Date: 20050517
Docket: IMM-10049-04
Citation: 2005 FC 710
Toronto, Ontario, this 17th day of May, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
LENKE JUNGWIRTH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Ms. Lenke Jungwirth, is a 26-year-old Hungarian Roma woman who claims a well-founded fear of persecution because of her ethnicity. She sought judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board"), dated October 20, 2004, which found that Ms. Jungwirth was not a Convention refugee or a person in need of protection. I have found no grounds for interfering with that decision. These are my reasons for dismissing the application.
[2] Ms. Jungwirth first came to Canada in August 1999 and made a claim for refugee status. In August 2000, she was determined not to be a refugee and in March 2001, she returned to Hungary.
[3] Ms. Jungwirth alleged that she faced continuing and escalating discrimination in Hungary because of her Roma ethnicity which culminated in an attack upon her and her brother in August 2001. This occurred while they were walking home from work late one day. They were attacked by three men and her brother was beaten unconscious and both were threatened with death. The assailants ran away when her uncle approached. The police were called and took a report of the incident. Her brother was hospitalized for three days. No perpetrators were apprehended as it was dark when the attack occurred and the assailants could not be identified. Ms. Jungwirth arrived back in Canada November 23, 2001 and claimed the same day.
[4] For the purpose of this claim, the Board found that the events prior to March 2001 were res judicata, so it dealt only with the nine-month period from March 2001 to the end of November 2001.
[5] At the hearing, the applicant claimed to have followed up with the police four times and that she and her brother attempted to seek redress through the Roma self-government, without results. None of these details appeared in her Personal Information Form ("PIF"). The Board found that Ms. Jungwirth' explanation of her efforts to seek state protection was not credible by reason of the inconsistencies between her oral testimony and the PIF .
[6] The Board found that Ms. Jungwirth had failed to rebut the presumption of state protection because she did not seek protection beyond reporting the incident to the local police who attended at the scene and prepared a report. There was no suggestion that the police or any other agency of the state were responsible for or involved in the attack.
[7] Ms. Jungwirth had not sought the protection of the Ombudsman (Parliamentary Commissioner for the Rights of National and Ethnic Minorities), the Public Prosecutor or other instruments of state protection in Hungary such as the regional police. Nor had she sought the aid of any of the non-governmental organizations concerned with the rights of minorities such as the Roma Civil Rights Foundation, the Legal Defence Bureau for National and Ethnic Minorities (NEKI), the European Roma Rights Center, the Hungarian Helsinki Committee and the Roma Parliament.
[8] The sole issue argued before me was whether the Board had erred in its application of the law of state protection to the facts of this case.
[9] There are divergent views on the standard of review with respect to findings of state protection. The standard has been held in several decisions to be one of patent unreasonableness: Horvath et.al.v.Canada (Minister of Citizenship and Immigration) 2002 FCT 1206 (T.D.); Carmona v. Canada (Minister of Citizenship and Immigration)_2004 FC 1298.
[10] In other cases, it has been determined to be a question of mixed fact and law for which the standard of reasonableness simpliciter should apply: Canada (Minister of Citizenship and Immigration) v. Smith, [1999] 1 F.C. 310 (T.D.); Racz v. Canada (Minister of Citizenship and Immigration) 2004 FC 1293; Chaves v. Canada (Minister of Citizenship and Immigration) 2005 FC 193. Justice Tremblay-Lamer conducted a pragmatic and functional analysis in Chaves to arrive at the conclusion that less deference should be afforded the Board's findings in this regard. I see no reason to differ with her analysis.
[11] In this case, applying the reasonableness standard, I would not find fault with the Board's findings.
[12] The general presumption is that the state is able to provide protection to its citizens. In the absence of clear and convincing evidence of the state's inability to do so, the Court should not interfere with the Board's finding: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The protection afforded by the state need not be perfect: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232 (F.C.A.).
[13] The applicant submits that, in finding that she faced no risks for which state protection was not available, the Board ignored significant documentary evidence that the laws, policies and programmes in Hungary are not producing effective or adequate state protection.
[14] In addition, the applicant submits that the Board erred in its understanding of the definition of state protection because it considered an irrelevant factor: the availability of protection from non-state actors: Mendoza v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 90 (T.D.); Thakur v. Canada (Minister of Citizenship and Immigration) (1993), 65 F.T.R. 158 (T.D.). The purpose of human rights organizations and agencies is not to provide protection from crime. That is the proper role of the police: Mohacsi v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 771 (T.D.) at para. 57; Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339 (T.D.) at para. 23.
[15] The respondent submits that the alleged efforts to seek state protection (the follow-ups with police) were not credible and the applicant had no explanation for why she did not seek protection from others besides the police. There was nothing patently unreasonable in the Board's findings. Absent a complete breakdown of state apparatus, there is a presumption that the state can protect the claimant; Ward, supra.
[16] The Respondent submits that the Board considered all of the evidence, which supported its conclusion, and was not required to cite all of the contradictory evidence: Szucs v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1614 (T.D.); Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.).
[17] I have reviewed the evidence purportedly ignored by the Board. In this case, the police were not the agents of persecution, as in Molnar,supra; rather, the allegation was that they were unable to provide effective protection. Much of the material cited by the applicant on this point is not helpful to her case as it is either not germane to the facts or based on out-of-date information. The presence or absence of racism in the prosecutor's office is simply not an issue here, because there was neither a refusal on the part of the police to investigate, nor allegations of misconduct by the police. In any case, even in 1998, when the experts cited on this point were interviewed there was not unanimity on this point.
[18] As noted by Justice Blais in Racz, supra at paras. 22-24, the jurisprudence of this Court has been divided on the question of whether effective state protection is available to the Roma in Hungary. Several decisions have held that such protection can be provided by state run or funded agencies in addition to the police: Pal v. Canada (Minister of Citizenship and Immigration) 2003 FCT 698; Nagy v. Canada (Minister of Citizenship and Immigration) 2002 FCT 281; Karoly v. Canada (Minister of Citizenship and Immigration) 2005 FC 412; T.C. v. Canada (Minister of Citizenship and Immigration) 2004 FC 1097; Szorenyi v. Canada (Minister of Citizenship and Immigration) 2003 FC 1382.
[19] In any case, with respect to whether the Board inappropriately took into account the ability of the Ombudsman's office or the minority self-government to protect the applicant, the Board did not consider these institutions in the context of providing protection from violence, but rather of protection from the ongoing discrimination the applicant had alleged. The applicant had alleged discrimination from her employer and others, the implication being that it had led to the attack upon her and her brother.
[20] Accordingly, I conclude that the applicant did not discharge her burden of establishing that adequate state protection was not available to her in Hungary and the Board did not err in so finding. Ms. Jungwirth's application is therefore dismissed.
[21] No serious question of general importance was proposed and none is certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10049-04
STYLE OF CAUSE: LENKE JUNGWIRTH
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 11, 2005
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: May 17, 2005
APPEARANCES:
John Grice (for Jack Davis) FOR THE APPLICANT
Karen Dickson FOR THE RESPONDENT
SOLICITORS OF RECORD:
JACK DAVIS FOR THE APPLICANT
Davis and Grice
1110 Finch Avenue West, Suite 706
Toronto, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario