TB5-09049

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-09049 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 3, 2016 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal James Gildiner Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX XXXX is a citizen of Hungary, and appeals a decision of the Refugee Protection Division (RPD) dated July 15, 2015, rejecting his claim for refugee protection. The Appellant is not submitting new evidence and is not requesting a hearing. The Appellant is requesting that the decision of the RPD be set aside and refer the matter back to the RPD or that the Refugee Appeal Division (RAD) substitute a determination that the Appellant is a Convention refugee. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a convention refugee nor a person in need of protection. Background [3] The Appellant fears returning to Hungary because he fears persecution on account of his Roma ethnicity. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court decision Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [5] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [6] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [7] The RPD found that the determinative issues in this claim are credibility and state protection. The RPD found that the Appellant was not a credible witness and that he had failed to rebut the presumption of state protection. [8] The Appellant does not challenge the credibility findings of the RPD but argues that: a) There is no state protection analysis following the implied finding that the Guardists attacks did occur in the small village where the Appellant resided in Hungary b) That the failure of the state police to investigate racists attacks against Romas renders state protection inadequate c) That given the recent decision of the Federal Court in Kadenko, the state protection analysis should be reduced [9] The RAD will deal with each of the submissions made by the Appellant. STATE PROTECTION [10] All three of the Appellant's submissions relate to the issue of state protection. The Appellant has presented numerous arguments with respect to the submission that there is no state protection for the Appellant if he were to return to Hungary. After having reviewed the documentation found both in the Board's own package, the submissions made by counsel and the jurisprudence as established by the Supreme Court of Canada, and the Federal Court, the RAD would like to highlight the following issues with respect to state protection with particular consideration to the submissions made by the Appellant. [11] The RAD, in assessing the issue of state protection, is guided by the jurisprudence from the Supreme Court of Canada, the Federal Court of Appeal and the Federal Court. The courts have established a number of principles relating to state protection and the RAD will apply those principles to the appeal at hand. [12] The presumption of state protection was articulated by the Supreme Court of Canada in the Ward decision where the Court stated: The issue that arises, then, is how, in a practical sense, [an Appellant] makes proof of a state's inability to protect its nationals as well as the reasonable nature of the [Appellant's] refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, 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, [an Appellant] might advance testimony of similarly situated individuals let down by the state protection arrangement or the [Appellant's] testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting [an Appellant].3 [13] Ward4 has established that the onus is on the Appellants to produce clear and convincing evidence that the state cannot provide protection. [14] There is a presumption that, except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee claimant has no other recourse available. Having canvassed the country conditions documents,5 the RAD finds that Hungary is a democracy in effective control of its territory and has in place a functioning security force to uphold the laws and constitution of the country. [15] Refugee protection is meant to be a form of surrogate protection to be invoked in those situations where the refugee claimant has unsuccessfully sought the protection of their home state. The onus is on the Appellant to approach the state for protection in situations where state protection might be reasonably forthcoming.6 To qualify for refugee status, a claimant must satisfy the Board that he or she sought, but was unable to obtain, protection from their home state or, alternatively, that their home state, on an objective basis, could not be expected to provide protection.7 In the absence of a compelling explanation, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim, at least where the state is a functioning democracy with a willingness and the apparatus necessary to provide a measure of protection to its citizens.8 [16] To rebut the presumption of state protection, the Appellant must provide "clear and convincing" confirmation of the state's inability to protect its citizens.9 An Appellant who alleges that state protection is inadequate must persuade the RAD that the evidence establishes that state protection is in fact, inadequate. The evidence that state protection is inadequate must not only be reliable and probative, it must also satisfy the RAD, on a balance of probabilities, that state protection is inadequate.10 Where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that the state's efforts are not always successful will not rebut the presumption of state protection.11 An Appellant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.12 Doubting the effectiveness of the protection offered by the state when one has not really tested it does not rebut the existence of a presumption of state protection.13 [17] An Appellant's burden of proof is directly proportional to the level of democracy in the state in question; the more democratic the state's institutions, the more the Appellant must have done to exhaust all courses of action open to them.14 In a functioning democracy, an Appellant will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status.15 The documentary evidence16 before the RAD indicates that Hungary is a democracy, and there are free and fair elections. Therefore, in countries such as Hungary, the Appellant must do more than merely show that he went to see members of the police force and that those efforts were unsuccessful. An Appellant must show that he has taken all reasonable steps in the circumstances to seek protection, taking into account the context of the country of origin, the steps taken, and the claimant's interactions with the authorities.17 Local failures by authorities to provide protection do not mean that the state as a whole fails to protect its citizens, unless the failures form part of a broader pattern of the state's inability or refusal to provide protection.18 No government is expected to guarantee perfect protection to all of its citizens at all times, and the fact that a state is not always successful in protecting its citizens is not enough to justify a claim, especially where a state is in effective control of its territory, has military, police, and civil authorities in place, and is making serious efforts to protect its citizens.19 Less than perfect protection is not a basis to determine that a state is either unwilling or unable to offer reasonable protection.20 [18] Although this is the general state of affairs with respect to the law in Canada concerning state protection, recent decisions by the Federal Court have questioned whether state protection is available to members of the Roma community if they were to return to Hungary, and have thrown some uncertainty as to the manner in which this Board is to conduct a state protection analysis with respect to Roma citizens of Hungary. The Appellant argues that the recent decision of the Federal Court in Kadenko establishes that there is a reduced state protection onus for Hungarian of Roma ethnicity. The Kadenko decision is only one of many recent decisions rendered by the Federal Court on the issue of state protection for Hungarian citizens of Roma ethnicity. [19] The Federal Court is divided as to how best this analysis should take place. The Court itself acknowledged this diverse opinion in the Mudrak decision where the Court stated, "It is well recognized that there is a division in the ranks of judges of the Federal Court on the issue of state protection, particularly as it applies to claimants from the Hungarian Roma community."21 The court went on to highlight this division by quoting decisions from the Federal Court which provided divergent opinions on state protection for members of the Roma community. There are two decisions which best illustrate the divided legal mind set of the Federal Court on this issue. [20] The first decision is that of Moczo.22 In that particular claim: The applicants are an extended family from Hungary. In 2010, they sought refugee protection in Canada based on their experiences of discrimination and persecution as members of the Roma community. In particular, they allege that their home was attacked by a group that pushed a concrete wall onto its roof. Later, someone threw bricks at the house.23 [21] In allowing the appeal, the Court did not agree with the Board's conclusion that the applicants had not made reasonable efforts to seek state protection. The Court stated: The Board failed to take account of evidence showing that two of the applicants had approached the police on separate occasions to complain about bricks being thrown at their house. The police did not make a report; they simply said there was nothing they could do.24 [22] The Court also concluded that state protection was unavailable to the applicants: ...the Board concentrated on evidence relating to improvements not yet realized to the exclusion of the documentary evidence showing that Hungarian police often discriminate against and fail to investigate crimes of violence against the Roma.25 [23] An opposing legal view, however, was provided by the Federal Court in the Racz decision.26 In that the particular claim, the applicants: ...were at home when stones were thrown through their windows. Denes Csaba Racz, the father in the applicant family, ran out of the house to see what had happened but he was immediately kicked in his stomach and assaulted. By the time Timea Raczne Marodi, the mother in the applicant family, went outside, her husband was on the ground and his attackers were fleeing in a car. They were shouting that 'this is not over' and that the applicants would die. Mr. Racz called the police. When they arrived, he showed them the broken windows and where he was kicked and punched. The police asked if he saw the perpetrators, and Mr. Racz replied that he did not because he was kicked very suddenly. Ms. Marodi did not get the license plate. The police said that there was not much they could do, but that they would patrol the area more often. They left without taking a report. They patrolled one more time that night but no additional patrols were made. The applicants also asked the Mayor of their village to help them but he said the police would take care of things.27 [24] In dismissing the appeal, the Federal Court stated: ...I agree with the submission of the respondent that the Board's examination must focus on whether these persons, on clear and convincing evidence, have established that there is not adequate state protection at the operational level. I am unable to find, based on their submissions in this application, that the Board's decision that they did not establish the inadequacy of state protection is unreasonable. In fact, although not perfect, the response of the police to the applicants' complaints, given the specific circumstances of the assaults taken to the police, appears to have been adequate and in keeping with what Canadian police forces would be likely to do.28 [25] Although the Court in Mudrak29 certified two questions, the Federal Court of Appeal has yet to render a decision on the certified questions. [26] Given then this divergent view with respect to "clear and convincing" evidence, the RAD must attempt to come to some form of conclusion with respect to state protection for Roma in Hungary. The question of what is clear and convincing evidence was addressed by the Federal Court in the Sztojka decision.30 In relying on the Carrillo decision of the Federal Court of Appeal,31 the court stated: An applicant bears both an evidentiary and legal burden; she must introduce evidence of inadequate state protection and must convince the trier of fact that the evidence adduced establishes that the state protection is inadequate. The evidence will have sufficient probative value if it convinces the trier of fact on the balance of probabilities that the state protection is inadequate. Therefore the evidence must be relevant, reliable and convincing.32 [27] In applying the legal principle of clear and convincing evidence, the RAD is guided by other legal standards. The first principle is that protection provided by the state is not perfect.33 This applies not just to the country in question in this claim, Hungary, but to any other country. In the Racz34 decision quoted above, the court made reference as to what Canadian forces would do under similar situations. I would like to take this analogy a step further. Does the fact that members of the Canadian police unjustly taser individuals demonstrate a lack of state protection in Canada? Or is the fact that an individual armed with a knife is shot nine times by members of a Canadian police force indicative of a lack of state protection in Canada? What these Canadian incidents underlie is the fact that state protection, in any country, is not perfect. [28] The second legal principle, which aids the RAD in determining whether clear and convincing evidence of a lack of state protection has been presented, is that the police are primarily responsible for state protection against violent attacks.35 The failure of one police officer or one police department to investigate a crime does not, by itself, determine that there is no state protection. Just because the police did not apprehend the assailants in a particular incident, or that the Appellants' complaint was not pursued with the diligence that the Appellants would have preferred, does not mean that state protection in their home country is not adequate. There may be many factors that could contribute to this, including lack of physical evidence, lack of suspects, higher priorities for the police, and lack of witnesses. It is open to the panel to determine if the state was unable to protect them, not in the absolute sense, but rather to a degree that was reasonable having regard for the circumstances of the Appellants.36 As the Federal Court has stated on numerous occasions, failures by local police to provide protection is not indicative of the fact that there is no protection in the country as a whole.37 [29] Given the particular issues of credibility as discussed above, and having canvassed the documentation from the Board and the Appellants, the RAD finds, on a balance of probabilities, that the Appellant has not rebutted the presumption of state protection. [30] The Appellant argues that the RPD failed to address the issue of state protection with respect to the fact that Guardists often maraud and threatened the Appellant's small village. The Appellant, however, does not challenge the credibility findings with respect to the alleged incidents to the Appellant's family as a result of these intrusions by the Guardists. Given these credibility findings, the RAD concludes that the Appellant provided no reasonable evidence that he or his family were threatened by the Guardists. [31] The Appellant also argues that the failure of the state police to investigate racist attacks against Roma renders inadequate state protection. The RAD would be remiss if it did not acknowledge and consider that there is information in the documentation to indicate that there is widespread reporting of incidents of intolerance, discrimination and persecution of Romani individuals in Hungary. [32] According to multiple sources, the Hungarian Guard and other far-right organizations held demonstrations across the country with the goal of inciting 'prejudice' against the Roma. The groups organized the demonstrations under the guise of protecting Hungary against what they termed the 'Gypsy Terror' or 'Gypsy criminality'. [33] A fair reading of the documentary evidence indicates that the central government is motivated and willing to implement measures to protect the Roma, but these measures are not always implemented effectively at the local or municipal level. [34] The RAD recognizes that there are some inconsistencies among several sources within the documentary evidence; however, the objective evidence regarding current country conditions suggests that, although not perfect, there is adequate state protection in Hungary for Roma who are victims of crime, police abuse, discrimination or persecution, that Hungary is making serious efforts to address these problems, and that the police and government officials are both willing and able to protect victims. [35] The evidence indicates that police do still commit abuses against people, including the Roma, but there is also evidence that indicates it is reasonable to expect authorities to take action in these cases, and that the police are capable of protecting Roma. [36] Human rights reports state that Roma continue to face discrimination in education, employment, housing, and access to social services. In addition, Roma reportedly experience discrimination in accessing public places such as bars and restaurants. The Equal Treatment Authority (ETA), an independent organization established by the Hungarian government that is tasked with investigating complaints of discrimination, notes that denial of service in commercial establishments is almost exclusively experienced by the Roma. Failures to act by local authorities, and in particular, failures in implementing centrally enacted legislation in conformity with the prohibition on discrimination, continue to lie at the heart of much of the discrimination experienced by Roma in daily life. Hungary has taken a number of initiatives relating to the situation of the Roma including, education, employment, housing, health, and political representation.38 [37] In Hungary, Roma, like the other 12 official minorities, are entitled to elect their own minority self-governments (MSGs), which organize minority activities and handle cultural and educational affairs. The president of each MSG also has the right to attend and speak at local government assemblies.39 [38] If the Appellant faces discrimination, they have recourse to all of these programs for assistance should they need it. The Hungarian government has taken a number of legal and institutional measures to improve the situation of the Romani minority. According to the Open Society Institute, Hungary has one of the most advanced systems for minority protection in the region. The Hungarian Government lists a number of institutions within the state apparatus, including the Roma Integration Department within the Ministry of Social Affairs and Labour, the main government body responsible for Romani integration, and the Council of Roma Integration, a consultative, advisory body which coordinates measures between various ministries on the social inclusion of Roma. The documentary evidence indicates that segregation of Roma students has increased in the past decade, but at the same time, the government of Hungary has introduced numerous measures to integrate Roma students into mainstream education. However, relating to these efforts, "the Minorities Ombudsman indicates that there is not enough monitoring of the programs and the municipalities resist against the investigations by the Ombudsman and courts, which are trying to stop school segregation."40 [39] The Ministry of Public Administration and Justice (formerly the Ministry of Justice and Law Enforcement) operated an anti-discrimination legal service network that provided free legal aid to Roma in cases where they encountered ethnic discrimination. Human rights NGOs lamented that the lawyers' offices were located in the larger cities, rendering them inaccessible to those Roma living in deep poverty in small villages. The HCLU received reports that the network's lawyers rejected some Romani cases. [40] Having canvassed the material from both the Board and the Appellants, in this particular situation, there is no evidence before the RAD to demonstrate that the Hungarian authorities took active steps to prevent the Appellants from obtaining employment in their respective professions.41 [41] As the Federal Court has stated in Balazs, "...it is recognized that people of Roma ethnicity are the subject of discriminatory acts and, in some cases, that discrimination is considered persecution...."42 However, the very fact that discrimination does exist in Hungary does not, de facto, translate into a lack of state protection. I am sure that members of Canada's First Nations would also readily cite attitudes of discrimination against them here in our own country of Canada. And that may well be true. However, this does not mean that Canada does not provide protection for members of its First Nations. And so it is with Hungary. The fact that Roma are discriminated against in Hungary does not mean that there is never any state protection for them or that they are not required to seek that protection prior to seeking refuge in another country. [42] There is no boiler template for determining whether Appellants of Roma ethnicity have rebutted the presumption of state protection. Each case must be determined on its individual facts and circumstances. Having considered the evidence and having canvassed all of the documentation in this claim, I wish to rely on the recent decision of the Federal Court in Kotai: The country conditions do not suggest that the situation is so bleak that all Roma, regardless of their particular circumstances, should not be expected to make reasonable efforts to seek state protection before seeking refugee protection in another country.43 [43] The burden is on the Appellant to provide clear and convincing evidence that the state is either unwilling or unable to provide him with adequate protection. The RPD is not obliged to provide proof that the state can offer its citizens effective protection, rather the claimant bears the legal burden of rebutting the presumption that state protection exists by adducing clear and convincing evidence which satisfies the RPD, on a balance of probabilities.44 [44] For all these reasons, the RAD agrees with the finding of the RPD that the Appellant is not a Convention refugee or a person in need of protection, whether under section 96 or section 97 of the IRPA, as state protection is available to him. CONCLUSION [45] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. [46] The Appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino March 3, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952 3 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at para. 724 and 725. 4 Ibid. 5 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Hungary (27 June 2014). 6 Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 725. 7 Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007, 2007 FCA 171. 8 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 9 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 10 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.). 11 M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Hugessen, Marceau, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), at 133. 12 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 13 Ramirez, Leticia Lizet Del Rio v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008, 2008 FC 1214. 14 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.), at 536. 15 Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007, 2007 FCA 171, para. 46. 16 Exhibit RPD-1, RPD's Record, NDP for Hungary (27 June 2014). 17 Peralta, Gloria Del Carmen v. M.C.I. (F.C.T.D., no. IMM-5451-01), Heneghan, September 20, 2002. 18 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 19 Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). 20 Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 21 Mudrak, Zsolt Jozsef v. M.C.I. (F.C., no. IMM-3582-13), Annis, February 16, 2015, 2015 FC 188, at para. 46. 22 Moczo, Dezso v. M.C.I. (F.C., no. IMM-8488-12), O'Reilly, July 2, 2013, 2013 FC 734. 23 Ibid., at para. 1. 24 Ibid., at para. 9. 25 Ibid., at para. 11. 26 Csaba Racz, Denes v. M.C.I. (F.C., no. IMM-9511-12), Zinn, June 24, 2013, 2013 FC 702. 27 Ibid., at para.3. 28 Ibid., at para. 13. 29 Mudrak, Zsolt Jozsef v. M.C.I. (F.C., no. IMM-3582-13), Annis, February 16, 2015, 2015 FC 188. 30 Sztojka, Andras v. M.C.I. (F.C., no. IMM-2005-11), Mosley, October 20, 2011, 2011 FC 1202. 31 Flores Carrillo v. Canada (Minister of Citizenship and Immigration, [2008] 1 F.C.R. 3 (F.C.); Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. 32 Sztojka, Andras v. M.C.I. (F.C., no. IMM-2005-11), Mosley, October 20, 2011, 2011 FC 1202, para.12. 33 Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.); (1991), 14 Imm. L.R. (2d) 81; 126 N.R. 126 (F.C.A.); Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 34 Csaba Racz, Denes v. M.C.I. (F.C., no. IMM-9511-12), Zinn, June 24, 2013, 2013 FC 702. 35 Kotai, Roland v. M.C.I. (F.C., no. IMM-6803-12), Kane, June 20, 2013, 2013 FC 693, at para. 22. 36 Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780 (T.D.). 37 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 38 Exhibit RPD-1, RPD's Record, NDP for Hungary (27 June 2014), item 13.6, Response to Information Request, HUN104111.E. 39 Exhibit RPD-1, RPD's Record, NDP for Hungary (27 June 2014), item 2.1. 40 Exhibit RPD-1, RPD's Record, NDP for Hungary (27 June 2014), item 13.5, Response to Information Request HUN103827.E. 41 Balogh, Ignac v. M.C.I. (F.C., no. IMM-2912-11), Blanchard, February 15, 2012, 2012 FC 216, at para. 13. 42 Balazs, Jozsef v. M.C.I. (F.C., no. IMM-5241-12), Noël, January 23, 2013, 2013 FC 62, at para. 28. 43 Kotai, Roland v. M.C.I. (F.C., no. IMM-6803-12), Kane, June 20, 2013, 2013 FC 693, at para. 41. 44 Nadeem, Choudhry Muhammad v. M.C.I. (F.C.T.D., no. IMM-6320-00), McKeown, November 15, 2001, 2001 FCT 1263. The Court stated: "The issue is not whether there is clear and convincing evidence that the police would not be reasonably forthcoming with a guarantee of effective protection but whether there is clear and convincing evidence that the police would not be reasonably forthcoming with serious efforts at protection." The onus is on the claimant to produce clear and convincing evidence that the police would not provide protection, not on the Board to provide proof that there will be state protection. Kaleja, Michal v. M.C.I. (F.C., no. IMM-4106), Near, June 9, 2011, 2011 FC 668; Quintero Sanchez, Valentin v. M.C.I. (F.C., no. IMM-4478-10), Near, April 26, 2011, 2011 FC 491. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09049