Csikja v. Canada (Citizenship and Immigration), 2017 FC 909

Date: 20171013

Docket: IMM-1283-17

Citation: 2017 FC 909

Ottawa, Ontario, October 13, 2017

PRESENT:     The Honourable Mr. Justice Zinn

JUDGMENT AND REASONS

[1]               The Court is judicially reviewing a decision of Senior Immigration Officer [the Officer] on the applicants’ application for a Pre-Removal Risk Assessment [PRRA].

[2]               The parties were informed following the oral hearing that this application would be allowed because the Officer copied the state protection analysis from a decision of the Refugee Protection Division [RPD] on the applicants’ son’s claim for protection.  These are my reasons for that decision.

[3]               The applicants are Roma from Hungary.  Mr. Csikja arrived in Canada on November 13, 2011, as a minor with his family.  They filed a claim for refugee protection which, as of the date of the PRRA decision, February 6, 2017, was still outstanding.  While in Canada, Mr. Csikja formed a relationship with Ms. Hanko, and they had one child, Laszlo Csikja, born February 2, 2013, who is a Canadian citizen.

[4]               Ms. Hanko and her immediate family were facing removal from Canada, and they decided to return to Hungary in June 2013.  Ms. Hanko took Laszlo Csikja with her.

[5]               After hearing of incidents involving his common law spouse Ms. Hanko and his son, Mr. Csikja withdrew his claim for refugee protection and returned to Hungary in August 2013, to be with them.  In Hungary, their second child, Kevin Hanko, was born on April 20, 2015.

[6]               After suffering further incidents as a consequence of their ethnic origin, Mr. Csikja and Ms. Hanko, and their two sons fled to Canada, arriving on March 4, 2016.  Neither parent was entitled to make a claim for refugee protection.  Their Canadian born son had no need for one to remain in Canada.  A claim for refugee protection was made by the younger child, Kevin Hanko, and was rejected by the RPD on September 8, 2016.  Both parents filed an application for a PRRA.  The Officer rejected that application on February 6, 2017.

[7]               One of the material findings of the Officer, in rejecting the PRRA application, was that state protection was available to the applicants in Hungary.

[8]               In the state protection analysis, the Officer largely copied the summary of the submitted documents from the RPD Decision, and he reproduced exactly, the state protection analysis given by the RPD.  The Officer did not reproduce these with an acknowledgment that they were the words and analysis of the RPD; rather, he wrote them as if they were his own words and his own analysis.  The following side-by-side chart, with identical wording copied from the RPD Decision shows this:

[9]               In addition to these four paragraphs, the Officer copied all or part of paragraphs 25, 26, 29, 32, 33, 34, and 35 of the RPD Decision.

[10]           The Supreme Court of Canada in Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, held that incorporating substantial amounts of material from submissions or other sources into reasons does not without more permit the decision to be set aside.  However, the Supreme Court also stated at paragraph 36 that the presumption of judicial impartiality and integrity is rebutted if “the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision.”  To the same effect are the decisions of the Federal Court of Appeal in Janssen-Ortho Inc v Apotex Inc, 2009 FCA 212 at paragraphs 73-79, and Es-Sayyid v Canada (Minister of Public Safety & Emergency Preparedness), 2012 FCA 59 at paragraphs 61-63.

[11]           These applicants have never had their risk assessed and thus the PRRA application for them was of critical importance.  It is also critical as Canada does not return persons to their country of origin if doing so puts them at risk.  A state protection finding is sufficient to reject a PRRA application.  In these circumstances and given the extent of copying on the state protection analysis, I am not satisfied that this Officer turned his or her mind independently to that issue.  This goes directly to whether these applicants received procedural fairness.  I am of the view that they did not, and that this decision cannot stand.

[12]           There is no question suggested for certification and the basis on which this Judgment is made reflects a very long-standing and uncontroverted legal principle.

JUDGMENT

THIS COURT’S JUDGMENT is that the application is granted, the decision under review is set aside and the application is to be determined by a different officer, and no question is certified.

"Russel W. Zinn"

FEDERAL COURT

SOLICITORS OF RECORD

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