CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Convention Refugees |
Balogh v. Canada (Minister of Citizenship and Immigration)
IMM-6193-00
2002 FCT 809, Lemieux J.
22/7/02
17 pp.
Judicial review of Immigration and Refugee Board's rejection of refugee claims--Applicants of Roma ethnicity from Hungary--Issue availability of state protection-- Immigration Act, s. 2(1) defining "Convention refugee" as any person who is outside country of nationality and is unable, or by reason of well-founded fear of persecution unwilling, to avail himself of protection of that country--Personal Identification Form identifying several attacks on adult applicants perpetrated by skinheads--After reviewing testimony of applicant in context of country conditions, Board stated applicants failed to rebut presumption of state protection with clear, convincing evidence--Applications allowed--Board misinterpreted evidence when said applicants stated did not turn to police for help simply because none would be forthcoming, applicants not turning to Roma organizations for help either--Applicants approached police at least once--Testified approached Gypsy Party, Ombudsman--Never testified police, on occasion, were agents of persecution, only that skinheads were agents of persecution-- No evidence to support Board's finding loss of unborn child after pregnant applicant punched in stomach not racially motivated--Such errors in findings of fact engaging Federal Court Act, s. 18.1(4)(b) in that made without regard to evidence--Whether justifying judicial intervention depending on whether impacted on Board's view of state protection-- Board had conflicting documentary evidence before it on issue of availability, effectiveness of state protection to Roma in Hungary--Analysis of contradictory documents and explanation for preferences needed--Board erred when suggested willingness to address situation of Roma minority in Hungary equated to adequate state protection--Board had to analyse whether, objectively speaking, state protection in Hungary "might reasonably have been forthcoming" to applicants--Board also took Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A) out of context--Zalzali standing for proposition, absent some evidence, nations presumed capable of protecting citizens and, absent situation of complete breakdown of state apparatus, should be assumed state capable of protecting claimant-- Capability of state to protect citizens simply presumption or assumption which can be defeated by clear, convincing evidence led by applicants of state's inability to protect--Applicant may advance evidence of similarly situated individuals let down by state protection arrangements or testimony of past personal incidents in which state protection not materializing--Board not testing presumption against evidence led by applicants--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4)(b) (as enacted by S.C. 1990, c. 8, s. 5)--Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) "Convention refugee" (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).