Date: 20040521
Docket: IMM-2511-03
Citation: 2004 FC 724
Ottawa, Ontario, May 21, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
ISTUANNE SUHA, LILLA SUHA AND
VIKTORIA ARANKA SUHA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The adult applicant, Istuanne Suha, and her two daughters, Lilla Suha and Viktoria Suha, seek judicial review of the decision rendered March 6, 2003 by S. Morgan, Pre-Removal Risk Officer (PPRA Officer), wherein the applicants' application for a Pre-Removal Risk Assessment (PPRA) was dismissed because they were not deemed to be persons who faced a risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if they were to return to Hungary.
ISSUE
[2] Though the applicants raise a number of issues, there is one that is determinative of this matter: did the PRRA Officer err in concluding that state protection would be available to the applicants?
[3] For the following reasons, I will allow this application.
FACTS
[4] The facts are taken from the PRRA Officer's decision and the applicant's memorandum. The adult applicant fears persecution in Hungary, and believes that adequate state protection would not be forthcoming, as a victim of spousal abuse, a lesbian and a Roma. The minor applicants' fear arises from the abuse they have suffered at the hands of their father, and because they are Roma. The mother came to Canada in 2000 with her mother and her youngest daughter. She made a refugee claim. While in Canada, she tried to get her other two daughters from her husband's family. Her husband called, threatened to kill her and said she could have the children, but only if she went herself to get them. She then withdrew her refugee claim and her daughter's refugee claim. She returned to Hungary in March 2001. Her husband began stalking her and beat her up in the street on March 17, 2001 and took her youngest daughter with him. The applicant's sister-in-law called the police but the police said they would not intervened in a domestic situation and told her that her husband was right to beat her because she was a lesbian. The applicant's husband continued to threaten her so in late March 2001, she returned to Canada as a visitor. The applicant again returned to Hungary on September 30, 2001 to try to get her children and she did obtain at least temporary custody. The applicant returned to Canada in November 2001 with her two youngest children, leaving the eldest behind because she could not afford her ticket. The applicant found out through her husband's sister that her husband is threatening her. The older daughters have been attacked because they are Roma and the youngest has been threatened.
[5] Because the adult applicant and Viktoria claimed refugee status previously, now that they have returned to Canada, they are considered ineligible to have their claims referred to the Immigration and Refugee Board. Instead, their claims, together with that of Lilla, were dealt with by a PRRA officer.
CONTESTED DECISION
[6] The PRRA Officer made no adverse findings of credibility. She does not dispute the fact that the adult applicant is a lesbian, that the applicants were victims of abuse at the hands of their husband and father respectively, and that the husband beat both the adult applicant and the daughters. Having analyzed the documentary evidence as well as the adult applicant's attempts to avail herself of state protection, the PRRA Officer came to the conclusion that state protection does exist in Hungary for the applicants and therefore rendered a negative decision.
ANALYSIS
[7] The PRRA decision in the case at bar was not one in which credibility was an issue. The decision was based on the fact that the applicants were not in need of protection because state protection was available. The applicants alleged a fear of returning to Hungary because they are Roma, because they fear the mother's abusive husband, and because they fear persecution based on the mother's sexual orientation.
[8] The respondent argues that there is a presumption that the state is able to protect the claimants (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). The burden of proving that state protection is unavailable rests on the applicant.
[9] The PPRA Officer erred by relying upon the availability of non-governmental and non-police resources which might be available to the applicants. We are dealing with criminal harms here. The evidence shows that when the applicant was last in Hungary, she was tracked down and attacked on the street by her husband within two weeks of her return to Hungary. He beat her unconscious and tried to stab her with a knife. He had previously tracked her down by holding a straight razor to the throat of the woman the adult applicant was living with. The applicant tried to have state protection but to no avail. In Molnar v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1081, [2003] 2 F.C. 339 (T.D.), the Court concluded at paragraphs 33 and 34:
[33] As to the willingness of the state to address the situation of the Roma in Hungary, I recognize that there was substantive evidence before the Board to show that the Hungarian government had taken measures to address this issue. However, this cannot equate with adequate state protection [...]
[34] [...] This evidence demonstrates that Roma live in fear of both the police and the judicial process in Hungary, as they are the victims of police violence and a judicial process that supports and even encourages violence against them.
[10] The tribunal record indicate that such documentary evidence was filed. In Molnar supra, the Court added at pararaph 28:
[...] it is important to draw a distinction between acts of discrimination and acts that are criminal in nature. The organizations highlighted by the Board have been successful in reducing discrimination against the Roma. However, the purpose of these organizations is not to provide protection from crime. This is the role of the police.
As I said before, in the case at bar, there are no issues as to credibility findings against the applicants by the PRRA Officer.
[11] In view of the undisputed facts in this case and the documentary evidence adduced, I find that it was a reviewable error for the PPRA Officer to conclude that there was not more than a mere possibility of future persecution on the basis of the applicant's sexual identity or her Roma status. The PPRA Officer also erred when she stated that the applicants had not demonstrated that the state would not respond to criminal actions from her ex-husband.
[12] The application for judicial review is allowed.
[13] Counsel had the opportunity to raise a question of general importance and have not done so. No question is certified.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed. The matter is remitted for reconsideration by a differently constituted tribunal. No question of general importance is certified.
"Michel Beaudry"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2511-03
STYLE OF CAUSE: SHUREMA VALENSIA (VALENSI) JAFFIER v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 27, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: May 21, 2004
APPEARANCES:
Ronald Poulton FOR THE APPLICANT
Mielka Visnic FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ronald Poulton
Toronto, Ontario FOR THE APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
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