Date: 20011211
Docket: IMM-2074-01
Neutral citation: 2001 FCT 1360
BETWEEN:
KOLOMPAR JOZSEF
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated March 6, 2001, wherein it was determined that the applicant was not a Convention Refugee.
[2] The principal issue is whether the Board erred in its analysis of the availability of state protection.
[3] The two members of the Board split on whether the applicant was credible or not. Accordingly, the applicant must be deemed credible. The Board members appear to have decided that the applicant was not persecuted but, in any event, even if there was no persecution, they went on to consider the availability of state protection and decided that there was available state protection to the applicant.
[4] There was an argument made that since the Board had determined that the applicant had not been persecuted, the Board had decided the ultimate question before it, that is, whether the respondent met the definition of Convention Refugee, and could not legitimately reverse itself later. M.C.I. v. Balogh 2001 FCT 1210 was cited as authority for this proposition.
However, this case goes against all the earlier jurisprudence of this Court which had always permitted the Board to proceed to deal with state protection after determining there was no persecution, and for the purpose of the state protection argument, to assume that the applicant was persecuted. There is no case law cited in the Balogh, supra case to support this proposition and apparently no case law was submitted to the Court.
[5] The applicant is a citizen of Hungary, of Roma ethnicity. He indicated that he had been beaten twice by skinheads in 1994 and 1995. However, in neither case did he report the matter to the police. He indicated that he was fearful of doing so and relied on the information from his brother who had been beaten in 1992 and who had reported the incident to the police and received no assistance.
[6] The Board stated the following with respect to the applicant's complaints in this respect:
The documentary evidence supports the claimant's assertion that people sometime [sic] do 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. Moreover, the documentary evidence disclosed that beginning in 1995, the police at both local and national levels have established closer relationships with the Roma community in a structured an [sic] ongoing basis. A minority protection program has been established by the police in Nograd County. At the academy for senior police officers, a special program of Romani studies has been instituted. In addition, the police have established various forms of assistance in an attempt in [sic] replenishing their ranks with a wide range of people of Gypsy origin. The above referenced documentary material indicates improved relationship between police and the Roma. This causes the panel to conclude that the claimant would be able to get state protection should he require it in the future.
[7] The Board then states later:
The panel concedes that the claimant may not be very sophisticated and was not aware of some of the organizations to whom he may have turned for help. However, he had a duty to provide the panel with "clear and convincing evidence that state protection would not have been reasonably forthcoming", noting that the claimant made no attempt to complain to anyone when he was allegedly assaulted in 1994 and 1995.
In Szucs, the courts ruled that:
In determining the availability of state protection, the Board was also entitled to examine all reasonable steps the applicant has taken in the circumstances to seek protection of his state of origin.
We also concede that some police in Hungary have not always been responsive to the problems of Roma, however, the previously referenced documentary evidence indicates that the state is endeavouring to improve the situation. We take the view that state protection in Hungary is adequate, not necessarily perfect.
The second member agreed with the first member with respect to adequate state protection, saying that:
... I agree with my colleague that adequate state protection is available to the claimant should he return to Hungary, as set out in my colleague's reasons.
[8] These findings were open to the Board. In the applicant's testimony he stated that he was aware of the Roma Self-government or minority Self-government since 1993 but that he did not speak to them. He said this was because he did not dare to do so and he did not "go to them for help to save them from any further trouble".
[9] There is no internal contradiction in the Board's stating that the applicant was not very sophisticated and may not have been aware of some of the organizations to whom he could turn for help, but still finding that he should have sought assistance. According to the documents relied on by the Board, which originate from the Ministry of Interior of Hungary, the situation has changed since the brother was attacked in 1992. The Board concludes at page 10 where they quote from Bede v. M.C.I., [1999] F.C.J. No. 1036, where the Court emphasized in part:
The documentary evidence demonstrates that the authorities have made many attempts to better protect the gypsies and seems to indicate that over the last few years, the Hungarian government has introduced a series of legislative amendments to improve the underprivileged situation of Gypsies in that country. In light of the objective situation in Hungary, it accordingly seems that the applicants face no risk of persecution if they were to return to their country of origin.
[10] I agree that both comments are applicable in the present case. It was open for the Board to find that the documentary evidence did not demonstrate the inability of the state to provide adequate protection. It was also reasonable for the Board to find that the applicant had not established the state's inability to protect.
[11] The application for judicial review is dismissed.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
December 11, 2001