Brzezinski v. Canada (Minister of Citizenship and Immigration), 2004 FC 201

Date: 20040206

Docket: IMM-2164-03

Citation: 2004 FC 201

OTTAWA, ONTARIO, THE 6^TH DAY OF FEBRUARY 2004

Present:         THE HONOURABLE MR. JUSTICE LEMIEUX                                      

BETWEEN:

                                                   ROBERT RONALD BRZEZINSKI

                                                                                                                                                     Applicant

                                                                             - and -

                               THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                              REASONS FOR ORDER AND ORDER

[1]                 The applicant, Robert Ronald Brzezinski, is a 25-year-old citizen of Poland and a Roma. On March 6, 2003, a member of the Refugee Protection Division (the "tribunal") denied his claim for refugee status.

[2]                 The tribunal found the applicant's story credible. It accepted that in January 1999 he was hit in the face by a skinhead. It believed that in May of 2000, he was threatened while on a train but his would-be attackers backed away because the train security officer walked into the compartment. It found that in May 2002, he was hit on the head with a metal object by unknown attackers.

[3]                 The tribunal denied his claim on the basis of adequate state protection in Poland. It wrote:

By way of background to the debate over the adequacy of state protection for Polish Roma, I attach a sanitized copy of an earlier decision AAO-01686, in which I explored the different approaches to state protection. I concluded that in appropriate cases, despite the progress of the Polish government in dealing with Roma minority rights, Roma claimants could still provide clear and convincing evidence of the inadequacy of state protection. [emphasis mine]

[4]                 The requirement that an applicant must provide clear and convincing evidence that state protection is unavailable stems from the Supreme Court of Canada's decision in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. Justice La Forest wrote:

¶ 50        The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state [page725] protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.

[5]                 I analysed the tribunal's decision in AAO-01686. That case also dealt with a refugee claim by a Polish Roma family. The tribunal, as noted, found inadequate state protection in their case but not here.

[6]                 As stated by Justice La Forest in Ward, supra, the analysis of state protection involves, in part, an assessment of the past personal experience of each particular applicant.

[7]                 The tribunal, in the case at hand, concluded the applicant did not meet this burden of providing clear and convincing evidence Poland could not adequately protect him.

[8]                 My review of the transcript persuades me this conclusion was reasonably open to the tribunal.

                                                  ORDER

THIS COURT ORDERS that this judicial review application is dismissed. No certified question was proposed.

"François Lemieux"

                                                                                                   J U D G E             

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-2164-03

STYLE OF CAUSE: ROBERT RONALD BRZEZINSKI V. MINISTER OF

CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                   OTTAWA

DATE OF HEARING:                                     FEBRUARY 2, 2004

REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX

DATED:                      February 6, 2004

APPEARANCES:

MR. REZAUR RAHMAN                                               FOR APPLICANT

MR.RICHARD CASANOVA                                        FOR RESPONDENT

SOLICITORS OF RECORD:

PFEIFFER AND ASSOCIATES                                    FOR APPLICANT

Ottawa Ontario

MORRIS ROSENBERG                                                 FOR RESPONDENT

Deputy Attorney General of Canada