Gulyas et al. v. Canada (Minister of Citizenship and Immigration), (2013) 429 F.T.R. 22 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: February 05, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 429 F.T.R. 22 (FC);2013 FC 254

Gulyas v. Can. (M.C.I.) (2013), 429 F.T.R. 22 (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. MR.041

Norbert Gulyas, Viktoria Glonczi, Katalin Nagy and Norbert Gulyas (a minor) (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3870-12; 2013 FC 254; 2013 CF 254)

Indexed As: Gulyas et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Russell, J.

March 8, 2013.

Summary:

The applicants applied for judicial review of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board which refused their 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 Federal Court allowed the application, quashed 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 (internal flight alternative) - The applicants were Roma and citizens of Hungary - The Refugee Protection Division (RPD) of the Immigration and Refugee Board dismissed their claim for refugee protection, on the bases that they had an internal flight alternative (IFA) (relocation to Debrecen) and had failed to establish that the Hungarian police would not protect them - The Federal Court quashed the decision - The issues of IFA and state protection were intertwined because, in addition to the specific acts of violence perpetrated against the applicants (which the RPD accepted) the applicants also alleged fear of general racism which had to be considered, not only in its own right, but as part of the second prong of the IFA analysis - The RPD acknowledged the horrendous conditions faced by Roma people in Hungary - There was no evidence to suggest that it was reasonable to have expected the operative authority for protecting Roma people against racist violence (i.e., the police) would take action and that the police were capable and willing to protect Roma people against such violence - The RPD did not seriously or adequately consider the question and test the applicants' submissions that they did not, and could not in Debrecen or anywhere else in Hungary, seek state protection because it would not have been reasonably forthcoming - Based upon the evidentiary record, that might well have been a reasonably supportive belief, and where protection was unlikely to be forthcoming, there was no requirement to seek it - See paragraphs 71 to 82.

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. 36].

Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636; 377 N.R. 393; 2008 FCA 94, refd to. [para. 37].

Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 115; 2005 FC 193, refd to. [para. 37].

Davila v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 545; 2012 FC 1116, refd to. [para. 38].

Nzayisenga v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 565; 2012 FC 1103, refd to. [para. 38].

M.A.C.P. v. Canada (Minister of Citizenship and Immigration) - see Pineda v. Canada (Minister of Citizenship and Immigration).

Pineda v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 44; 2011 FC 81, refd to. [para. 38].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 39].

Tatarski v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 429; 2010 FC 660, refd to. [para. 41].

Bors v. Canada (Minister of Citizenship and Immigration) (2010), 377 F.T.R. 132; 2010 FC 1004, refd to. [para. 44].

Hercegi et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 125; 2012 FC 250, refd to. [para. 47].

Rezmuves et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 168; 2012 FC 334, refd to. [para. 47].

Griffith v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 240 (T.D.), refd to. [para. 54].

Perez v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 268; 2006 FC 425, refd to. [para. 55].

Kim et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 673; 2005 FC 1126, refd to. [para. 57].

Castaneda v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 224; 2010 FC 393, refd to. [para. 59].

Zhuravlev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.), refd to. [para. 61].

Horvath v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 829; 2011 FC 1350, refd to. [para. 64].

Balogh et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 101; 2012 FC 216, refd to. [para. 64].

Banya v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 340; 2011 FC 313, refd to. [para. 64].

Kumar v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 354; 2004 FC 601, refd to. [para. 68].

Khokhar v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 321; 2008 FC 449, refd to. [para. 70].

Rasaratnam v. Minister of Employment and Immigration, [1992] 1 F.C. 706; 140 N.R. 138 (F.C.A.), refd to. [para. 71].

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

Varela v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 843; 2011 FC 1364, refd to. [para. 78].

Katinszki et al. v. Canada (Minister of Citizenship and Immigration) (2012), 421 F.T.R. 107; 2012 FC 1326, refd to. [para. 79].

Orgona v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 780; 2012 FC 1438, refd to. [para. 80].

Counsel:

Elyse Korman, for the applicants;

Rachel Hepburn Craig, for the respondent.

Solicitors of Record:

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

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

This application was heard at Toronto, Ontario, on February 5, 2013, by Russell, J., of the Federal Court, who delivered the following reasons for judgment on March 8, 2013.