Docket: IMM-359-17
Citation:
2017 FC 1033
Ottawa, Ontario, November 10, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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JÓSZEFNÉ
ORLICZKI
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SÁNDOR SZAKÁCS
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Applicant
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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 Principal Applicant, Józsefné Orliczki, age
47, and her son Sándor Szakács, age 16, are Hungarian citizens of Roma
ethnicity. They first entered Canada on April 25, 2009, along with the
Principal Applicant’s husband and their daughter, and made a claim for refugee
protection. After the Refugee Protection Division [RPD] of the Immigration and
Refugee Board [Board] denied their claims in a decision dated February 25,
2013, the family returned to Hungary in June 2013. The Applicants came back to
Canada on August 25, 2016, and the Principal Applicant made a second claim for
refugee protection. This claim was not referred to the RPD by virtue of
paragraph 101(1) (b) of the Immigration and Refugee Protection Act, SC
2001, c-27 [IRPA], which stipulates that, if a claim for refugee
protection by a claimant has been rejected by the Board, it is ineligible to be
referred to the RPD. Consequently, the Principal Applicant submitted an
application for a Pre-Removal Risk Assessment [PRRA] on September 19,
2016. A Senior Immigration Officer rejected the PRRA application in a decision
dated November 28, 2016. The Principal Applicant has now applied under
subsection 72(1) of the IRPA for judicial review of the Officer’s
decision.
I.
The Applicants’ PRRA Submissions
[2]
The Principal Applicant claimed in her PRRA
submissions that, following her family’s return to Hungary in June 2013, the
persecution resumed within a few months. Rocks were thrown through a window of
their house in Miskolc in late August 2013. The police said they could not do
anything and advised them to fix the window. The Principal Applicant’s husband
replaced the glass in the broken window with wood. Every two weeks or so after
this first incident, racists continued to vandalize the family home, kicking in
the wood covering the window and throwing in rocks with death threats attached
to them. The Principal Applicant’s daughter, Anett, suffered panic attacks as a
result of these incidents and was hospitalized twice.
[3]
In October 2014, the Principal Applicant and her
family were evicted from their home by the city of Miskolc, which owned the
house. The District Court of Miskolc upheld the eviction, leaving the Principal
Applicant’s family homeless and forcing them to stay with friends, neighbours,
and in churches. All attempts at securing alternate accommodations elsewhere in
Hungary were unsuccessful. As a result of having no fixed address, the
Principal Applicant was unable to enrol Sándor in school. While the family
members were separated and staying in different churches, police officers
confronted the Principal Applicant’s husband, stating that they were going to
place Sándor in state care because he was not enrolled in school.
[4]
In support of the PRRA application, the
Principal Applicant submitted a number of documents, including reports on
discrimination in Hungary and mass evictions of Roma in Miskolc, medical
reports for Sándor and his older sister Anett, a note from a school principal
stating Sándor’s ineligibility to attend school without a valid proof of
address, a copy of the decision by the District Court of Miskolc on the
legality of the eviction, and letters from the President and the Vice-President
of the Roma National Self-Government of Miskolc City. The Applicants’ counsel
had prepared additional submissions and information on the evictions but these
were not submitted until December 21, 2016, due to counsel suffering a
concussion. These submissions were sent after the date of the Officer’s
decision and were not before the Officer.
II.
The Officer’s Decision
[5]
After summarizing the Applicants’ immigration
history and status, the Officer stated: “I have read
and carefully considered all of the documentary material presented in
association with and support of this application.” The Officer then proceeded
to consider the legal requirements surrounding PRRA applications, particularly
the requirement under paragraph 113(a) of the IRPA that unsuccessful
refugee claimants may only present new evidence that arose after the rejection
or was not reasonably available, or that the applicant could not reasonably
have been expected in the circumstances to have presented, at the time of the
rejection. The Officer noted that counsel, while providing documentary evidence
in support of the application, had not included full or detailed written
submissions. The Officer referenced the Principal Applicant’s statutory
declaration, noting that in August 2013 she and her family were harassed,
threatened and their home vandalized by unknown assailants due to their Roma ethnicity,
that the police were called but did not take any investigative action, and that
this event caused her daughter to suffer extreme anxiety and panic attacks that
required hospitalization. The Officer then noted “these
events are materially consistent with those already addressed by the RPD in the
applicant’s hearing and will not be revisited in this setting.”
[6]
The Officer considered the decision of the
District Court of Miskolc submitted in support of the Principal Applicant’s
claim that she had been evicted from her home in Miskolc. The Officer noted
that the decision provided no reasons for the eviction, and appeared to be a
cursory decision which agreed that the City of Miskolc had rightfully asserted
its claim and had strong reason for the Principal Applicant and her family to
vacate the house. The Officer further noted that the decision referenced an
eviction letter which was acknowledged as received by the Principal Applicant
on May 29, 2013, and observed that this letter had not been submitted as
evidence with the PRRA application and also that the Principal Applicant had
not returned to Hungary until June 4, 2013.
[7]
The Officer also considered the letter from
Ferenc Gulyás, the Vice-President of the Roma National Self-Government of
Miskolc City, noting that:
The author of this letter does not give any
particulars of how he became aware of the applicant’s situation. The statements
provided regarding the applicant’s housing situation do not appear to be based
on first-hand accounts, but rather recounted information that has not been
verified by Mr. Gulyas.
The Officer continued
by stating:
For the aforementioned reasons, I give
little weight to these three documents and I do not find them to provide
sufficient objective evidence to establish, on a balance of probabilities, the
applicant lived in the affected neighbourhood and was evicted from her home.
[8]
The Officer further stated that, “even if the applicant did to [sic] satisfy me that
she had been living in the affected area, and I am not,” recourse was
available to her because research documentation from the Board stated that, as
an indefinite term leaseholder, she would be eligible for compensation or
provision of an alternate property from the city of Miskolc. The Officer then
referenced the numerous pieces of country condition documentary evidence from
various sources submitted with the application, and acknowledged the plight of
the Roma population in Hungary who face human rights issues. The Officer found
this documentary evidence to be “generalized in nature”
and did not “establish a linkage directly to the
applicant’s personal circumstances.” In the Officer’s mind, evidence of
general conditions within a country “is not in itself
sufficient to show that the applicant is personally at risk of harm.” In
the result, the Officer found that the Principal Applicant would not face more
than a mere possibility of persecution and that she would not face torture, a
risk to life, or a risk of cruel or unusual treatment or punishment if returned
to Hungary.
III.
Issues
[9]
The Applicants raise four issues:
1.
Did the Officer fetter his discretion?
2.
Did the Officer misconstrue the evidence?
3.
Did the Officer err by making credibility
findings without affording the Applicants an oral hearing?
4.
Did the Officer err by ignoring submissions sent
before the Applicants were given notice of the decision?
[10]
In my view, however, the determinative issue on
this application for judicial review is whether the Officer misconstrued the
evidence in such a manner that the Officer’s decision was unreasonable.
IV.
Analysis
A.
Standard of Review
[11]
It is well established that, absent any question
of procedural fairness, the standard of review by which to assess a PRRA
officer’s decision is that of reasonableness (see: Paul v Canada
(Immigration, Refugees, and Citizenship), 2017 FC 687 at para 12, 282 ACWS
(3d) 146; Khatibi v Canada (Citizenship and Immigration), 2016 FC 1147
at para 11, 273 ACWS (3d) 156; Fadiga v Canada (Citizenship and Immigration),
2016 FC 1157 at para 8, 272 ACWS (3d) 822; Chen v Canada (Citizenship and
Immigration), 2015 FC 565 at para 11, 254 ACWS (3d) 901; Shilongo v
Canada (Citizenship and Immigration), 2015 FC 86 at para 21, 474 FTR 121; Shaikh
v Canada (Citizenship and Immigration), 2012 FC 1318 at para 16, 223 ACWS
(3d) 1020).
[12]
The reasonableness standard tasks the Court with
reviewing an administrative decision for “the existence
of justification, transparency and intelligibility within the decision-making
process” and determining “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law”: Dunsmuir v New Brunswick, 2008 SCC
9 at para 47, [2008] 1 S.C.R. 190. Those criteria are met if “the reasons allow the reviewing court to understand why the
tribunal made its decision and permit it to determine whether the conclusion is
within the range of acceptable outcomes”: Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 16, [2011] 3 S.C.R. 708 [Newfoundland Nurses]. Additionally,
provided “the process and the outcome fit comfortably
with the principles of justification, transparency and intelligibility, it is
not open to a reviewing court to substitute its own view of a preferable
outcome”; nor is it “the function of the reviewing
court to reweigh the evidence”: Canada (Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paras 59 and 61, [2009] 1 S.C.R. 339.
B.
Did the Officer misconstrue the evidence?
[13]
The Applicants contend the Officer misconstrued
the evidence of their eviction from their home in Miskolc, and made a negative
credibility finding, in the face of numerous corroborating documents, including
the Miskolc court decision, letters from the President and the Vice-President of
the Roma National Self-Government of Miskolc City, letters from the committee
against relocation, and objective documentary evidence on the mass evictions.
The Applicants say the Officer erred by giving little weight to the court
decision, which explains in detail the circumstances leading to the Applicants’
eviction. According to the Applicants, the Officer’s expectation that the
eviction letter referred to in the court decision should have been presented in
evidence is “perverse.” The Applicants further
note that the Officer failed to consider the letter from the President of the
Roma National Self-Government of Miskolc City.
[14]
The Respondent maintains that the Applicants are
contesting the Officer’s weighing of evidence, something which does not raise a
reviewable issue. The Respondent observes that the Officer found that: the
court decision only established that the facts in the statement of claim are
accurate and the legal citation is relevant; the Applicants did not present a
letter which was acknowledged as received prior to the Applicants’ date of return
to Hungary; the letter from the Vice-President of the Roma National
Self-Government of Miskolc City was a reiteration of what he had been told by
the Principal Applicant; and the documentary evidence showed that the Principal
Applicant would be entitled to compensation as an indefinite leaseholder. In
the Respondent’s view, the Officer reasonably found that the Applicants did not
demonstrate more than a mere possibility of persecution.
[15]
It is, of course, well-established that
administrative decision-makers, including PRRA officers, do not have to
reference every piece of evidence in their decisions. In Newfoundland Nurses,
Justice Abella stated (at para 16) that a “decision-maker
is not required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion.” Similarly, in Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 at
para 16, 157 FTR 35 [Cepeda-Gutierrez], Justice Evans stated that
administrative agencies are not “required to refer to
every piece of evidence that they received that is contrary to their finding,
and to explain how they dealt with it” as it will often be sufficient
simply to make a statement “in its reasons for decision
that, in making its findings, it considered all the evidence before it.”
[16]
By the same token, however, the deference
usually afforded to an administrative decision-maker dissipates and lapses when
a key piece of evidence or a significant and material fact is not adequately
addressed. If the evidence is highly relevant or appears to contradict other
findings of facts, a reviewing court may be willing to infer that the
administrative decision-maker ignored such evidence and made an “erroneous finding of fact ‘without regard to the evidence’”
(see: Cepeda-Gutierrez at paras 14-15). A reviewing court should not
supplement a PRRA officer’s reasons when they fail to address an important or
significant piece of evidence. By implication though, a PRRA officer’s reasons
cannot satisfy the requirements of justification, transparency, and
intelligibility, if they fail in this regard.
[17]
The Applicants correctly note that the Officer
did not explicitly consider the letter from Gábor Váradi, the President of the
Roma National Self-Government of Miskolc City, which states in part that:
I, Gábor Váradi…verify Sándor Szakács, his
common law partner, and their children Sándor Szakács Jr. and Anett Orliczki’s
situation and living conditions are without prospect. Since [sic] their
property in Miskolc on 3533, 4 Nyolcadik Street is affected by the by-law
accepted in May 2014 by the local self-government…. Those affected by the
evictions didn’t get an opportunity to participate in a genuine discussion
regarding the planned evictions or other possible alternatives. They didn’t
receive any notice of the eviction.
Only Roma families lived in the Numbered
Street among them the aforementioned persons…. Despite the protestations of the
Miskolc Roma the settlement liquidation program proceeds….
For now, those living in the “Numbered
Streets” have no idea what will happen to them in the next month or two. Should
they start packing their belongings?! The self-government doesn’t say anything…
[18]
The Officer refers to giving little weight to three
documents which purport to establish the Applicants’ residency in the district
of Miskolc where the forced evictions occurred, but only discusses the court
decision and the letter from the Vice-President of the Roma National
Self-Government. The Officer did not explicitly discuss or engage with the
President’s letter. This letter states that the Principal Applicant and her
family were in fact residing in the area being affected by the mass evictions.
It may be that the Officer took issue with the authenticity of Mr. Váradi’s
letter and possibly it was one of the three documents to which the Officer
assigned little weight to substantiate the Principal Applicant’s claim that she
and her family had lived in the affected neighbourhood and were evicted from
their home. However, if this was the case the Officer’s reasons in this regard
are unintelligible and, consequently, render the decision unreasonable because
the Court can only speculate as to what the Officer thought, if anything, about
Mr. Váradi’s letter.
[19]
Although the Officer in this case stated that “I have read and carefully considered all of the documentary
material presented in association with and support of this application,”
the Officer never referenced or ignored Mr. Váradi’s letter and the information
it provided. In my view, the Officer should have referenced and assessed this
letter because it was highly relevant and tended to corroborate and
substantiate the Principal Applicant’s claim that she and her family, contrary
to the Officer’s finding in this regard, had lived in the affected
neighbourhood and were evicted from their home by reason of their Roma
ethnicity. At the very least, the Officer should have explained why he or she
did not accept the evidence contained in Mr. Váradi’s letter and what, if any
weight, it warranted.
V.
Conclusion
[20]
The Applicants’ application for judicial review
is, therefore, allowed. The Officer’s decision is not reasonable and,
consequently, it is set aside. The matter is returned for reconsideration by a
different immigration officer in accordance with these reasons for judgment. No
question of general importance is certified.
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