Date:
20120611
Docket: IMM-6199-11
Citation: 2012 FC 728
Ottawa, Ontario, June 11, 2012
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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MIROSLAV KROKA
ZANETA BADOVA
SARA KROKOVA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the decision
rendered by the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated July 29, 2011, which refused the applicants’ claim to
be deemed Convention refugees or persons in need of protection under sections
96 and 97 of the Act.
[2]
The applicants seek an order setting aside the decision and
remitting the matter for redetermination by a differently constituted panel of
the Board.
Factual Background
[3]
The
applicants, Mr. Miroslav Kroka (the male applicant), his common-law partner Ms.
Zaneta Badova (the female applicant) and their daughter, Sara Krokova, are all
citizens of the Czech Republic. The applicants seek
refugee protection in Canada as they allege a well-founded fear of persecution
in the Czech
Republic based on
their Roma ethnicity.
[4]
The
applicants allege that they experienced a high number of incidents of
persecution over the years. More particularly, the applicants highlight an
incident that occurred when the applicants were at a McDonald’s restaurant and
were attacked by a group of skinheads. The applicants maintain that when the
police arrived, the police accused the male applicant of provoking the
skinheads and chose to sweep everything under the rug.
[5]
The
applicants fled the Czech Republic and came to Canada on October 7,
2008. They made refugee claims the same day.
[6]
The
applicants’ refugee claim was heard by the Board on October 28, 2009, February
9, 2010, June 22, 2010 and October 1, 2010.
Decision under Review
[7]
The
Board found that the applicants had not satisfied their burden of demonstrating
a serious possibility of persecution on a Convention ground, or that they would
be personally subjected to a danger of torture or a risk to life or a risk of
cruel and unusual treatment or punishment if they were to return to the Czech
Republic. Although the Board did accept that the applicants were or would at
least be perceived to be Roma, the Board found that their credibility had been
compromised given the number of discrepancies between their testimony before
the Board and their documentary materials – namely their original and amended
Personal Information Forms (PIFs).
Issues
[8]
The
issues that arise in this proceeding can be summarized as follows:
1)
Did the
Board err in its evaluation of the applicants’ credibility?
2)
Did the Board
err in finding that state protection was available to the applicants in the Czech Republic?
Statutory Provisions
[9]
The
following provisions of the Immigration and Refugee Protection Act are
applicable in these proceedings:
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Refugee
Protection, Convention Refugees and Persons in Need of Protection
Convention refugee
96. A Convention refugee is a person who, by reason
of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries
of nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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Notions
d’asile, de réfugié et de personne à protéger
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention –
le réfugié – la personne qui, craignant avec raison d’être persécutée du fait
de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b) soit, si elle n’a
pas de nationalité et se trouve hors du pays dans lequel elle avait sa
résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
97. (1) A person in need of protection is a person in
Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of the
Convention Against Torture; or
(b) to a risk to their life or to a risk
of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
Person in need
of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Personne à protéger
97. (1) A qualité de personne à protéger la personne qui
se trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes – sauf celles infligées au mépris des normes internationales – et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à
protéger
(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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Standard of Review
[10]
It
is trite law that the Board’s credibility findings and its treatment of the
evidence are reviewable according to the standard of reasonableness (Aguebor v Canada
(Minister of Employment and Immigration) (FCA), [1993] FCJ No
732, 160 NR 315; Aguirre v Canada (Minister of Citizenship and Immigration),
2008 FC 571, [2008]
FCJ No 732;
Dunsmuir v New Brunswick, 2008 SCC 9,
[2008]
1 SCR 190
[Dunsmuir]).
[11]
Further,
the Board’s findings on the availability of state protection are also
reviewable according to the standard of reasonableness (Dunsmuir,
above, at paras 55, 57, 62 and 64; Hinzman v Canada ((Minister of
Citizenship and Immigration), 2007 FCA 171 at para. 38, 362 NR 1). Therefore, the
Court will only intervene if it finds that the Board’s decision was
unreasonable in that it falls outside the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47).
Analysis
1) Did the Board
err in its evaluation of the applicants’ credibility?
[12]
The Court observes that the Board drew negative inferences concerning
the applicants’ credibility given the serious discrepancies between the
applicants’ testimony, the information included in their original PIFs and
contained in their amended PIFs which contained a significant amount of
details. In the Court’s view, the Board’s conclusions were reasonable. The Board is
entitled to base its credibility findings on the omissions and inconsistencies
that it observes between the Port of Entry notes (POE), the applicants’ PIFs
and their testimony (Gimenez v Canada (Minister of
Citizenship and Immigration),
2005 FC 1114,
[2005] FCJ No 1386; Kutuk v Canada (Minister of
Citizenship and Immigration), [1995] FCJ No 1754, 60 ACWS
(3d) 819; Cienfuegos v Canada (Minister
of Citizenship and Immigration), 2009 FC 1262, [2009] FCJ No 1591).
[13]
In
contrast to the applicants’ arguments, the Court finds that the Board did not
base its credibility findings solely on the differences between the original
and amended PIFs, but also on the lack of explanations provided by the
applicants for these omissions (Board’s decision, para 14). For instance, the
Board noted discrepancies in the employment history between the Port of Entry
(POE) and the PIF. In addition, the Board also based its credibility findings
on the applicants’ statements during their first visit to Canada when they were
forced to return to the Czech Republic and the male
applicant’s allegation of the streetcar incident that had not been included in
either his original or his amended PIFs.
[14]
With
regards to the McDonald’s incident, although the male applicant
testified that the incident at the McDonald’s took place in March 2008, their
amended narrative stated that the incident took place in March 2006. The Board
noted that the applicants affirmed that this was a translation mistake as the
incident had taken place in March 2008 and provided an explanatory letter from
their translator to that effect. However, the Board concluded that it “seemed
quite odd that she [the translator] would use the term ‘accident’ to refer to
skinheads attacking the claimants at a McDonald’s. It seemed odder still that
this was not merely a one-off reference to a date, but in the amended narrative
the incident is physically situated in the section that deals with 2006”
(Board’s decision, para 6).
[15]
Also,
the female applicant stated in her amended narrative and in her testimony that
she had been pushed to the ground during the incident at the McDonald’s.
However, the Board found that this allegation had not been included in her
original narrative where she had alleged to be only an observer. The Board
found the applicants’ explanations on this point to be unsatisfactory as the
Board noted that the McDonald’s incident was described in a fair amount of
detail in the applicants’ original narrative and therefore questioned why this
particular element had been omitted.
[16]
There
are other
important incidents which were not included in the original PIFs but were added
in the amended PIFs: the baseball bat incident (Tribunal Record, p. 344); the
skinhead attack with a knife (Tribunal Record, p. 333); a friend being stab in
the leg with a knife (Tribunal Record, p. 349).
[17]
On
the basis of the addition information between the original PIFs and the amended
PIFs, the applicants point in the direction of the case of Okoli v Canada (Minister of Citizenship and Immigration), 2009 FC 332, [2009] FCJ No 418 [Okoli], where Justice
Mandamin held that the Board member in question had failed to assess the
applicant’s explanation for the amended PIF. However, the Okoli case is
clearly distinguishable. In the present case, the Court finds that the
additional information contained in the amended PIF does not merely expand on
the information contained in the original PIF – as was the case in Okoli
– but amounts to omissions and important differences regarding significant
aspects that go directly to the heart of the claim. In these circumstances, it
was reasonable for the Board to find that these omissions and differences
impacted negatively on the applicants’ credibility.
[18]
The Board was
not obligated to refer to every piece of evidence that was submitted, as
Tribunals are presumed to have weighed and considered all of the evidence
unless the contrary is shown. On this issue, the Court is of the opinion that the Board’s
findings were based on relevant considerations and the Board did not
misconstrue or ignored the evidence. The applicants disagree with the Board’s
weighing of the evidence but this is not a legal basis for the Court to
intervene.
2)
Did
the Board err in finding that state protection was available to the applicants
in the Czech Republic?
[19]
With
respect to the issue of the Board’s conclusions on the availability of state
protection for the Roma in the Czech Republic, again, the Court
cannot accept the applicants’ arguments.
[20]
It
is the Court’s view that the Board provided a comprehensive and detailed
analysis of the current country conditions in the Czech Republic (Board’s
reasons, paras 15-22). It is trite law that, absent a
complete breakdown of either the state apparatus or the government, it is
presumed that a state is able to protect its citizens. The state
protection must be adequate and does not necessarily have to be effective (see Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689, 153 NR 321; Kadenko v
Canada (Minister of Citizenship and Immigration), [1996] FCJ
No 1376, 206 NR 272; Canada (Minister of Citizenship and Immigration) v
Villafranca (FCA), (1992) 150 NR 232, 37 ACWS (3d) 1259; Flores Carillo v Canada (Minister of Citizenship and Immigration) (FCA), 2008 FCA 94, [2008] FCJ No
399; Hinzman,
above).
[21]
On
this point, Justice Near made the following observations in the case of Kaleja v Canada (Minister of Citizenship and Immigration), 2011 FC 668 at para 26, [2011] FCJ No 840:
[26] The Board is not obliged to prove that the Czech Republic
can offer the Applicant effective state protection, rather, the Applicant bears
the legal burden of rebutting the presumption that adequate state protection
exists by adducing clear and convincing evidence which satisfies the Board on a
balance of probabilities (Carillo, above, at para
30). The quality of the evidence will be proportional to the level of democracy
of the state (Avila v Canada (Minister of Citizenship and
Immigration), 2006 FC 359, 295 FTR 35 at para 30).
[22]
While
the Board noted that the Roma do face certain problems and are discriminated
against in the Czech Republic, the Board concluded that the documentary
evidence indicated that the Czech Republic is a democratic state –
and a member of the European Union – that generally respects the rights of its
citizens and provides protection for the Roma and other minority groups.
Furthermore, the Board observed that Czech authorities have also introduced
certain programs and social services in order to combat the discrimination faced
by the Roma and enhance their inclusion into society. Moreover, the Board found
that the judiciary has also prosecuted hate crimes committed against Roma
people on several occasions. Thus, the Court is in agreement with the
respondent that the Czech Republic is a
democratic state and the mere fact that a state’s efforts are not always
successful will not rebut the presumption of state protection. In the present
case, the applicants
failed to rebut the presumption of state protection available to the Roma in the Czech
Republic and the Board committed no
reviewable error.
[23]
With regards to
the applicants’ motion concerning the apprehension of bias, the Court notes
that the Board provided adequate reasons and referred to the relevant case law
in its reasons for dismissing the motion (Cervenakova
v Canada (Minister of Citizenship and Immigration), 2010 FC 1281, [2010] FCJ No 1591; Gabor v Canada (Minister of
Citizenship and Immigration), 2010 FC 1162,
[2010] FCJ No 1446, Zupko v Canada (Minister of
Citizenship and Immigration),
2010 FC 1319, [2010] FCJ No 1637).
[24]
Finally, at hearing before the Court, the applicants argued that
family members were granted refugee status on the basis of facts allegedly akin
to the ones in the present case. Hence, the applicants were of the view that
the Board committed an error in deciding that claimants were not Convention
refugees or persons in need of protection. The Court recalls that every case
turns on its own facts, the decisions of other Refugee Protection Division members
are not binding on one another and, there is no evidence on record allowing the
Court to conclude that the Board erred in that respect.
[25]
For
these reasons, the application for judicial review will be dismissed.
[26]
No question of general importance is raised by the parties
and none shall be certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is dismissed;
1.
There
is no question for certification.
“Richard
Boivin”
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