Docket: IMM-3673-13
Citation:
2015 FC 52
Halifax, Nova Scotia, January
15, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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ZSUZSANNA GALLAI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], the applicant
requested permanent resident status on humanitarian and compassionate (H&C)
grounds. It was refused. She now challenges that decision by bringing this
application for judicial review.
[2]
The applicant seeks to have the negative H&C
decision set aside and the matter remitted back for reconsideration by a
different officer.
I.
Background
[3]
The applicant is a citizen of Hungary, which is a member country in the European Union (EU).
[4]
The applicant was abandoned at the hospital
where she was born and was in the care of foster parents and the children and
youth protection institutes until the age of eighteen. She is blind in her left
eye after being hit by her foster parent. The applicant also identifies herself
as a lesbian.
[5]
After the age of eighteen, the applicant studied
from September 1994 to August 2004 and obtained university education. She then
worked in Hungary as an administrative assistant for eight months.
[6]
The applicant then relocated to Ireland and resided there for nearly seven years prior to her entry to Canada. During her stay in Ireland, she secured employment two months after her entry and was unemployed for a total of
three months.
[7]
The applicant originally entered Canada on February 14, 2012 as a visitor. She obtained employment six months after her
entry to Canada and had been employed for over eight months.
[8]
The applicant made a refugee claim on March 2,
2012 which is currently pending. She submitted an application for permanent
residence based on H&C grounds which was received on June 25, 2012. At the
time of the H&C application, she had resided in Canada for over one year.
[9]
The applicant stated on her H&C application
that she would face discrimination and harassment in Hungary due to her Roma
descent and being a lesbian and would therefore suffer significant abuse.
II.
Decision Under Review
[10]
A negative decision was made on May 2, 2013. The
officer first referenced section 25 of the Act and then stated that risks under
sections 96 and 97 were not taken into consideration pursuant to the statutory
modification after June 29, 2010.
[11]
In the decision, the officer analyzed two
categories: the applicant’s establishment and risks and adverse country
conditions.
[12]
Under establishment, the officer acknowledged
the disruption and anxiety the applicant would likely feel if returned to Hungary, but stated the applicant “possesses the ability to adapt to
her home country after an initial period of adjustment.” In supporting this
view, the officer referenced the applicant’s adaptation in Ireland and in Canada. Further, the officer acknowledged the four letters of support from the
applicant’s friends in Canada, but stated these contacts can be maintained
through “correspondence, telephone calls, emails, online
chats, and visits.”
[13]
Under risks and adverse country conditions, the
officer first summarized the applicant’s difficult childhood consisting of
abuse and the resulting blindness to her left eye. The officer then
acknowledged the applicant’s EU membership allowed her to be able to “live, work, study or retire in any of the European Union
member countries” such as relocating to Ireland where the applicant
lived and worked for approximately seven years. The officer concluded there was
insufficient evidence to demonstrate that the applicant would suffer from “unusual and undeserved or disproportionate hardship due to the
abuse she suffered as a child” if removed to Hungary. In the officer’s
reasoning, the officer found there is a nexus between the applicant’s expressed
risk and her race, which falls under section 96 of the Act so such evidence was
not taken into consideration.
[14]
Then, the officer provided further rationales
for his assessment of the applicant’s hardship. Noting that the applicant
studied from September 1994 to August 2004 and obtained university education
and employment after the completion of her studies in Hungary, the officer concluded there was insufficient evidence to demonstrate that the
applicant was discriminated against in other fields of life due to her ethnic
background. The officer acknowledged the existence of discrimination against
the Romani population and sexual minorities in Hungary, but in light of the
applicant’s academic and working history, the officer ultimately decided this
discrimination is not so prevalent to amount to unusual and undeserved or
disproportionate hardship.
III.
Issues
[15]
The applicant submits the following two issues
for my review:
1.
What is the appropriate standard of review?
2.
Does the officer’s hardship analysis contain
reviewable errors?
[16]
The respondent states there is one issue: was
the officer’s hardship analysis reasonable? Further, it brings forward a
preliminary issue on the admissibility of parts of the applicant’s affidavit.
[17]
In my view, there are three issues:
A.
What is the standard of review?
B.
Are parts of the applicant’s affidavit
inadmissible?
C.
Did the officer assess hardship reasonably?
IV.
Applicant’s Written Submissions
[18]
The applicant argues the officer erred in the
hardship analysis, so pursuant to Dunsmuir v New Brunswick, 2008 SCC 9
at paragraph 62, [2008] SCJ No 9, [Dunsmuir], the proper standard of
review is reasonableness.
[19]
In the applicant’s memorandum for leave, she
submits the officer failed to explain why the contrary evidence contained in
the country conditions documents regarding Hungary was dismissed. This
dismissed evidence contains serious concerns about the situation of women, Roma
people, lesbians and people with disabilities. She also argues that the officer
erred by failing to consider the cumulative impact of the applicant’s gender,
sexual orientation, ethnicity and disability. In support of her position, the applicant
cites the following cases: White v Canada (Minister of Citizenship and
Immigration), 2011 FC 1043, [2011] FCJ No 1299 [White]; Mings-Edwards
v Canada (Minister of Citizenship and Immigration), 2011 FC 90, [2011] FCJ
No 109, [Mings-Edwards]; Ratnarajah v Canada (Minister of Citizenship
and Immigration), 2010 FC 1054, [2010] FCJ No 1306 [Ratnarajah]; Damte
v Canada (Minister of Citizenship and Immigration), 2010 FC 456, [2010] FCJ
No 569 [Damte]; and Siddiqui v Canada (Minister of Citizenship and
Immigration), 2008 FC 989, [2008] FCJ No 1229 [Siddiqui].
[20]
In White, this Court granted judicial
review for an applicant who sustained serious brain injuries as a teenager
because the H&C officer understated the difficulties the applicant would
experience in Jamaica given the lack of mental health services in that country.
In Mings-Edwards, this Court found the immigration officer failed to
adequately consider the impact of the applicant’s HIV status in her ability to
support herself and the illness’s related difficulties she would face in Jamaica. In Ratnarajah, this Court ruled the officer failed to refer the 2009 United
Nations High Commission for Refugees’ report, containing a large volume of
adverse country condition evidence that contradicted its conclusion addressing hardship.
In Damte, this Court found the officer failed to assess gender factors
in the H&C application. In Siddiqui, this Court found the officer
failed to explain why the type of discrimination the applicant would face from
divorce in her home country would not amount to the kind of hardship contemplated
under section 25 of the Act.
[21]
The applicant submits the officer in the present
case committed similar errors as in the cases above by understating the
difficulties that the applicant would face in Hungary; failing to sufficiently
consider and explain the divergence from the country conditions evidence
presented; failing to consider the cumulative impact of the applicant’s gender,
sexual orientation, ethnicity and disability; and finally failing to explain
why, in light of the evidence presented, the applicant did not meet the
threshold of “unusual, undeserved and disproportionate
hardship.”
V.
Respondent’s Written Submissions
[22]
The respondent submits the proper standard of
review is reasonableness and the officer should be given deference as per Dunsmuir
at paragraphs 47, 53, 55 and 62 (also see Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12 at paragraph 89, [2009] SCJ No 12 [Khosa];
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817 at paragraph 62, [1999] SCJ No 39 [Baker]; and Thandal v Canada
(Minister of Citizenship and Immigration), 2008 FC 489 at paragraph 7,
[2008] FCJ No 623).
[23]
As a preliminary objection, the respondent
argues the applicant relies on information not in front of the officer, such as
the information in the applicant’s affidavit containing details about her
personal experiences. It states the only written submissions before the officer
are those on pages 21 and 35 of the application record. Therefore, the
respondent objects to the applicant’s reliance on these facts.
[24]
Then, the respondent explains “unusual and undeserved or disproportionate hardship” by
referring to section 25 of the Act and argues an H&C application is an
exceptional and discretionary remedy (see Serda v Canada (Minister of Citizenship
and Immigration), 2006 FC 356 at paragraph 20, [2006] FCJ No 425). It
submits an H&C application is not “a back door when
the front door has, after all legal remedies have been exhausted, been denied
in accordance with Canadian law.” (see Mayburov v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 953 at paragraph 39, 98 ACWS
(3d) 885). It also quotes the IP5 Manual for definitions.
[25]
Further, the respondent submits the onus is on
the applicant to satisfy the decision maker that his or her personal
circumstances meet the above requirement for exemption. It then argues the
officer’s decision is reasonable because the applicant has the ability to live
in other EU countries aside from Hungary. It argues that if the applicant need
not remain in Hungary, then the evidence pertaining to hardship in relation to Hungary is of less value.
VI.
Applicant’s Further Written Submissions
[26]
In response to the respondent’s preliminary
matter, the applicant concedes the personal experience information contained in
her affidavit was not submitted to the officer for the H&C application,
rather it was submitted on a request for reconsideration which was subsequently
denied and now before this Court as a separate judicial review application.
[27]
The applicant further submits that the
respondent erred in arguing the applicant has an unlimited right to live in any
EU country. It provides excerpts from the “Human Rights of Roma and Travellers
in Europe” and “Roma People in Europe: A Long History of Discrimination” arguing
i) Roma migration is opposed and obstructed throughout the EU; and ii) Roma
experience discrimination and ill treatment throughout Europe.
[28]
The applicant argues the officer ignored this
contrary information or failed to explain why he chose to disregard it in
concluding she could simply live and work in another EU country.
VII.
Respondent’s Further Written Submissions
[29]
Pertaining to the preliminary issue, the
respondent further submits an application for judicial review is limited to a
review of the evidence that was before the decision-maker (see Tabanag v
Canada (Minister of Citizenship and Immigration), 2011 FC 1293 at paragraph
14, [2011] FCJ No 1575 [Tabanag]; Mahouri v Canada (Minister of
Citizenship and Immigration), 2013 FC 244 at paragraph 14, [2013] FCJ No
278 [Mahouri]; and Isomi v Canada (Minister of Citizenship and
Immigration), 2006 FC 1394 at paragraph 6, [2006] FCJ No 1753 [Isomi]).
Therefore, it argues paragraphs 2 through 38 of the applicant’s affidavit
should be struck.
[30]
In response to the applicant’s submission of
contrary evidence, the respondent argues no such evidence was submitted to the
officer and therefore the officer had no obligation to specifically mention and
address evidence about the treatment of Roma people outside of Hungary.
[31]
Finally, the respondent submits no submissions
were made to the officer by the applicant on the cumulative impact of the
applicant’s disability, gender, ethnicity and sexual orientation.
VIII.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[32]
Both the applicant and respondent submit the
proper standard of review is reasonableness. I agree. Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
at paragraph 57).
[33]
For questions of fact or mixed fact and law
decided on an H&C grounds application, the standard of review is
reasonableness (see Kisana v Canada (Minister of Citizenship and
Immigration), 2009 FCA 189 at paragraph 18, [2010] 1 FCR 360; Dunsmuir
at paragraph 53; and Baker at paragraphs 57 to 62). The standard of
reasonableness means that I should not intervene if the Board’s decision is
transparent, justifiable, intelligible and within the range of acceptable
outcomes (Dunsmuir at paragraph 47).
[34]
Here, I will set aside the officer’s decision only
if I cannot understand why the officer reached his or her conclusions or how
the facts and applicable law support the outcome (see Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paragraph 16, [2011] 3 S.C.R. 708). As the Supreme Court held in Khosa
at paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute
its own view of a preferable outcome, nor can it reweigh the evidence.
B.
Issue 2 - Are parts of the applicant’s affidavit
inadmissible?
[35]
An application for judicial review is limited to
a review of the evidence that was before the decision maker (Tabanag at
paragraph 14; Mahouri at paragraph 14; and Isomi at paragraph 6).
[36]
Here, the applicant concedes the information in
her affidavit containing details about her personal experience was not in front
of the officer and that the only written submissions before the officer are
those on pages 21 and 35 of the application record. Further, the personal
experience evidence was subsequently submitted to the officer under her request
for reconsideration. This later rejected reconsideration is now under a
separate application of judicial review. In my view, the presiding judge for
the judicial review of the reconsideration request would be more suitable to
review this information.
[37]
Therefore, I agree with the respondent that
paragraphs 2 through 38 of the applicant’s affidavit should be struck.
C.
Issue 3 - Did the officer assess hardship reasonably?
[38]
Subsection 25(1) of the Act governs the
determination for an H&C application. When considering an H&C
application, the officer’s role is to assess whether an individual would face “unusual and undeserved or disproportionate hardship” if
required to apply for permanent residence outside of Canada.
[39]
Here, the applicant submits that the officer
erred in considering hardship. I would summarize the applicant’s arguments as
the following: i) understating the difficulties that the applicant would face
in Hungary; ii) failing to consider the cumulative impact of the applicant’s
gender, sexual orientation, ethnicity and disability; iii) ignoring the
contrary information or failing to explain why he chose to disregard it in
concluding the applicant could simply live and work in another EU country; and
iv) failing to explain why, in light of the evidence presented, the applicant
did not meet the threshold of “unusual, undeserved and
disproportionate hardship.”
[40]
The respondent submits the onus is on the
applicant to satisfy the decision maker that her personal circumstances meet
the requirement for exemption on H&C grounds. It submits no submissions
were made by the applicant pertaining to cumulative impact of her disability,
gender, ethnicity and sexual orientation to the officer. It then argues the
officer’s decision is reasonable because the applicant has the ability to live
in other EU countries aside from Hungary. If the applicant need not remain in Hungary, then the evidence pertaining to hardship in relation to Hungary is of less value. In
response to the applicant’s submission of contrary evidence, the respondent
argues no such evidence was submitted to the officer and therefore the officer
had no obligation to specifically mention and address evidence about the
treatment of Roma people outside of Hungary.
[41]
In this case, the translated news article, “My
Emotional World is A Mess” detailing an interview of the applicant when she was
seventeen years of age, contains the only information related to the
applicant’s personal experiences in the absence of other written submissions.
In this article, the applicant described her childhood experiences such as the
abuse and injury to her left eye. The officer in the decision considered the
applicant’s personal experiences, acknowledged that it would be emotionally
difficult for her to return, but noted the applicant did remain in Hungary for nearly ten years after she turned eighteen while managing to pursue her
education and obtain employment. Here, the officer assessed the evidence in the
context of the applicant’s personal situation. Therefore, insofar as the
applicant’s first point is concerned, I am satisfied that the officer’s
analysis falls within the range of acceptable outcomes.
[42]
Insofar as the applicant’s second point about cumulative
impact, I agree with the respondent that there were no written submissions made
by the applicant pertaining to the cumulative impact of her disability, gender,
ethnicity and sexual orientation to the officer. Therefore, this point cannot
stand to say that the officer’s decision is unreasonable.
[43]
Insofar as the applicant’s third point about the
EU is concerned, I find the overall evidence does not contradict the officer’s
conclusion. It is well established that an officer is not required to mention
every piece of evidence in the analysis (see Akram v Canada (Minister of Citizenship and Immigration), 2004 FC 629, [2004] FCJ No 758).
However, pursuant to Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425 at paragraph 17, 157 FTR 35, it is a
reviewable error for an officer not to have dealt with evidence that specially
contradicts their conclusion and the officer’s burden of explanation increases
with the relevance of the evidence in question to the disputed facts.
[44]
As demonstrated in the documentary evidence
“Human Rights of Roma and Travellers in Europe” and “Roma People in Europe: A
Long History of Discrimination,” I agree with the applicant that it shows Roma
migration is opposed and obstructed throughout the EU and Roma experience
discrimination and ill treatment throughout Europe. In the present case, the
officer acknowledged the applicant’s EU membership allowed her to be able to “live, work, study or retire in any of the European Union
member countries”. Although the officer did not mention any of the
general adverse country conditions evidence in the analysis, the officer did
correctly point out that the applicant lived and worked for approximately seven
years in Ireland. In the absence of written submissions on the applicant’s
adverse personal experience in Ireland, the officer was not unreasonable to
adopt the applicant’s personal circumstances over the general contrary
evidence. Therefore, I find the overall evidence does not contradict the
officer’s conclusion.
[45]
Insofar as the applicant’s fourth and final
points about the overall reasonableness of the decision is concerned, the
aforementioned analysis demonstrates the officer was not unreasonable to
conclude that the applicant provided insufficient evidence to demonstrate that
she would suffer from unusual and undeserved or disproportionate hardship due
to the abuse she suffered as a child. The officer’s reasons, although brief,
were based on an assessment of a totality of evidence in front of him.
[46]
Therefore, the officer did not commit a
reviewable error on his analysis of hardship and I find his decision was
reasonable.
[47]
For the reasons above, I would dismiss this
application for judicial review.
[48]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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