Docket: IMM-4926-16
Citation:
2017 FC 502
Toronto, Ontario, May 15, 2017
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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AKOS HORVATH
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EVA HORVATH
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AKOS HORVATH
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ROLAND HORVATH
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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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JUDGMENT AND REASONS
[1]
The present Application concerns a negative PRRA
determination in which a primary finding is made that the claim cannot succeed
because of the existence of a lack of subjective fear.
[2]
The basic facts underlying the claim are that
the Applicants came to Canada on December 10, 2010, withdrew their refugee
claim on March 28, 2012, and returned to Hungary on June 13, 2012. The
Applicants then returned to Canada on December 11, 2015 and made a claim for
protection based on their experience of persecution and risk between 2012 and
2015. However, the Applicants were found be ineligible to make a refugee claim,
but were eligible to for a PRRA.
[3]
An important issue in the present challenge to
the negative PRRA decision is: what did the Officer mean in the following two paragraphs
from the decision:
While not determinative I find the Applicants' return to Hungary in June 2012 demonstrates
a lack of subjective fear. Counsel states that the family had to return to
Hungary as the [sic] Eva Horvath's mother became seriously ill and there was no
one to look after her. While the health of a close family member is relevant,
the applicants' [sic] chose to remain in Hungary for three years. I note Ms. Horvath
has a sister how [sic] also resides in Hungary and insufficient evidence was
provided with respect to why the applicant could not return to Canada sooner,
in particular given the incidents of discriminatory behavior they faced before
the [sic] left Hungary in 2010. Despite the applicant's [sic] description of
acts of discrimination toward both Mr. and Mrs. Horvath, there is insufficient
evidence as to why the entire family felt it necessary to return to Hungary.
I find the applicants' return and then
residence in Hungary for three years demonstrates a lack of subjective fear.
(Decision, p. 3)
[4]
Counsel for the Applicant argues as follows:
It appears that the Officer conflated the
issue of reavailment, and its implication on the Applicant's subjective fear in
returning to Hungary in 2012, which may be a valid issue, with the fact that
they did not return to Canada "sooner". The Officer concluded that
both undermine the subjective fear component of the application. The latter
ignores the implications of the PRRA Bar, and the need for an [Authorization
to Return to Canada] in any event.
[…]
Given the weight assigned to his issue,
namely that it may have been determinative, if made in an erroneous manner, on
its own should entitle the Applicant’s to a redetermination of their PRRA
application.
[5]
Counsel for the Minister’s response to this
argument is that the words “while not determinative”
at the beginning of the paragraphs in question govern the meaning of the two
paragraphs when read together which is: lack of subjective fear in the present
claim is not determinative of the Applicants’ claim.
[6]
I find that it is not possible to answer the
question because, since the Applicants’ credibility is at the heart of the reavailment
issue, and the reavailment issue is at the heart of the Applicants’ claim, the
statements made with respect to the Applicants’ credibility must be made in clear
and unmistakable terms (Hilo v. Canada (Minister of Employment &
Immigration) (1991), 15 Imm. L.R. (2d) 199 (Fed. C.A.) at paragraph 6). Given
the debate between Counsel for the Applicants and the Minister as to meaning, I
find that the statements read together are, most certainly, not clear. As a
result, I find the decision under review is unreasonable.
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