Date: 20030123
Docket: IMM-623-02
Neutral citation: 2003 FCT 71
Toronto, Ontario, Thursday, the 23rd day of January, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
EVA MILASKICS
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, a citizen of Hungary, claims a well-founded fear of persecution based on her ethnicity as a Hungarian Roma and on her experience of spousal abuse at the hands of her former common law spouse.
[2] In its negative decision, the CRDD engaged in a microscopic evaluation of the evidence and made what I consider to be highly contentious credibility findings which are hotly contested in the present application. I do not find it necessary to judge the numerous credibility arguments because I find that the CRDD's decision is fundamentally flawed with respect to a most important significant aspect of any refugee claim.
[3] The Applicant first arrived in Canada on December 28th, 1998, and immediately claimed refugee status. However, the claimant returned to Hungary on October 6th, 2000; about this fact, the CRDD said this:
The panel's conclusions are further supported by the following additional negative credibility finding. The claimant alleges a well-founded fear of persecution in Hungary at the hands of a former common-law spouse and skinheads, yet the claimant returned to Hungary despite the fact that she had a motion to reopen before the Board. The claimant returned to Hungary on October 5, 2000 and came back to Canada less than two months later, on November 24, 2000. Rather than waiting for the outcome of her motion to reopen her refugee claim in Canada, the claimant returned to Hungary. The claimant's voluntary re-availment of the protection of the Hungarian state indicates that the claimant lacks a well-founded subjective fear of persecution in Hungary. (Applicant's Application Record, p. 16)
[4] Thus, the CRDD made a positive finding that the Applicant's return to Hungary proved the lack of a most essential feature of any refugee claim being well-founded subjective fear of persecution. However, it is agreed that this finding was made in error since, indeed, the Applicant was sent to Hungary under a deemed departure order.
[5] In my opinion, this error works a manifest unfairness to the Applicant in the proper determination in her claim. I also find that it is not possible to dissect this critical erroneous finding from the otherwise hotly contested decision so as to somehow make it irrelevant. That is, in my opinion, the finding with respect to the lack of subjective fear is such an integral element of the decision, and since it is made in manifest error, I find that the decision is made in reviewable error.
ORDER
Accordingly, I set the CRDD's decision aside and refer the matter back for redetermination by a differently constituted panel.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET NO.: IMM-623-02
STYLE OF CAUSE: EVA MILASKICS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, JANUARY 23, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: THURSDAY, JANUARY 23, 2003
APPEARANCES BY: Ms. Elizabeth Jaszi
For the Applicant
Ms. Kareena R. Wilding
For the Respondent
SOLICITORS OF RECORD: Ms. Elizabeth Jaszi
Barrister & Solicitor
1267 A St. Clair Avenue West
Unit #1
Toronto, Ontario
M6E 1B8
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030123
Docket: IMM-623-02
BETWEEN:
EVA MILASKICS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER