Balogh v. Canada (Minister of Citizenship and Immigration), (2015) 474 F.T.R. 75 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: November 13, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 474 F.T.R. 75 (FC);2015 FC 76

Balogh v. Can. (M.C.I.) (2015), 474 F.T.R. 75 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JA.058

Timea Maria Balogh (applicant) v. Minister of Citizenship and Immigration (respondent)

(IMM-4870-13; 2015 FC 76)

Indexed As: Balogh v. Canada (Minister of Citizenship and Immigration)

Federal Court

Russell, J.

January 20, 2015.

Summary:

Balogh, a citizen of Hungary, claimed refugee protection. She feared persecution due to her Roma ethnicity. She also feared being harmed by her former partner and her step-mother's former partner. The claim was denied because Balogh failed to rebut the presumption of state protection. Balogh's pre-removal risk assessment (PRRA) application claimed that the situation for Roma people in Hungary had deteriorated since her refugee hearing; that her step-mother's former partner had threatened to harm her and that her former partner had threatened to kill her if she returned to Hungary. An immigration officer rejected the PRRA application. The officer concluded that while the state protection in Hungary for Roma people was not perfect, it was adequate. Balogh applied for judicial review, raising the issue of whether the officer conducted an unreasonable state protection analysis.

The Federal Court allowed the application and referred the matter back for reconsideration by a different officer.

Aliens - Topic 1323.2

Admission - Refugee protection - Convention refugees and persons in need of protection - Persecution - Protection of country of nationality or citizenship (internal flight alternative) - The specific risk faced by the applicant, a Roma woman, was domestic violence in Hungary - Her former partner had threatened to kill her if she returned to Hungary - The immigration officer concluded that while the state protection in Hungary for Roma people was not perfect, it was adequate, and rejected the applicant's pre-removal risk assessment application - The Federal Court allowed the judicial review application - The discussion of state protection contained several issues that the Court had repeatedly identified as reviewable errors - The officer assessed the applicant's claim from the perspective of Roma people in general and did not focus on the real issue which was that she was a Roma woman who faced death threats from a former partner - The officer's view that alternative avenues of recourse could provide adequate protection to someone in the applicant's position was speculative and did not address the specifics of the case - "The onus is upon the Applicant to refute the presumption of adequate state protection but, in deciding whether or not the Applicant has done this, the Decision does not adequately focus on the gender and domestic abuse issues that are the basis of the claim, or deal with the evidence that Roma women do not receive protection." - See paragraphs 26 to 46.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Application for protection (IRPA, s. 112) (incl. procedure and considerations) - [See Aliens - Topic 1323.2 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 14].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 14].

A.B. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 316; 2008 FC 394, refd to. [para. 15].

Pillai et al. v. Canada (Minister of Citizenship and Immigration) (2008), 339 F.T.R. 32; 2008 FC 1312, refd to. [para. 15].

Da Mota et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 291; 2008 FC 386, refd to. [para. 15].

Cabral De Medeiros v. Canada (Minister of Citizenship and Immigration) - see Da Mota et al. v. Canada (Minister of Citizenship and Immigration).

Kim v. Canada (Minister of Citizenship and Immigration) et al. (2005), 272 F.T.R. 62; 2005 FC 437, refd to. [para. 16].

Johnson v. Canada (Minister of Citizenship and Immigration) et al., [2010] F.T.R. Uned. 191; 2010 FC 311, refd to. [para. 16].

Bautista v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 770; 2009 FC 1187, refd to. [para. 16].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 17].

Hercegi et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 125; 2012 FC 250, refd to. [para. 20].

Rezmuves et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 168; 2012 FC 334, refd to. [para. 20].

Cruz Rosales et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 221; 2008 FC 257, refd to. [para. 23].

Flores Carrillo v. Canada (Minister of Citizenship and Immigration) (2008), 377 N.R. 393; 2008 FCA 94, refd to. [para. 23].

Nation-Eaton et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 204; 2008 FC 294, refd to. [para. 24].

G.M. v. Canada (Minister of Citizenship and Immigration) (2013), 434 F.T.R. 298; 2013 FC 710, refd to. [para. 25].

Gulyas et al. v. Canada (Minister of Citizenship and Immigration) (2013), 429 F.T.R. 22; 2013 FC 254, refd to. [para. 30].

Orgona v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 780; 2012 FC 1438, refd to. [para. 31].

Beri et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 403; 2013 FC 854, refd to. [para. 34].

Sebok et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 542; 2012 FC 1107, refd to. [para. 35].

Salamon v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 278; 2013 FC 582, refd to. [para. 37].

Hanko et al. v. Canada (Minister of Citizenship and Immigration) (2014), 455 F.T.R. 130; 2014 FC 474, refd to. [para. 41].

Counsel:

Georgina Murphy, for the applicant;

Tamrat Gebeyehu, for the respondent.

Solicitors of Record:

Otis & Korman, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on November 13, 2014, before Russell, J., of the Federal Court, who delivered the following judgment and reasons, dated January 20, 2015, at Ottawa, Ontario.