Date: 20010604
Docket: IMM-3032-00
Neutral Citation 2001 FCT 588
BETWEEN:
RADKO POPOVIC
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
BACKGROUND
[1] The applicant Radko Popovic is a twenty-six year old male and a citizen of the Slovak Republic. He is single. He seeks to set aside the April 11, 2000 decision by Marie Couracos (the "immigration officer") who denied his application under subsection 114(2) of the Immigration Act for an exemption to permit the inland processing of his application for permanent residence in Canada.
[2] Mr. Popovic came to Canada on January 18, 1996 and made a refugee claim which was deemed abandoned on August 26, 1997. In March 1999, he made his application for the exemption based on humanitarian and compassionate grounds.
[3] His application was supported by submissions made to the immigration officer by his legal counsel who raised two principal grounds, only one of which is relevant to determine these proceedings.
[4] The applicant invoked hardship. He stated he was attacked by a band of Roma Gypsies asking for money; he was beaten and hospitalized for thirteen days. He fears for his life should he be forced to return to his hometown in the Slovak Republic. His concern is that he would be recognized by Gypsy gangs who he says regularly prey on local villages.
[5] The immigration officer interviewed the applicant on March 28, 2000. The applicant was accompanied by his sister's family who is established here and by his legal counsel.
[6] During the interview, the applicant and his counsel reiterated his fear of going back as he would be recognized by the Gypsy gangs in his village.
THE IMMIGRATION OFFICER'S DECISION
[7] The immigration officer's decision is set out at pages 8 through 39 of the applicant's application record. It consists of her notes of decision as entered in the respondent's Immigration Computer System, FOSS. The immigration officer wrote this:
...due to his fear of returning to Romania, Mr. Popovic states that he resided with his parents in a small town in Romania which neighboured a Gypsy village. Gypsies routinely harass villagers for money, which creates an uncomfortable and dangerous environment given that Gypsies physically turn against villagers who do not provide them with money. [application record, page 13] [emphasis mine]
Subject refused to give in to the Gypsies' demands on several occasions throughout the years. However, one evening in September 1995 while walking home from work he was approached by a group of Gypsies. He was physically beaten after he refused to give them money. Subject was hospitalized for thirteen days as a result of the beating. [application record, page 14]
. . .
Mr. Popovic states not reporting the incident to the police due to a fear of retaliation from the Gypsy attackers. Mr. Popovic resided in a village neighbouring a Gypsy village. He was required to pass the Gypsy village on his way to work as a factory security guard. The incident led to Mr. Popovic's fear of returning to his workplace where a majority of Gypsies worked. Consequently, Mr. Popovic's livelihood was affected by the incident. [application record, pages 15, 16, and 17] [emphasis mine]
[8] The immigration officer's decision and rationale are set out at pages 25, 26, 27 and 28 of the applicant's application record. The immigration officer wrote as follows:
...Mr. Popovic has provided evidence of some establishment and ties to Canada, as well as some integration into Canadian society. He has however not provided evidence to convince that sufficient humanitarian and compassionate grounds exist to warrant a waiver of 9(1). Mr. Popovic explains being attacked by a group of Gypsies angered by his refusal to give in to their demand for money. Mr. Popovic states that he had been approached by Gypsies demanding money on several other occasions prior to this incident on 09 September 1995, however this was the first time that he was physically attacked by the Gypsies. Mr. Popovic states not reporting the incident to the police authorities because he feared retaliation from his Gypsy attackers. It is noted, however, by his own admission, that Gypsies routinely demand money from the villagers and that this was the first time that they had physically attacked him. It is my opinion that Mr. Popovic is not a target for retaliation, but rather an unfortunate victim whose situation warranted police assistance and enforcement action, which Mr. Popovic chose not to seek. While truly sympathetic of Mr. Popovic's experience, it is further my opinion that unusual, undeserved or disproportionate hardship would not be experienced should subject return to his country of origin. [emphasis mine]
ANALYSIS
[9] From her reasons, it is evident the immigration officer made a mistake in identifying the applicant's country of origin as Romania; he is a citizen of the Slovak Republic.
[10] This confusion was noted by my colleague, Justice Heneghan, who dealt with a motion by the applicant for a stay of the execution of his deportation order. In her decision dated June 19, 2000, Justice Heneghan wrote:
Although there is a serious issue to be tried in that the Immigration Officer for the Humanitarian and Compassionate Application confused the country to which the Applicant would be returning, she nevertheless found that the Applicant would not be at risk. As state protection was not in issue, the reference to Romania instead of the Slovak Republic is not crucial. When one considers this in conjunction with the fact that the Applicant's Convention refugee claim was deemed to have been abandoned, I am of the opinion that there is no irreparable harm to the Applicant upon his return to his country of origin.
[11] The immigration officer deposed an affidavit in these proceedings. She acknowledged that, in her notes, she referred to the applicant as being from Romania. She said the references to Romania "were inadvertent errors on my part, however the fact that the Applicant is from Slovakia does not change my final decision". I quote from the last two paragraphs of her affidavit:
. . .As I mention in my notes, my opinion was that the Applicant is not a target for retaliation, but rather an unfortunate victim whose situation warranted police assistance and enforcement action - which he chose not to seek.
Also, the Applicant provided insufficient evidence that his state authorities would be unwilling or unable to provide assistance/protection if he requested. The Applicant, by his own admission, had not previously experienced problems. There is otherwise insufficient objective evidence that subject was targeted or will be targeted for harm upon his return. I regret my error in referring to Romania rather than Slovakia, however, regardless of this reference to Romania, the fact that the Applicant is from Slovakia could not have led to a different conclusion on the grounds expressed by the Applicant. [emphasis mine]
[12] The applicant also filed an affidavit in these proceedings. He notes the immigration officer's error as to his country of origin. At paragraph 11 of his affidavit, he deposed:
11. For instance, when assessing the risk I would face upon returning to my country, the Immigration Officer states "...DUE TO HIS FEAR OF RETURNING TO ROMANIA." In other words, the Immigration Officer never did consider the risk I would face upon return to my country, the Slovak Republic.
[13] At paragraph 13 of his affidavit [page 33 of the application record], the applicant says he is at serious risk of injury or death if forced to return to the Slovak Republic.
[14] He then refers to subsection 8.8 of the respondent's Guidelines for Immigration Officers when making decisions on applications for landing based on humanitarian and compassionate grounds. He says subsection 8.8, entitled "personalized risk" directs immigration officers in a humanitarian and compassionate application for landing to assess the risk to be faced by the applicant upon his return to the country of origin. The applicant states at paragraph 14 of his affidavit [page 33 of the application record], as follows:
14. ... The Immigration Officer, in making the error as to my country of origin, necessarily failed to assess the crucial element in my Application, Personalized Risk to be faced by me upon returning to my country. It was impossible for the Immigration Officer to make such an assessment with respect to me, because she thought I was from Romania, and she never did assess my risk of returning to my country of origin, and the country I would be returning to, the country of Slovak Republic.
[15] As to his not seeking state protection, the applicant deposed:
15. For instance, in her reasons she states that when I was attacked in my country, I did not go to the police for protection, which indicated to her that I was not truly afraid for my life. She assessed the country conditions in Romania, and determined that it would have been reasonable to seek protection from the police in Romania, because her information was that the police might help a person like me in Romania. However, the reason I did not go to the police in my country of Slovak Republic, is because I knew that the police would not help me in that situation. The Immigration Officer assessed the risk I would face in a different country from the one that I would actually be returning to, and her final decision based on the risk assessment is therefore completely erroneous, and based on no assessment at all, of the Slovak Republic's Country Conditions. [emphasis mine]
CONSIDERATIONS AND CONCLUSIONS
[16] Pursuant to subsection 114(2) of the Act, the Minister of Citizenship and Immigration is authorized to exempt any person from the requirements of the Immigration Regulations or otherwise facilitate the admission to Canada of any person where the Minister is satisfied the person should be exempted from that regulation or that person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
[17] The Minister has issued guidelines to immigration officers who make H & C decisions. These guidelines spell out what is meant by "humanitarian and compassionate grounds". It is said in the guidelines that "applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship on having to obtain an immigrant visa from outside of Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate".
[18] Paragraph 8.8 of the guidelines speaks to personalized risk and provides as follows:
8.8 Positive consideration may be warranted for persons who would face an objectively identifiable personalized risk if removed from Canada. The risk may be to the applicant's life or it may involve severe sanctions such as unwarranted imprisonment or inhumane treatment such as torture.
[19] Under paragraph 8.8 of the guidelines, H & C officers are to review the application and consider all the information presented by the applicant. When the application is largely based on risk factors, H & C officers are to send the application for review by a PCDO, who will provide an opinion about the risks faced by the applicant. In such circumstances, the guidelines say the PCDO will consider all aspects of the risk as put forward by the applicant and take into account the standards set out in the Charter and international human rights treaties. The PCDO may also consider, but is not limited to, reports from international organizations on the country conditions.
[20] This is what Justice L'Heureux-Dubé had to say about the guidelines in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 16:
The guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them. These guidelines are also available to the public. A number of statements in the guidelines are relevant to Ms. Baker's application. Guideline 9.05 emphasizes that officers have a duty to decide which cases should be given a favourable recommendation, by carefully considering all aspects of the case, using their best judgment and asking themselves what a reasonable person would do in such a situation.
[21] Justice L'Heureux-Dubé continued her discussion of the guidelines at page 862 of the reported case. She wrote at paragraph 72 as follows:
The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members . . . The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power.
[22] There can be no doubt the applicant, in his written and oral submissions, expressed a fear of returning to his home town in the Slovak Republic. He feared for his life in that he would be recognized by Gypsy gangs and attacked by them.
[23] In the circumstances, the immigration officer had a duty, under the guidelines, to assess that risk.
[24] As I see it, at the heart of the immigration officer's decision, is a finding of no undue hardship because his fear for his life, should he return to the Slovak Republic, is unsubstantiated.
[25] The reason his fear was not substantiated in the immigration officer's mind as a result of her finding Mr. Popovic was not a target for retaliation, i.e. persecution because he admitted to her that "Gypsies routinely demand money from the villagers" and that this was the first time they had physically attacked him.
[26] It was in this context she observed Mr. Popovic was "an unfortunate victim whose situation warranted police assistance and enforcement action, which Mr. Popovic chose not to seek".
[27] In my view, the immigration officer's finding that Mr. Popovic's fear for his life is unsubstantiated should he, in the future, be removed to the Slovak Republic, is based, in part at least, on her assessment the police would assist him and take enforcement action, i.e. would protect him by punishing his attackers; prosecution would prevent future crimes.
[28] In addition, the applicant's fear for his life also stems from his being recognized and attacked by the Gypsies which calls in question the adequacy of that police protection in the future and not only in the past.
[29] I cannot accept the respondent's submission that, in the circumstances, the issue of state protection was raised by the applicant and was not a central or material aspect of the immigration officer's decision.
[30] The availability of state protection is country-specific.
[31] I conclude the immigration officer erred in not considering the applicant's fear in the context of the availability of state protection in the Slovak Republic.
[32] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Justice La Forest noted at page 722 that state protection is a crucial element in determining whether a claimant's fear is well-founded.
[33] Recently, the Federal Court of Appeal in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C.R. 407, emphasized the potentially grave consequences for an individual being returned to a country where he/she is at risk and the need to obtain the best information on the issue.
[34] For all of these reasons, the decision of the immigration officer is set aside and Mr. Popovic's application for exemption is to be reconsidered by a different immigration officer. No certified question is posed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 4, 2001