Docket: IMM-7052-11
Citation: 2012 FC 779
Toronto, Ontario, June 19, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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BOGUZINSKAITE,
IRMA
PASZTYERIK,
JOZSEF
PASZTYERIK,
SOFIJA (MINOR)
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants seek to set aside a decision of the Immigration and
Refugee Board dismissing their application to reopen their refugee claims. For
the reasons that follow, this application is dismissed.
[2]
Mr. Jozsef Pasztyerik is Hungarian. His wife, Ms. Irma Boguzinskaite. and
their four-year old daughter, Sofija Pasztyerik, are Lithuanian citizens.
[3]
Mr. Pasztyerik’s claim for refugee protection was based on his political
views and activities in Hungary. Ms. Boguzinskaite’s claim for refugee
protection was based on her political views and activities in Lithuania and her
persecution in Hungary as a Russian. Ms. Boguzinskaite was the designated
representative of their daughter. They filed their claims for protection
shortly after arriving in Canada in May 2009, but in late 2010, just prior to
their hearing, they withdrew their claims.
[4]
On December 15, 2010, the respondent, still unaware of the withdrawal,
filed a Notice of Intent to Intervene when made aware that on April 16, 2006,
Mr. Pasztyerik had been arrested and charged in Northern Ireland with rape of a
young person. Although this charge was later dismissed, Mr. Pasztyerik failed
to indicate it, as required, in his Personal Information Form. When the
respondent was informed that the applicants’ claims were withdrawn, it took no
further steps.
[5]
On September 1, 2011, the adult applicants applied to reopen their claims;
Mr. Pasztyerik claiming that “I was misguided by my counsel that he provided me
with a form to sign it, and I was not aware of the consequences.” He further
asserts in the letter that he has proof of persecution against him and his
family because of his political views and “in particular my views … ran counter
to the conservative right wing that dominate Lithuania.” He asserts that he
will “face persecution, discrimination and might be killed” because of his
political views.
[6]
On November 8, 2011 the Board dismissed their application. The decision
is five paragraphs in length and is reproduced below:
[1]
There is no credible evidence the claimants were misguided by counsel. Counsel
of record is a member of the Bar in Ontario.
[2]
The claimant’s individually signed their applications to withdraw their claims
with each claimant indicating the form had been interpreted and they were
freely withdrawing their claim and that they may be asked to leave Canada.
[3]
Further, on December 10, 2010, Counsel Peter Ivanyi’s, law clerk, faxed to the
Board, the withdrawal for the dependent child signed by her designated
representative, which further supports that the claimants’ counsel was involved
in the process of withdrawal. As a result, I am satisfied there was no breach
of natural justice in the Board’s accepting the request to withdraw the claims.
[4]
The claimant submits he has proof of persecution in Lithuania and
hence he is at risk of being murdered if returned. This is the basis of the
claim he withdrew. I am not satisfied this fear supports there are issues that
support the reopening of the claims in the interest of justice.
[5]
Hence, the Refugee Protection Division dismisses the application to reopen
[emphasis in the original].
[7]
Mr. Pasztyerik filed an affidavit in support of this application in
which he explains that he and his wife were feeling stressed at having to
appear before the Board for their hearing in December 2010, that he explained
this to their lawyer, and that the lawyer told him that they did not have to go
to a hearing but could go the “easier way” which was to seek an exemption to
permit an inland application on humanitarian and compassionate grounds and file
an application for a Pre-Removal Risk Assessment (PRRA). Apparently both were
filed. Mr. Pasztyerik attests that he received a negative PRRA determination
on August 30, 2011, and with the help of a friend applied to reopen the refugee
claims within days.
[8]
The only issue in this application is whether the
Board’s decision not to reopen the refugee claims was reasonable. The standard
of review is reasonableness: Castillo v Canada (Minister of
Citizenship and Immigration), 2010 FC 1185 and Nguyen v Canada
(Minister of Citizenship and Immigration), 2010 FC 133.
[9]
The reinstatement of withdrawn refugee claims is dealt
with in subsection 53(3) of the Refugee Protection Division Rules,
SOR/2002-228, which provides that the reinstatement must be allowed “if it is
established that there was a failure to observe a principle of natural justice
or if it is otherwise in the interests of justice to allow the application.”
[10]
First, the applicants submit that the decision
is not reasonable as it was made in a perverse and capricious manner and
without regard to the material before it. They point to paragraph 4 of the
decision wherein the Board writes that “the claimant writes that he has proof
of persecution in Lithuania and
hence is at risk of being murdered if returned” when in fact, Mr.
Pasztyerik is a citizen of Hungary.
[11]
I accept the submission of the respondent.
While it is true that Mr. Pasztyerik is a citizen of Hungary and not
Lithuania, the Board can hardly be faulted when in his letter requesting that
his claim be reopened, Mr. Pasztyerik writes that his political views are
contrary to those of the “conservative right wing that dominate Lithuania.”
[12]
Second, the applicants submit that the Board
erred in failing to properly consider the documents before it. The Board noted
at paragraph 2 of its decision that the adult claimants had signed the
withdrawal forms with “each claimant indicating the form had been interpreted
and they were freely withdrawing their claim and that they may be asked to
leave Canada.” They point to
the forms at pages 177 and 178 of the certified tribunal record. Mr.
Pasztyerik’s form was signed on “November 2010” and contains an Interpreter’s
Declaration of Elizabeth Lazslo that the form was interpreted to Hungarian for
him. Ms. Boguzinskaite’s form was signed on “Nov 29, 2010” and contains an
Interpreter’s Declaration of Mr. Pasztyerik that the form was interpreted to
Russian for her on November 28, 2010. The dating of these events, it is
suggested, questions their accuracy or validity; however, the form was later
submitted in an amended form adding the child’s name and was resigned by both
of the adult applicants on November 29, 2010.
[13]
Although it may be technically correct that Mr.
Pasztyerik could not “translate” the form from English to Russian as he does
not read or speak much, if any English, I do not find that it was unreasonable
for the Board to rely on these documents. The form was translated to him in
Hungarian and he explained it to his wife in Russian. They have been together
for some time – long enough to have a four-year old child – it can hardly be
said to be unreasonable to conclude that they are able to communicate with each
other.
[14]
Third, the applicants submit that the Board
failed to properly consider the best interest of the minor child whose claim
for protection had also been withdrawn. I reject that submission. The Board
did reference her claim in paragraph 3 and it notes that counsel was involved
which satisfied the Board that there was no breach of natural justice in
accepting the withdrawal of her claim. In the absence of a specific allegation
of the child’s interests, and there was none, it cannot be said that more was
required of the Board.
[15]
Fourth, the applicants submit that the Board
failed to weigh the circumstances from their vantage point because there is no
reference made to their inability to speak English, the circumstances of the
child, or the irregularities of the forms. Given the reference to the
translation, the Board was aware of the language issues. The Board, as already
noted, was also aware of the child and her interests. The irregularity of the
forms is a minor matter, in my view, and as explained above it was open to the
Board to accept them as evidence of the applicants’ intentions and
understanding.
[16]
Fifth, they submit that the Board finds no
evidence that they were misguided by counsel but at the same time notes his
involvement in the withdrawal process. It is submitted that counsel’s
involvement cannot be used to support a finding that there was no misguidance.
I find no error here. Although there is an allegation of conduct by counsel,
there was nothing done by the applicants in that regard. As has been noted by
this Court on previous occasions, allegations of incompetence by a member of a
law society are unlikely to be given any weight absent proof that a complaint
has been made to the governing body: Sathasivam v Canada (Minister of
Citizenship and Immigration), 2004 FC 438. The allegation of these
applicants requires more than their mere statement that they were misled. We
have no evidence from their counsel who, for reasons of solicitor client
privilege, is unable to respond without his clients’ permission or a complaint
to his society. In any event, the involvement of counsel was not used by the
Board as proof that they were not misguided but as proof, in the absence of any
reliable evidence to the contrary, of which there was none, that there was no
breach of natural justice in accepting the withdraw notices.
[17]
Sixth, the applicants submit that the Board
failed to properly asses whether the reopening of the claims was in the
interests of justice. It is submitted that in paragraph 4 of the decision, the
Board says that it has looked at the refugee claim made and found it unlikely
to succeed. I do not agree. The Board is saying that the reasons advanced in
the letter as to why the reopening would be in the interests of justice are the
very same reasons advanced for the original claim – but more is required. It
is the reopening that must be in the interest of justice; not the initial
refugee claim.
[18]
For all these reasons, the application is
dismissed. Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed and no question is
certified.
"Russel W. Zinn"
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