Docket: IMM-8519-11
Citation: 2012 FC 806
Toronto, Ontario,
June 25, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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MARKETA
OLAHOVA
DENIS OLAH
ZANETA KECLIKOVA
JANA DIROVA
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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]
The applicants are two sisters, Marketa and
Zaneta, and their minor children. They came to Canada from the Czech Republic along with Zaneta’s other daughter, who later withdrew her refugee
claim and returned to the Czech
Republic. They allege persecution because of their Roma ethnicity. Their
parents, who had previously filed refugee claims, returned to the Czech Republic when
their claims were refused.
[2]
The Refugee Protection Division of the
Immigration and Refugee Board rejected their claims for
protection based on its finding that there was adequate state protection in the
Czech Republic.
[3]
The Board also made a finding that the
experiences of the applicants fell short of persecution. However, I note that
the Board failed to provide an analysis of the cumulative effect of these
allegedly discriminatory actions in support of its conclusion. Further, the
Board failed to specifically consider whether the severity of the actions was
such that they rose above the level of mere discrimination. In that respect,
it is noted that on one occasion the children had been beaten unconscious.
[4]
The applicants raise two issues:
1.
Whether the Board applied the proper test
for state protection; and
2.
Whether the Board misconstrued and/or
ignored evidence.
[5]
I agree with the applicants that the first issue
is reviewable on the correctness standard: Koky v Canada (Minister of Citizenship and
Immigration), 2011 FC 1407, para 19 and the
authorities cited therein. The second issue is reviewable on the
reasonableness standard.
[6]
The Court of Appeal has instructed that a
claimant “must adduce relevant, reliable and convincing evidence which
satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate:” Canada (Minister of Citizenship and
Immigration) v Flores Carillo, 2008 FCA 94 at para 38. Perfection is not
the standard of protection that is required. Ability alone to provide
protection is insufficient to demonstrate adequate protection if there is no
willingness to protect. Similarly, a state’s efforts alone do not constitute
protection unless those efforts have “actually translated into adequate state
protection” at the operational level: Beharry v Canada
(Minister of Citizenship and Immigration), 2011 FC 111 at para 9.
[7]
The applicants submit, in part, that the Board
focused its examination on the serious efforts being made in the Czech Republic to protect the Roma, rather
than examining the adequacy of the protection provided to them as a result of
those “serious efforts.”
[8]
I agree with the respondent’s submissions that
what must be examined is what the Board actually did rather then pick phrases
from the decision that suggest an approach that may be questionable.
Nonetheless, on the particular facts before the Court, I am not satisfied that
the Board did apply the correct test. The Board relies far too much on efforts
and good intentions from the State, and gives too little examination of the
application of and results achieved from those efforts and intentions.
[9]
This problematic approach of the Board in this
case intersects with the second submission of the applicants that the Board’s
decision is unreasonable in that it specifically referenced only one document
when examining the question of protection of Roma in the Czech Republic,
whereas the applicants had submitted many others that appear to show that the
efforts and intentions are not resulting in protection. While the Board need
not reference every single document placed before it; the extreme imbalance in
this case between the one document relied upon and the many others that point
away from the result reached does, in my opinion, result in a decision that
does not fall “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law:” Dunsmuir v. New
Brunswick, 2008 SCC 9, para 47.
[10]
For these reasons this application is allowed.
Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is allowed, the applicants’ claims for
protection is referred back to the Refugee Protection Division of the
Immigration and Refugee Board for redetermination by a differently constituted
panel, and no question is certified.
"Russel W. Zinn"
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