G.M. v. Canada (Minister of Citizenship and Immigration), (2013) 434 F.T.R. 298 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: April 15, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 434 F.T.R. 298 (FC);2013 FC 710

G.M. v. Can. (M.C.I.) (2013), 434 F.T.R. 298 (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: [2013] F.T.R. TBEd. JL.004

G.M. (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-7850-12; 2013 FC 710; 2013 CF 710)

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

Federal Court

Russell, J.

June 26, 2013.

Summary:

The applicant applied for judicial review of decision of a Senior Immigration Officer which refused the applicant's application for a pre-removal risk assessment.

The Federal Court dismissed the application.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The applicant was a Hungarian man of Roma ethnicity - In 2001, he entered Canada and made a claim for refugee protection - In 2003, his claim was denied and he left Canada in 2004 - After returning to Hungary, the applicant got married and took his wife's name - The applicant's wife garnered a great deal of notoriety due to her work in investigating crimes against Romani and her political activism - The applicant travelled everywhere with her, and would sometimes work directly on initiatives with which she was involved - The applicant and his wife fled to Canada in 2011 - His wife arrived first with her children, and they made a refugee claim upon arrival - The applicant arrived three days later, and was given a six-month visitor's visa upon arrival - His previous refugee claim made him ineligible to make another one - The applicant was ordered deported - He applied for a pre-removal risk assessment (PRRA), which relied primarily on his wife's declaration - The wife said that she was concerned the applicant would be targeted because authorities in Hungary would assume she had shared state secrets with him, and that she was prepared to testify orally on this issue but did not want to give a written statement - The applicant also requested an oral interview for himself - A Senior Immigration Officer decided he was not required to convoke an oral hearing as requested because he was not questioning the applicant's credibility and dismissed the PRRA - The applicant applied for judicial review, asserting that the Officer's failure to conduct an oral hearing breached the applicant's right to procedural fairness - The Federal Court dismissed the application - There was little to support the applicant's assertion - The request for an interview simply alleged that the applicant could not provide a sworn statement in time - There was no evidence to this effect, and there was no indication as to why, if the applicant had a problem complying with time restrictions, he could not have requested an extension of time in order to submit a full personal affidavit that contained all of the evidence he wished to place before the Officer - As regards the applicant's wife, the Officer was merely told that "she was not prepared to put in writing" what she was prepared to say at an oral hearing - See paragraphs 81 to 85.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - The applicant was a Hungarian man of Roma ethnicity - In 2001, he entered Canada and made a claim for refugee protection - In 2003, his claim was denied and he left Canada in 2004 - After returning to Hungary, the applicant got married and took his wife's name - The applicant's wife garnered a great deal of notoriety due to her work in investigating crimes against Romani and her political activism - The applicant travelled everywhere with her, and would sometimes work directly on initiatives with which she was involved - The applicant and his wife fled to Canada in 2011 - His wife arrived first with her children, and they made a refugee claim upon arrival - The applicant arrived three days later, and was given a six-month visitor's visa upon arrival - His previous refugee claim made him ineligible to make another one - The applicant was ordered deported - He applied for a pre-removal risk assessment (PRRA), which relied primarily on his wife's declaration - The wife said that she was concerned the applicant would be targeted because authorities in Hungary would assume she had shared state secrets with him - A Senior Immigration Officer dismissed the PRRA - The applicant applied for judicial review, asserting that the Officer failed to apply the correct test under s. 96 of the Immigration and Refugee Protection Act in that she failed to take into account the evidence on similarly situated persons who face persecution in Hungary on account of their ethnicity, political opinion, and membership in a particular social group - The Federal Court dismissed the application - The Officer did consider and deal with the particular factors and allegations put forward by the applicant that made up his profile and explained why the evidence did not support s. 96 persecution - By and large, the conclusions were that the applicant had not provided sufficient evidence to support the risks he claimed to face or to rebut the presumption of state protection - See paragraphs 86 to 88.

Aliens - Topic 1323

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Political activity - [See Aliens - Topic 1322 ].

Aliens - Topic 1323.1

Admission - Refugee protection, Convention refugees and persons in need of protection - "Particular social group" defined - [See Aliens - Topic 1322 ].

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) - [See Aliens - Topic 1322 ].

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - [See Aliens - Topic 1322 ].

Aliens - Topic 1589

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - When hearing required (IRPA, s. 113(b)) - [See Administrative Law - Topic 2266 ].

Aliens - Topic 1590

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Duty of fairness - [See Administrative Law - Topic 2266 ].

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. 22].

Prieto v. Canada (Minister of Citizenship and Immigration) et al., [2010] F.T.R. Uned. 162; 2010 FC 253, refd to. [para. 23].

Sen v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 833; 2006 FC 1435, refd to. [para. 23].

Puerta v. Canada (Minister of Citizenship and Immigration) et al., [2010] F.T.R. Uned. 301; 2010 FC 464, refd to. [para. 23].

Borbon Marte v. Canada (Minister of Public Safety and Emergency Preparedness) (2010), 374 F.T.R. 160; 2010 FC 930, refd to. [para. 23].

Mosavat v. Canada (Minister of Citizenship and Immigration) et al., [2011] F.T.R. Uned. 389; 2011 FC 647, refd to. [para. 23].

Rajagopal v. Canada (Minister of Citizenship and Immigration) et al., [2011] F.T.R. Uned. 785; 2011 FC 1277, refd to. [para. 23].

Adetunji v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 327; 2012 FC 708; 2012 FC 708, refd to. [para. 23].

Brown v. Canada (Minister of Citizenship and Immigration) et al., [2012] F.T.R. Uned. 663; 2012 FC 1305, refd to. [para. 23].

Xu v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 439; 2006 FC 718, refd to. [para. 24].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 24].

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. 25].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 25].

Leshiba v. Canada (Minister of Citizenship and Immigration) [2011] F.T.R. Uned. 258; 2011 FC 442, refd to. [para. 26].

Alhayek v. Canada (Minister of Citizenship and Immigration) (2012), 418 F.T.R. 144; 2012 FC 1126, refd to. [para. 26].

Pacasum v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 589; 2008 FC 822, refd to. [para. 27].

Estrada et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 142; 2012 FC 279, refd to. [para. 27].

Canada (Minister of Citizenship and Immigration) v. Abboud (2012), 403 F.T.R. 197; 2012 FC 72, refd to. [para. 27].

Hinzman et al. v. Canada (Minister of Citizenship and Immigration) (2007), 362 N.R. 1; 2007 FCA 171, refd to. [para. 27].

Cosgun v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 225; 2010 FC 400, refd to. [para. 27].

Koky v. Canada (Minister of Citizenship and Immigration), 2011 FC 1407, refd to. [para. 27].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 28].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 32].

Ventura v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 579; 2010 FC 871, refd to. [para. 35].

Vozkova v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 850; 2011 FC 1376, refd to. [para. 39].

Zepeda et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 367; 2008 FC 491, refd to. [para. 44].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 48].

Perez Mendoza v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 83; 2010 FC 119, refd to. [para. 48].

Streanga v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 559; 2007 FC 792, refd to. [para. 48].

Begashaw v. Canada (Minister of Citizenship and Immigration) (2009), 354 F.T.R. 296; 2009 FC 1167, refd to. [para. 51].

L.Y.B. v. Canada (Minister of Citizenship and Immigration) - see Begashaw v. Canada (Minister of Citizenship and Immigration).

Ahmad v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 34; 2012 FC 89, refd to. [para. 51].

Pareja v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 969; 2008 FC 1333, refd to. [para. 52].

I.I. v. Canada (Minister of Citizenship and Immigration) et al., [2009] F.T.R. Uned. 545; 2009 FC 892, refd to. [para. 53].

Yakut v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 417; 2010 FC 628, refd to. [para. 54].

Iboude et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 786; 2005 FC 1316, refd to. [para. 55].

Diallo v. Canada (Minister of Citizenship and Immigration) et al. (2007), 317 F.T.R. 172; 2007 FC 1063, refd to. [para 60].

James et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 189; 2010 FC 318, refd to. [para. 60].

Matte et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 409; 2012 FC 761, refd to. [para. 60].

Horvath v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 127; 2012 FC 253, refd to. [para. 60].

Balogh et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 101; 2012 FC 216, refd to. [para. 60].

Banya v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 340; 2011 FC 313, refd to. [para. 60].

Castillo Granados et al. v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 96; 2009 FC 210, refd to. [para. 62].

Montemayor Romero et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 700; 2008 FC 977, refd to. [para. 62].

Sanchez et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 115; 2008 FC 134, refd to. [para. 62].

Gutierrez v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 695; 2008 FC 971, refd to. [para. 62].

Minister of Employment and Immigration v. Villafranca (1992), 150 N.R. 232 (F.C.A.), refd to. [para. 63].

Flores Carrillo v. Canada (Minister of Citizenship and Immigration) (2008), 377 N.R. 393; 2008 FCA 94, refd to. [para. 64].

Flores et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 503; 2008 FC 723, refd to. [para. 65].

Samuel v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 544; 2008 FC 762, refd to. [para. 66].

Mendez et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 435; 2008 FC 584, refd to. [para. 66].

Molnar et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 42; 2013 FC 126, refd to. [para. 66].

Sebok et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 542; 2012 FC 1107, refd to. [para. 71].

Goman v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 38; 2012 FC 643, refd to. [para. 71].

Rezmuves et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 168; 2012 FC 334, refd to. [para. 71].

Pinter v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 546; 2012 FC 1119, refd to. [para. 72].

Rodriguez Capitaine et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 113; 2008 FC 98, refd to. [para. 72].

Hercegi et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 125; 2012 FC 250, refd to. [para. 73].

Varela v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 843; 2011 FC 1364, refd to. [para. 73].

E.Y.M.V. v. Canada (Minister of Citizenship and Immigration) - see Varela v. Canada (Minister of Citizenship and Immigration).

Abdollahzadeh v. Canada (Minister of Citizenship and Immigration) (2007), 325 F.T.R. 226; 2007 FC 1310, refd to. [para. 77].

Gonzalez et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 904; 2011 FC 1504, refd to. [para. 79].

Counsel:

Aviva Basman, for the applicant;

John Provart, for the respondent.

Solicitors of Record:

Aviva Basman, Refugee Law Office, Toronto, Ontario, for the applicant;

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

This application was heard at Toronto, Ontario, on April 15, 2013, by Russell, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on June 26, 2013.