Docket: IMM-15832-23
Citation: 2025 FC 511
Ottawa, Ontario, March 19, 2025
PRESENT: The Honourable Justice Fuhrer
BETWEEN: |
MONIKA STOJKOVA |
Applicant |
and |
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant Monika Stojkova is a citizen of the Czech Republic (also known as Czechia) who identifies as Roma. She claimed refugee protection in Canada, along with her then infant daughter who was granted protection. Ms. Stojkova’s claim, however, was suspended pending the outcome of an inadmissibility hearing.
[2] The Immigration Division [ID] of the Immigration and Refugee Board of Canada [IRB] found reasonable grounds to believe that Ms. Stojkova is inadmissible to Canada for serious criminality, pursuant to paragraph 36(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. She had been convicted in absentia under the Czech Criminal Code for the offence of unauthorized production and other handling of narcotic and other psychotropic substances and poisons. The ID thus issued a deportation order against her. See Annex “A”
below for relevant legislative provisions.
[3] Ms. Stojkova seeks judicial review of the ID decision, arguing procedural unfairness. She also challenges the reasonableness of the decision, asserting unreliable evidence because of deficiencies in the documents originating from the Czech Republic, including translations, on which the Minister relied and the ID admitted. The Respondent disagrees arguing that the IRB has no jurisdiction to consider the validity of the foreign conviction, nor is it necessary to consider the foreign sentencing, and further that there are no translation or privacy issues.
[4] Having reviewed the parties’ written materials, I find Ms. Stojkova has not established procedural unfairness or unreasonableness in connection with the ID decision. For the reasons below, this judicial review application thus will be dismissed. I add that, although an oral hearing was convened, both parties indicated that they rely solely on their written arguments and offered no additional submissions. They also confirmed that they have not proposed any question for certification.
[5] In the circumstances, I address the procedural fairness issue first, and analyze the reasonableness issue next, both with regard to the parties’ written materials only.
II. Analysis
A. The Applicant has not established a breach of procedural fairness
[6] I am not persuaded that there has been a breach of procedural fairness.
[7] Questions of procedural fairness attract a correctness‑like standard of review: Benchery v Canada (Citizenship and Immigration), 2020 FC 217 at paras 8‑9; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [Canadian Pacific] at para 54; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 77.
[8] Procedural fairness requires the reviewing court to take into account the process followed by the decision-maker and determine whether the parties had a right to be heard and the opportunity to know and respond to the case against them: Polgar v Canada (Public Safety and Emergency Preparedness), 2023 FC 1381 [Polgar] at para 28; Canadian Pacific, above at paras 40-41. The focus of the reviewing court is whether the process was fair and just in the circumstances: Chaudhry v Canada (Citizenship and Immigration), 2019 FC 520 at para 24.
[9] I accept that, depending on the circumstances, the admission of documents that ought not to have been admitted may constitute a breach of procedural fairness: Younis v Canada (Citizenship and Immigration), 2008 FC 944 at para 17. I find, however, that such a breach has not occurred here.
[10] Ms. Stojkova takes issue with the Minister having contacted the Czech Republic authorities (i.e. the asserted persecutory government she escaped) to obtain the various documents, contained in the disclosure, arguing breach of Charter and privacy rights. This is not a case like Lin, however, on which she relies, where the Minister sought unsuccessfully to vacate the claim of an individual (the respondent) already found in need of refugee protection. See Canada (Public Safety and Emergency Preparedness) v Lin, 2011 FC 431. There, the identity of the respondent was not in issue, and so the authenticity of documents could be verified without releasing the respondent’s name.
[11] More to the point, Ms. Stojkova’s in-Canada refugee claim form authorizes the sharing of information collected in the forms with other organizations, such as the Canadian Security Intelligence Service, and others, as well as the release of information by other authorities, including those in countries in which she lived, for the purpose of assessing her admissibility to Canada and eligibility to make a refugee claim.
[12] Further, while Ms. Stojkova’s daughter has been found eligible for refugee protection, the IRB must assess each claim individually because previous decisions, even regarding family members, may have been wrongly decided: Uygur v Canada (Citizenship and Immigration), 2013 FC 752 at para 28. Although that is not necessarily the case here, Ms. Stojkova’s situation clearly differs from that of her daughter in a key respect - if Ms. Stojkova is inadmissible for serious criminality, then she is barred from having her claim referred to the Refugee Protection Division of the IRB because of paragraph 101(1)(f) of the IRPA.
[13] In my view, Ms. Stojkova was aware of the case she had to meet as a result of the Minister’s disclosure which included the challenged documents from the Czech Republic and relevant translations, noting that some of the documentation was provided in English. Her counsel at the time could have objected, but instead acquiesced, to the admission of the disclosed documents in evidence. The time for raising such an objection has passed.
[14] I thus conclude that there is no merit to Ms. Stojkova’s procedural fairness arguments. Further arguments she advanced regarding the Czech Republic documents, and their translations where translated, will be addressed in connection with the reasonableness considerations below.
B. The Applicant has not shown that the ID decision is unreasonable
[15] I find that Ms. Stojkova has not demonstrated the unreasonableness of the ID decision. Instead, she requests that we reweigh the evidence and come to different conclusions than the ID. That is not the role of a reviewing court, however: Vavilov, above at para 125.
[16] A reasonable decision is one that exhibits the hallmarks of justification, transparency and intelligibility, and is justified in the context of the applicable factual and legal constraints. The party challenging an administrative decision has the burden of showing that it is unreasonable: Vavilov, above at paras 99, 100.
[17] Ms. Stojkova argues the translator declarations do not comply with subrule 25(3) of the Immigration Division Rules, SOR/2002-229. In my view, however, it cannot be said that the ID acted unreasonably by admitting and relying on the translated documents because of a faulty or deficient translator’s declaration. The translator’s declaration contains the translator’s name, the language translated (Czech) and a statement that it is a “faithful and true translation rendered, to the best of my knowledge and judgement.”
To take issue because it does not contain the word “accurate”
as set out in subrule 25(3), is to put form over substance. I am not persuaded the omission renders the ID decision unreasonable.
[18] Ms. Stojkova submits that she was never provided with originals or notarized copies of documents in the Minister’s disclosure. Her counsel raised the same arguments before the ID. I am not convinced the ID acted unreasonably when it rejected these arguments, noting that while the documents were imperfect, they were not unreliable.
[19] The ID also reasonably accepted, in my view, that the arrest warrant contained a digital signature, and in any event, the existence of an arrest warrant was corroborated by other documents Ms. Stojkova tendered to demonstrate the arrest warrant had been subsequently cancelled or withdrawn.
[20] Another example of Ms. Stojkova’s request to reweigh the evidence arises with respect to her submission that the diplomatic correspondence between the Czech Republic and the Canadian government is objectionable because it presents a jovial attitude. I find this argument simply is without merit.
[21] Similarly, Ms. Stojkova’s arguments also invite the Court to look behind the fact of her conviction and draw conclusions about the political regime in the Czech Republic. The ID must not do so in connection with the paragraph 36(1)(b) analysis: Polgar, above at para 43; Gurbuz v Canada (Citizenship and Immigration), 2018 FC 684 at para 28. I therefore am not persuaded that it was unreasonable for the ID panel to state that it would be outside the scope of their analysis but, more to the point, it is outside the scope of judicial review. For the same reason, I am not persuaded that the ID was required to consider the validity of convictions made in absentia: Halilaj v Canada (Public Safety and Emergency Preparedness), 2017 FC 1062 at para 31.
[22] Nor must the ID consider the sentence received abroad: Polgar, above at para 43. In my view, the ID did not err when it stated “the sentence imposed in the foreign jurisdiction”
is not relevant to this proceeding, in response to Ms. Stojkova’s evidence that her sentence was reduced on appeal. Rather, the finding was justified in light of the factual and legal constraints that bear on the ID: Vavilov, above at para 99.
[23] As for the ID’s treatment of Ms. Stojkova’s testimony about possible duress, I am satisfied that the ID did not make any reviewable error in its analysis. The ID reasonably concluded, in my view, that duress does not apply in Ms. Stojkova’s circumstances (i.e. her consistent testimony and position that she did not commit the crime and was wrongly convicted).
[24] In sum, the analysis required by paragraph 36(1)(b) of the IRPA does not permit the ID to look behind a foreign conviction, or the sentence for that matter, and does not require the ID to assess the evidence that was tendered in the foreign criminal proceeding. Instead, it is enough for the ID to compare the text of the foreign statute to the text of the Canadian statute (i.e. here, subsection 5(1) and paragraph 5(3)(a) of the Controlled Drugs and Substances Act, SC 1996, c 19) to determine if the equivalency assessment is made out: Li v Canada (Minister of Citizenship and Immigration), 1996 CanLII 4086 (FCA). This is what the ID did in this case, in a manner that, in my view, Ms. Stojkova has not shown was unreasonable.
[25] I conclude that Ms. Stojkova’s arguments essentially seek to reargue the matter considered by the ID, rather than to focus on the ID’s reasons themselves. In other words, Ms. Stojkova has not met her onus of showing how those reasons lack intelligibility, transparency and justification.
III. Conclusion
[26] For the above reasons, this judicial review application will be dismissed.
[27] Neither party proposed a serious question of general importance for certification. I find that none arises in the circumstances.
Email this Content