Date: 20001122
Docket: IMM-429-00
Ottawa, Ontario, this 22nd day of November 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
FERENC KUTAS and
MIHAELA NICOLETA KUTAS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This application was heard at the same time as the application of Mircea Sorin Irimie and Elisabeta Irimie (IMM-427-00) as the facts and the grounds are almost identical. Mihaela and her husband Ferenc Kutas are failed refugee claimants from Romania who ask for judicial review of the dismissal of their application under subsection 114(2) of the Immigration Act, R.S.C. 1985 c. I-2 which reads:
Exemption from regulations
114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
Règlements
114(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière.
[2] The applicants' refugee claim was made and determined in conjunction with that of the Irimies. Mr. Kutas' claim was made on the basis of his ethnicity and political opinion, while Mrs. Kutas, an ethnic Romanian, made her claim based on her husband's ethnicity. The Convention Refugee Determination Division ("CRDD") made the same findings as it did for the Irimies: while the applicants' have a well-founded fear of persecution, it was found that they have an internal flight alternative in Romania.
[3] The applicants filed material in support of their human and compassionate ("H & C") application showing that they have established ties in Canada since their arrival. Like the Irimies, the applicants have invested in a taxi business. They also provided evidence of community attachment including evidence of community support for their application. As for the Irimies, I do not hesitate to conclude that these applicants might make welcome additions to the Canadian community.
[4] The applicants' H & C application was denied based on reasons that mostly mirror those provided to the Irimies:
| RE: HUMANITARIAN AND COMPASSIONATE APPLICATION |
| This refers to your request for processing from within Canada on humanitarian and compassionate grounds. |
| In order for your request to be approved, humanitarian and compassionate considerations are assessed to determine whether an exemption from subsection 9(1) of the Immigration Act, the requirement to apply for and obtain an immigrant visa prior to coming to Canada, will be granted. |
| The individual circumstances of your request for an exemption from the requirement of subsection 9(1) have been reviewed and it has been decided that an exemption will not be granted for your application for the following reasons: |
| The refugee board found that although there was a well founded fear of persecution in Romania, this was a localized risk and the board found it not to be unreasonable for the applicants to live in another part of Romania. I find this to be sufficient evidence. The refugee board also presented evidence of improved conditions for Hungarians in Romania and that Hungarians do have access to Human Rights within the country of Romania. |
| The applicants are currently under removal orders as failed refugee claimants. |
| I considered the letter addressed to Erzsike, Mirsea, Lehel, Mihaela, and Feri that was submitted during our interview on December 23, 1999 but it did not satisfy me that sufficient humanitarian or compassionate grounds exist. |
| As indicated by the applicants and the letters of support on file, ties have been established in Canada since 1996, however, these ties were established with the knowledge that the applicants may be required to leave Canada. |
| I also considered all of the evidence that the applicant's are well-accepted members of the community and that they would make good prospective immigrants but this is not sufficient grounds to exempt section 9(1) of the Immigration Act. |
| There remain family ties in Romania including the applicant's mothers and sons. |
| Therefore, after considering all the information, I am not satisfied that sufficient humanitarian and compassionate grounds exist to exempt section 9(1) of the Immigration Act. |
| Sincerely, |
| Tamara Leedahl |
Immigration Officer
[5] For purposes of their application for judicial review, the applicants argued that the Immigration Officer considered irrelevant factors and failed to consider relevant factors. They argued that it is irrelevant that they established community ties in Canada with the knowledge that they may be required to leave. They also argue that the Officer failed to consider that they would lose their taxi business if their application was denied.
[6] In the Irimies matter, I held that the hardship which the Irimies would face as a result of being forced to leave the country was real but that the H & C officer's conclusion that it did not constitute unusual, undeserved or disproportionate hardship was not subject to review. The same grounds were relied upon in this application, including the failure to consider the loss of the Kutas' business. For the reasons set out in Irimies, the result must be the same and the application for judicial review dismissed.
[7] No question was suggested for certification.
ORDER
The application for judicial review of the decision of the Immigration Officer, Tamara Leedahl, dated January 18, 2000 is hereby dismissed.
"J.D. Denis Pelletier"
Judge