Ruszo v. Canada (Minister of Citizenship and Immigration), (2013) 440 F.T.R. 106 (FC)

• Court: Federal Court (Canada)
• Case Date: March 07, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 440 F.T.R. 106 (FC);2013 FC 1004

Ruszo v. Can. (M.C.I.) (2013), 440 F.T.R. 106 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. OC.018

Zsolt Ruszo, Zsoltne Ruszo, Mark Zsolt Ruszo, Fanni Dorina Ruszo and Zsolt Ruszo (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5386-12; 2013 FC 1004; 2013 CF 1004)

Indexed As: Ruszo v. Canada (Minister of Citizenship and Immigration)

Federal Court

Crampton, C.J.

October 1, 2013.

Summary:

The applicants were citizens of Hungary and of Roma ethnicity. They claimed refugee protection under ss. 96 and 97 of the Immigration and Refugee Protection Act. The Refugee Protection Division (RPD) of the Immigration and Refugee Board denied their claim. The applicants applied for judicial review, arguing that the RPD erred by (1) concluding that the discriminatory treatment to which they were personally subjected, and to which people of Roma ethnicity in general were subjected in Hungary, did not rise to the level of "persecution", and (2) unduly focussing on the efforts of the state to provide protection to its Roma citizens, rather than on the operational adequacy of those efforts.

The Federal Court dismissed the application. The RPD's conclusion respecting the issue of state protection was reasonable. Accordingly, it was not necessary to address the issue of whether the RPD erred in concluding that the applicants were not persecuted.

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality or citizenship - The Ruszos, Hungarian citizens of Roma ethnicity, applied for refugee protection - Mr. Ruszo alleged that his two youngest children were segregated from non-Roma children at their school, and that his eldest son was constantly harassed at school - In 2008, Ruszo and two family members were attacked by a group of skinheads while waiting for a bus - Police went to the scene but drove away after the skinheads fled - When Ruszo reported the incident to police the next day, he was unable to identify the assailants - Police took no further action - In 2009, skinheads and the Hungarian Guards held demonstrations and chanted death threats to Roma - Shots were fired at Roma citizens and Molotov cocktails were thrown into Roma homes - The Refugee Protection Division (RPD) denied the claim, finding that (a) the Ruszos had not taken all reasonable steps to seek state protection, and (b) Hungary had undertaken serious and substantial efforts and made significant improvements in providing state protection when requested - Ruszo applied for judicial review, arguing that the RPD erred by unduly focussing its assessment on the state's efforts to provide protection, rather than the operational adequacy of that protection - The Federal Court agreed with Ruszo's argument but dismissed the application - The RPD's misapplication of the "adequate state protection" test was not fatal where it also reasonably concluded that the Ruszos failed to rebut the presumption of adequate state protection with clear and convincing evidence of the state's inability to protect them - The RPD noted that the Ruszos did not ask to speak to a police supervisor, go to a different police station, complain to the local Roma self-government or any other authority in Hungary - They made only one attempt to report the 2008 incident and then failed to pursue the matter further - The state did in fact respond to each of the allegedly persecutory acts relied on by the Ruszos to advance their claim - The local government hired guards to work at the school - It was not suggested that this was an inadequate response - In 2008, police caused the skinheads to flee before serious injuries were inflicted - There was an ongoing investigation into the 2009 incident and legal proceedings had been commenced against members of the Hungarian Guard - See paragraphs 26 to 52.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The applicants applied for judicial review of a decision of the Refugee Protection Division (RPD) which denied their claim for refugee protection - They argued that the RPD erred by concluding that the discriminatory treatment to which they were subjected did not reach the level of "persecution" pursuant to s. 96 of the Immigration and Refugee Protection Act - The Federal Court held that the question of whether the RPD erred in interpreting the test for what constituted "persecution" was reviewable on a standard of correctness - The RPD's interpretation of its home statute would generally be reviewed on a standard of reasonableness - However, the jurisprudence had established a clear test for what constituted "persecution", so the issue fell within the narrow category of "exceptional" situations to which the correctness standard applied - In the face of settled law on the meaning of the term "persecution", it was not open to the RPD to adopt a different interpretation of that term - The issue of whether the RPD erred in determining that the discriminatory conduct that formed the basis of the applicants' claims did not meet the test for what constituted "persecution" was a question of mixed fact and law that was reviewable on a standard of reasonableness - See paragraphs 17 to 21.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The applicants applied for judicial review of a decision of the Refugee Protection Division (RPD) which denied their claim for refugee protection - They argued that the RPD erred in reaching its conclusion respecting state protection - The Federal Court held that the standard of review applicable to the RPD's assessment of this issue depended on whether its conclusion turned on its understanding of the proper test for state protection or on its application of that test to the facts of the case - The jurisprudence had established a clear test for state protection - Therefore, it was not open to the RPD to apply a different test, and the issue of whether the RPD applied the proper test was reviewable on a standard of correctness - The issue of whether the RPD erred in applying the settled law to the facts was a question of mixed fact and law that was reviewable on a standard of reasonableness - See paragraph 22.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review (incl. standard of review) - [See both Aliens - Topic 1334 ].

Cases Noticed:

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 17].

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 17].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 17].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 17].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321; 1993 CarswellNat 90, refd to. [para. 20].

Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.), refd to. [para. 20].

Tolu v. Canada (Minister of Citizenship and Immigration) (2002), 218 F.T.R. 205 (T.D.), refd to. [para. 20].

Prato et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 654; 2005 FC 1088, refd to. [para. 20].

Canada (Minister of Citizenship and Immigration) v. Hamdan et al., [2006] F.T.R. Uned. 216; 2006 FC 290, refd to. [para. 20].

Yurteri v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 366; 2008 FC 478, refd to. [para. 20].

Warner v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 216; 2011 FC 363, refd to. [para. 20].

Mallampally et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 135; 2012 FC 267, refd to. [para. 20].

Savas v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 282, 2013 FC 598, refd to. [para. 20].

Liang v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 324; 2008 FC 450, refd to. [para. 21].

Sefa v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 882; 2010 FC 1190, refd to. [para. 21].

Koky v. Canada (Minister of Citizenship and Immigration), 2011 FC 1407, refd to. [para. 22].

Burai et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 274; 2013 FC 565, refd to. [para. 22].

Lakatos v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 521; 2012 FC 1070, refd to. [para. 22].

Kaleja et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 931; 2011 FC 668, refd to. [para. 22].

Cosgun v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 225; 2010 FC 400, refd to. [para. 22].

Hinzman et al. v. Canada (Minister of Citizenship and Immigration (2007), 290 F.T.R. 8; 2006 FC 420, affd. (2007), 362 N.R. 1; 2007 FCA 171, refd to. [para. 22].

Salamon v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 278; 2013 FC 582, dist. [para. 26].

Olah et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 283; 2013 FC 606, dist. [para. 26].

Budai et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 259; 2013 FC 552, dist. [para. 26].

Molnar v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 111; 2013 FC 296, refd to. [para. 26].

Gulyas et al. v. Canada (Minister of Citizenship and Immigration) (2013), 429 F.T.R. 22; 2013 FC 254, dist. [para. 26].

Bledy et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 163; 2011 FC 210, dist. [para. 26].

Cervenakova v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 358; 2012 FC 525, refd to. [para. 26].

Kadenko et al. v. Canada (Solliciteur général) (1996), 206 N.R. 272 (F.C.A.), refd to. [para. 29].

Avila v. Canada (Minister of Citizenship and Immigration) (2006), 295 F.T.R. 35; 2006 FC 359, refd to. [para. 29].

Flores Carrillo v. Canada (Minister of Citizenship and Immigration) (2008), 377 N.R. 393; 2008 FCA 94, refd to. [para. 29].

Rocque et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 512; 2010 FC 802, refd to. [para. 31].

Gezgez v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 43; 2013 FC 130, refd to. [para. 31].

Dean v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 458; 2009 FC 772, refd to. [para. 32].

Kim et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 673; 2005 FC 1126, refd to. [para. 32].

Hassaballa v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 967; 2007 FC 489, refd to. [para. 32].

Camacho et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 560; 2007 FC 830, refd to. [para. 32].

Del Real v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 85; 168; 2008 FC 140, refd to. [para. 32].

Ramirez v. Canada (Ministre de la Citoyenneté et de l'Immigration) - see Del Rio Ramirez v. Canada (Minister of Citizenship and Immigration).

Del Rio Ramirez v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 874; 2008 FC 1214, refd to. [para. 32].

Stojka et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 692; 2012 FC 1371, refd to. [para. 32].

Ruiz Coto et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 595; 2012 FC 1211, refd to. [para. 32].

Matthews v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 252; 2012 FC 535, refd to. [para. 32].

Kotai et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 339; 2013 FC 693, refd to. [para. 32].

Muli v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 86; 2013 FC 237, refd to. [para. 32].

Ndoja v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 62; 2013 FC 163, refd to. [para. 32].

Dieng et al. v. Canada (Minister of Citizenship and Immigration) (2013), 432 F.T.R. 48; 2013 FC 450, refd to. [para. 32].

Karaseva v. Canada (Ministre de la Citoyenneté et de l'Immigration), [1997] F.T.R. Uned. 775 (T.D.), refd to. [para. 38].

Pinter v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 546; 2012 FC 1119, refd to. [para. 40].

Smirnov and Pasko v. Canada (Secretary of State), [1995] 1 F.C. 780; 89 F.T.R. 269 (T.D.), refd to. [para. 40].

Syed v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 39 (T.D.), refd to. [para. 40].

Mejia et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2003] F.T.R. Uned. 688; 2003 FC 1180, refd to. [para. 40].

Samuel v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 544; 2008 FC 762, refd to. [para. 40].

Rivadeneyra et al. v. Canada (Minister of Citizenship and Immigration) (2010), 374 F.T.R. 55; 2010 FC 845, refd to. [para. 40].

Katinszki et al. v. Canada (Minister of Citizenship and Immigration) (2012), 421 F.T.R. 107; 2012 FC 1326, refd to. [para. 41].

Torres v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 166; 2010 FC 234, refd to. [para. 41].

Buri v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 770; 2012 FC 1538, dist. [para. 44].

Bali et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 186; 2013 FC 414, dist. [para. 44].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 46].

Majoros v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 189; 2013 FC 421, refd to. [para. 48].

Ferko et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 642; 2012 FC 1284, refd to. [para. 51].

Counsel:

Douglas Lehrer, for the applicants;

Evan Duffy, for the respondent.

Solicitors of Record:

VanderVennen Lehrer, Toronto, Ontario, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on March 7, 2013, before Crampton, C.J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on October 1, 2013.