant's testimony regarding country conditions when it had found him to be credible (Camara v. Canada (Minister of Employment and Immigration), 13 Imm. L.R. (2d) 145, [1991] F.C.J. No. 56 (C.A.) (QL)).
· by expecting the Applicants to seek out other avenues of redress, other than contacting the police, when they were victims of criminal offences. The incidents complained of by the Applicants were criminal in nature and were not within the jurisdiction of a Human Rights Commission. (Cuffy v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1316 (T.D.) (QL); Elcock v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1438 (T.D.) (QL); Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339, 2002 FCT 1081, [2002] F.C.J. No. 1425 (T.D.) (QL)).
· by equating a willingness to address the issue of state protection with adequate state protection (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Balogh, supra).
· by not analyzing the meaningfulness, effectiveness and durability of the recent changes and by making findings not supported by the documentary evidence (Orgona v. Canada (Minister of Citizenship and Immigration), 2001 FCT 346, [2001] F.C.J. No. 574 (T.D.) (QL); Cuadra v. Canada (Solicitor General), [1993] F.C.J. No. 736 (C.A.) (QL); Vodopianov v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 964 (T.D.) (QL)). The evidence before the Board indicated that, while Hungary is willing to address the plight of the Roma, those attempts have not been overly successful
[16] In spite of the Applicants' lengthy list of alleged errors with respect to the Board's findings, in my view, the Board's findings on state protection were reasonably open to it based on the totality of the record.
[17] The Board's finding that there was adequate state protection in Hungary can be overturned if this Court is satisfied that the Board was clearly wrong (Cihal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 577 (C.A.) (QL)).
[18] The issue of state protection is critical to the Applicants' application for judicial review. In order for the Applicants to be considered Convention refugees, they must provide clear and convincing evidence of Hungary's inability to afford protection (Ward, supra).
[19] The Board undertook a comprehensive and balanced review of the documentary evidence before it. As part of its analysis, the Board acknowledged the continuing and widespread mistreatment of Roma in Hungary, as well as the police abuse of Roma. In the end, after weighing all of the evidence, the Board found that state protection was adequate. It is not the purpose of a judicial review to re-weigh the evidence.
[20] In reviewing the Board's state protection finding, it is important to keep the factual context of that finding in mind. This context includes the discrimination at school and at work faced by the Applicants, as well as the 1997 skinhead attack on the male Applicant. As a result, a number of the cases relied on by the Applicants, including Molnar, supra and Balogh, supra, are distinguishable because those cases involved the state's inability to protect the applicants from serious physical attacks by the police or other attackers.
[21] Since there was no evidence in this case that the two skinheads who attacked the male Applicant were agents of the state, the Board did not err by assessing whether state protection was present in Hungary (Ward, supra; Zhuravlvev v.Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3, [2000] F.C.J. No. 507 (T.D.) (QL)).
[22] As stated above, the Applicants had the burden of providing clear and convincing evidence of Hungary's inability to protect them. This burden is directly proportional to the level of democracy in Hungary (Canada (Minister of Citizenship and Immigration) v. Smith, [1999] 1 F.C. 310 (T.D.), [1998] F.C.J. No. 1613 (T.D.) (QL); Kadenko c. Canada (Ministre de la Citoyenneté et de l'Immigration), A.C.R. no. 1376 (C.A.) (QL). According to Décary J.A., writing for the Federal Court of Appeal in Kadenko, supra at paragraph 5:
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. (footnotes omitted)
[23] At the hearing, the male Applicant testified about an incident in 1997 where two Hungarian police officers were unwilling to assist him after he was attacked by two skinheads. I agree with the Applicants that they were not required to report this criminal act to an agency or organization other than the police. Tremblay-Lamer J. pointed out in Molnar, supra, that it is the role of the police, and not of human rights organizations, to provide protection from crime. However, the mere refusal of these two police officers in 1997 to assist the male Applicant is not sufficient to establish the inability of Hungary to protect the Applicants (Kadenko, supra; Zhuravlvev, supra). Given the recent improvements in Hungary regarding the treatment of minorities, the decline in the number of skinhead attacks in recent years, and the establishment of institutions that receive and make recommendations on complaints against the police, as outlined by the Board in its reasons, it was not clearly wrong for the Board to conclude that there was state protection available to the Applicants in Hungary.
[24] The male Applicant also described the discrimination that he and his family faced at school and at work. However, although he had heard of the Ombudsman and the Roma Self-Government, he did not report this discrimination to these or any other organizations. As a result, the Applicants failed to establish that they had done anything to try, let alone exhaust, the courses of action open to them (Kadenko, supra).
[25] Unlike in Cuadra, supra and Vodopianov, supra, the Board conducted a detailed analysis of the documentary evidence of the changes in Hungary regarding discrimination against the Roma and state protection in that country. In addition, the Board specifically acknowledged the evidence that supported the Applicants' position. As a result, unlike in Munkoh, supra and Balogh, supra, the Board did not err by selectively relying on the documentary evidence without referring to contradictory evidence. In addition, this case is distinguishable from Balogh, supra because there is no allegation that the Board misinterpreted the evidence in this case; the applicant in Balogh, supra approached the police and other Hungarian agencies for assistance, and the discrimination experienced in Balogh, supra was of a much more serious nature than that in the present case.
[26] In my view, it was reasonably open to the Board to conclude that the Applicants "did not fully avail themselves of the avenues of complaints and resources available to them". There is no reviewable error.
Certified Question
[27] Neither party proposed a question of general importance for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
2. There is no question certified.
"Judith A. Snider"
____________________________________ Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4236-02
STYLE OF CAUSE: Tibor Bandula et al
Applicants
- and -
The Minister of Citizenship and Immigration
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, September 9, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MADAM JUSTICE SNIDER
DATED: Monday, September 15, 2003
APPEARANCES BY:
Ms. Elizabeth Jaszi FOR THE APPLICANTS
Ms. Jillian M. Siskind FOR THE RESPONDENT
SOLICITORS OF RECORD:
ELIZABETH JASZI FOR THE APPLICANTS
BARRISTER & SOLICITOR
1267 A ST. CLAIR AVE. W.
UNIT #1
TORONTO, ONTARIO
M6E 1B8
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA