Date: 20170706
Docket: IMM-5185-16
Citation: 2017 FC 654
Ottawa,
Ontario, July 6, 2017
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN:
TIMEA BALOGH
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of a
pre-removal risk assessment [PRRA] decision by a Senior Immigration Officer
[Officer] dated October 25, 2016, in which the Officer determined that the
Applicant would not be subject to risk of torture, be at risk of persecution,
or face a risk to life or risk of cruel and unusual punishment or treatment if
removed to Hungary, her country of nationality.
[2]
For the reasons explained in greater detail
below, this application is allowed, because it is my conclusion that the
Officer’s decision was influenced by credibility findings, such that the
Officer was required to convoke a hearing, or at least consider whether the
concerns about the Applicant’s credibility engaged the factors that would
require a hearing, to provide the Applicant with an opportunity to disabuse those
concerns.
II.
Background
[3]
The Applicant, Ms. Timea Balogh, is a citizen of
Hungary who arrived in Canada on November 25, 2008 and made a refugee claim on
January 21, 2009. Her claim was based on her Roma ethnicity and her alleged
fear of persecution at the hands of the Hungarian Guards, as well as her
alleged fear of her step-mother’s ex-husband, Mr. Sandor Jakovics. Mr. Jakovics
had accompanied Ms. Balogh and her mother to Canada but has since been deported.
Ms. Balogh alleged that Mr. Jakovics blamed her for the separation from her
mother, had threatened her while he was in Canada, and would harm her if she
was returned to Hungary.
[4]
Ms. Balogh’s application for refugee protection
was refused by the Refugee Protection Division [RPD] on September 27, 2011. The
RPD made adverse credibility findings with respect to Ms. Balogh’s allegations
that Mr. Jakovics had threatened her in Canada, found that there was
insufficient corroborating evidence to support those allegations, found that
she provided no reliable evidence that she suffered discrimination or
persecution in Hungary because of her Roma ethnicity, and found that she failed
to rebut the presumption of state protection in Hungary with clear and
convincing evidence. Ms. Balogh filed an application for leave for judicial
review of this decision, but leave was denied on February 8, 2012.
[5]
Ms. Balogh subsequently submitted a PRRA
application, in which she maintained the allegations that had been considered
by the RPD and submitted additional evidence to support her allegations against
Mr. Jakovics. In her PRRA application, she also alleged fear of her own
ex-partner Gabor Nagy, who she states was abusive towards her in Hungary. She
states that she was raped by Mr. Nagy after she ended the relationship with him
and that she went to the police but they did not accept her complaint because
she was Roma.
[6]
Ms. Balogh’s PRRA application was denied on July
10, 2013. She applied for judicial review of this decision, which was granted
by the Federal Court on January 20, 2015, finding that the PRRA officer had
erred in conducting the required state protection analysis (see Balogh v
Canada (Minister of Citizenship and Immigration), 2015 FC 76 [Balogh]).
The Court ordered a redetermination by a different officer, and Ms. Balogh
submitted her updated PRRA application on March 19, 2015, including new
evidence in support of her allegations against Mr. Nagy and what she described
as the worsening situation for Roma in Hungary and the unavailability of state
protection. On October 25, 2016, she again received a negative PRRA decision,
which is the subject of this judicial review.
[7]
On December 23, 2016, Ms. Balogh submitted a
motion for a stay, which I granted on December 29, 2016.
III.
Impugned Decision
[8]
The Officer found that Ms. Balogh failed to
demonstrate that she is at risk in Hungary at the hands of either Sandor
Jakovics or Gabor Nagy, finding there to be little evidence to support her
claim that she will be sought out and harmed by either of these men in Hungary.
[9]
Ms. Balogh alleged that Mr. Jakovics approached
her on a bus in Mississauga on August 20, 2011 and threatened her, and that he
subsequently began to stalk her. The Officer considered Ms. Balogh’s evidence related
to the risk from Mr. Jakovics, including a letter from Toronto Police Service [TPS]
she received in response to a request for access to information. This letter
refers to two Event Details Reports made in 2010 and an occurrence synopsis
which states that Ms. Balogh made a complaint on August 23, 2011. The Officer
noted that the complaint had been redacted throughout and the subject’s name
had been removed.
[10]
The Officer observed that Ms. Balogh never
followed up with the investigation into the Mississauga incident. The Officer
also noted that Ms. Balogh stated on her PRRA application that Mr. Jakovics
began stalking her after that incident, as a result of which she entered the
Red Door Shelter on Queen Street where she resided for 6 months, but that Mr.
Jakovics found her there as well. However, Ms. Balogh had also provided a
letter from Red Door, dated October 28, 2011, which stated that she had been
residing there since May 19, 2011, months before the Mississauga incident and
the alleged stalking. The Officer noted there were no police reports with
respect to the alleged stalking or Mr. Jakovics visiting the shelter.
[11]
Based the inconsistencies in the information
provided by Ms. Balogh, the lack of details in the police reports, and the lack
of recent evidence with respect to the investigation into Mr. Jakovic’s threatening
behaviour on August 20, 2011, the Officer gave Ms. Balogh’s statements, the
documentation obtained from the TPS, and the letter from the Red Door Shelter
little weight in establishing a personalized risk for Ms. Balogh.
[12]
With respect to Mr. Nagy, the Officer noted that
Ms. Balogh provided very little information with respect to her relationship with
him, such as dates or timelines of events, that she did not present her
allegations related to Mr. Nagy to the RPD, and that she provided no
explanation for this omission. Her PRRA submissions included a letter
postmarked October 31, 2012, which she states is from Mr. Nagy, in which he
threatens her life. She also presented a Facebook message which she states was
sent to her alias account by a friend of Mr. Nagy’s and which includes a threat
towards her. As Ms. Balogh failed to bring this risk before the RPD and
proffered little corroborating evidence, the Officer gave little weight to
these documents in demonstrating a forward-looking risk.
[13]
Having found that Ms. Balogh had not
demonstrated risk at the hands of either Mr. Jakovic or Mr. Nagy, the Officer
analyzed the country conditions in Hungary from the perspective of Roma people
in general but did not focus on domestic violence. The Officer acknowledged
that there are a number of human rights issues including societal
discrimination and exclusion but noted that, while there have not been any
major gains, there has also been no deterioration of existing protections or
programs. The Officer concluded that Ms. Balogh had failed to demonstrate that
the level of discrimination she is likely to encounter in Hungary rises to the
level of persecution or that the protections that currently exist would not serve
her. The Officer noted that clear and convincing evidence of the state’s
unwillingness or inability to provide protection must be provided unless a
state has completely broken down. In this case, the Officer concluded that Ms.
Balogh had not satisfied this requirement.
IV.
Preliminary Issue
[14]
In written argument, the Respondent raised a
preliminary issue, objecting to the Applicant’s reliance on the affidavit of
Cassandra Fu, a legal assistant in the office of the Applicant’s counsel. Ms.
Fu’s affidavit attaches the motion record that the Applicant filed in support
of the stay motion, which includes Ms. Balogh’s own affidavit. However, the
Respondent argued that Ms. Balogh’s affidavit includes evidence that, while
perhaps relevant to the issues on the stay motion, was not before the Officer
in making the PRRA decision and therefore is not appropriate for this application
for judicial review.
[15]
The Respondent’s Memorandum of Argument
submitted that Ms. Fu’s affidavit does not comply with s. 12(1) of the Federal
Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22
[the Immigration Rules], which provides that affidavits filed in connection
with an application for leave for judicial review shall be confined to such
evidence as the deponent could give if testifying before the Court. The
Respondent therefore requested that Ms. Fu’s affidavit be struck and submitted that,
because the Applicant will then have failed to provide an affidavit necessary
to perfect her application under s. 10 (2) of the Immigration Rules, the
application should be dismissed.
[16]
However, at the hearing of this application for
judicial review, the Respondent’s counsel explained that these arguments were
raised before the Court granted leave, and therefore before the Certified
Tribunal Record was generated, and reflected concern that the Respondent was
disadvantaged by being unable to determine from the Applicant’s affidavit
material precisely which evidence had been before the Officer when the impugned
decision was made. Leave having since been granted, the Respondent’s counsel
advised at the hearing that the Respondent is not particularly relying on these
arguments at this juncture, as the Respondent now has the benefit of the
Certified Tribunal Record which reflects the record that was before the
Officer.
[17]
The Applicant’s counsel acknowledged in oral
argument that Ms. Fu’s affidavit includes material that was not before the
Officer. She advised that, with the exception of two documents related to the history
of this proceeding (Ms. Balogh’s first PRRA decision and the decision in Balogh
which set it aside), she intended to rely only upon documents in the Certified
Tribunal Record. Consistent with that acknowledgement, I agree with the
Respondent’s position that affidavit material filed in support of an
application for leave and judicial review should be confined to what is
properly relevant and admissible on the application itself. With limited
exceptions, such as explanatory background and evidence intended to establish
procedural unfairness, such affidavits should be confined to material that was
before the decision-maker.
[18]
There is no requirement that an application for
judicial review be supported by an affidavit personally sworn by the applicant
(see Zheng v Canada (Minister of Citizenship and Immigration), 2002 FCT
1152, at para 5). The concern is that Ms. Fu’s affidavit, which simply attaches
the motion record that was filed in the Applicant’s stay motion, appears to
have been submitted as a means of supporting the application for leave without
adequate thought having been given to the differences between what is relevant
to a stay motion and what is relevant to a judicial review. Such a practice is
to be discouraged. However, particularly as the Respondent is not now pressing
this point, the shortcoming in the Applicant’s approach to her supporting
affidavit material does not warrant dismissing her application on the basis
that it has not been perfected, as her challenge to the Officer’s decision is
based on arguments as to errors appearing on the face of the record (see Turcinovica
v Canada (Minister of Citizenship and Immigration), 2002 FCT 164, at paras
11-14).
V.
Issues
[19]
The Applicant submits the following issues for
the Court’s consideration:
A. Did the Officer err by failing to convoke a hearing and in failing
to provide the Applicant with an opportunity to disabuse concerns of
credibility?
B.
Did the Officer err in assessing state
protection?
VI.
Standard of Review
[20]
The Applicant takes the positon that the first of
the above issues is a matter of procedural fairness and therefore subject to
review on the standard of correctness, with the second issue being subject to
the standard of reasonableness. The Respondent’s position is that the standard
of reasonableness applies to both issues.
[21]
The parties’ disagreement related to standard of
review surrounds how the first issue is framed. The Applicant frames it as a
question of procedural fairness, reviewable on a standard of correctness,
relying on Justice Boswell’s decision in Zmari v. Canada (Minister of Citizenship
and Immigration) 2016 FC 132, at paras 10-13. However, there is also
substantial authority that the standard applicable to a PRRA officer’s decision
whether to hold an oral hearing is reasonableness (see Ikeji v Canada
(Minister of Citizenship and Immigration), 2016 FC 1422, at para 20 [Ikeji];
Sanchez v Canada (Minister of Citizenship and Immigration), 2016 FC 737,
at para 4; Ibrahim v Canada (Minister of Citizenship and Immigration),
2014 FC 837, at para 6, citing Bicuku v Canada (Minister of Citizenship and
Immigration), 2014 FC 339, at paras 16-20; Ponniah v Canada (Minister of
Citizenship and Immigration), 2013 FC 386 at para 24; and Mosavat v
Canada (Minister of Citizenship and Immigration), 2011 FC 647, at paras
7-10).
[22]
Based on my review of the case law, the
selection of the applicable standard of review appears to depend on whether the
Court in a particular case characterizes the issue of whether an oral hearing
should have been granted as a matter of procedural fairness, in which case the
standard of correctness is selected, or as involving the interpretation of the Immigration
and Refugee Protection Act, SC 2001, c.27 [IRPA], in which case the
standard is reasonableness.
[23]
In my view, when the issue is whether a PRRA officer
should have granted an oral hearing, the appropriate standard is
reasonableness, as the decision on that issue turns on interpretation and
application of the officer’s governing legislation. Section 113(b) of IRPA
provides that a hearing may be held if the Minister, on the basis of prescribed
factors, is of the opinion that a hearing is required, and s. 167 of the Immigration
and Refugee Protection Regulations, SOR/2002/227 [IRPR] prescribes the
applicable factors to be 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;
|
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) whether the evidence is central to the decision with respect to
the application for protection; and
|
b) l’importance de ces éléments de preuve
pour la prise de la décision relative à la demande de protection;
|
|
(c) whether the evidence, if accepted, would justify allowing the
application for protection.
|
c) la question de savoir si ces éléments de
preuve, à supposer qu’ils soient admis, justifieraient que soit accordée la
protection.
|
[24]
The arguments in the present case focused on the
first of these factors, whether there is evidence that raises a serious issue
of the Applicant’s credibility, and in particular on whether the Officer’s
reasoning, which is expressed in terms of sufficiency of evidence, is more properly
characterized as a credibility finding (what is sometimes referred to as a “veiled credibility finding”). At paragraph 20 of the
decision in Ikeji, Justice Strickland held that reasonableness is the
standard of review for questions of veiled credibility findings and, while
noting the divided jurisprudence on the standard of review applicable to a PRRA
officer’s decision respecting an oral hearing, held that this is also
reviewable on the reasonableness standard. Justice Strickland reached this conclusion
because such a decision is made by the officer considering the requirements of
s. 113(b) of IRPA and the factors in s. 167 of IRPR, which involves a question
of mixed fact and law.
[25]
I agree with this analysis and consider it to be
particularly applicable to the present case, where the Applicant’s position
surrounding the issue of an oral hearing turns on the argument that the Officer
made what amount to a veiled credibility finding. I will therefore apply the
reasonableness standard to both issues in this application.
VII.
Analysis
A. Did the Officer err by failing to convoke a hearing and in failing
to provide the Applicant with an opportunity to disabuse concerns of
credibility?
[26]
The question the Court must consider is whether the
negative PRRA decision by the Officer was based on negative credibility
findings, as argued by the Applicant, or findings of insufficiency of evidence,
as argued by the Respondent.
[27]
In connection with the police report, the
Respondent submits that the Officer’s conclusion is that there was little
useful information that could be derived from that documentation, as it
reflected only that Ms. Balogh made a complaint on August 20, 2011, but nothing
more than that. Nor was there any more recent information on the investigation
into the alleged incident. As such, the police report was of little probative
value in supporting Ms. Balogh’s allegations of risk, and there was no recent
evidence of a resulting investigation to support a finding of forward-looking
risk. I consider this to be an accurate characterization of the Officer’s
analysis of the police report, i.e. that it was of little assistance to Ms.
Balogh because of insufficient probative value, not concerns about credibility.
[28]
Similarly, I accept the Respondent’s position
that, in giving little weight to the letter from the Red Door Shelter, the
Officer was analyzing the probative value of that evidence, and not making a
credibility finding. As noted by the Respondent, that letter referred only to
the fact that Ms. Balogh had been living at the shelter and did not speak to
Mr. Jakovics attempting to find her there.
[29]
However, the evidence before the Officer also
included Ms. Balogh’s own statement, describing the Mississauga incident and
the subsequent alleged stalking by Mr. Jakovics. The Officer cited
inconsistencies with information provided by Ms. Balogh as once of the reasons
for giving the evidence, including Ms. Balogh’s statements, little weight. I
read the reference to inconsistencies as related, at least in part, to the
Officer’s observations in the preceding paragraphs of the decision that, while
Ms. Balogh stated she entered the Red Door Shelter when Mr. Jakovics began to
stalk her, the letter from Red Door stated she had been living there since May
19, 2011, month before the alleged stalking that drove her to the shelter. It
is difficult to characterize this analysis other than as an adverse credibility
finding. The Officer doubted the veracity of Ms. Balogh’s statement that she
had been stalked, because there were inconsistencies between what she said and
the documentary evidence.
[30]
Similarly, in considering Ms. Balogh’s statement
of the alleged abuse by Mr. Nagy, the Officer noted that she had provided
little information about him or her relationship with him, and little
corroborating evidence of the abuse. This can all be characterized as a finding
of insufficiency of evidence. However, the Officer’s analysis of these
allegations was also significantly influenced by the fact that Ms. Balogh had
not raised this risk before the RPD. While not expressed as a credibility
finding, I cannot see any other way to characterize that component of the
Officer’s analysis, i.e. that the Officer doubted the veracity of Ms. Balogh’s evidence
because she had not raised the allegations of risk presented by Mr. Nagy when presenting
her refugee claim.
[31]
As such, my conclusion is that the Officer’s
decision was influenced by both findings of insufficiency of evidence and
adverse credibility findings. The Court cannot speculate whether the Officer
would have reached a negative decision on the PRRA based on the insufficiency
concerns alone. The credibility concerns engage the provisions of s. 113(b) of
IRPA and s. 167 of IRPR surrounding the availability of an oral hearing, and
the Officer was required to consider the factors in s. 167 and specifically whether
the evidence to which the credibility concerns relates is central to the
decision on the application for protection. This is particularly the case in
the circumstances of this application, where the written submissions in support
of Ms. Balogh’s application for protection expressly requested that she be
given an oral hearing if the Officer had any doubts as to her credibility.
B. Did the Officer err in assessing state protection?
[32]
A finding of adequate state protection can be
determinative in the rejection of a PRRA application. Therefore,
notwithstanding my conclusions in connection with the first issue raised by the
Applicant, it is necessary to consider the second issue whether the Officer
erred in assessing the availability of state protection in Hungary.
[33]
The Officer limited the state protection
analysis to consideration of the country conditions in Hungary from the
perspective of Roma people in general and did not consider whether state
protection is available in relation to domestic or gender violence. This
approach resulted from the Officer’s conclusion that Ms. Balogh had not
demonstrated that she was at risk in Hungary at the hands of either Mr.
Jakovics or Mr. Nagy. However, having found above that the Officer based that
conclusion at least in part on adverse credibility findings, without affording
Ms. Balogh an oral hearing or at least considering whether the credibility
concerns engaged the s. 167 factors, the Officer’s decision cannot be sustained
based on the state protection analysis which did not focus on the gender or
domestic violence risks.
[34]
It is therefore my conclusion that the Officer’s
decision falls outside the range of possible, acceptable outcomes, defensible
in respect of the facts and the law, and is not reasonable. The decision must
be returned for redetermination in accordance with these Reasons.
[35]
Neither of the parties proposed any question for
certification for appeal, and none is stated.
JUDGMENT in IMM-5185-16
THIS COURT’S JUDGMENT is that this
application for judicial review is allowed, the Officer’s decision is set
aside, and the matter is returned for redetermination by another officer in
accordance with the Court’s Reasons for Judgment. No question is certified for
appeal.
“Richard F. Southcott”
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