Buri v. Canada (Minister of Citizenship and Immigration), (2014) 446 F.T.R. 57 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: October 28, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 446 F.T.R. 57 (FC);2014 FC 45

Buri v. Can. (M.C.I.) (2014), 446 F.T.R. 57 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. JA.024

Attila Buri and Emil Buri (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-11092-12; 2014 FC 45; 2014 CF 45)

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

Federal Court

Russell, J.

January 15, 2014.

Summary:

The applicants were two brothers of Romani ethnicity and citizens of Hungary. The Refugee Protection Division of the Immigration and Refugee Board (RPD) refused the applicants' application to be deemed Convention refugees or persons in need of protection under ss. 96 and 97 of the Immigration and Refugee Protection Act. The RPD found that the applicants had not rebutted the presumption that adequate state protection existed in Hungary. The applicants applied for judicial review.

The Federal Court allowed the application, set aside the decision and referred the matter back for reconsideration by a differently constituted RPD.

Aliens - Topic 1323.2

Admission - Refugee protection - Convention refugees and persons in need of protection - Persecution - Protection of country of nationality or citizenship - The applicants, two brothers, were of Romani ethnicity and citizens of Hungary - They fled Hungary as a result of multiple alleged incidents of abuse and violence at the hands of racist extremist groups and the Hungarian police, as well as discrimination against Roma and what they described as deteriorating country conditions - The Refugee Protection Division of the Immigration and Refugee Board (RPD) refused the applicants' application to be deemed Convention refugees or persons in need of protection under ss. 96 and 97 of the Immigration and Refugee Protection Act - The RPD found that the applicants had not rebutted the presumption that adequate state protection existed in Hungary - The applicants applied for judicial review - The Federal Court allowed the application - Although the RPD stated the correct test to be used in assessing whether the presumption of adequate state protection had been rebutted, the RPD did not examine "operational adequacy" - The court stated, inter alia, "Hungary may be taking measures but, as the RPD itself says, this is not how the adequacy of state protection is assessed: 'Regard must be had to what is happening and not what the state is endeavouring to put in place.'" - See paragraphs 63 to 67.

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - The applicants, two brothers, were of Romani ethnicity and citizens of Hungary - They fled Hungary as a result of multiple alleged incidents of abuse and violence at the hands of racist extremist groups and the Hungarian police, as well as discrimination against Roma and what they described as deteriorating country conditions - The Refugee Protection Division of the Immigration and Refugee Board (RPD) refused the applicants' application to be deemed Convention refugees or persons in need of protection under ss. 96 and 97 of the Immigration and Refugee Protection Act - The RPD found that the applicants had not rebutted the presumption that adequate state protection existed in Hungary - The applicants applied for judicial review - The Federal Court allowed the application - The RPD relied upon the 2011 United States Department of State Report which was not on the record before it and which was not placed before the applicants - The 2011 Report contained new information relevant to the determinative issue of state protection to which the applicants did not have an opportunity to respond - The RPD's reasons made it clear that it relied on this evidence - It could not be safely concluded that it had no material impact on the decision - See paragraphs 38 to 62.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The Federal Court stated that "Historically, this Court has reviewed the question of whether the [Refugee Protection Division] applied the proper test for state protection on a standard of correctness ... Recently, however, it has been held that questions of whether the Board applied the proper test when applying certain provisions of the [Immigration and Refugee Protection] Act should be reviewed on a standard of reasonableness, since they relate to the interpretation of the Board's home statute and are not questions of general legal importance ... Thus, it seems necessary to consider whether the relevant precedents are consistent with new developments in the common law principles of judicial review. I agree with the recent analysis of Chief Justice Crampton in Ruszo v Canada (Minister of Citizenship and Immigration), 2013 FC 1004 [Ruszo] that a standard of correctness should continue to apply when reviewing whether the Board applied the proper test in its state protection analysis ... I am in full agreement with this reasoning, and with the conclusion that a standard of correctness should apply where it is truly the test for state protection that is at issue. However, it is my view that, as in Ruszo, the Board's conclusion in the present case turned not on its understanding of the proper test for state protection, but rather on its application of that test to the facts of the case, which is reviewable on a standard of reasonableness" - See paragraphs 15 to 19.

Aliens - Topic 4502

Evidence - Duty to disclose - [See Aliens - Topic 1329.3 ].

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. 13].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 13].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 14].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 14].

Pacasum v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 589; 2008 FC 822, refd to. [para. 15].

Estrada et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 142; 2012 FC 279, refd to. [para. 15].

Canada (Minister of Citizenship and Immigration) v. Abboud (2012), 403 F.T.R. 197; 2012 FC 72, refd to. [para. 15].

Flores Carrillo v. Canada (Minister of Citizenship and Immigration) (2008), 377 N.R. 393; 2008 FCA 94, refd to. [para. 15].

Hinzman et al. v. Canada (Minister of Citizenship and Immigration) (2007), 362 N.R. 1; 2007 FCA 171, refd to. [para. 15].

Cosgun v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 225; 2010 FC 400, refd to. [para. 16].

Koky v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 980; 2011 FC 1407, refd to. [para. 16].

Ponce v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 84; 2012 FC 181, refd to. [para. 16].

Molnar et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 42; 2013 FC 126, refd to. [para. 16].

G.M. v. Canada (Minister of Citizenship and Immigration) (2013), 434 F.T.R. 298; 2013 FC 710, refd to. [para. 16].

B074 v. Canada (Minister of Citizenship and Immigration) (2013), 442 F.T.R. 250; 2013 FC 1146, refd to. [para. 16].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 16].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 16].

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Ruszo v. Canada (Minister of Citizenship and Immigration) (2013), 440 F.T.R. 106; 2013 FC 1004, refd to. [para. 17].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 19].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 21].

Abasalizadeh v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 803; 2004 FC 1407, refd to. [para. 21].

Turton v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 767; 2011 FC 1244, refd to. [para. 22].

Thirunavukkarasu v. Minister of Employment and Immigration, [1994] 1 F.C. 589; 163 N.R. 232 (F.C.A.), refd to. [para. 22].

Rezmuves et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 168; 2012 FC 334, refd to. [para. 23].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 24].

Hercegi et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 125; 2012 FC 250, refd to. [para. 24].

Bledy et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 163; 2011 FC 210, refd to. [para. 24].

Varela v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 843; 2011 FC 1364, refd to. [para. 24].

Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394; 2001 FCA 331, refd to. [para. 26].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 26].

Quintero Cienfuegos et al. v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 829; 2009 FC 1262, refd to. [para. 30].

Moute v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 361; 2005 FC 579, refd to. [para. 30].

Sellan v. Canada (Minister of Citizenship and Immigration) (2008), 384 N.R. 163; 2008 FCA 381, refd to. [para. 30].

Yassine v. Minister of Employment and Immigration (1994), 172 N.R. 308 (F.C.A.), refd to. [para. 31].

Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 31].

Zhang v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 394; 2011 FC 654, refd to. [para. 33].

Barua v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 279; 2012 FC 607, refd to. [para. 33].

Canada (Minister of Public Safety) v. Gunasingam, [2008] F.T.R. Uned. 128; 2008 FC 181, refd to. [para. 33].

Apillai v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 384; 2007 FC 563, refd to. [para. 33].

Sanchez v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 38; 2008 FC 66, refd to. [para. 33].

Raduly v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 233; 2002 FCT 354, refd to. [para. 35].

Monzon Ortega et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 401; 2011 FC 657, refd to. [para. 36].

Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.), refd to. [para. 36].

Ogbeide v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 381; 2003 FCT 677, refd to. [para. 36].

Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.), refd to. [para. 36].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 36].

Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30 (2013), 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 37].

Beharry et al. v. Canada (Minister of Citizenship and Immigration) (2011), 383 F.T.R. 161; 2011 FC 111, refd to. [para. 66].

Spacil et al. v. Canada (Minister of Citizenship and Immigration) (2011), 390 F.T.R. 248; 2011 FC 634, refd to. [para. 66].

Jaroslav v. Canada (Minister of Citizenship and Immigration) - see Spacil et al. v. Canada (Minister of Citizenship and Immigration).

Counsel:

Alyssa Manning, for the applicant;

Nicholas Dodokin, for the respondent.

Solicitors of Record:

Alyssa Manning, Toronto, Ontario, for the applicant;

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

This application was heard on October 28, 2013, at Toronto, Ontario, before Russell, J., of the Federal Court, who delivered the following decision on January 15, 2014.