Date: 20100511
Docket: IMM-5553-09
Citation: 2010 FC 512
Ottawa, Ontario, May 11,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
IMRICH
DUDA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review on a negative pre-removal risk assessment (PRRA) raised a
number of issues concerning state protection for Romas in the Czech Republic and
procedural fairness. It also raised as an issue the scope of s. 101(1)(c)
of the Immigration and Refugee Protection Act (IRPA) which has the
effect of depriving the Applicant as an adult of a right to file a refugee
claim because his parents, while the Applicant was a minor, withdrew the
family’s refugee claim.
[2]
A
stay of deportation had been granted by Justice Snider.
II. FACTS
[3]
The
Applicant, a Czech citizen, claimed a fear of persecution due to his Roma
ethnicity. CIC had concluded that the Applicant was ineligible to file a
refugee claim by reason of s. 101 of IRPA. That judicial review was late by
eight months and Justice Russell denied leave. However, the issue was raised in
the context of the challenge to the PRRA decision.
[4]
At
the age of 11, in October 1997, the Applicant came to Canada with his parents,
fleeing alleged persecution in the Czech Republic. The parents
withdrew the claim in December 1997 and returned home.
[5]
In
2009, the Applicant, his wife and children fled to Canada. Upon being
advised that he was not eligible, due to s. 101(1)(c), to file a refugee
claim, the Applicant requested a PRRA.
[6]
In
the Applicant’s PRRA, he alleged that Romas were refused public services and
personal service in the Czech Republic. The Applicant and his wife
outlined numerous instances of abuse to them and their children.
[7]
In
the negative PRRA decision, the Officer cited at length from the European
Commission against Racism and Intolerance Report (ECRI Report). That report was
issued 10 days before the PRRA decision. The Applicant was not given notice of
the ECRI Report and afforded an opportunity to comment upon it.
III. ANALYSIS
[8]
The
Applicant raised a number of procedural fairness and jurisdiction arguments
which are subject to the “correctness” standard of review as directed in Dunsmuir
v. New
Brunswick,
2008 SCC 9. While the actual finding of state protection is subject to
deference and must meet the “reasonableness” standard of review, failure to
consider relevant factors or reliance on irrelevant factors is a legal error.
[9]
A
PRRA officer is not required to give a copy of every document referred to by
the officer where those documents reiterate or consolidate existing information
already available to an applicant. However, Mancia v. Canada (Minister of
Citizenship and Immigration) (C.A.), [1998] 3
F.C. 461 holds that fairness dictates that documents not generally available or
not in the documents centre must be disclosed.
[10]
The
Applicant’s case on non-disclosure/fairness is intertwined with the arguments
concerning the failure to consider evidence or reliance on improper evidence.
[11]
The
ECRI Report is not just a consolidation of existing evidence but contains
references to several documents which are internal government documents. These
non-standard documents played an important role in the ECRI Report and yet the
Applicant had no access to either the ECRI Report or these non-standard
sources.
[12]
The
principle applicable in this situation is set forth in Zamora v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1414 at paragraph 18:
18 The
documents in question were not standard documents such as Human Rights Watch,
Amnesty International or country reports issued under governmental authority,
but rather the result of specific research on the internet carried out by the
PRRA officer. That research, including such documents she may have found were
beneficial to Mr. Aguilar Zamora, should have been disclosed and he should have
been given an opportunity to respond. It cannot be said with any confidence
that the documents were not novel, or significant.
[13]
The
Respondent is unable to explain the reason for the failure to notify the
Applicant of the existence of the ECRI Report. While that Report may not be the
only documentary evidence relied upon by the Officer, it is evident from the
decision that it played a critical role in the decision. The administrative
convenience or efficiency (a benefit to the public) in issuing the PRRA
decision quickly does not justify withholding the existence of the Report
issued 10 days before and then relying upon it in such large measure.
[14]
The
reliance on the ECRI Report and its non-disclosure is compounded by the failure
to address the Applicant’s evidence that state protection did not exist or was
not generally effective. This is particularly important given the Officer’s
treatment of the nature, type and effectiveness of efforts in respect to law
enforcement and anti-discrimination.
[15]
The
Officer’s decision exhibited selective reading of the ECRI Report. It is trite
law that not all evidence need be referred to but where the evidence is
critical, the Court must be assured that there is a legitimate basis for concluding
that the important evidence was considered.
[16]
In
the wide-ranging reliance on the ECRI Report, there are a number of failures to
reference matters in the ECRI Report which pointed to significant deterioration
of conditions for Romas. These included:
- omission
of comments showing the limitations on the ability of the Ombudsman to address
problems for Romas;
- failure
to mention the Report’s negative or critical comments toward the Czech
government;
- the
acceptability of negative comments directed towards Romas and made by high
ranking officials;
- ignoring
the failure to establish a police complaints organization; and
- the
absence of comprehensive non-discrimination legislation.
[17]
Although
the Officer does refer to some negative comments, the critical comments are
screened out and there is no evidence that they were considered.
[18]
Therefore,
the decision cannot withstand a review of either the fairness of the process or
a proper consideration of relevant evidence. On those grounds, judicial review
must be granted.
[19]
The
Applicant raised the issue of s. 101(1)(c) with particular focus on the
failure to appoint a designated representative. Justice Russell has already
denied leave on this issue which was raised well outside the applicable time
limits.
[20]
Whether
s. 101(1)(c) is sustainable in law may be an important issue, as it may
apply to children whose parents’ conduct may forever foreclose their own
independent refugee claim. The Respondent’s response that a PRRA takes care of
any conceptual difficulties with that issue, given the recognized differences
between s. 96 and 97 of IRPA, is a matter for serious debate. However, it is
unnecessary to decide those issues in order to resolve this judicial review.
[21]
As
the Respondent’s concern about the certification of a question was dependent on
a decision in respect to s. 101(1)(c), it is not necessary for the Court
to afford the parties a right to comment on a “question”.
IV. CONCLUSION
[22]
Therefore,
this judicial review will be granted, the PRRA decision quashed and the matter
remitted for a new determination before a different officer.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is granted, the PRRA decision is quashed and
the matter is to be remitted for a new determination before a different
officer.
“Michael
L. Phelan”
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