Docket: IMM-1161-17
Citation:
2017 FC 884
Ottawa, Ontario, October 6, 2017
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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IMRENE NAGY AND
HELENA
MERCEDESZ HORVATH
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Applicants
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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 (officer) dismissing an application
for a pre-removal risk assessment (PRRA) by Ms. Imrene Nagy (the principal
applicant) and her minor daughter Helena Mercedesz Horvath (the minor
applicant).
II.
FACTS
[2]
The applicants came to Canada in 2008 from
Hungary when the minor applicant was four years old. At that time, they made an
application for asylum citing fear of the principal applicant’s ex-husband, a
police officer named Imre Nagy. Mr. Nagy had allegedly threatened the
applicants because the father of the minor applicant was a Roma. They also
cited a fear of discrimination based on the minor applicant’s status as a
half-Roma child and the principal applicant’s status as the mother of a
half-Roma child.
[3]
In a first decision in November 2010, the
Refugee Protection Division (RPD) considering the applicants’ asylum claim
focused on the applicants’ alleged fear of Mr. Nagy and found that the principal
applicant lacked credibility in material aspects of her claim. The RPD denied
the applicants’ asylum claim on this basis.
[4]
On judicial review of this decision, the Federal
Court found the RPD’s credibility assessment to be reasonable, but sent the
matter back to the RPD for redetermination on the alleged persecution based on
the minor applicant’s Roma ethnicity. Importantly, the Federal Court did not
set aside the RPD’s negative credibility findings.
[5]
In a second decision in March 2012, the RPD
rendered another negative decision, finding insufficient evidence of
persecution and availability of state protection. The applicants’ application
for judicial review of this second RPD decision was denied before the Federal
Court in March 2013.
[6]
In August 2016, the applicants filed a PRRA
application which became the subject of the impugned decision in the present
application.
III.
IMPUGNED DECISION
[7]
The officer noted that the applicants’ PRRA
application was based on essentially the same fears as were asserted before the
RPD. Accordingly, the officer focused on four letters that were provided by the
applicants, which had not been before the RPD, concerning Mr. Nagy’s alleged
recent efforts to locate the applicants. These were three letters from friends
of the principal applicant, and a fourth letter from Mr. Nagy’s brother, the
principal applicant’s bother-in-law (incorrectly identified by the officer as
the principal applicant’s brother). The officer concluded that these letters
were unreliable and gave them no weight. The officer identified the following
concerns:
- The letters are
short and lacking in detail concerning the circumstances surrounding Mr.
Nagy’s alleged harassment, or how the principal applicant is acquainted
with the writers of the letters;
- The letters are
suspiciously similar, each referring to the “gipsy
child” or the “baby” or “child” from a gipsy, and each imploring the
applicants to never come home, “even to visit”.
- The
implausibility that, eight years after the applicants had left Hungary,
Mr. Nagy began harassing the applicants’ acquaintances about their
whereabouts (there being no evidence that Mr. Nagy had searched for the
applicants in the intervening years).
- The fact that
all of the letters came from people who are close to the applicants and
not neutral.
[8]
The officer also found that the applicants had
not rebutted the presumption that adequate state protection would be available
to them to address any threat from Mr. Nagy. In support of this conclusion, the
officer quoted at length from several documentary sources addressing issues
such as Hungary’s parliamentary democracy, laws aimed at preventing violence
against women, mechanisms for complaints against the police.
[9]
The officer also considered the applicants’ risk
of being targeted due to the minor applicant’s Roma ethnicity. The officer
noted that there was insufficient evidence of significant incidents of
discrimination before they left Hungary, and that the applicants based their
concerns on general country conditions for Roma in Hungary. The officer noted
that these concerns had been considered and rejected before the RPD (in 2012)
on the basis that state protection was adequate. The officer considered the
relevant documentary evidence and concluded that, though it was mixed, it was
insufficient to demonstrate a significant change in conditions for Roma since
the RPD’s analysis.
[10]
The officer concluded by noting that there was
little evidence that the minor applicant, who is only half Roma, would be
perceived as Roma at all.
[11]
The PRRA application was rejected.
IV.
ISSUES
[12]
The applicants argue that the officer erred in
four principal respects in the impugned decision:
- It was
unreasonable not to give weight to the new evidence provided by the
applicants concerning Mr. Nagy’s efforts to find them.
- The officer’s analysis
of state protection available to the applicants in Hungary was
unreasonable.
- The officer
failed to undertake a forward-looking analysis in assessing the risks
faced by the applicants in Hungary.
- It was
unreasonable for the officer to consider that the minor applicant might
not be perceived as Roma.
V.
ANALYSIS
A.
Standard of Review
[13]
The parties are agreed, and I concur, that the
alleged errors asserted by the applicants are to be reviewed on a standard of
reasonableness.
B.
New Evidence
[14]
The applicants argue that the officer made
several errors in his analysis of the new evidence or Mr. Nagy’s efforts to
find them. With regard to the similarity of the letters, the applicants argue
that this is simply a reflection of the similarity of the various approaches Mr.
Nagy made to the applicants’ acquaintances, as well as his determination to
find the applicants. The applicants also note that the English translation of
two of the letters was accompanied by an interpreter’s note stating: “If the translation sound [sic] strange it is because
[of] the source text. I tried to mirror the bad grammar … I overlooked the
spelling mistakes.”
[15]
In my view, it was reasonable for the officer to
consider negatively the combined facts of lack of detail and similarity in the
letters. In particular, there appears to be something artificial in the
repeated imploring of the applicant never to return, “even
to visit”. I am not convinced that this concern is explained away by the
interpreter’s notes.
[16]
With regard to the timing of the letters, the
applicants argue that the harassment by Mr. Nagy was ongoing and it should not
be surprising that the letters are all dated around the time that the
applicants sought evidence to support their PRRA application. The problem is
that there was no evidence before the officer that Mr. Nagy’s efforts to locate
the applicants had been ongoing; evidence to that effect was presented later
before this Court, but cannot be considered in determining whether the
officer’s analysis was reasonable. Accordingly, it was entirely reasonable for
the officer to consider the plausibility of Mr. Nagy commencing efforts to find
the applicants eight years after they left Hungary and just as the applicants
were preparing their PRRA application.
[17]
With regard to the fact that the letters come
from people who are close to them, the applicants cite jurisprudence to the
effect that it is improper to dismiss evidence on that basis. However, the
respondent points out, correctly, that this jurisprudence stands for the
proposition that it is improper to dismiss evidence solely on the basis
that it comes from a source that is not neutral. In this case, the officer had
several reasons for giving no weight to the letters.
[18]
The applicants also note that the officer erred
in describing the writer of the fourth letter as the principal applicant’s
brother, as opposed to brother-in-law. This was indeed an error, but I consider
it to be minor. The key fact is that the writer is someone who is close to the
principal applicant and not neutral.
C.
State Protection
[19]
I am not convinced that the officer’s analysis
of the documentary evidence was unreasonable. The officer’s statement that the
evidence is mixed was reasonable and supported by the lengthy quotes in the
decision. For example, the officer quoted from a 2014 article by the Athena
Institute indicating that “the extremist groups that
caused massive problems for the Hungarian authorities, terrorised the Roma,
Jewish and LGBT communities on countless occasions and played a huge role in
Jobbik entering the Parliament in 2010 are on a path to insignificance.”
[20]
It was also reasonable for the officer to
recognize that the same analysis of country conditions had been done in the
second RPD decision, and to observe that the evidence was insufficient to
demonstrate a significant change in conditions since then.
[21]
The applicants argue that the officer dwelled on
efforts to improve conditions for Roma in Hungary, rather than focusing on the
results achieved by such efforts. Though the officer did make reference to
efforts, the decision also addresses results achieved. I reject this argument.
D.
Forward-Looking Analysis
[22]
The applicants criticize the officer for the
observation that the applicants had provided insufficient evidence to
demonstrate that they had experienced any significant incidents of
discrimination before they left Hungary. They argue that the officer’s analysis
should instead have been forward-looking.
[23]
In my view, the officer’s analysis was
forward-looking. There was nothing unreasonable in observing that significant
discrimination in the past had not been established. I note that this
observation was immediately followed by the acknowledgement that “the applicants have based their application on the general
country conditions for Roma in Hungary and on the possibility that they may
experience discrimination rising to persecution in the future on their
return to Hungary” (emphasis added).
E.
Consideration of Whether Minor Applicant Will Be
Perceived as Roma
[24]
The applicants argue that it is not the
officer’s task to determine whether the minor applicant will be perceived as
Roma. Rather, the officer should consider the consequences if the minor
applicant is indeed perceived as Roma.
[25]
I accept the respondent’s argument that, even if
the officer’s analysis in this regard was unreasonable, the conclusion remains
that state protection is adequate. Therefore, nothing turns on this issue.
VI.
CONCLUSION
[26]
For the foregoing reasons, the present
application should be dismissed. The parties are agreed that there is no
serious question of general importance to certify.
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