Hausleitner v. Canada (Minister of Citizenship and Immigration), 2005 FC 641

Date: 20050506

Docket: IMM-5049-04

Citation: 2005 FC 641

Ottawa, Ontario, May 6, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE MACTAVISH

BETWEEN:

JOZEF HAUSLEITNER

ANIKO BEDNARIK

BENJAMIN HAUSLEITNER

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]       Jozsef Hausleitner is a citizen of Hungary, and a failed refugee claimant. The other applicants are Mr. Hausleitner's wife and son.

[2]       After the family's refugee claims were rejected, they applied for a Pre-Removal Risk Assessment (or "PRRA"), filing new evidence in support of their claim that they were at risk in Hungary from organized crime. Their PRRA application was rejected on the basis that the new evidence was found to be insufficient to establish that effective state protection would not be available to the applicants if they were to return to Hungary.

[3]       The applicants now seek judicial review of the PRRA officer's decision, asserting that the PRRA officer erred in failing to consider the unwillingness of the applicants to seek protection from the state because of their fear. The applicants further assert that the PRRA officer erred in failing to properly analyze the effectiveness of Hungary's efforts to provide protection to its citizens.

Background

[4]       Mr. Hausleitner asserts that while he was working as an auto mechanic in Hungary, he witnessed the theft of a rental car from in front of his place of employment. The rental company reported the theft to the police, and an investigation ensued. Mr. Hausleitner was asked to provide a witness statement, which he did, describing two young men involved in the theft.

[5]       Mr. Hausleitner says that the police assured him that his statement would be kept confidential.

[6]       Approximately three weeks later, one of Mr. Hausleitner's customers named Vili Cigany approached him and told him that he should not say anything the next time he saw something. Mr. Cigany made it clear that he knew that someone had made a witness statement to the police regarding the theft of the rental car three weeks before.

[7]       Mr. Cigany later told Mr. Hausleitner that he had a job for him. He told Mr. Hausleitner that he expected him to change the vehicle identification numbers (or "VINs") on cars, and to completely disassemble other vehicles so that they could be sold for parts. Mr. Hausleitner says that he refused to do this.

[8]       According to Mr. Hausleitner, he then started noticing that he was being followed. He says that he was too afraid to call the police, but instead had a neighbour do so on his behalf. The police declined to investigate. The day after the police were called, Mr. Hausleitner's tires were stolen. He says that he overcame his fear and called the police himself, and once again the police declined to assist.

[9]       The day after this second call to the police, Mr. Cigany visited Mr. Hausleitner at work. Mr. Cigany allegedly told Mr. Hausleitner that he was bringing by some cars for "repairs". Mr. Hausleitner refused to comply, and did not return to work for some time. The Hausleitner family then moved to another district to avoid the criminals. However, the criminals located the family, and the spying and the threats began anew.

[10]     Mr. Hausleitner says that the reason that he made no further attempts to secure the assistance of the police in Hungary was because he was too afraid that the criminals would find out, with the result that things would only get worse.

[11]     Some time later, Mr. Hausleitner was again visited by Mr. Cigany at work. He was told that if he continued to "play games", his wife and child would be beaten. At this point, Mr. Hausleitner decided that his only choice was to take his family and seek refuge abroad.

The Immigration and Refugee Board's Decision

[12]     The Immigration and Refugee Board rejected the applicants' refugee claims, finding that Mr. Hausleitner was not credible. The Board was not satisfied with Mr. Hausleitner's ability to respond to various questions put to him with respect to auto mechanics. As a consequence, the Board found that Mr. Hausleitner had not established that he was actually an auto mechanic.

[13]     Given its finding that Mr. Hausleitner lacked even a basic knowledge of auto mechanics, the Board then went on to find that no one would think that Mr. Hausleitner had enough knowledge to be able to dismantle cars or to change the cars' VINs. As a consequence, the Board rejected the family's story of victimization by organized criminals.

[14]     The Board did go on to consider the issue of state protection, in the alternative. It considered Mr. Hausleitner's unwillingness to seek the assistance of the police, and also examineded the objective evidence regarding conditions within Hungary. The Board concluded that adequate state protection would be available to the family in Hungary.

[15]     Accordingly, the applicants' refugee claims were dismissed. Leave to judicially review the Board's decision was subsequently denied by this Court.

The PRRA Application and Decision

[16]     Some 11 months after the Refugee Protection Division rendered its decision, the applicants filed an application for a PRRA. In support of their PRRA application, the applicants produced a copy of a trade school certificate awarded to Mr. Hausleitner in relation to his studies in auto mechanics.

[17]     Although it is by no means clear that this evidence was not available to Mr. Hausleitner at the time of his refugee hearing, the PRRA officer was nevertheless prepared to consider the certificate as new evidence. Based upon this evidence, the PRRA officer accepted that Mr. Hausleitner was indeed trained as an auto mechanic.

[18]     The PRRA officer then went on to say, "However, the IRB panel found that even if the principal applicant had been approached and threatened by organized criminals, the applicants would have state protection at their disposal in Hungary". The balance of the decision is devoted to the question of state protection.

[19]     Thus, while it is not entirely clear, it appears that on the basis of the new evidence provided by Mr. Hausleitner in the form of the trade school certificate, the PRRA officer was prepared to accept his claim to have been victimized by organized crime.

[20]     In support of his PRRA application, Mr. Hausleitner also produced five articles relating to country conditions within Hungary, specifically as they related to organized crime. The PRRA officer declined to consider two of these articles on the grounds that they pre-dated the applicants' refugee hearing. The officer was, however, prepared to consider the other three articles in the context of her state protection analysis.

Issues

[21]     The applicants raise two issues on this application, namely, whether the PRRA officer erred in failing to consider the unwillingness of the applicants to seek protection from the state because of their fear, and whether the PRRA officer erred in failing to properly analyze the effectiveness of Hungary's efforts to provide protection to its citizens.

[22]     In my view, both of these issues raise a question as to the scope of the inquiry that must be carried out by a PRRA officer when the state protection issue has already been fully considered by the Immigration and Refugee Board. As a consequence, I propose to deal with both issues together.

Standard of Review

[23]     The applicants submit that the question of whether adequate state protection is available in a given case is a question of mixed fact and law. As such, the appropriate standard of review is that of reasonableness simpliciter.

[24]     In contrast, the Minister submits that the question of what the conditions are in a given country is essentially a factual one. As a result, the PRRA officer's decision should be reviewed against a standard of patent unreasonableness.

[25]     It is unnecessary for me to resolve this issue here as I am satisfied that the Board's decision can withstand scrutiny under the more exacting standard of reasonableness.

Relevant Legislative Provision

[26]     Applications for PRRA assessments are governed by Division 3 of the Immigration and Refugee Protection Act. Sub-section 113(a) of the Act is of particular significance in this case, as it contemplates the situation where a PRRA assessment is carried out after an applicant has already had his or her refugee claim rejected. Sub-section 113(a) provides:

Analysis

[27]     The applicants submit that a decision-maker conducting a risk assessment, whether it be in the context of a refugee claim or a PRRA assessment, has to consider the unwillingness of applicants to seek protection from the state because of their fear. The decision-maker must also assess the effectiveness of a country's efforts to provide protection to its citizens. In support of this contention, the applicants rely on the decision of the Supreme Court of Canada in Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689, at paras. 35 and 42 and Silva v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1161, at para. 4.

[28]     This submission is undoubtedly valid in relation to the type of state protection analysis that must be carried out by the Refugee Protection Division in an initial assessment of the risk faced by a refugee claimant in his or her country of origin.

[29]     It may also be that this type of extensive risk assessment should be carried out where a PRRA applicant has not already had their claim to be at risk assessed by the Refugee Protection Division.

[30]     However, in this case, the risk to the applicants has already been thoroughly assessed by the Refugee Protection Division of the Immigration and Refugee Board. In my view, it is simply not reasonable, nor would it be consistent with the scheme of the Act as a whole, to require the PRRA officer to start over, from the beginning, with an entirely new risk assessment, given that there has already been a final determination that, as of March of 2003, adequate state protection is available to these applicants in Hungary.

[31]     Rather, it seems to me that the question for the PRRA officer at this stage in the process should be whether the new evidence supplied by the applicants demonstrates a significant enough change to the conditions within the applicants' home country such that the state protection analysis conducted by the Immigration and Refugee Board is no longer valid.   

[32]     This interpretation of the scheme of the Act is confirmed by the wording of sub-section 113(a) of IRPA which makes it clear that, in such cases, the risk assessment to be carried out at the PRRA stage is not to be a reconsideration of the Board's decision, but instead is limited to an evaluation of new evidence that either arose after the applicant's refugee hearing, or was not previously reasonably available to the applicant: H.K. v. Canada (Minister of Citizenship and Immigration), [2004] F.C. No. 1612, Bolubo v. Canada (Minister of Citizenship and Immigration), [2005] F.C. No. 375.

[33]     In this case, the Immigration and Refugee Board thoroughly canvassed the question of whether state protection would be available to the applicants in Hungary, assuming that their story of victimization at the hands of organized criminals was true. The Board found that adequate state protection was available to the applicants, and the Federal Court declined to grant leave to the applicants to judicially review this decision.

[34]     As a consequence, the Board's conclusion that, as of March of 2003, adequate state protection was available to the applicants in Hungary is unassailable.

[35]     The question, then, is whether the new evidence placed before the PRRA officer some 11 months later was properly considered, and whether the officer's conclusion that this evidence was not sufficient to rebut the presumption of state protection was one that was reasonably open to her on the evidence before her.

[36]     In this regard, it should be noted that the information contained in the three articles in question does not appear to reflect a substantial change to the conditions within Hungary in the months since the Refugee Protection Division rendered its decision.

[37]     Although there was some speculation that the number of criminal gangs in Hungary could grow, as a result of Hungary having joined the European Union, it was also noted that foreigners cannot infiltrate Hungarian gangs because of the language barrier. Further, one article stated that many gangs had been forced to dissolve because of a lack of resources.

[38]     Moreover, a review of the PRRA officer's decision discloses that each of the three articles produced by the applicants was carefully considered by the officer. The officer quite fairly noted the aspects of the articles that would tend to support the applicants'position, as well as those aspects of the same articles that supported the finding that effective state protection was available to victims of organized crime in Hungary.

[39]     From this review, the PRRA officer concluded that if the applicants were to face a risk of harm from organized criminals in Hungary, recourse would still be available to them. This conclusion was one that was reasonably open to the PRRA officer on the basis of the evidence before her, and should not be disturbed.

Conclusion

[40]     For these reasons, the application for judicial review is dismissed.

Certification

[41]     Counsel for Mr. Hausleitner suggested that a question for certification could conceivably exist with respect to the nature of the new evidence contemplated by section 113(a), although no specific wording for such a question was suggested.

[42]     In my view, this issue raised by Mr. Hausleitner is not determinative of this case, and accordingly, I decline to certify a question.

ORDER

THIS COURT ORDERS that:

1.          This application for judicial review is dismissed.

2.          No serious question of general importance is certified.