Date: 20100422
Docket: IMM-4050-09
Citation: 2010 FC 438
Ottawa, Ontario, April 22, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
ZANETA
DUNOVA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of a Pre-Removal Risk Assessment
(PRRA) Officer, dated June 26, 2009, in which the Applicant’s claim to refugee
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act was rejected.
[2]
The
Applicant, who is a citizen of the Czech Republic and of Roma ethnicity, seeks
judicial review of the decision on the following three grounds:
i.
The
Officer erred by relying on erroneous findings of fact;
ii.
The
Officer erred by ignoring, misconstruing or failing to analyze important
evidence regarding the ineffectiveness of state protection in the Czech
Republic; and
iii.
Comments
made by the Minister of Citizenship, Immigration and Multiculturalism, Jason
Kenney, in April 2009 “raise a serious concern over an apprehension of bias”.
[3]
For
the reasons that follow, this application is dismissed.
I. Background
[4]
The
Applicant first arrived in Canada with her parents in April 1997 when she was
12 years old. Her family made a refugee claim shortly thereafter which was
withdrawn in December 1997, when she and her parents returned to the Czech
Republic.
[5]
The
Applicant returned to Canada on February 3, 2009 with her common-law
partner, Mr. Joseph Pospisil, and her two daughters. She sought refugee
protection upon her arrival. However, she was found to be ineligible to claim refugee
status because she had previously made a refugee claim that had been
subsequently withdrawn. The claims of her common-law partner and her daughters
have not yet been determined.
[6]
The
grounds for the Applicant’s claims in her PRRA application were set out in a
narrative prepared by Mr. Pospisil. Among other things, that narrative
describes a number of verbal and physical attacks on the Applicant and Mr.
Pospisil that allegedly occurred in 1999, 2001, 2003, 2005 and 2008. It also
describes an event in 2008 when unknown attackers allegedly threw burning
bottles of gasoline into their home.
[7]
Mr.
Pospisil claims that reports of these attacks were made to the police on a
number of occasions and that the police never followed up on those reports. He
further claims that, on one occasion, after he and the Applicant reported an
incident in which they were verbally attacked and spat upon, they were told not
to bother the police with such reports. As a result, he and the
Applicant came to Canada with their daughters to seek protection.
II. The decision under review
[8]
After
setting out the background facts in this matter, the Officer stated that all
evidence tendered to establish a ground of protection had been accepted because
the Applicant’s previous refugee claim had been abandoned in 2007 and,
therefore, none of her allegations of risk had ever been rejected, as
contemplated by paragraph 113(a) of the IRPA.
[9]
The
Officer then turned to the evidence regarding the treatment of Roma in the Czech Republic. After
stating that she had reviewed the Applicant’s submissions on that issue, the
Officer noted that (i) Roma face discrimination and even attacks by extremist
groups; and (ii) Neo-Nazism is reported to be on the rise in recent years in
the Czech
Republic.
[10]
The
Officer then quoted several passages from a document entitled 2008 Human
Rights Report: Czech Republic, published by the U.S.
Department of State (DOS), which is an authoritative recent source on
conditions in that country. Among other things, the quoted passages:
a. identified
ongoing widespread discrimination faced by Roma in that country;
b. noted that
the latent societal discrimination occasionally manifested itself in violence,
most frequently at the hands of members of skinhead organizations and their
sympathizers;
c. discussed a
significant range of recent initiatives that have been taken in that country to
safeguard the rights of Roma; and
d. identified a
number of examples of results that have been achieved in this latter regard.
[11]
Based
on her review of the evidence, the Officer concluded that “state protection is
available to the applicant”.
[12]
The
Officer further concluded that (i) there is not more than a mere possibility
that the Applicant would be subjected to persecution if she returns to Czech
Republic; (ii) there are not substantial grounds to believe that the Applicant
would face a risk of torture; and (iii) there are not reasonable grounds to
believe that she would face a risk to life or of cruel and unusual treatment or
punishment, if required to return to her country.
III. Issues
[13]
The
Applicant seeks judicial review of the decision on the three grounds described
in paragraph 2 above.
[14]
At
the hearing, the Applicant raised a fourth issue, namely, whether the Officer
had relied on the wrong test for state protection. The Respondent takes the
position that this issue was improperly raised at the hearing and that she was
prejudiced by not having had an opportunity to respond.
[15]
The
Respondent acknowledges having briefly mentioned the appropriate test for state
protection in her written submissions, but claims that this was only done so in
the context of defending against the Applicant’s allegation that the state
protection findings in the decision were unreasonable. The Respondent submits
that prior to the hearing, there was no reason to make submissions regarding the
correct test for state protection, and therefore she did not proceed on the basis
that the test for state protection was a disputed issue.
[16]
At
the hearing, the Respondent did not suggest that the state protection issue had
been raised improperly. However, after being requested to address the issue of
the appropriate test for state protection, which had been raised in the
Applicant’s oral submissions, the Respondent agreed to provide cases addressing
that test and to provide a copy of those cases to the Applicant.
[17]
In
a cover letter, dated March 24, 2010, that accompanied those cases, the
Respondent took care not to make any further submissions regarding the
appropriate test for state protection. However, she reiterated that this issue
had not been raised in the written pleadings and that she was only provided
with the Applicant’s Book of Authorities at the commencement of the hearing
before this Court.
[18]
In
a response of the same date, the Applicant stated that the issue of the correct
test for state protection was raised in the Respondent’s written submissions.
The Applicant then made additional submissions regarding that test.
[19]
After
reviewing the record, I am satisfied that neither of the parties raised the
issue of the correct test for state protection prior to the hearing and that
the Respondent did not have proper notice to prepare to address this issue.
[20]
Accordingly,
I find that this issue is not properly before the Court and therefore need not
be addressed (Radha v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1040, at para. 18).
[21]
However,
I will note in passing that the test of “effective” state protection has been
rejected in favour of the test of “adequate” state protection in a line of
recent cases. (See, for example, Cosgun v. Canada (Minister of Citizenship and Immigration), 2010 FC 400, at paras. 44 to 54; Espinoza v. Canada (Minister of Citizenship
and Immigration), 2009 FC 806, at para. 30; Cueto v. Canada (Minister of
Citizenship and Immigration), 2009 FC 805, at paras. 27-28; Flores v.
Canada (Minister of Citizenship and Immigration), 2008 FC 723, at para. 8; Samuel
v. Canada (Minister of Citizenship and Immigration), 2008 FC 762, at para.
13; Mendez v. Canada (Minister of Citizenship and Immigration), 2008
FC 584, at para. 23; and Canada (Minister of
Citizenship and Immigration) v. Carrillo, 2008 FCA
94, at para. 30. See also Resulaj v. Canada (Minister of Citizenship and Immigration), 2006 FC 269, at para. 20; and Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), leave to appeal
dismissed, [1993] 2 S.C.R. xi.)
IV. Standard of review
[22]
The first two
issues that have been raised by the Applicant are reviewable on a standard of
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190; and Canada (Minister
of Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339, at para. 53).
[23]
In Khosa, at para. 59, reasonableness was articulated by Justice Ian Binnie as
follows:
Where the reasonableness standard applies, it
requires deference. Reviewing courts cannot substitute their own appreciation
of the appropriate solution, but must rather determine if the outcome falls
within "a range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir, at para. 47). There might
be more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
[24]
The third issue, namely, whether the Officer’s
decision was made in breach of the duty of fairness, including the requirement
of impartiality, is determined on a standard of correctness (Geza v. Canada
(Minister of Citizenship and Immigration), 2006 FCA 124, at para. 44; Dunsmuir,
above at paras. 55 and 90; and Khosa, above at para. 42).
V. Analysis
A.
Did the
Officer err by relying on erroneous facts?
[25]
The
Applicant alleges that, in the course of reaching her decision, the Officer
erred by relying on erroneous facts, namely, that the Applicant’s claim had
been abandoned in 2007, rather than withdrawn in 1997. The Applicant concedes
that, for her, the technical consequences of an abandoned claim are identical
to those of a withdrawn claim. However, she claims that the Officer drew a
negative inference from the mistaken belief that her 1997 refugee claim had
been abandoned, because abandonment “signals disrespect for the process”, and
the Applicant was an adult in 2007, but only a twelve year-old child in 1997.
[26]
I
disagree. In an affidavit dated September 3, 2009, the Officer stated that the
reference to 2007 rather than 1997 was an inadvertent typographical error. She
added: “I have been informed and believe to be true, that the December 22, 1997
date is reflected in the FOSS notes.” (FOSS is the Field Operations Support
System – an online system in which immigration officials record a claimant’s
immigration history within Canada.) With respect to the alleged negative
inference, she stated that she drew no such inference.
[27]
In
a second affidavit dated January 29, 2010, the Officer stated that there is
conflicting information in the FOSS notes regarding the disposition of the Applicant’s
initial refugee claim. Nevertheless, she stated:
8. I
drew no negative inference from the disposition of the Applicant’s previous
refugee claim. My only consideration was whether or not the Applicant’s
previous claim had been heard by the Refugee Board. I drew no negative
inference as to why the claim had not been heard.
9. My
decision was based on a complete and thorough assessment of all of the evidence
before me and presented to me by the Applicant.
[28]
Based on this
sworn testimony from the Officer and my review of her decision, I am satisfied
that the Officer did not draw a negative inference from either her typographic
error regarding the date of the Applicant’s withdrawn refugee claim or her
uncertainty as to whether that claim had been withdrawn or abandoned. I am also
satisfied that these errors in the Officer’s decision were not material to the
conclusions she reached with respect to the Applicant’s application (Miranda
v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81). Notwithstanding
those errors, the Officer’s decision still falls within "a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law" (Dunsmuir, at para. 47).
B. Did the Officer err by
ignoring, misconstruing or failing to analyze important evidence
regarding the ineffectiveness of
state protection?
(1)
The Evidence of Past Attacks on the Applicant
[29]
The
Applicant alleges that the Officer erred by summarily disposing of facts that
spanned many years, in a few sentences of the decision.
[30]
I am
unable to conclude that this aspect of the Officer’s decision was unreasonable.
In my view, the Officer clearly accepted that the attacks on the Applicant,
which are specifically mentioned in the decision, took place. Given that the
focus of the decision was upon the extent to which state protection would be
available to the Applicant, there was no need for the Officer to discuss the
attacks in greater detail or to specifically refer to the injuries that were
suffered by the Applicant.
(2)
Reliance on selected excerpts from the 2008 DOS report
[31]
The
Applicant further alleges that the Officer erred by relying on selected
excerpts from the 2008 DOS report.
[32]
I
am not satisfied that it was unreasonable for the Officer to fail to refer to
additional passages from that report which did not support the ultimate
conclusion she reached regarding the availability of state protection in the
Czech Republic.
[33]
At
page 4 of her decision, the Officer specifically noted that Roma in the Czech Republic continue to face
discrimination and even attacks by extremist groups. She also
mentioned reports on the rise of Neo-Nazism in the Czech Republic in recent
years. She
then quoted a passage from the 2008 DOS report which explicitly noted that
“[l]atent societal discrimination against the country’s Romani population
occasionally manifested itself in violence” and that members and sympathizers
of skinhead organizations are the most frequent perpetrators of interethnic
violence, particularly against Roma. That quoted passage also discussed the
“widespread discrimination” faced by various minority groups, including Roma,
from potential employers and school officials as well as in accessing housing
and other accommodations.
[34]
This
quote was followed by three other quotes from that same document which
described (i) sentences that were imposed on perpetrators of an attack on a
Romani man in May 2007; (ii) charges that were filed against a former vice
mayor in respect of alleged racist remarks; (iii) potentially troublesome
situations initiated by skinheads or neo-Nazis vis-à-vis Roma that the police
had prevented in September, October and November 2007; (iv) various initiatives
that the government of the Czech Republic has pursued to improve the situation
of Roma; and (v) the efforts that the government has made to address
allegations of forced sterilization of Roma during the period 1973-1991.
[35]
I am
satisfied that the four long passages that the Officer quoted from the 2008 DOS
report reasonably reflect the significant amount of information in that report
regarding the state protection available to Roma in the Czech Republic. There
was no requirement on the Board to go further than it did in quoting
information from the report that either supported the conclusion it ultimately
reached or tended to support the opposite conclusion regarding the availability
of state protection in the Czech Republic (Zhou v. Canada (Minister of
Employment and Immigration) (1994), 49 A.C.W.S. (3d) 558 (F.C.A.); Hassan
v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317, at
para. 3 (F.C.A.); Ayala v. Canada (Minister of Citizenship and Immigration),
2008 FC 1258, at para. 10).
(3)
Failure to consult additional sources
[36]
The
Applicant also alleges that the Officer erred by failing to consult additional
recent sources regarding country conditions in the Czech Republic. In oral
argument, counsel for the Applicant identified a number of documents that were
in the Certified Tribunal Record and submitted that the Officer had an
obligation to at least consider those documents.
[37]
However,
the Officer specifically
stated that she had reviewed the Applicant’s submissions, which contained
approximately 100 pages of materials. As mentioned above, she then took note of
that fact that those materials contain information reporting “that Roma face
discrimination and even attacks by extremist groups” and that Neo-Nazism has
been on the rise in the Czech Republic in recent
years.
[38]
At
the end of the decision, it was confirmed that the sources consulted were (i)
File #3412-3006; (ii) the Applicant’s PRAA application and associated
submissions; and (iii) the aforementioned 2008 DOS report, which is generally
recognized to be an authoritative report on country conditions in the Czech
Republic.
[39]
I am
satisfied that the Officer did in fact consult the various sources mentioned
above and that it was not unreasonable for the Officer to have failed to specifically
quote from those other sources regarding country conditions in the Czech
Republic.
[40]
The
Officer was not required to “detail every piece of evidence provided and every
argument raised”, so long as the decision reached was within the bounds of
reasonableness. (Rachewiski v. Canada (Minister of
Citizenship and Immigration), 2010 FC 244, at para. 17.)
[41]
Having
reviewed the Certified Tribunal Record, I am satisfied that the Officer did not
ignore any information that was so different from the information that she
explicitly recognized in her decision as to render that decision unreasonable.
On the contrary, the decision reached by the Officer was well within "a range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir, above, at para. 47).
[42]
It
was not sufficient for the Applicant to provide evidence demonstrating that the
government of the Czech
Republic has not always been
effective at protecting its Roma citizens from random acts of violence. (Zhuravlvev
v. Canada (Minister of
Citizenship and Immigration), [2000] 4 F.C. 3, at para. 19. See also the
various cases cited, at para. 21 above.)
[43]
Rather,
the onus was on her to rebut the presumption of state protection by
demonstrating, with clear and convincing evidence, that the government of the
Czech Republic is so weak or corrupt that there are extensive shortcomings in
its ability or willingness to provide protection either to the public at large
or to persons similarly situated to her, as demonstrated by “a broad pattern of
state inability or refusal to extend protection” (Zhuravlvev, at para.
31). (See also Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689,
at 724-725; Villafranca, above; Resulaj, above; and Alfaro v. Canada (Minister of
Citizenship and Immigration), 2005 FC 92, at paras. 43-45.) Ultimately, the
Applicant failed to discharge this burden.
C. Did comments made by the Minister
give rise to a reasonable apprehension of bias?
[44]
In
April 2009, an article published by Canwest News Service reported that the
Minister of Citizenship, Immigration and Multiculturalism, Jason Kenney, had commented,
while travelling in Europe, that “it is hard to believe that the Czech
Republic
is an island of persecution in Europe.” This was followed by a second article,
published in Embassy Magazine in July 2009. That article reported that
the Minister had stated, in discussing a report that had just been prepared by
the Immigration and Refuge Board: “If someone comes in and says the police have
been beating the crap out of them, the IRB panellist can then go to their
report and say, ‘Well, actually, there’s been no evidence of police
brutality’.”
[45]
The
Applicant alleges that the foregoing comments “raise a serious concern over an
apprehension of bias.” Although, she did not make any reference to these
comments in her application, which was received on May 12, 2009, she stated in
an affidavit dated September 8, 2009 that she believes that the Officer “could
hardly avoid being influenced by his own Minister’s comments about the
legitimacy of Roma refugee claims.”
(1)
The Test for Assessing Allegations of Bias
[46]
Allegations
of bias are serious. They impugn the impartiality of the decision-making process
in question and the integrity of the person who made the decision.
[47]
It
is trite law that all administrative bodies, no matter what their function, owe
a duty of fairness to the regulated parties whose interests they must determine.
The duty to act fairly includes the duty to provide procedural fairness. In
turn, an unbiased decision-maker is an essential component of procedural
fairness (Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners
of Public Utilities), [1992] 1 S.C.R. 623 at 636).
[48]
The
classic articulation of the test for what constitutes a reasonable apprehension
of bias was enunciated by Justice de Grandpré in Committee for Justice
and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394.
In the course of dissenting on the issue of whether the facts in that case gave
rise to a reasonable apprehension of bias, Justice de Grandpé observed that
“the apprehension of bias must be a reasonable one, held by reasonable and
right minded persons, applying themselves to the question and obtaining thereon
the required information.” He added that the “test is what would an informed
person, viewing the matter realistically and practically – and having thought
the matter through – conclude…”
[49]
In
R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 111 to 113, Mr. Justice
Cory adopted Justice de Grandpré’s statement of the test, observed that “the
threshold for a finding of real or perceived bias is high”, and emphasized that
“the reasonable person must be an informed person.”
[50]
In
Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at para. 76, the
high test to be met when alleging bias was confirmed. In a unanimous judgment,
the Supreme Court observed that “the standard refers to an apprehension of bias
that rests on serious grounds, in light of the strong presumption of judicial
impartiality.” The Court then proceeded to approvingly note that Justice de
Grandpré added to “the now classical expression of the reasonable apprehension
standard” when he observed: “ The grounds for this apprehension must, however,
be substantial, and I … refus[e] to accept the suggestion that the test be
related to the ‘very sensitive or scrupulous conscience’.”
[51]
In
Geza, above, at paras. 52 -53, it was held that the approach described
above applies to the determination of refugee claims by the Board, given the
Board’s independence, its adjudicative procedure and functions, and the fact
that its decisions affect the rights of claimants under the Canadian Charter
of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Based on this
reasoning, the same approach should apply to the determination of refugee
claims by PRRA Officers.
(2)
Application of the test to the facts of this case
[52]
In
support of her allegation, the Applicant submitted statistics from the
Immigration and Refugee Board. In her abovementioned affidavit, she alleged
that those statistics demonstrate that the acceptance rate for claims for
refugee protection from the Czech Republic declined from 94%, over the course
of 2008 to 80%, over the first six months of 2009. In a subsequent affidavit,
dated January 12, 2010, the Applicant further alleged that this acceptance rate
declined from 81%, in the quarter preceding the comment that the Minister made
in April 2009, to 30%, in the first full quarter following that comment.
[53]
In
Zrig v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1043,
aff’d 2003 FCA 178, the applicant alleged, among other things, that a panel of what
was then the Refugee Division was biased and lacked independence. This
allegation was based on the fact that the two members of that panel had been
selected because they were less accepting of claimants from the Maghreb region
of Northern
Africa.
In rejecting this claim, Justice Tremblay-Lamer stated (at para. 130):
Each claim
stands on its own merits and the members of the Refugee Division have to assess
each case based on the evidence and applicable law. Such an assertion reflects
directly on the integrity of the members in question and cannot be accepted
unless there is good evidence. Mere suspicion based on “rates” does not meet
the applicable standard of the well-informed individual considering the matter
in depth in a realistic and practical way.
[54]
This
scepticism of the relevance of statistics is particularly warranted in this
case for three important reasons. First, and most importantly, after conducting
a fact-finding mission of conditions faced by the Roma in the Czech Republic,
the Board released a report on those conditions during the period between the
two comments that were reported to have been made by the Minister. It is
entirely possible that the content of that report affected the number of
accepted, rejected, abandoned and withdrawn refugee claims by Roma from the Czech Republic.
Second, the statistics adduced by the Applicant are statistics of the
Immigration and Refugee Board. The PRRA Unit in which the Officer works is not
part of the Board. Third, those statistics are for all claims from the Czech Republic. Apart from
the Applicant’s bald statement that 99% of such claimants are Roma, no evidence
was adduced on this point.
[55]
It
is also important to note that, in contrast the situation that arose in Geza,
above, the Officer in this case was completely independent of the circumstances
that gave rise to the allegation of bias.
[56]
In
Geza, the Federal Court of Appeal placed considerable significance on
the fact that a member of the Immigration and Refugee Board, who participated
in the initiation and planning of a lead case strategy with respect to refugee
claims by Hungarian Roma, ultimately participated on the panel that heard the Applicant’s
refugee claim. In concluding that the circumstances were such as to give rise
to a reasonable apprehension of bias, the Court observed at (para. 65) that the
panel became tainted by the Board’s motivation for adopting a lead case
strategy when the Board member in question decided to become one of the two
members of the panel that heard the applicant’s case. By comparison, in this
case, there is no such link between the Officer and the comments reported to
have been made by the Minister.
[57]
There
are two other important differences between facts in Geza and the facts
in the case at hand. First, in Geza, an explicit strategy was adopted by
the Board. On this point, the Court concluded (at para. 61) that:
…a person could reasonably conclude that
the lead case strategy was not only designed to bring consistency to future
decisions and to increase their accuracy, but also to reduce the number of
positive decisions that otherwise might be rendered in favour of the 15,000
Hungarian Roma claimants expected to arrive in 1998, and to reduce the number
of potential claimants.
[58]
By
contrast, as discussed below, in this case, the comments by the Minister that
form the basis of the Applicant’s allegation appear to have been spontaneous
and not made pursuant to or in relation to any strategy.
[59]
Second,
in Geza, the Board selected both the lawyer and the cases that would
serve as “lead cases”, without any consultation with the immigration and
refugee bar. The Court observed that this fact would also “trouble the
reasonable observer.”
[60]
In
addition to the fact that the Officer was completely independent of the
comments reported to have been made by the Minister, no evidence whatsoever was
adduced to demonstrate that the Officer was in any way influenced by those
comments.
[61]
The
Officer must be presumed to be impartial, absent serious grounds for concluding
that a reasonable and informed person, viewing the matter realistically and
practically, would believe that the Officer was not impartial. It cannot simply
be inferred solely from the political nature of the Minister’s comments that
they give rise to a reasonable apprehension of bias (Fehr v. Canada
(National Parole Board) (1995), 93 F.T.R. 161, at para. 22, quoting
with approval Bertillo v. Canada (Minister of Citizenship and Immigration),
[1994] F.C.J. No. 1617).
[62]
Apart
from the above-noted statistics, which have little probative value, the only
additional evidence submitted by the Applicant in support of her allegations of
bias were the two aforementioned articles published by Canwest News Service and
in Embassy Magazine.
[63]
Those
articles provide important information regarding the context in which the
Minister’s impugned comments were made. It is readily apparent from reading
those articles that the Minister’s comments were spontaneous, rather than
official statements of policy. Moreover, the first comment was made in the
context of discussing what the article in Canwest News Service characterized as
“a staggering 993 per cent increase” in the number of Czech nationals who
sought refugee protection in Canada in 2008, relative to 2007. (The visa
requirement for visitors from that country was lifted towards the end of 2007.)
This dramatic surge in applications from the Czech Republic is reported to have
led the Board to send a fact-finding mission to the Czech Republic in March
2009, to help the Board assess the conditions faced by Roma in that country.
[64]
According
to the Canwest News Service report, the Minister was concerned that
“unscrupulous commercial operators” might be behind the dramatic surge in
refugee applications. In this regard, the Minister is reported to have stated:
“If indeed there are commercial operations, I would hope the Czech
authorities are able to identify those and crack down on them” (emphasis
added). When this latter statement is considered together with the general
context in which the Minister’s comment was made, it is apparent that the
Minister and the Board were still struggling to understand and explain why
there had been such a surge in refugee claims by Roma from the Czech Republic.
[65]
As
to the alleged comment of the Minister that was reported in Embassy Magazine
in July 2009, that comment was reportedly a quote from a statement made by the
Minister to the Toronto Star on June 24, 2009. In turn, the Toronto
Star article made it clear that the Minister’s comment was made in the
context of discussing a report that the Board had just released regarding
conditions faced by the Roma minority in the Czech Republic,
following the fact-finding mission mentioned above.
[66]
In
this overall context, the spontaneous comments made by the Minister while travelling
in Europe were less potentially problematic than had they been made in a
different context or as statements of official policy (Pelletier v. Canada
(Attorney General), 2008 FCA 1, at para. 63).
[67]
In
addition to reporting on the comment allegedly made by the Minister, the
article in Embassy Magazine also reported statements questioning the
propriety of the Minister’s comments by the Applicant’s counsel and a number of
other persons. One of those persons was Peter Showler, a former Chairman of the
Board, who was reported to have alleged that the Minister had “introduced
institutional bias” into the Board’s decision-making process.
[68]
However,
the Applicant adduced no other evidence to provide any basis for concluding
that there are serious or substantial grounds for believing that a reasonable
and informed person, viewing the matter realistically and practically, would
believe that the Officer had been influenced by the Minister’s comments. Indeed,
there is no evidence that the Officer was even aware of the Minister’s
comments.
[69]
Even
if a reasonably informed person, viewing the matter realistically and
practically, might reasonably apprehend the Minister to be biased based on the
comments that he was reported to have made, that does not provide a sufficient
basis for concluding that such a person also would reasonably apprehend the
Officer to be biased. The Officer is a member of the Public Service of Canada.
It is well accepted that the Public Service of Canada is independent of the
executive branch of government. Absent evidence to the contrary, the Officer also
should be presumed to be independent and impartial. No such evidence to the
contrary was presented by the Applicant.
[70]
In
the course of addressing the applicant’s allegations of bias in Zrig,
above, Justice Lamer-Tremblay discussed Justice Joyal’s decision in Van
Rassel v. Canada (Superindentant [sic] of the RCMP), [1987] 1
F.C. 473. In that case, the applicant alleged the existence of a reasonable
apprehension of bias on the basis that members of a disciplinary tribunal had
been appointed by the Commissioner of the RCMP, whom the applicant suspected of
having made negative statements about him. In dismissing the claim, Justice
Joyal observed (at 487):
The
Commissioner of the RCM Police is not the tribunal. It is true that he has
appointed the tribunal but once appointed, the tribunal is as independent and as
seemingly impartial as any tribunal dealing with a service-related offence. One
cannot reasonably conclude that the bias of the Commissioner, if bias there is,
is the bias of the tribunal and that as a result the applicant would not get a
fair trial.
[71]
The
foregoing statement applies a fortiori to decisions made by PRAA
Officers, who are not appointed by the Minister.
[72]
Based
on all of the foregoing, I have concluded that a reasonably informed person,
viewing the matter realistically and practically, would not reasonably
apprehend the Officer to have been biased against Roma refugee claimants from
the Czech
Republic, as a result
of the comments that were reported to have been made by the Minister.
[73]
Finally,
the Respondent submitted that the Applicant was required to raise her
allegations of bias at the earliest opportunity (Geza, above, at para.
66). The Respondent claims that this opportunity was the time when the
Applicant submitted her PRRA application, which was dated April 30, 2009 and
received on May 12, 2009. In the absence of any evidence that the Applicant was
aware of the comments reported to have been made by the Minister on April 15,
2009, at the time she submitted her application, I am not satisfied that the
Applicant was in a position to have raised her allegations of bias at that
time.
VI. Conclusion
[74]
This
application for judicial review is dismissed.
[75]
The
Applicant suggested that consideration be given to certifying a question regarding
whether comments by the Minister questioning the well foundedness of refugee
claims from a particular country, in the context of a high acceptance rate of
those claims by the Board, would create a reasonable apprehension of bias by
refugee claim decision-makers.
[76]
However,
assessments of bias allegations invariably are highly dependent on the specific
facts and context of each particular case. That will be especially true in
situations of the type contemplated by the proposed question. Accordingly, I do
not believe that the proposed question raises “a serious question of general
importance”, as contemplated by paragraph 74(d) of the Immigration and
Refugee Protection Act.
[77]
Accordingly,
there is no question for certification.
ORDER
THIS COURT
ORDERS
that this application for judicial review is dismissed.
“Paul S. Crampton”
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