Date: 20050722
Docket: IMM-5150-04
Citation: 2005 FC 1016
BETWEEN:
KLARA ZAKAR
BERNADETT OLAH
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] The central issue in this judicial review is whether the Refugee Protection Division of the Immigration and Refugee Board (APanel@) properly dealt with each of the refugee and protection claims of the mother (AZakar@) and of her 14-year-old daughter (AOlah@). Olah's claim contained elements which were distinct from her mother's claim.
Background
[2] The two Applicants are citizens of Hungary who made claims for protection in Canada based on their fear of mistreatment by Zakar's former husband and Olah's father.
[3]
The claims had been heard under the former Immigration Act and were accepted. Upon judicial review of that first decision, the matter was remitted back on the basis that the Board had considered the issue of state protection incorrectly. The second decision now under review is the result of the Court ordered redetermination of the Applicants= claim.
[4] At the December 17, 2003 hearing, the Applicants alleged a well-founded fear of persecution on the Convention ground of membership in a particular social group, namely, women. The applicant daughter based her claim on that of her mother to some extent.
[5] As the Panel noted, the Applicants continued to base their claims on abuse from the former husband/father. Fear based on Roma identity was not a factor in their alleged fear of returning to Hungary.
[6] The Panel did not accept Zakar=s basis for subjective fear. The Panel did not accept as credible that Zakar, who had lived peacefully, separated from her husband for a considerable period of time, would willingly join her allegedly abusive husband and come to Canada. It also found the Applicant's allegation, that she was forced to join her former husband in coming to Canada to be an exaggeration.
[7] On the issue of state protection, the Panel was not convinced that there was a real threat from her former husband. The Panel noted that the threats relied upon were three years-old, that Zakar did not know her former husband=s current whereabouts and had had no contact with him.
[8]
The Panel further found that in Zakar=s case, the police had responded to her complaints and had, as she admitted, done Athe maximum they could@.
[9] The Panel also found that the Applicants would have a viable Internal Flight Alternative (AIFA@) in Zakar=s mother=s town of Orbottyan.
[10] In the judicial review, in addition to the issue of whether the panel had ignored the separate nature of the daughter's claim, a number of issues were raised including:
- whether there had been a breach of natural justice by denying late disclosure of documents;
- whether the daughter Olah had a right to an independent hearing and claim;
- whether the Panel breached the Applicants= Charter rights in restricting the issue in question to that of domestic violence and not dealing with their Roma ethnicity;
- whether the Panel erred in its findings of state protection and IFA.
[11] As a result of the disposition of this judicial review, a determination on these other issues is unnecessary. However, the Board may wish to consider the second issue in the context of the right of the child to have its claim, where different from the parent's, fully assessed. On the third issue, an applicant who fails to raise an issue as the basis of the claim in this case, Roma identity can hardly complain if the Board does not consider it.
Determination
[12] The facts involving the daughter Olah, while sharing some common elements with her mother=s case, also had distinct aspects. There was evidence that Olah was attacked by her father, that there were several instances of physical beatings, and that her father had chocked her on at least one occasion.
[13] In reviewing the Panel=s decision there is no indication that the Panel addressed these allegations of the attacks on the daughter, although the incidents are reported in the daughter=s own PIF.
[14] The critical element of fear was not identical as between the mother and the daughter. The daughter had a different basis for her claim of domestic abuse, that of fear of injury from her father. As a child, she stood in a more vulnerable position to that of her mother.
[15] The Panel=s consideration of the issues of state protection and viable IFA were integrally mixed as between daughter and mother. There was no separate analysis of the daughter=s position in regard to either of these issues.
[16] The problems in this case were compounded by the fact that the mother controlled the conduct of the hearing. It was her decision not to have the daughter testify, although she had done so at the first hearing when the daughter was even younger.
[17] In my view, the Panel failed to adequately consider the separate nature and basis of the daughter=s own claim for protection. The Panel must be alert and alive to the specific interests of the child, especially where there is some distinction between the claims of the parent and the child (or children).
[18] While the mother may be a suitable representative in this case, the issue of adequate representation of the child=s best interests must be considered by the Panel (see RPD Rule 15). There is no indication that the Panel gave any consideration to the issue. In so saying, this Court is not holding that a separate designated representative is always required - only that the issue ought to have been considered. This is a further aspect of the Panel=s failure to consider the separate nature and basis of the daughter=s claim.
[19] As the Panel failed to adequately consider the daughter=s claim, the decision in regards to the daughter must be quashed. Since the decision so integrally mixed the mother=s and daughter=s claims on the issues of state protection and IFA, it is impossible to determine that the failure to adequately address the daughter=s claim had no influence on the decision in regard to the mother. By reason of this uncertainty, the decision regarding the mother must also be quashed.
[20] Therefore this decision, in its entirety, will be quashed and the matter remitted back for a new determination by a differently-constituted Panel.
[21] The parties proposed various certifiable questions assuming different grounds for the Court=s decision. Since this case turns on its facts and on well-established principles of law, there is no question to be certified.
"Michael L. Phelan"
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5150-04
STYLE OF CAUSE: KLARA ZAKAR and BERNADETT OLAH
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: MAY 24, 2005
REASONS FOR ORDER : PHELAN J.
DATED: July 22, 2005
APPEARANCES:
Amina Sherazee For the Applicants
Martin Anderson For the Respondent
SOLICITORS OF RECORD:
Galati, Rodrigues, Azevedo & Associates
Toronto, Ontario For the Applicants
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent