Nagy v. Canada (Minister of Citizenship and Immigration)

  • Author: Federal Court of Canada, Trial Division
  • Document source:
  • Date:
    14 March 2002


Between
Laszlo Nagy and Ilona Nagyne Pelcz, applicants, and
The Minister of Citizenship and Immigration, respondent

[2002] F.C.J. No. 370
2002 FCT 281
Court File No. IMM-1467-01

Federal Court of Canada - Trial Division
Toronto, Ontario
Simpson J.

Heard: February 26, 2002.
Judgment: March 14, 2002.
(16 paras.)

       Aliens and immigration — Admission, refugees — Grounds, well-founded fear of persecution — Persecution, protection of country of nationality.

       Application by Nagy and Pelcz for judicial review of a decision that they were not Convention refugees.  The applicants were husband and wife.  They were citizens of Hungary.  Nagy based his claim for refugee status on his ethnicity as Roma.  He described begin beaten and losing several jobs due to his ethnicity.  He claimed that the police were indifferent to his complaints.  The Convention Refugee Determination Division of the Immigration and Refugee Board found that Nagy failed to provide clear and convincing evidence that Hungary was unable to provide the applicants with state protection.  The Board concluded that Nagy should have complained either to the Parliamentary Commissioner for the protection of national and ethnic minority rights, or to the prosecutor's investigative office.  Nagy said that it was unreasonable to expect him to approach such high-level institutions.

       HELD:  Application dismissed.  There was documentary evidence that the majority of recent complaints to the Parliamentary Commissioner had come from Roma.  Therefore, even if Nagy had a well-founded fear of persecution, the Board did not err in concluding that state protection was available.

Counsel:

George J. Kubes, for the applicants.
John Loncar, for the respondent.

        


 

REASONS FOR ORDER

1      SIMPSON J.:—  This application is for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated February 26, 2001 in which the Board concluded that the applicants are not Convention refugees.

Facts

2      The applicants are citizens of Hungary.  They were married in 1990.  The male applicant (the "Applicant") arrived in Canada in September of 1999, and his wife followed in June of 2000.  The applicants' refugee hearing was held on January 26, 2001.  The Applicant based his claim for refugee status on his ethnicity as Roma, and his wife based her claim on her membership in a particular social group, which she defined as "wives of Roma men".

3      The Applicant was born in Budapest in 1951.  While in elementary school in Ujpest and Angyafold, his classmates excluded and ridiculed him because of his "gypsy" origin.  In 1969, he graduated from hospitality trade school and he was hired as a hotel waiter.  There he was given dishwashing and other jobs, and earned only the lowest wage.

4      From 1971 to 1973 the Applicant served in the army.  Thereafter, he worked at a bar in Erd without incident. However, once his ethnicity was discovered, his supervisor accused him of stealing money, even though he and his supervisor counted the cash together every night.  The supervisor threatened to report him to the police, and fired him.

5      That night, the Applicant was beaten by a group of people, including one of the regular customers from the bar. They called him a "dirty thief gypsy" and threatened to beat him more severely if he did not stay away from the bar.  As a result of the beating, he suffered broken teeth, a broken nose, and a split eyebrow.  When he reported the incident to the local police, they asked him to name his attackers, and to bring witnesses.  However, he was unable to do so.

6      The Applicant left Erd and moved to the village of Saskut, where he met his wife and found employment.  However, his supervisor eventually told him to look for another job because he could not defend him if someone attacked him.  As a result, the Applicant once again became unemployed.

7      In the fall of 1992, the police visited the applicants' home, asked them to leave, and searched their house.  They did not find anything, but they made a mess, damaged furniture, and took the Applicant to the station for questioning.  They later threw him out of a police car, and warned that, if he reported the incident, he would be hurt.

8      The Applicant and his wife moved to Pest, where the Applicant's brother and his wife gave them temporary jobs selling underwear in the market on the weekends.  There they were attacked by a group of skinheads wielding baseball bats. The Applicant suffered broken ribs and skull bruising.  His sister-in-law, who was pregnant, was badly beaten and lost her baby.  The applicants reported the incident to the police but they were indifferent.  A second skinhead attack occurred in the Spring of 1999, following which the Applicant was hospitalized with a concussion, and his wife suffered a nervous breakdown.

The Decision

9      The Board did not accept that the Applicant was of Roma origin because he was unable to produce any documents showing his ethnicity even though he acknowledged that he knew that such documents were available. In my view, this conclusion was open to the Board.  However, the evidence shows that the Board erred when it concluded that the Applicant would not be perceived as Roma.  Although his stature, appearance and accent would not immediately result in his identification as a Roma, counsel for the respondent conceded that his self-identification as a Roma and his public association with Roma people would cause him to be perceived as Roma.

10      The Board also concluded that there was no objective basis for the applicants' subjective fear of persecution and that the Roma in Hungary were subject only to discriminatory not persecutory treatment.  While this conclusion may be accurate as it relates to education, housing and social services, the documents appear to indicate that there is an objective basis for the applicants' fear of persecution at the hands of the police.  However, this issue need not be decided as I will assume that the police are agents of persecution when considering the availability of state protection.

The Issue

11      The fundamental issue on this judicial review was whether the Board erred when it concluded that the Applicant did not provide clear and convincing evidence that Hungary was unable to provide the applicants with state protection.

12      The Board was not critical of the Applicant's attempts to seek police protection, but it concluded that, before seeking refugee status, he should have sought the protection of the Parliamentary Commissioner for the protection of national and ethnic minority rights, known as the "Minorities Ombudsman", or should have complained about the police to the prosecutor's investigative office, which has the power to lay charges against the police under Penal Code provisions that deal with racially motivated crimes.  The Board found that state protection existed because it concluded that these institutions were capable of protecting Roma citizens.

13      The Applicant, on the other hand, said that it was not reasonable to expect him to approach such high-level institutions.  However, it appears clear from the documents that the Roma are making complaints, at least to the Ombudsman.  Exhibit R-1, item #3.7 at the hearing was a Response to an Information Request dated April 28, 1998.  It stated:

         From the establishment of the office of the parliamentary commissioner for national and ethnic minority rights -- according to data contained in report before Parliament in 1997 -- 51 cases out of 432 complaints received from September 1, 1995, until December 31, 1996, involved the police.  (Members of the Gypsy minority accounted on average for 68% of the reports.)                                                                                                              

14      The Response to Information Request of 29 February, 2000, which was exhibit R-1, item #4.1, indicated at page 17 that:

         Complaints to the Ombudsman's Office rose by approximately 15 per cent in 1998 following two years when the rate remained constant.  Roma accounted for approximately 70 per cent of complainants, unchanged from previous years.   

15      Based on this material I have concluded that, even if the Applicant had a well-founded fear of persecution, the Board did not err when it concluded that state protection was available.

Conclusion

16      For all these reasons, this application for judicial review will be dismissed.

SIMPSON J.

Comments:
Heard: February 26, 2002; Judgment: March 14, 2002
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