Janos JONAS Applicant v. MINISTER OF CITIZENSHIP, 2013 FC 463

Date: 20130503 Docket: IMM-8730-12 Citation: 2013 FC 463 Ottawa, Ontario, May 3, 2013 PRESENT: The Honourable Mr.

Justice Roy BETWEEN: Janos JONAS Applicant and MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27, (the Act) for judicial review of a decision by a member of the Refugee Protection Division of the Immigration and Refugee Board (RPD), who determined that Janos Jonas (the applicant) is neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Act.

Facts [ 2 ] The applicant is a Hungarian citizen of Roma ethnicity and is now 61 years old. Prior to coming to Canada, the applicant lived in Ecseg, a village located some 70 km from Budapest; the village is 30% Roma. He says he fears he would be persecuted because of his ethnic origin if he were sent back to Hungary. [ 3 ] It appears that the applicant is referring specifically to three incidents that he was involved in. In August 2010, he was attacked by a group of skinheads while at a bus stop. He was insulted, beaten, and someone spit in his face.

The applicant was able to escape and filed a complaint with the police the next day. The police asked him to describe his attackers and, it seems, began an investigation. A few months later, in October 2010, the applicant discovered that the case had been closed for lack of evidence. [ 4 ] The second incident occurred in September 2010. While the applicant was driving on the main street of another village, a group of skinheads began rocking his car. The applicant took refuge in a café and alerted the police.

The police spoke to the skinheads and then escorted the applicant outside the village. [ 5 ] Last, in 2010, the skinheads shattered the windshield of the applicant’s car with a baseball bat, this time in another village called Csenyi. The applicant was not inside the vehicle when the attack occurred, but he witnessed it. Other cars belonging to Roma were also vandalized. The police went to the scene and prepared a report. Apparently there was no arrest in this case.

[6] He recounted other events to the RPD where he had not been attacked. In the spring of 2010, the applicant noticed skinheadsdriving in an all-terrain vehicle in the woods behind his house. It seems that this happened several times. The mayor of the village sent avolunteer patrol twice to search the area. The applicant’s house, which he claims was particularly targeted because of its location, wasnever attacked. In December 2010, the applicant reported his observations to the police a few times; he says the police never followedup.

The applicant stated that in December 2010 some skinheads set up camp in Gyöngyöspata, the village next to his, and engaged inactivities against Roma, ranging from attacks to even shooting at them. It should be pointed out in this regard that the event in questionattained some notoriety; in fact, the RPD noted that these events occurred in 2011, not in 2010, hence after the applicant had left. In fact,counsel for the applicant admitted this. [7] The applicant arrived in Canada on December 6, 2010, and claimed refugee protection on December 8 of the same year.

Impugned decision [8] The Refugee Protection Division rejected the application for refugee protection because the applicant had not rebutted thepresumption that a national benefits from state protection and because what the applicant was complaining about was discrimination thatdid not reach the level required to constitute persecution. [9] Relying on Canada (Attorney General) v Ward, (SCC), [1993] 2 SCR 689, the RPD determined that theapplicant had not adduced the clear and convincing evidence that is required to rebut the presumption.

The burden of proof isproportional to the level of democracy in the state in question (Kadenko v Canada (Minister of Citizenship and Immigration) (1996), (FCA), 143 DLR (4th) 532). [10] The RPD noted, on the facts of this case, that the applicant had benefited from state protection for the incidents he recounted. [11] Examining the documentary evidence, the RPD acknowledged at the outset that there had been attacks against Roma in recentyears but stated that the Hungarian government has taken steps to protect them.

Moreover, the report on Hungary by the EuropeanCommission against Racism and Intolerance states that the steps taken by Hungary have had a positive impact.

The RPD noted, inparticular, that most ministries now have an officer dedicated to the needs of Roma and that there are various programs to promote theiremployment and education. [12] Discrimination that may constitute persecution has substantial harmful ramifications on the right to earn income, practise one’sreligion, access employment, health care or education. [13] In this case, the RPD found that the applicant had suffered some discrimination but had not been persecuted.

For a finding ofpersecution to be made, the discrimination suffered by a person must lead to severe restrictions in employment, religious practice oraccess to health care or education. There was no such evidence in this case. In fact, it was noted that the applicant had worked for variousemployers all his life and that, even after the year 2000 when the situation in Hungary worsened, he continued to be able to live in peace. Position of the parties [14] At the hearing, the applicant emphasized the lack of protection in Hungary. His counsel pointed out that protection has to beprospective.

In fact, to show that the RPD’s decision was not reasonable, she focused on reviewing it to demonstrate that the RPD hadselected passages from the documentary evidence. [15] When questioned by the Court about the scope of her argument, counsel for the applicant insisted that she was not trying todemonstrate that all Roma should benefit from sections 96 and 97 of the Act because of the documentary evidence she had analyzedbefore the panel.

Rather, she wanted to show that the decision was unreasonable because it did not adequately consider all thedocumentary evidence. [16] For his part, the respondent submits that the applicant’s position is simply an expression of his disagreement with the decision.The review, he says, must be confined to the particular case that was before the panel. The evidence clearly shows that the applicantreceived state protection. There is nothing to indicate that this protection would not be available should he return to Hungary. Theapplicable standard is not perfection.

Analysis [17] The parties agreed that the appropriate standard of review is reasonableness. The Court agrees. [18] However, there are consequences that ensue for the person who attacks the reasonableness of a decision, as the applicant is doingin this case. In Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 SCR 190, the Court provided the parameters to be used in acase such as ours.

Paragraph 47 states: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standardsof reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [19] This standard was further articulated in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (TreasuryBoard), 2011 SCC 62 , [2011] 3 SCR 708.

I note the following passages from paragraphs 14 and 16: [14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis forquashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one forthe result . . . . . . [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would havepreferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.

A decision-maker isnot required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion . . . In otherwords, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether theconclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [20] Therefore, that is the test. Because the applicant submits that all Roma should not be able to benefit from the protection ofsections 96 and 97 of the Act, it follows that it is reasonable that some will not benefit from it.

This stems from the fact that each casemust be considered individually. In this case, the RPD found that state protection was available to this applicant and that, consequently,he could be returned to Hungary. This was, appropriately, a personalized decision. The mere fact that the documentation may also, insome cases, be used to favour an applicant does not mean that the decision in our case is unreasonable. The applicant would perhapshave liked to read more in the RPD’s decision than what is there.

But to repeat the words of the Supreme Court of Canada, “that does notimpugn the validity of either the reasons or the result under a reasonableness analysis”. [21] In the case that was before the panel, it is not difficult to understand why the RPD made the finding it did. The applicant was notpersecuted, and he received state protection. It is certainly worth noting that the presumption of state protection must be rebutted by clearand convincing evidence.

I reproduce the following passage from pages 724 and 725 of Ward (above): The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state’s inability to protect its nationals as well as thereasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point wasunnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available,however, clear and convincing confirmation of a state’s inability to protect must be provided.

For example, a claimant might advancetestimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personalincidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumedcapable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of completebreakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting aclaimant.

[ 22 ] In this case, not only was this evidence not adduced to rebut the presumption that the state was capable of protecting the applicant, but it was put forward that such protection had been provided to this applicant. It was reasonable for the RPD to make the finding it did. Similarly, the finding that the applicant had not been persecuted was also reasonable having regard to the circumstances of this case. [ 23 ] It follows that the application for judicial review cannot be allowed. No question under

section 74 of the Act was certified. JUDGMENT The application for judicial review of a decision by a member of the Refugee Protection Division of the Immigration and Refugee Board dated July 27, 2012, is dismissed. “Yvan Roy” Judge Certified true translation Mary Jo Egan, LLB FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8730-12 STYLE OF CAUSE: Janos JONAS v. MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: April 9, 2013

REASONS FOR JUDGMENT AND JUDGMENT: Roy J. DATED: May 3, 2013 APPEARANCES : Stéphanie Valois FOR THE APPLICANT Emilie Tremblay FOR THE RESPONDENT SOLICITORS OF RECORD: Stéphanie Valois FOR THE APPLICANT Montréal, Quebec William F. Pentney FOR THE RESPONDENT Deputy Attorney General of Canada