Federal Appeal


Judicial review
Certified questions did not comply with s. 74 of Immigration and Refugee Protection Act (Can.)

Applicants came from Hungary, claiming refugee protection on basis of persecution based on their Roma ethnicity. Refugee Protection Division of Immigration and Refugee Board rejected claim, concluding that discrimination suffered by applicants did not reach level of persecution and that applicants did not rebut presumption that state protection was adequate. Applicants’ application for judicial review was dismissed. Applicants appealed on two certified questions. Appeal dismissed. First question, as to whether Board erred if it concluded state protection was adequate while failing to determine operational adequacy of protection measures introduced in democratic state, should not have been certified. It was not determinative of issue because, as application judge found, Board did consider adequacy of state protection. First certified question arose from application judge’s incorrect interpretation of current jurisprudence as potentially imposing onus on Board to demonstrate operational adequacy of recent measures adopted by Hungary to protect Roma citizens. Cases did not stand for that principle. Question was somewhat theoretical and more in nature of reference, which was prohibited. It was also not of general importance because law on this issue was well settled. Second question, whether refugee protection claims were required to complain to policing oversight agencies in democratic state as requirement of assessing state protection, also should not have been certified. Requirement of going to oversight agency in specific country was heavily fact driven and so was not of general application. There was no legal question to be answered. Board’s reasons pertaining to oversight agencies were obiter dicta because there was finding of fact that police’s response was adequate, and so certified question did not arise in this case. Certified questions did not comply with requirements of s. 74 of Immigration and Refugee Protection Act (Can.).

Mudrak v. Canada (Minister of Citizenship and Immigration) (June 14, 2016, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A., A-147-15) Decision at 249 A.C.W.S. (3d) 848 was affirmed. 268 A.C.W.S. (3d) 408.

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