Docket: IMM-784-17
Citation:
2017 FC 787
Toronto, Ontario, August 25, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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GYULANE RUSZO
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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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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of a
decision of a Senior Immigration Officer [the Officer], dated January 12, 2017,
rejecting the Applicant’s application for an exemption on humanitarian and
compassionate [H&C] grounds to permit her to apply for permanent residence
from within Canada.
[2]
As explained in greater detail below, this
application is allowed, because the Officer’s decision involved concerns about
the credibility or genuineness of documentary evidence offered by the Applicant
in support of her allegations, and she was not afforded an opportunity to
respond to those concerns.
II.
Background
[3]
The Applicant, Ms. Gyulane Ruszo, is a
57-year-old female citizen of Hungary. She first entered Canada on a visitor’s
visa on February 22, 2010, and on March 17, 2010, she made a refugee claim,
along with various family members, based on fear of persecution due to their
Roma ethnicity. On May 7, 2012, the Refugee Protection Division [RPD] rejected
the refugee claims of Ms. Ruszo and her family, finding that they failed to
rebut with clear and convincing evidence the presumption of adequate state
protection in Hungary. Ms. Ruszo and her family applied for judicial review of
this decision, leave for which was denied, following which they were removed from
Canada on February 1, 2013.
[4]
On March 1, 2016, Ms. Ruszo again entered Canada
with different family members (her daughter, son-in-law, grandson and two
granddaughters, one of whom was born when the family was previously in Canada
and is therefore a Canadian citizen) and initiated another refugee claim. On
March 3, 2016, she was deemed ineligible to have her refugee claim referred to
the RPD for consideration, because her claim had already been rejected by the
RPD. On April 7, 2016, Ms. Ruszo applied for a Pre-Removal Risk
Assessment [PRRA], which was refused on January 5, 2017. That decision is the
subject of another application for judicial review in Court file no.
IMM-786-17, which was heard concurrently with the present application.
[5]
On July 8, 2016, Ms. Ruszo initiated the H&C
application which gives rise to the present application for judicial review. The
members of Ms. Ruszo’s family who accompanied her to Canada also sought H&C
relief. The H&C applications were supported by one set of submissions prepared
by the applicants’ counsel and raised grounds related to adverse conditions in
Hungary, their family ties and establishment in Canada, and the best interests
of Ms. Ruszo’s grandchildren.
[6]
On December 28, 2016, Ms. Ruszo’s family
received a positive decision based on the medical condition of her Canadian
born granddaughter, Amanda, who was born with multiple birth defects
(hypotonia, congenital hypothyroidism, and a rare chromosome disorder which
resulted in dysmorphic features). Separately, on January 12, 2017, Ms. Ruszo
received a negative decision. It is that decision which is the subject of the
present application for judicial review.
[7]
While acknowledging the difficulties faced by
many Roma in Hungary, the Officer found that Ms. Ruszo had not provided
sufficient objective documentary evidence to demonstrate that she was a victim
of adverse country conditions, such as discrimination and segregation, denial
of medical care, social assistance, housing, employment, education or state
protection, or that she experienced violence as a result of her ethnic
background. On the subject of establishment, the Officer found that Ms. Ruszo
had not provided sufficient objective documentary evidence to determine that
her degree of establishment in Canada justified an exemption on H&C
grounds. Ms. Ruszo also failed to satisfy the Officer that her return to
Hungary would be detrimental to the well-being or development of her
grandchildren.
III.
Issues
[8]
The Applicant raises the following issues for
the Court’s consideration:
A.
Whether the Officer breached procedural fairness
by failing to provide notice that the Applicant would be assessed separately
from the members of her family;
B.
Whether the Officer erred in the treatment of
documentary evidence;
C.
Whether the Officer’s assessment of hardship
focused on past persecution rather than a forward-looking analysis;
D.
Whether the Officer ignored relevant documentary
evidence that the Applicant would face hardship upon return to Hungary;
E.
Whether the Officer erred in assessing the
Applicant’s degree of establishment in Canada.
IV.
Analysis
[9]
My decision to allow this application for
judicial review turns on one of the arguments raised by the Applicant under the
second issue articulated above, related to the Officer’s treatment of the
documentary evidence. The Applicant argues that the Officer made a veiled
credibility finding or otherwise discounted evidence based on concerns that she
could not reasonably have anticipated, requiring the Officer to provide her with
an opportunity to respond to these concerns. In particular, she refers to the
Officer’s treatment of evidence intended to corroborate her alleged eviction
from her home, along with other Roma, in the so-called “numbered
streets” neighbourhood of Miskolc, Hungary.
[10]
The Officer noted that the affidavit sworn by
the Applicant’s daughter indicated that in 2014 the city of Miskolc started
mailing eviction notices to residents of the numbered streets neighbourhood.
The Officer also acknowledged that, according to the objective country
condition evidence, the mayor of Miskolc and city authorities engaged in the
forced eviction of individuals living in this neighbourhood. However, the
Officer found that the Applicant had failed to provide sufficient objective
evidence to demonstrate that she and her family lived in this neighbourhood and
were forced from their home. In reaching this conclusion, the Officer noted
that neither the Applicant nor her daughter provided a copy of an eviction
notice. Instead they relied on a letter, with English translation, from the
Roma Nationality Self – Government of County City Miskolc, signed by
Vice-Chairman Ferenc Gulyas.
[11]
The Officer observed that this letter indicated
that the Applicant, her daughter and her daughter’s family “had their home in the ‘numbered street’ of the Miskolc city
Roma Ghetto (5, Sixth Street, Miskolc), which has become the object of ‘slum’
elimination and they have become victim of this process.” The letter
further stated that the applicants were “evicted by the
City authorities, without offering them other housing solution” and not
permitted to “resettle within 50 km area of Miskolc
region, as they are not eligible for health care and social care too”.
[12]
In analyzing this letter, the Officer noted the
following:
A.
In the Background/Declaration provided by the
Applicant in support of her H&C application, she provided her home address
for the relevant time as 33 Szamos Utca, Miskolc, rather than 5, Sixth Street,
Miskolc as set out in Mr. Gulyas’ letter;
B.
It was unclear whether Mr. Gulyas wrote the
letter based on firsthand knowledge of the Applicant’s personal situation or
whether he based the content of the letter on information that was provided to
him;
C.
While the evidence included a translator’s
affidavit for the letter, there was no evidence of the translator’s
accreditation;
D.
The first paragraph of the Hungarian language
original version of the letter consisted of five sentences, while the first
paragraph of the English translation consisted of two sentences;
E.
The English translation included a parenthetical
reference to the Applicant’s family’s address in the numbered streets
neighbourhood, but the Hungarian language original did not;
F.
No postmarked envelope was included with the
letter to confirm that it originated in Miskolc and was sent by the Vice-Chairman
of the Roma Nationality Self – Government of County City Miskolc.
[13]
As a consequence of these observations, and the
resulting inability to verify the letter’s origin or the accuracy of the
translation, the Officer found that it was difficult to assess the reliability
of the source of the information in the letter and therefore gave the letter
very little evidentiary weight.
[14]
As noted above, the Applicant’s position is that
this analysis by the Officer represents a veiled credibility finding, or
otherwise a discounting of evidence based on concerns that she could not
reasonably have been anticipated. She submitted in her Memorandum of Argument
that this required the Officer to provide her with an oral interview. The
Applicant revised her position at the hearing of this application, submitting
that the Officer was required to provide her an opportunity to respond to these
concerns, although not necessarily through an oral interview.
[15]
The Respondent’s position is that the Officer’s
treatment of the letter involved a finding as to its weight and the sufficiency
of evidence, not an assessment of its credibility. The Respondent relies on the
decision of this Court in Ferguson v Canada (Minister of Citizenship and
Immigration), 2008 FC 1067 [Ferguson], in which Justice Zinn
explained that it is open to a trier of fact to move immediately to an
assessment of weight or probative value of evidence without considering whether
the evidence is credible, because the credibility is irrelevant if the evidence
is to be given little or no weight in any event.
[16]
As this issue raises considerations of
procedural fairness, it is reviewable on the standard of correctness (see Leonce
v Canada (Minister of Citizenship and Immigration), 2011 FC 831, at paras
2-3; Duka v Canada (Minister of Citizenship and Immigration),
2010 FC 1071 [Duka], at paras 8-9).
[17]
My conclusion is that the Applicant has
correctly characterized the Officer’s treatment of the letter as involving
credibility concerns. While I accept the legal principles explained in Ferguson,
I do not consider them to assist the Respondent in the case at hand. There is
an element of the Officer’s analysis of the letter which could be characterized
as an assessment of its weight or probative value, i.e. the uncertainty whether
the author wrote the letter based on firsthand knowledge of the Applicant’s
personal situation or whether he based the content of the letter on information
that was provided to him. However, the Officer’s other observations, as to
inconsistencies between the addresses stated in the letter and in the
Applicant’s Background/Declaration, inconsistencies between the English and
Hungarian versions of the letters, and the absence of a postmarked envelope,
represent concerns about the credibility or genuineness of the evidence.
Indeed, the Officer expressly referred to difficulty assessing the reliability
of the source of the information. As noted by Justice Zinn at paragraph 25 of Ferguson,
a finding that evidence is not credible represents a finding that the source of
the evidence is not reliable.
[18]
The Applicant offers various explanations for
the inconsistencies identified by the Officer. However, as these explanations
were not before the Officer, they do not assist the Court in analyzing the
reasonableness of the Officer’s decision. Rather, they support an argument that
the Applicant should have been provided with an opportunity to respond to the
Officer’s concerns with Mr. Gulyas’ letter, such that the Officer could have considered
these explanations and reached a more fully informed conclusion as to the
appropriate treatment of the evidence.
[19]
The Applicant submits that the lack of evidence
of eviction was determinative of the Officer’s finding that she had not
suffered from discriminatory eviction policies and was not at risk of
homelessness. I accept that the evidence surrounding the Applicant’s alleged
eviction was linked to her allegation of denial of housing, health care and
social assistance and therefore to the hardship she was arguing in her H&C
application. It is therefore my conclusion, consistent with the jurisprudence
in Duka, that in the absence of an opportunity to respond to the
Officer’s concerns about Mr. Gulyas’ letter, the Applicant was denied
procedural fairness. The Officer’s decision must be set aside and the issue returned
to another immigration officer for consideration.
[20]
It is therefore unnecessary for the Court to
rule on the other issues raised by the Applicant. I note that, at the hearing
of this application, the Applicant proposed a question for certification for
appeal related to the first issue raised by the Applicant, whether the Officer
breached procedural fairness by failing to provide notice that the Applicant
would be assessed separately from the members of her family. Her proposed
question is as follows:
Is it a breach of procedural fairness for an
officer to sever an application in a manner that raises new issues without
giving an applicant an opportunity to respond to the new issues raised by the
severance?
[21]
As my decision is to allow this application for
judicial review for reasons unrelated to the Officer’s severance of the
Applicant’s H&C application from that of her family, the proposed question
would not be determinative of an appeal. It is therefore not appropriate for
certification. However, the Applicant is now aware that her family’s H&C
application has been granted and will be able to make any additional
submissions which she considers relevant to her own application as a result of
these circumstances before her application is considered by another immigration
officer.
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