Date: 20040317
Docket: IMM-3391-03
OTTAWA, Ontario, this 17th day of March, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
IMRE NAGY
PETERNE HORVATH
ADRIENN NAGY
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the 46-page decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated April 16, 2003, which determined that the applicants are not Convention refugees.
[2] The applicants submit that, pursuant to section 191 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), their hearing should have been held under that Act, and not the former Immigration Act, R.S.C. 1985, c. I-2. Specifically, the applicants submit that the Board erred by failing to consider whether or not they were persons in need of protection, a new ground under IRPA. The Applicants submit that the Board failed to consider the threat they face from skinheads; the board ignored documentary evidence indicating that skinhead attacks against Roma is on the rise in Hungary; and the Board ignored evidence that the police perpetrate human rights abuses, unchecked by other government institutions.
[3] Section 191 of IRPA provides:
| Convention Refugee Determination Division
191. Every application, proceeding or matter before the Convention Refugee Determination Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under the former Act by the Refugee Protection Division of the Board.
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Anciennes règles, nouvelles sections
191. Les demandes et procédures présentées ou introduites, à l'entrée en vigueur du présent article, devant la Section du statut de réfugié sont, dès lors que des éléments de preuve de fond ont été présentés, mais pour lesquelles aucune décision n'a été prise, continuées sous le régime de l'ancienne loi, par la Section de la protection des réfugiés de la Commission.
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[4] The hearing before the Board took place on six different dates, including three dates before the new Act came into force on June 28, 2002. A motion to re-open the applicants' claims was granted on June 18, 2001. Three pre-hearing conferences were held on October 17, 2001, December 7, 2001 and April 10, 2002, which considered (1) joinder of the applicants' claims with those of other members of their family, and (2) whether or not the male applicant had custody of the minor applicant.
[5] I am satisfied that this application before the Board was in progress immediately before IPRA came into force, that the Board had already had three oral hearings before June 28, 2002, and that substantive evidence had been adduced which was relied upon by the Board in its 46-page decision. Moreover, the Board had been persuaded by counsel for the applicants that this matter should be decided under the old Act so I find the applicants' counsel disingenuous on this issue. Accordingly, the Board did not err by considering this case under the old Immigration Act.
[6] The reasons of the Board are detailed and thorough. The Board meticulously considered a wide range of documentary evidence regarding the threat posed to the applicants by the police and the ability of the state to protect the applicants. It concluded that, while members of the police were known to have engaged in discrimination and abuse, there was no evidence of widespread persecution. In addition, with respect to state protection against skinhead attacks, it concluded at page 45:
[...] The panel does not minimise the imperfection that still exists in the system of state protection, however, the panel finds that, when considering the totality of all the documents, (sic) preponderance of evidence exists to suggest that the state is making serious efforts, and on a balance of probabilities, adequate state protection would be afforded to the claimants if they were to return to Hungary.
[7] The Court is satisfied that the decision of the Board was reasonably open to it with respect to the availability of state protection for the applicants in Hungary, and that abuses of Roma by the police are not so widespread as to constitute a breakdown of state protection.
[8] For these reasons, this application must be dismissed.
[9] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3391-03
STYLE OF CAUSE: IMRE NAGY, PETERNE HORVATH, ADRIENN NAGY
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 11, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: March 17, 2004
APPEARANCES:
Mr. George J. Kubes FOR APPLICANT
Mr. Jeremiah A. Eastman FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. George J. Kubes FOR APPLICANT
Barrister & Solicitor
Toronto, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto Ontario
FEDERAL COURT
Date: 20040317
Docket: IMM-3391-03
BETWEEN:
IMRE NAGY
PETERNE HORVATH
ADRIENN NAGY
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER