Docket: IMM-1852-11
Citation: 2011 FC 1396
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Vancouver, British
Columbia, December 1, 2011
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
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VARGA MARTA AMBRUS DEZSONE
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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
ORDER AND ORDER
[1]
Ms.
Ambrus Dezsone (hereinafter Ms. Dezsone) left Hungary for Canada to claim
refugee protection on the basis of her Roma origins. Shortly afterwards, she
learned that her grandson had been hospitalized in Hungary. She then decided
to return there, but the Canadian authorities were in possession of her
passport. To get it back, she withdrew her refugee protection claim.
[2]
In
the end, Ms. Dezsone did not return to Hungary. She instead
decided to file an application to reinstate her refugee protection claim.
However, the Refugee Protection Division (RPD) of the Immigration and Refugee
Board of Canada dismissed her application to reinstate her claim. This is an
application for judicial review of that decision.
[3]
The
RPD member aptly summarized the situation:
In
the case before the panel, contrary to what is written in her application, the
66‑year‑old claimant arrived in Canada not in November 2009,
but on September 10, 2009, and she claimed refugee protection three days
later as a ROMA from Hungary. In her request for reinstatement, the claimant alleged that,
a few days later, she received a telephone call from her grandson, who had been
hospitalized in Hungary following a hemorrhage. Panicked
by the news, she wanted to support her grandson like a good grandmother.
Without thinking about her own situation, the claimant withdrew her claim for
refugee protection with CIC on December 6, 2010. After the claimant’s
daughter and son‑in‑law, who live in Montréal, calmed her down,
explaining to her that she could not return to Hungary to be with her grandson because her own
life was at risk there, the claimant applied for reinstatement on
January 13, 2011.
[4]
Subsections
53(1) and (3) of the Refugee Protection Division Rules describe the
process by which a refugee protection claim is reinstated:
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53. (1) A
person may apply to the Division to reinstate a claim that was made by that
person and withdrawn.
…
(3) The
Division must allow the application if it is established that there was a
failure to observe a principle of natural justice or if it is otherwise in
the interests of justice to allow the application.
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53. (1) Toute
personne peut demander à la Section de rétablir la demande d’asile qu’elle a
faite et ensuite retirée.
[…]
(3) La
Section accueille la demande soit sur preuve du manquement à un principe de
justice naturelle, soit s’il est par ailleurs dans l’intérêt de la justice de
le faire.
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[5]
It
is clear that Ms. Dezsone made the decision to withdraw her refugee protection
claim without consulting her children or her counsel. The file before the
member did indicate that she was represented by counsel and that her daughter
was acting on her behalf. However, Ms. Dezsone signed a notice of withdrawal
willingly, a notice that had, moreover, been translated for her from French to
Hungarian.
[6]
Although
the issue of Ms. Dezsone’s mental state was raised, there was no evidence
adduced in that regard. At best, it can be said that she made a bad decision, a
decision that she wishes she had not made.
[7]
In
the circumstances, I do not believe that there was a failure to observe a
principle of natural justice or that it is otherwise in the interests of
justice to require that the RPD ensure that Ms. Dezsone had consulted her
children and her counsel before withdrawing her refugee protection claim. As
explained by Justice Beaudry in Arndorfer v Canada (Minister of
Citizenship and Immigration), 225 FTR 124, [2002] FCJ No 1659 (QL), at paragraph
44:
Similarly, the IRB and the respondent
must be able to rely on what is communicated to them by claimants. If the IRB
and the Minister had to impose on themselves a waiting period before acting on
such notices as the Notice of Withdrawal, or impose extra steps on themselves
simply to ensure that the statement of the claimant is indeed his or her final
answer, the refugee claims process would be encumbered, which would in turn
worsen an already critical backlog in the refugee claims system.
[8]
The
member’s decision is reasonable. Consequently, this Court will not intervene.
[9]
It
does not necessarily follow that Ms. Dezsone will be removed to a country where
she was allegedly persecuted. She is still entitled to a pre-removal risk
assessment (PRRA). Under sections 112 and 113 of the Immigration and Refugee
Protection Act, her PRRA will address all of the risks listed in sections
96 and 97 of the Act (Hausleitner v Canada (Minister of Citizenship and Immigration),
2005 FC 641 at para 29, 139 ACWS (3d) 115; and Chokheli v Canada (Minister
of Citizenship and Immigration), 2009 FC 35 at para 13, [2009] FCJ No 51
(QL)).
ORDER
FOR THE FOREGOING
REASONS;
THE COURT
ORDERS that:
1. The
application for judicial review is dismissed.
2. There is no
serious question of general importance to be certified.
“Sean Harrington”
Certified
true translation
Susan
Deichert, LLB
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