Canada (Minister of Citizenship and Immigration) v. Balogh, 2015 FC 258

JudgeBrown, J.
CourtFederal Court (Canada)
Case DateJanuary 29, 2015
JurisdictionCanada (Federal)
Citations2015 FC 258;(2015), 472 F.T.R. 1 (FC)

Can. (M.C.I.) v. Balogh (2015), 472 F.T.R. 1 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MR.008

The Minister of Citizenship and Immigration (applicant) v. Attila Balogh, Attilane Balogh, Hajnalka Balogh, Bettina Balogh, and Viktoria Balogh (a.k.a. Victoria Balogh)

(respondents)

(IMM-6344-13; 2015 FC 258)

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

Federal Court

Brown, J.

January 29, 2015.

Summary:

The respondents, a family from Hungary, were determined to be Convention refugees by the Refugee Protection Division (RPD) of the Immigration and Refugee Board. The Minister of Citizenship and Immigration applied for judicial review.

The Federal Court allowed the application and remitted the matter to a differently constituted panel of the RPD for redetermination.

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, a Roma family from Hungary, were determined to be Convention refugees by the Refugee Protection Division (RPD) - The Federal Court allowed the Minister of Citizenship and Immigration's application for judicial review - The RPD did not state the legal framework within which its state protection analysis took place - It did not mention the presumption of state protection where there was a democracy - It did not acknowledge that the legal burden was on the refugee claimant to rebut the presumption of state protection, or that the presumption could only be rebutted with clear and convincing evidence - Its only comment on state protection was the bare conclusion that there was a "demonstrable failure of State Protection" - The court could not tell how the RPD defined state protection, if it had the correct legal definition and principles in mind, if the correct law was applied to the facts found by the RPD, or what those facts were - The court refused to review the evidence in order to determine whether the RPD's conclusion was reasonable - The adequacy of state protection was for the RPD to determine, not the court - The matter was remitted to a differently constituted panel of the RPD for redetermination.

Aliens - Topic 1326.4

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Reasons - [See Aliens - Topic 1323.2 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 5].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 5].

Canada (Minister of Citizenship and Immigration) v. Balogh et al., [2014] F.T.R. Uned. 387; 2014 FC 932, refd to. [para. 7].

Navarrete Andrade et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 196; 2013 FC 436, refd to. [para. 9].

Counsel:

[Not disclosed].

Solicitors of Record:

[Not disclosed].

This application for judicial review was heard at Toronto, Ontario, before Brown, J., of the Federal Court, who delivered the following judgment on January 29, 2015.

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