Docket: IMM-777-17
Citation:
2017 FC 937
Toronto, Ontario, October 19, 2017
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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ANITA BALOGH
TAMAS FARKAS
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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
[1]
The present Application relates to a Pre-Removal
Risk Assessment (PRRA) application in which the Applicants, Hungarian nationals
of Romani ethnicity, claim protection pursuant to s. 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27, on the basis that if they
are required to return to Hungary they will face more than a mere possibility
of persecution because of their ethnicity. In a decision dated December 16,
2016, the PRRA Officer (Officer) rejected the Applicants’ claim.
[2]
The decision rendered in Bozik, 2017 FC
920 (Bozik) is a critical precedent with respect to the decision in the
present Application. There are two similar factors between the decisions: the
decision-maker in each is the same Officer and the exact same contentious
wording is used in each. In each the following statement is made:
While I have considered all these documents
in the context of assessing country conditions, they are generalized in nature
and do not establish a linkage directly to the applicant’s [sic] personal
circumstances. Evidence of general conditions within a country is not in itself
sufficient to show that the applicant is personally at risk of harm.
(Decision, p.4)
[3]
The finding in Bozik with respect to the
proper use of country condition evidence for a s.96 claim is as follows:
[7] The correct use of country condition
evidence is a live issue in the present Application. I agree with Counsel for
the Applicant that the Officer was required to examine the country condition
evidence submitted on behalf of the Applicant to determine whether the
Applicant’s subjective fear of violence has an objective evidentiary basis. The
evidence of the experience of similarly situated persons can supply the
objective basis.
[8] As found by the Officer in the passages
from the decision quoted above, the Applicant fears insecurity due to organized
racist groups and the rise and influence of the right-wing Jobbik political
party. In the argument presented to the Officer, Counsel for the Applicant
referred to country condition evidence which goes to establish that persons
similarly situated to the Applicant have suffered the violence she fears.
[9] I find that the Officer was required to
carefully consider this evidence and to determine its value with respect to the
Applicant’s claim. If the evidence moved the Applicant’s fear from speculation
to more than a mere possibility of suffering persecutory violence, she will
have established her claim for protection. I agree with Counsel for the
Applicant: the Officer did not correctly evaluate the Applicant’s country
condition evidence in this way. As a result, I find that the decision is
unreasonable.
[4]
In adapting the decision in Bozik to the
circumstances in the present case, while the factual matrix is different the
essential findings are the same. In the present case, the Officer accepted that
the Applicants have a subjective fear on the basis of their Romani ethnicity,
but the Officer did not evaluate the objective country condition evidence
because it was found to be “generalized in nature.”
As a result, the Officer did not consider how the country condition evidence
supports the subjective fears faced by the Applicants. For a s.96 claim, country
condition documentation, which relates to the treatment of individuals within a
specific profile, is not generalized in nature but is personal to the claimant
and those of that profile.
[5]
Since the Officer was required to assess
objective country condition evidence when evaluating the fears claimed by the
Applicants, I find that the Officer’s failure to do so constitutes a failure in
fact-finding. As a result, I find that the decision is unreasonable.
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