Date: 20040804
Docket: IMM-2726-03
Citation: 2004 FC 1066
Toronto, Ontario, August 4th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
LASZLO JONAS AND ZSUZSA ALMASSY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Jonas and Ms. Almassy, husband and wife and citizens of Hungary, claim a fear of persecution at the hands of Hungarian citizens, skinheads, agents of the state and Ms. Almassy's family. He is of Roma ethnicity. She is ethnic Hungarian. In reasons dated March 12, 2003, the Refugee Protection Division of the Immigration and Refugee Board determined that they were neither Convention refugees nor persons in need of protection. The Board concluded that the mistreatment suffered by Mr. Jonas and Ms. Almassy, viewed culminatively, amounted to discrimination and not persecution. Moreover, the applicants failed to adequately avail themselves of state protection. For the reasons below, I can find no grounds to interfere with that decision and this application for judicial review will be dismissed.
[2] The applicants raised a number of issues respecting the Board's decision: they claim that the Board made erroneous findings of fact; that it erred in preferring documentary evidence to that of the specific incidents related to by the applicants; that it failed to consider supportive documentary evidence; that it erred in concluding that the cumulative effect of discrimination did not amount to persecution; and finally, that it erred in law in its analysis of the availability of state protection.
Did the Board make erroneous findings of fact?
[3] In his testimony, Mr. Jonas described a long history of incidents of abuse related to his Roma ethnicity dating back to his childhood. At page 5 of the Board's reasons, it is noted that the "male claimant allegedly experienced two racially motivated attacks...in summer 2000...". The applicants argue that this indicates that the Board failed to consider the full history related by the male applicant and relied upon an erroneous finding of fact to arrive at its determination that the discrimination suffered was not serious and persistent and did not amount to persecution.
[4] According to the respondent, the Board considered the beatings and abuse the male applicant suffered as a child and into his adulthood. Details of such are found at pages 2-3 of the Board's reasons. The Board referred to two principal assaults, but it was never the Board's contention that these assaults were the only abuse that occurred. Moreover, the Board was correct to focus on the more recent mistreatment alleged by Mr. Jonas.
[5] A close review of the Board's reasons has satisfied me that it did consider all of the incidents related by Mr. Jonas in arriving at its determination that they did not, cumulatively, amount to persecution. The incidents are clearly outlined in the "facts" section of its reasons. The reference to the two incidents in the summer of 2000 arises in the context of an analysis of Mr. Jonas' failure to report either incident to his employer or to the police. The Board found this to be inconsistent with his alleged fear of persecution. The statement does not, therefore, amount to an erroneous finding of fact.
Did the Board err in preferring documentary evidence to that of the specific incidents described by the applicants?
[6] The applicants submit that the Board erred in preferring documentary evidence as to country conditions over that of their uncontradicted evidence about their experiences. The Board must provide clear and sufficient reasons for accepting documentary evidence over their evidence. Further, because the Board did not make any overall adverse finding of credibility, it erred in not accepting the applicants' evidence.
[7] The respondent contends that it was not inconsistent for the Board to accept that the applicants had suffered hardships in the past but prefer the documentary evidence with respect to what they would face if returned to Hungary in 2003.
[8] In Zvonov v. Canada (Minister of Employment Immigration) (1994), 28 Imm. L.R. (2d) 23 (F.C.T.D.), Justice Rouleau stated the following on the issue of whether the Board should not have ignored the applicant's uncontradicted evidence and given it more weight.
Finally, I am not persuaded that the Board erred by preferring the documentary evidence to that of the Applicant. The Board members are "masters in their own house" and it is open to them to decide what weight to give the evidence; in the present case they accepted the Applicant's testimony but chose to place more weight on the documentary evidence.
This statement is re-iterated in numerous other decisions, and more recently in Bustamante v. Canada (Minister of Citizenship and Immigration),[2002] F.C.J. No. 643 (T.D.)(QL) at paragraph 9:
...In spite of the applicant's counsel's assertion, the case at bar does not rest on an adverse credibility finding made by the Board. The issue here is whether the Board could reasonably come to the conclusion that the applicant has not met his onus to provide satisfactory evidence that he meets the Convention refugee definition. The Board simply preferred the documentary evidence to the applicant's assertions. In this regard, the Board is entitled to give more weight to documentary evidence, even if it finds the applicant trustworthy and credible: Dolinovsky v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1784 (F.C.T.D.); Gomez-Carrillo v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1396 (F.C.T.D.); Oppong v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1187 (F.C.T.D.); and Noori v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 938 (F.C.T.D.).
[My emphasis]
[9] It is clear on a review of the documentary evidence that the Board had evidence before it supporting its position on the matter. I see no reason for this court to interfere with that determination.
Did the Board fail to consider supportive documentary evidence?
[10] Extensive material concerning the condition of the Roma minority within Hungary was placed on the tribunal record. The applicants contend that the Board made no reference to this material in its reasons and the inference should be drawn that the Board failed to take this evidence into consideration in arriving at its determination. The respondent argues that the Board was entitled to weigh all of the documentary evidence and rely on that which it finds reliable and cogent.
[11] In my view, the Board's reasons clearly indicate that it took into account the evidence that was before it concerning systemic racism within Hungarian society, the prevalence of police abuse and the reaction of the Hungarian authorities to those problems. However, it preferred, as it was entitled to do, evidence which indicated that the state of Hungary was making serious efforts to protect its citizens from such abuses. There is no basis for the court to conclude that the Board selectively reviewed the documentary evidence and ignored that which was inconsistent with its analysis. It properly considered and weighed the total evidence as it was required to do: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
Did the Board err in concluding that the cumulative effect of the evidence of discrimination did not amount to persecution?
[12] The applicants cite the history of deplorable treatment suffered by Mr. Jonas, and the more recent abuse which his wife experienced as a result of their relationship. They argue that the failure of the Board to accept that this mistreatment constitutes persecution is perverse on the face of the record and a reviewable error.
[13] The respondent contends that the Board's findings must be respected in light of the definition of "persecution" consistently applied by this court, that is the affliction of repeated acts of cruelty or a particular course or period of systematic infliction of punishment: Ahmad v. Canada (Solicitor General), [1995] F.C.J. No.397 (T.D.)(QL). A reasonable interpretation of the evidence supports the conclusion that the mistreatment amounted only to discrimination rather than persecution.
[14] In Sagharichi v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 796 (C.A.)(QL), the Federal Court of Appeal elaborated upon the question of when the court should intervene on an analysis of what constitutes persecution:
It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein,and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.
[My emphasis]
[15] While another panel or indeed this court might have arrived at a different interpretation of the evidence, my review of the Board's careful analysis satisfies me that its conclusion is neither capricious or unreasonable and leaves no ground for intervention by the court.
Did the Board err in its analysis of the availability of state protection?
[16] The applicants contend that the Board erred in law in that state protection should have been deemed to be absent given the police refusal to do anything in one incident and the fact that in two other incidents the police were the actual agents of persecution. The applicants rely on documentary evidence that suggests that despite positive actions on a political level and a developing co-operation between the police and Roma representatives, discrimination on a daily basis appears to continue. A willingness to address the situation of the Roma can't be equated with adequate state protection and the Board failed to evaluate the effectiveness of the state protection being provided.
[17] The respondent's answer is that the incidents cited by the applicants occurred when Mr. Jonas was a youth twelve years ago and had problems with the same police officer on several occasions. The applicants bear the onus of providing evidence that state protection in Hungary is inadequate and they have failed to meet that onus.
[18] Individuals claiming refugee status must provide clear and convincing confirmation of their state's inability to protect: 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. Villa franca (1992), 18 Imm. L. R. (2d) 130 (F.C.A.).
[19] The Board's reasons indicate that it thoroughly reviewed the documentary evidence relating to state protection. Having reviewed the documentation, the Board concluded that the Hungarian government is making strides in improving the situation of Rimas and that conditions have improved since 2000. It determined that the applicants had not met the burden of showing that the state was unable to protect its citizens and should have relied on that protection before seeking refugee status.
[20] The facts in this case are similar to those in Nag v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 370 (TD)(QL) in which the Board's decision was upheld because state protection for Roma in Hungary was available but not relied upon by the applicants. This case is distinguishable from two other decisions cited by the applicants: Balogh v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1080 (T.D.)(QL) and Bobrik v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1364 (T.D.)(QL). In Balogh there was conflicting evidence as to the availability of state protection for the Roma. Moreover, the applicant had sought such protection unsuccessfully. In Bobrick, decided ten years ago, the evidence clearly showed that the authorities could not provide effective protection to the applicants.
[21] In conclusion, this application for judicial review is dismissed. No question for certification was proposed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2726-03
STYLE OF CAUSE: LASZLO JONAS AND ZSUZSA ALMASSY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 3, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
APPEARANCES BY:
Ms. Elizabeth Jazsi FOR THE APPLICANTS
Ms. Catherine Vasilaros FOR THE RESPONDENT
SOLICITORS OF RECORD:
Elizabeth Jazsi
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
FEDERAL COURT
Date: 20040804
Docket: IMM-2726-03
BETWEEN:
LASZLO JONAS AND ZSUZSA ALMASSY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER