PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
EDIT BARTA
ATTILA KNYASKO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Attila Knyasko left Hungary with his wife and son in 1999. They arrived in Canada and sought refugee protection here, claiming a fear of persecution in Hungary because of their combined Roma and Jewish backgrounds. Their claims were denied. They asked for a pre-removal risk assessment; that, too, was denied. Finally, they asked to be allowed, on humanitarian and compassionate grounds, to apply for permanent residence from within Canada, rather than from abroad. An immigration officer turned down their request.
[2] The applicants argue that the officer made serious errors in his assessment of their application and ask me to order a re-assessment by a different officer. I agree that the officer's decision should be overturned.
I. Issue
Did the officer fail to analyze properly the evidence supporting the applicant's request for humanitarian and compassionate relief?
II. Analysis
[3] I can overturn the officer's decision only if I find that it was unreasonable.
[4] The officer concluded that the applicants would not suffer undue or disproportionate hardship if they were required to apply for permanent residence from abroad. In particular, he found that
• they could find employment and accommodation in Hungary;
• they could use the savings and investments they accumulated in Canada to help them reintegrate in Hungary;
• they could continue the charitable and volunteer work they have undertaken in Canada when they return to Hungary;
• they could continue to maintain contact with their Canadian friends even after they move to Hungary; and
• there is no evidence that the son, Attila Knyasko Jr., then 10 years old, would not have access to schools or health care in Hungary or be denied the chance to pursue to his sports activities there.
[5] The applicants argue that there are two main problems with the officer's analysis. First, he failed to consider important evidence that favoured their application. In particular, he did not refer to evidence showing that Romani persons are discriminated against in Hungary and have limited access to the education system there. In addition, the officer did not acknowledge that the applicants have family members in Canada, that Attila has owned a growing construction company in Canada for a number of years, that Edit Barta has a good employment record in Canada, or that Attila Jr. may have particular difficulty reintegrating into school life in Hungary due to a learning disability.
[6] Second, the officer failed to give the applicants credit for their degree of attachment to Canada. Rather, the officer reasoned that the applicants' extensive ties to Canadian life show that they could likely reintegrate successfully into Hungarian society.
[7] I agree with both of the applicants' arguments. The officer failed to consider relevant evidence. Further, he did not consider the extent to which the applicants' ties to Canada favoured their application. He appears only to have assessed them in terms of the applicants' ability to resettle in Hungary.
[8] I am satisfied that the applicants' application should be reassessed by a different officer. Accordingly, I will grant this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS THAT:
1. The application for judicial review is granted and a re-assessment of his application by a different officer is ordered;
2. No question of general importance is stated.
FEDERAL COURT
NAME OF COUNSEL ANDSOLICITORS OF RECORD
DOCKET: IMM-3240-05
STYLE OF CAUSE: KNYASKO, ET AL v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 19, 2006
APPEARANCES:
| Mirit Gevantschniter
|
|
| Mielka Visnic
|
SOLICITORS OF RECORD:
| MIRIT GEVANTSCHNITER Toronto, ON
|
|
| John H. Sims, Q.C. Toronto, ON |