Docket: IMM-1961-24
Citation: 2024 FC 1860
Toronto, Ontario, November 21, 2024
PRESENT: Madam Justice Go
BETWEEN: |
Tibor MAGYAR-TURO |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Mr. Tibor Magyar-Turo [Applicant] seeks a judicial review of a decision by a Senior Immigration Officer [Officer] refusing his Pre-Removal Risk Assessment [PRRA] application [Decision].
[2] The Applicant is a citizen of Hungary who self-identifies as a member of the Romungro Roma ethnic group. The Applicant alleges that he fears persecution in Hungary because of his Roma ethnicity.
[3] In support of his PRRA application, the Applicant submitted, among other evidence, a signed personal statement stating that he is Roma and describing incidents of persecution and discrimination due to his Roma ethnicity, his previous refugee claim narrative which described similar incidents of persecution and medical issues, counsel submissions on the country conditions relating to the Roma people in Hungary, medical documents from Hungary relating to the Applicant’s medical and psychological issues, and objective country condition reports.
[4] The Officer found that the Applicant had not provided sufficient evidence to demonstrate on a balance of probabilities either his Roma ethnicity or that he has experienced persecution or cruel treatment due to his Roma ethnicity in Hungary.
[5] The Applicant argues that the Officer erred by: a) making negative credibility findings solely based on the lack of corroborative evidence, and b) failing to provide the Applicant an oral hearing as required by subsection 113(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 and section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227.
[6] For the reasons set out below, I grant the application as I find the Decision unreasonable.
II. Analysis
[7] The determinative issue is the Officer’s failure to explain what weight, if any, the Officer assigned to the Applicant’s signed personal statement in general, and the evidence concerning his Roma ethnicity in particular. As this issue concerns the merits of the Decision, the presumptive reasonableness standard will apply per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
[8] In the Decision, the Officer acknowledged the Applicant’s personal statement stating that he is “Hungarian Roma and that he is easily recognizable as Roma in Hungary because of his appearance, his accent and his lifestyle.”
[9] The Officer observed that while the Applicant had submitted psychiatric reports dating from 2008 to 2022, the Applicant did not provide explanations for how these pieces of evidence related to the described risk in his PRRA application. The Officer further noted that the medical documentation does not provide information establishing that the Applicant has medical problems for which he has not received treatment due to his Roma ethnicity. As such, the Officer determined that the evidence provided does not demonstrate on a balance of probabilities that the Applicant was denied medical services or treatment due to his Roma ethnicity. Specifically, the Officer noted that they were not able to assign probative value to the medical evidence.
[10] The Officer also determined that the Applicant had not provided any other supporting evidence to corroborate the facts presented in the application, such as the Applicant’s allegations that he had three companies that racist people had vandalized and put out of business, that his house was destroyed by racists, and that the Applicant had submitted complaints to the police about other incidents of harassment and attacks, some of which resulted in official reports being issued.
[11] I agree with the Applicant that the only instance where the Officer explicitly assigned weight to the personal evidence was with respect to the psychiatric reports. The Officer did not otherwise explain what weight the Officer assigned to other aspects of the Applicant’s personal statement, including evidence about the Applicant’s ethnicity.
[12] The Officer concluded:
Overall, after analyzing all the evidence presented in the application, I find that the applicant has not presented sufficient evidence of probative value to demonstrate on a balance of probabilities the essential facts of the application or that he has suffered persecution or cruel treatment because of his Roma origin. I cannot establish on a balance of probabilities the applicant’s ethnicity or the essential facts of the application.
[Emphasis added]
[13] The Applicant argues that the Maldonado principle stipulates that when an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness: Maldonado v Canada (Employment and Immigration), [1980] 2 FC 302 [Maldonado]. The Applicant further submits that the Court has applied this principle in a PRRA context, finding an officer erred by requiring corroboration in the absence of a pre-existing “reason to doubt,”
effectively reversing the presumption of truthfulness established in Maldonado: Linadi v Canada (Minister of Citizenship and Immigration), 2022 FC 1341 at para 34.
[14] I first consider whether the Maldonado principle applies to a signed, but unsworn, statement by an applicant. The case law seems to draw distinctions between sworn and unsworn statements.
[15] For instance, in Nit v Canada (Minister of Citizenship and Immigration), 2020 FC 595 at para 28, the Court declined to apply the Maldonado principle to the applicant’s statement because it merely repeated unsworn statements from third parties. In Dessie v Canada (Minister of Citizenship and Immigration), 2022 FC 397, the Court found that it was reasonable for the officer to require corroborative evidence as the principal applicant in that case submitted an unsigned, unsworn statement. Also, in Dirieh v Canada (Minister of Citizenship and Immigration), 2018 FC 939 at para 28, the Court commented that decision-makers should demonstrate cognizance of the distinction between a sworn document and one that is unsworn, because a sworn statement benefits from the presumption of truth as per Maldonado. Finally, in Whudne v Canada (Minister of Citizenship and Immigration), 2016 FC 1033 at para 21, the Court commented that sworn affidavits carry “more weight”
than unsworn statements. The Court made a similar comment in Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC 1067 [Ferguson] at paras 31-32.
[16] In summary, the case law suggests that the Court may decline to apply Maldonado to applicants’ unsworn documents, and that the weight being assigned to the evidence may differ depending on whether the documents are sworn or not. Having said that, irrespective of whether Maldonado applies, I find the Officer failed to explain what weight, if any, to assign to the Applicant’s signed personal statement, especially as it pertains to the evidence of the Applicant’s ethnicity.
[17] The Applicant’s personal statement gave detailed explanations about his Roma heritage, the incidents of violence presented in the context of being Roma, and his previous refugee claim narrative based on his Roma identity. While acknowledging the Applicant’s personal statement, the Officer did not explain what weight, if any, the Officer assigned to it. Moreover, it was unclear what specific corroborative evidence the Officer expected the Applicant to provide to establish his Roma ethnicity, as opposed to corroborative evidence about the incidents of harassment and discrimination.
[18] The Respondent, for their part, submits that credibility was not at issue in this case. The Respondent argues that it is well-established that the presumption of truth of statements made by refugee claimants cannot be taken as a presumption that the evidence is satisfactory and sufficient. Even if presumed credible and reliable, a claimant’s evidence cannot be presumed sufficient, in and of itself, to establish the facts on a balance of probabilities. Rather, this issue must be decided by the trier of fact: Garces Canga v Canada (Citizenship and Immigration), 2020 FC 749 at para 41; Ferguson; Kioko v Canada (Citizenship and Immigration), 2014 FC 717 at para 50; Barros v Canada (Citizenship and Immigration), 2022 FC 9 at para 50; Lin v Canada (Citizenship and Immigration), 2022 FC 341 at para 28; Amin v Canada (Citizenship and Immigration), 2023 FC 192 at paras 25-26.
[19] I find the cases the Respondent cites are either distinguishable or are not on point. First, in Ferguson, the only evidence presented concerning the applicant’s sexual orientation was a statement by her former counsel. Here, the Applicant provided a personal statement. Second, I agree with the Applicant that whether the Officer made a credibility finding is of no import, given the Officer simply failed to assign any weight to the Applicant’s signed personal statement and failed to provide any explanation for not assigning any weight.
[20] I pause to add that counsel for the Respondent conceded at the hearing that the Officer did not explain why they did not give weight to the Applicant’s allegation that he is Roma.
[21] Finally, I find the Officer’s reasons lack logic, finding, on the one hand, that the Applicant “has not presented sufficient evidence of probative value to demonstrate … that he has suffered persecution or cruel treatment because of his Roma origin”
[emphasis added], and on the other, that the Applicant has not established his ethnicity.
[22] By failing to explain what weight, if any, the Officer assigned to the Applicant’s personal statement that established his Roma ethnicity, the Officer thus erred and the Decision must be set aside.
[23] The application for judicial review is granted.
[24] There is no question for certification.
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