Docket: IMM-1408-17
Citation:
2017 FC 980
Ottawa, Ontario, November 1, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
|
BETWEEN:
|
|
LAJOS LAJHO
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
|
|
Respondents
|
JUDGMENT AND REASONS
I.
Overview
[1]
Mr. Lajho, the applicant, seeks judicial review
of the decision of a Senior Immigration Officer [Officer] rejecting his
Pre-Removal Risk Assessment [PRRA] and finding that he is neither a Convention
refugee nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
Mr. Lajho is a Hungarian citizen of Roma
ethnicity. He first arrived in Canada in March 2010 and made a refugee claim at
that time. He subsequently withdrew that claim and left Canada in November
2010. He returned to Canada in September 2016 accompanied by his wife, son,
daughter-in-law, and grandson. The family members made a refugee claim. Mr.
Lajho was found ineligible on the basis of his prior withdrawn claim. After
being issued an exclusion order, he submitted a PRRA on September 29, 2016. The
remaining family members are awaiting a hearing before the Refugee Protection
Division.
[3]
In rejecting the PRRA, the Officer acknowledged “the plight of the Romani population in Hungary who face
human rights issues such as discrimination in education, housing, employment
and access to social services.” However, the Officer concluded that none
of the material reviewed “refers to the applicant
specifically or his personal circumstances.”
[4]
Mr. Lajho submits the decision is unreasonable
on numerous grounds. I need not address all of the issues raised. I am of the
opinion that the Officer’s failure to engage the objective documentary evidence
in a meaningful way and within the context of the affidavit evidence filed in
support of the application undermines the transparency and thus the
reasonableness of the decision. The application is granted for the reasons that
follow.
II.
Preliminary Issues
[5]
In written submissions Mr. Lajho sought to
introduce new evidence and argued a breach of procedural fairness on the basis
that the Officer erred in failing to convoke an oral hearing. Neither argument
was pursued in oral submissions. The application has been considered on the
basis of the record that was before the Officer.
III.
Standard of Review
[6]
An officer’s findings of fact or of mixed fact
and law in the PRRA context are to be reviewed against a standard of
reasonableness (Somasundaram v Canada (Minister of Citizenship and
Immigration), 2014 FC 1166 at para 18). In assessing the reasonableness of
a decision the Court is required to consider whether the decision-making
process is justified, transparent and intelligible and whether the decision falls
within the range of possible acceptable outcomes that are defensible in respect
of the facts and the law (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47).
IV.
Analysis
[7]
Mr. Lajho’s PRRA was rejected on the basis that
the country condition documentation is generalized in nature and does not
specifically refer to Mr. Lajho or his personal circumstances, and the
discrimination he experienced in Hungary did not reach the level of
persecution.
[8]
It is unclear whether refusal of the PRRA was an
outcome reasonably available to the Officer; the decision falls short of
evidencing a justifiable and transparent decision-making process or
demonstrating that the result falls within the range of possible acceptable
outcomes.
[9]
In support of his claim, Mr. Lahjo relied on the
affidavit evidence of his wife. That evidence stated that the family was
discriminated against, harassed and attacked because they were Roma. The
affidavit describes discrimination in the education system and states that she
and her husband were unemployed and not given jobs because they were Roma. The
affidavit describes marches by extremist groups and paramilitaries between 2006
and 2010 where Roma homes were damaged and set on fire, local Roma residents
were attacked and police did not respond because they were involved with these
extremists and the groups in turn were supported by the Government. She
describes incidents involving her daughter where police did not respond to
allegations of domestic abuse because of her Roma ethnicity. She affirms that the
family lived in deep poverty as the result of unemployment which again she
links to their Roma ethnicity. She describes an incident involving her son
where he was beaten by police in 2012. She describes the families’ eviction
from a ghetto in Miskolc in 2016 where she acknowledges the family received
notice but were nonetheless subject to an attack by a police officer and two
paramilitary members. She affirms that during this eviction Mr. Lajho was
beaten by the police officer and paramilitary members, his nose was broken, and
he was then refused medical care because he was homeless. She also describes a
second forcible eviction later in 2016.
[10]
Despite this evidence describing personal
circumstances the Officer concludes that the country condition evidence is
generalized in nature and does not reflect Mr. Lahjo’s personal circumstances.
This conclusion is puzzling. The generalized country condition evidence, which
the Officer acknowledged demonstrates the Romani population is discriminated
against in education, housing, employment and access to social services could
not reasonably be considered separately from, or without reference to, the
personal evidence described above. As stated by Justice James Russell in Racz
v Canada (Minister of Citizenship and Immigration), 2017 FC 824 [Racz]
at para 37 “the general country documentation is not
“general” in nature in this instance. It directly supports and confirms the
Applicants’ own experience.”
[11]
The state protection analysis is similarly
lacking. The Officer concludes “that there are agents
of state protection available to Roma in Hungary” but the agents of
state protection are not identified and the conclusion is not linked to the
country condition evidence. The Officer does make reference to mechanisms for
lodging complaints against the police and a Constitutional provision
establishing an ombudsman but does not address the effectiveness of these
mechanisms. In addition these mechanisms have been consistently held by this
Court as not providing a basis upon which to conclude state protection is
adequate in Hungary (Racz at para 38).
[12]
Finally in assessing Mr. Lahjo’s section 96
claim the Officer states the following:
I acknowledge that the applicant has
experienced discriminatory acts at some points during his life in Hungary and
that being insulted and threatened is both unpleasant and unsettling; however,
I find that the applicant has provided insufficient objective evidence that he
experienced serious systematic and repetitive discrimination. While the
applicant has experienced some sporadic incidents of discrimination, it did not
rise to the level of persecution.
[13]
In reaching this conclusion the Officer has not
identified the acts of discrimination the Officer assessed. The Officer does
make reference to insults and threats but the evidence does not disclose
allegations of insults and threats. Rather the evidence describes forced
evictions, beatings, and at a minimum state-tolerated discrimination based on
ethnicity that impacts access to employment, housing, health care and
education.
[14]
To establish a well-founded fear of persecution
a claimant must demonstrate (1) subjective fear of persecution and (2) that the
subjective fear is well-founded in an objective sense (Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 at 723). Section 96 does not require a
claimant to establish actual persecution on a personal level; rather the
section requires that a claimant demonstrate a well-founded fear of
persecution. The absence of any analysis to support the conclusion reached undermines
the transparency and intelligibility of the decision.
V.
Conclusion
[15]
The Officer’s decision relies on a perfunctory
review of the evidence and boilerplate conclusions. While a decision-maker is
not obligated to address each and every piece of evidence or seek out and
address any evidence that is contrary to the conclusion reached, it is
similarly not enough to simply conclude that “the
evidence is mixed with respect to the level of discriminatory acts.” A
decision-maker must do more; a decision-maker must deal with mixed evidence (Racz
at para 41).
[16]
The parties have not identified a question of
general importance and none arises.
Email this Content