Date: 20041026
Docket: IMM-1978-04
Citation: 2004 FC 1503
OTTAWA, ONTARIO, OCTOBER 26, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
AGNESH BORS HORVATH
and
RICHARD BORS
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
1 This is an application for judicial review of two decisions by Hélène Dostie (the PRRA officer) dated January 27, 2004, the first determining that the applicant and her son Richard did not qualify for protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27, (the Act) (the first decision) and the second refusing their application for a visa on humanitarian and compassionate grounds (the second decision).
2 The applicants are citizens of Hungary. The applicant married Janos Bors in 1987. Richard, her son, was born the same year. The couple and their son arrived in Canada together in 2001 and claimed refugee status. Their claim was based on the gypsy ethnicity of the applicant's husband. Their claim was dismissed on April 5, 2002. Today, the applicant claims that her life and safety and that of her son are at risk at the hands of her husband, from whom she was separated in April 2003. This ground was not raised before the Refugee Protection Division of the Immigration and Refugee Board (the IRB). The applicant alleges a series of verbal and physical assaults by her husband in Hungary as well as in Canada. Indeed, her husband was sentenced on November 11, 2003, in Montréal, by summary conviction for assaults on the applicant and for making death threats.
3 In the first decision, the PRRA officer determined that notwithstanding the implausibility of the risk raised by the applicant, there was a nevertheless a reasonable and available internal flight alternative for the applicants in Hungary. The PRRA officer further determined that it was also likely that the applicants could obtain protection from the Hungarian State if it should prove to be necessary.
4 In the second decision, the PRRA officer said that her analysis of the risk was more generalized than in the PRRA assessment. She still made the same determinations, i.e. that an internal flight alternative existed and that the protection of the Hungarian State was available to the applicants. Considering that the application for exemption was exclusively based on the risk alleged by the applicant, the PRRA officer determined that obliging the applicants to file an application for permanent residence from outside Canada as required by the Act, was not an unusual and undeserved or disproportionate hardship under the circumstances.
5 The applicant's credibility was not at issue. The PRRA officer agreed that the applicant was a victim of domestic abuse when she lived with Janos Bors but she is now separated from him. Incidentally, the evidence established that before they arrived in Canada, the applicant and her husband lived in the city of Szigetvar, a place with 11,400 inhabitants. The applicant's parents still live in the city of Kastelyosdombo, a small city with a population of 330 souls. As mentioned by the PRRA officer, it is therefore plausible that the applicant's husband could find her in Szigetvar or Kastelyosdombo. However, the PRRA officer determined that the applicant could live in safety in Budapest, the capital of Hungary. The PRRA officer determined that it was unlikely that the husband could find the applicant in a large city like Budapest, which has a total population of 1.7 million inhabitants and more than 2.5 million inhabitants in the greater Budapest area. Further, Budapest is a city that is easily accessible to the applicant. In Hungary there are eight cities besides the capital whose total population exceeds 100,000 inhabitants. The PRRA officer also noted that there was no evidence in the file that the applicant's spouse would have access to privileged information enabling him to track the applicants wherever they were in Hungary. Further, in the PRRA officer's opinion, the applicant's training as a nurse and her years of experience in the field would likely enable her to find a job in Hungary and to provide for her needs and those of her son. She could also count on her family's assistance, especially her brother who lives in Budapest.
6 The applicants did not establish that the PRRA officer's finding regarding the existence of an internal flight alternative in Hungary was a reviewable error. The existence of an internal flight alternative is essentially a finding of fact. In my opinion, the evidence in the record supports the PRRA officer's reasoning to the effect that the applicants would be safe in Budapest and that it would not be unreasonable to seek refuge there. The PRRA officer's approach is consistent with the applicable case law (Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589). The PRRA officer's findings were not unreasonable in the circumstances. It was entirely up to the PRRA officer to assess all of the evidence submitted by the applicant in light of the documentary evidence in the record. The PRRA officer's reasoning was not capricious or irrational. The Court cannot substitute its personal opinion for that of the PRRA officer. In fact, the Court cannot substitute its assessment of the evidence for that of the PRRA officer if the applicant has not established that the PRRA officer's decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (see the grounds for judicial review provided by paragraph 18.1(4)(d) of the Federal Courts Act, R.S. 1985, c. F-7).
7 The PRRA officer's determination that there was an internal flight alternative available in Hungary is determinative. Accordingly, it is not necessary to assess the validity of the PRRA officer's other finding that the applicants had not discharged their burden of proof with clear and convincing evidence that the protection of the Hungarian State would not have been reasonably forthcoming under the circumstances (Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25, at paragraph 12; Diaz v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 652 (F.C.T.D.) (QL), at paragraph 10; Corvera v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 886 (F.C.T.D.) (QL), at paragraph 9; Yokota v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1474 (F.C.T.D.) (QL), at paragraph 3).
8 This application for judicial review must therefore be dismissed. No question of general importance was raised by the parties and none was raised in this case.
ORDER
The Court orders that the applicants' application for judicial review be dismissed.
"Luc Martineau"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1978-04
STYLE OF CAUSE: AGNESH BORS HORVATH ET AL. v. MINISTER OF CITIZENSHIP AND IMMIGRATION ET AL.
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: OCTOBER 20, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATE OF REASONS: OCTOBER 26, 2004
APPEARANCES:
SERGE DUMAS FOR THE APPLICANTS
MARIE-CLAUDE DEMERS FOR THE RESPONDENTS
SOLICITORS OF RECORD:
SERGE DUMAS FOR THE APPLICANTS
SAINTE-FOY, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENTS
DEPUTY ATTORNEY GENERAL OF CANADA