Date: 20060829
Docket: IMM-6811-05
Citation: 2006 FC 1039
Ottawa, Ontario, August 29,
2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
KATALIN
TOMORI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an
application for judicial review of the decision dated September 23, 2005, of pre-removal
risk assessment (PRRA) officer P. Campbell that the applicant would not be
subject to risk of persecution, danger of torture, risk of life or risk of
cruel and unusual treatment or punishment if returned to Hungary.
FACTS
[2] The
applicant, a 44 year-old female citizen of Hungary, came to Canada
on July 11, 2001 because of a stated fear of harm by a male friend who sexually
assaulted her in Hungary. On April 9, 2003, she made a refugee
claim based on Roma ethnicity and victimization by organized crime, including
sexual assault. The Refugee Protection Division of the Immigration and Refugee
Board (Board) rejected the claim on August 4, 2003 for lack of credibility.
[3] The applicant
sought leave to judicially review the Board’s rejection of her refugee claim. On
December 13, 2003, the Federal Court denied the leave application.
Humanitarian and
compassionate grounds application
[4] In March
2005, the applicant applied for permanent residence on the basis of
humanitarian and compassionate grounds, but no decision has yet been made.
Decision under review
[5] On April 4,
2005, the applicant applied for protection under section 112 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), in support of which
she filed new evidence which was considered by the PRRA officer. The applicant
did not request an oral hearing to allow her to present evidence regarding the
events that took place after her refugee hearing. By decision dated September
23, 2005, the officer rejected the applicant’s PRRA because:
1. she did not rebut
the presumption of state protection in Hungary;
2. she did not make reasonable
efforts to seek protection which was not forthcoming or adequate; and
3. she did not
establish more than a mere possibility of personalized risk because there is
insufficient evidence to establish that the applicant would be forced to have
contact with her assailant if she returned to Hungary.
Stay of removal order
and Psychological Evidence
[6]
On
October 26, 2005, the PRRA officer notified the applicant of the negative
decision and directed her to report for removal from Canada on November
22, 2005. On November 22, 2005, the Federal Court stayed the applicant’s
removal from Canada to Hungary pending the
outcome of the within application for judicial review. In the Order granting the stay, my colleague, the
Honourable Mr. Justice Jack O’Keefe held:
I am satisfied that the Applicant has
raised a serious issue namely -did the PRRA officer properly assess the
evidence with respect to the Applicant’s psychological condition?
The
evidence of the Applicant’s psychological condition before Mr. Justice O’Keefe
was a psychological assessment report dated November 14, 2005 by Dr. Rod Day.
This report was not before the PRRA officer, accordingly could not be
considered by the PRRA officer, and cannot be considered by this Court under
the review of the PRRA decision in this case. The only psychological report
before the PRRA officer was the Clinical Consultation Report by J. Weinberg,
which was before the Board. The Board dismissed the basis upon which that
report was premised, i.e. allegations from the claimant which were found not
credible.
ISSUES
[7] The issues
raised on this application are:
1. Did the
PRRA officer err in assessing the psychological risk of returning the applicant
to Hungary?
2. Did the
PRRA officer breach the duty of fairness by failing to convoke an oral hearing
under paragraph 113(b) of the IRPA, based on the factors prescribed in section
167 of the Immigration and Refugee Protection Regulations, SOR/2002-227?
3. Did the
PRRA officer apply the wrong test when finding the applicant could avail
herself of adequate state protection in Hungary?
ANALYSIS
Issue No. 1: Did the PRRA officer err
assessing the psychological risk of returning the applicant to Hungary?
[8] The applicant
submits that the PRRA officer erred in assessing the evidence with respect to
the applicant’s psychological condition by:
(a) ignoring the
applicant’s evidence; and
(b) misconstruing
documentary evidence.
The Court does not agree.
[9] Paragraph 113 (a) of the IRPA provides
that an application for protection by persons whose claim for refugee
protection has been rejected may only present new evidence which arose after
the rejection, or was not reasonably available when the refugee claim was
presented. In this case, the psychological report before the Board could not
be considered by the PRRA officer, since it is not new evidence. The new psychological
report by Dr. Day was commissioned after the PRRA application and was not
before the PRRA officer. The PRRA officer could not consider Dr. Day’s report.
Accordingly, the PRRA officer did not ignore this important psychological
evidence, which appears to be the main basis of the claim for protection.
[10]
In
her PRRA application, the applicant listed the same risks assessed and decided
by the Board in her refugee claim, but submitted the following new documentary
evidence in support of her application:
i. Central Europe
Review, Safe Haven, Interview with Professor Krisztina Morvai on domestic
violence [Part 1] Gusztav Kosztolanyi, dated May 7, 2001;
ii. Central Europe Review, Breaking the Silence,
Interview with Dr. Eva Subasicz, Women and Children’s Rights Legal Protection
Programme’s Office, Gusztav Kosztolanyi, dated March 26, 2001;
iii. Domestic
Violence: Wife and Child Battering, published by NANE, Women’s Rights
Association, undated.
iv. Blackmailing Cops
Caught (Budapest Police Headquarters), undated, original not filed.
v. Blackmailing
Attorney Candidate, undated, original not filed.
The PRRA officer properly found the first two documents were not new evidence because
they pre-date the applicant’s refugee hearing before the Board on April 9,
2003, and the applicant gave no explanation why they were not reasonably
available at her hearing. I have examined these documents and conclude that
they do not contain information substantially different than that before the
Board which rejected her refugee claim on the issues of state protection, or
subjective or objective risk of harm. Accordingly, the officer was not obliged
to refer to these in greater detail in his reasons.
[11]
A
tribunal is assumed to have weighed and considered all the evidence presented
to it unless the contrary is shown (Florea v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 598 (C.A.) at paragraph 1), and need
not mention each evidentiary minutiae in its reasons, provided it considers the
totality of evidence (Hassan v. Canada (Minister of Employment and
Immigration) (1992), 147 N.R. 317 (F.C.A.). However, a decision-maker must
refer to and distinguish important, relevant and contradictory evidence, or
else the Court will assume such evidence was ignored. See Bains v. Canada (Minister of
Employment and Immigration) (1993), 20 Imm. L.R. (2d) 296 (F.C.T.D)) and Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.) at paragraph
17.
[12]
The
officer did not misconstrue the documentary evidence before him and concluded
that state protection was available to the applicant in Hungary, taking into
account her circumstances as a person subjected to domestic violence. The
officer stated at page 4 of his reasons:
After having carefully
assessed all the evidence including documentary evidence on country conditions,
I conclude that Hungary is a democratic state
possessing political and judicial institutions capable of protecting its
citizens.
The documentary evidence
indicates that the current Government of Hungary is a democratic one and is
committed to upholding human rights and protection of its nationals. It is in
effective control of its territory and has its own military and civil
authorities. The police report to the Interior Minister. I find that, based on
the documentation reviewed, sufficient evidence exists to indicate that the
state of Hungary’s efforts in the past several years, when considered
cumulatively, confirms that the state of Hungary is making efforts to protect victims of
domestic violence. The Hungarian Government’s efforts indicate a willingness to
provide adequate and equal protection to victims of domestic violence.
[…]
The Court has reviewed the documentary
evidence, which includes evidence on country conditions reflecting events
subsequent to the applicant’s unsuccessful refugee claim, and concludes that
the officer did not misconstrue the evidence. While the evidence supports a
conclusion that domestic violence is still a problem in Hungary where police
may be reluctant to charge domestic abusers, the evidence equally supports the
conclusion that Hungary is taking substantial steps to ensure equal
treatment under the law to victims of domestic abuse, and provides adequate
state protection to those victims.
Issue No. 2: Did the PRRA officer
breach his duty of fairness by failing to convoke an oral hearing under
paragraph 113(b) of the IRPA, based on the factors prescribed in section 167 of
the Immigration and Refugee Protection Regulations, SOR/2002-227?
[13]
The
applicant submits that the PRRA officer erred in failing to convene an oral
hearing under paragraph 113(b) of the IRPA, in support of which she relies on
this Court’s decision in Zokai v. Canada (Minister of
Citizenship and Immigration) (2005), 141 A.C.W.S. (3d) 809 (F.C.).
[14]
In
Zokai, I allowed a judicial review where a PRRA officer failed to consider
the request for an oral hearing and to provide reasons for refusing to grant
the request. The officer's failure to do so constituted a breach of procedural
fairness which required that an applicant be given a reasonable opportunity to
present evidence and to participate in the application process. However, the
case at bar is distinguished from Zokai because:
i. the applicant did
not request that a hearing be held to allow her to present evidence regarding
the events that took place after her refugee hearing
ii. the applicant did
not notify the PRRA officer that she intended to tender new evidence that
raised a serious issue of the applicant's credibility with
respect to her fear of risk to life
if returned to her country of origin;
iii. the applicant did not
submit, as new evidence, a psychologist’s report referred to in her
submissions.
[15]
The
PRRA officer did not have a duty to provide, of his own motion, an oral hearing
to request that she produce further evidence. While the applicant states that
if the officer convened an oral hearing, she would have shown him the
psychologist’s report, as well as evidence she filed in support of her
humanitarian and compassionate grounds application, this does not impose a duty
on the officer to convene such a hearing in this case.This is putting the cart before the
horse. The applicant should have filed the psychologist’s report before the
PRRA officer and then requested the hearing.
[16]
Section
167 of the Immigration and Refugee Protection Regulations, SOR/2002-227
sets out the factors a PRRA officer must consider when deciding whether an oral
hearing is required:
|
Hearing - prescribed factors
167. For the purpose of determining whether
a hearing is required under paragraph 113(b) of the Act, the factors are the
following:
(a) whether there is
evidence that raises a serious issue of the applicant's credibility and is
related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is
central to the decision with respect to the application for protection; and
(c) whether the evidence,
if accepted, would justify allowing the application for protection.
|
Facteurs pour la tenue d'une audience
167. Pour l'application de l'alinéa 113b)
de la Loi, les facteurs ci-après servent à décider si la tenue d'une audience
est requise:
a) l'existence d'éléments
de preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi
qui soulèvent une question importante en ce qui concerne la crédibilité du
demandeur;
b) l'importance de ces
éléments de preuve pour la prise de la décision relative à la demande de
protection;
c) la question de savoir si
ces éléments de preuve, à supposer qu'ils soient admis, justifieraient que
soit accordée la protection.
|
[17]
In
this case, there is no new evidence before the officer which raises a serious
issue of the applicant’s credibility related to her alleged risk of return.
Issue No. 3: Did the PRRA officer apply
the wrong test when finding the applicant could avail herself of adequate state
protection in Hungary?
[18]
The
applicant submits that the PRRA officer erred in law by applying the wrong test
to find that state protection is available to the applicant in her home
country. The applicant states that the officer:
i. erred relying on
the decision of the Federal Court of Appeal in Canada (Minister of Employment and Immigration)
v. Villafranca
(1992), 150 N.R. 232 (F.C.A.) because that case dealt with victims of terrorism,
not domestic violence; and
ii. erred in not
following Mendivil v. Canada (Secretary of State) (1994), 167 N.R. 91 (F.C.A.) to assess
whether the applicant, specifically targeted, has grounds to fear risk of harm notwithstanding
the state’s ability to protect ordinary citizens.
The
Court does not agree.
[19]
In
addition to Villafranca, the PRRA officer considered the Supreme Court
of Canada’s decision in Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689 and concluded based on the evidence that Hungary provided
adequate state protection to victims of domestic abuse. As canvassed above, the
officer examined the country condition reports and assessed Hungary’s ability to
protect victims of domestic abuse, not just ordinary citizens. The officer’s
reasons state at page 4:
As stated in Villafranca,
the mere fact that it is not successful at … [protecting victims of domestic
violence] will not be enough to justify a claim that the victims are unable to
avail themselves of such protection. As stated in Ward, [n]ations should
be presumed capable of protecting their citizens. Security of nationals is,
after all the essence of sovereignty, it should be assumed that the state is
capable for protecting a claimant.
However, a government that
makes any claim to the democratic value and protection of human rights cannot
guarantee the protection of all its citizens at all times. In view of the
foregoing, I find that the applicant has failed to discharge her onus to rebut
the presumption of state protection and provide clear and convincing evidence
that there is a serious possibility that state protection would not be
reasonably forthcoming. Moreover, she has failed to show that she had made
reasonable efforts to seek protection, which was not forthcoming or adequate.
On the evidence, I am satisfied that it was
reasonably open to the officer to conclude that Hungary could
continue to adequately protect the applicant if she returned to that country.
CONCLUSION
[20]
The
Court finds that the PRRA officer:
1. did not err assessing
the psychological risk of returning the applicant to Hungary by ignoring or misconstruing evidence;
2. did not breach the
duty of fairness by failing to convoke an oral hearing under paragraph 113(b)
of the IRPA, based on the factors prescribed in section 167 of the Immigration
and Refugee Protection Regulations; and
3. applied the correct
test to determine that the state of Hungary
could continue to adequately protect the applicant as a specific target of
domestic abuse if she returned to that country.
[21]
For
these reasons, the application for judicial review is dismissed.
[22]
At the hearing, the
Court suggested that the Applicant can file a second PRRA Application based on
new evidence contained in Dr. Day’s report which was not part of the first PRRA
application. It is this report which led Justice O’Keefe to grant a stay in
this case. This report is probative to both a PRRA application and the
outstanding H & C application.
[23]
Neither
party proposed a question of general importance for certification, and none is
certified.
JUDGMENT
THIS COURT ORDERS that:
1. The
application for judicial review is dismissed.
2. No
question is certified.
“Michael
A. Kelen”
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