Date: 20120514
Docket: IMM-7264-11
Citation: 2012 FC 577
Vancouver,
British Columbia, May 14, 2012
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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LASZLO MOLNAR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Laszlo Molnar (the “Applicant”) seeks judicial review of the decision of
Officer P. Duong who refused his Pre-Removal Risk Assessment in a decision made
on September 8, 2011. The Officer found that the Applicant had failed to show
that he would be at risk of persecution, torture, risk to life or at risk of
cruel and unusual treatment or punishment under subsection 97(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).
[2]
The
Applicant is a Hungarian citizen of Roma ethnicity. He originally came to Canada in 2001 and
filed a claim for recognition as a Convention refugee. He left Canada in 2002 and
returned to Hungary to care for
his ailing father who died in 2003. His departure from Canada prior to a
determination of his refugee claim means that the Applicant is ineligible to
submit another claim for refugee status pursuant to paragraph 101(1)(c)
of the Act.
[3]
In
2011 the Applicant returned to Canada, together with his wife and daughter.
Although ineligible to pursue a claim for protection pursuant to section 96 of
the Act, he was eligible to submit a PRRA application seeking protection
pursuant to paragraph 97(1)(b).
[4]
The
Applicant filed his PRRA application consisting of an affidavit and a number of
documents relating to country conditions in Hungary,
specifically as they relate to the treatment of Hungarians of Roma ethnicity.
[5]
The
Officer determined that the Applicant had failed to rebut the presumption that
state protection was available in Hungary having regard to
initiatives undertaken by the Hungarian government to deal with corrupt
practices by the police and the creation of independent agencies to oversee and
deal with complaints from Hungarians of Roma ethnicity who have faced
discrimination.
[6]
The
Applicant argues that the Officer committed a reviewable error by failing to
consider relevant evidence, including his evidence about his personal
experiences. For his part, the Minister of Citizenship and Immigration (the “Respondent”)
submits that the Applicant carries the burden of showing that state protection
is unavailable and he failed to do so. He notes that the Officer acknowledged
that there are problems with corruption and that the Applicant had been refused
protection from the state on some occasions. However, the Officer concluded
that the Applicant had failed to exhaust the reasonably available services and
resources in Hungary, thereby
failing to rebut the presumption of state protection.
[7]
According
to the decision in James v. Canada (Minister of
Citizenship and Immigration), 2010 FC 318 at para.16, a PRRA decision
is reviewable on the standard of reasonableness.
[8]
The
Applicant argues that the Officer committed a reviewable error by failing to
assess the evidence before him, in particular the evidence of his personal
experiences in relation to the documentary evidence. He provided evidence
respecting his personal experiences where services were denied on the basis of
his Romani ethnicity and he submits that this was ignored by the Officer.
[9]
The
Respondent submits that the Officer’s decision was reasonable and that there is
no basis for intervention.
[10]
As
noted above, the Officer’s decision is reviewable on the standard of
reasonableness. “Reasonableness” means that the decision demonstrates
justification, transparency and intelligibility, and falls within the range of
possible, acceptable outcomes, giving regard to the evidence submitted and the
reasoning process involved; Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190 at para. 47.
[11]
In
this case, I am not satisfied that the Officer’s conclusion is reasonable
having regard to the conflicts between the evidence about the Applicant’s
personal experiences and the documentary evidence. The Officer made no negative
credibility finding. Mere recitation of the documentary evidence without
consideration of the Applicant’s evidence about his personal circumstances is
an insufficient basis, in this case, for a reasonable decision; Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 17.
[12]
In
the result this application for judicial review is allowed. There is no
question for certification arising.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is allowed. There is no question for certification arising.
“E.
Heneghan”
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