Docket: IMM-5345-11
Citation: 2012 FC 540
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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MIROSLAV GABOR
MAGDALENA GABOROVA
MAGDALENA GABOROVA JR
BIANKA GABOROVA
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 26 July 2011 (Decision), which refused the Applicants’ application to be
deemed Convention refugees or a persons in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
The
Male Applicant is 39 years old and a citizen of the Czech Republic. The Female
Applicant, his wife, is 36 years old. The Minor Applicants are their two
daughters (Minor Applicants). The Female Applicant and Minor Applicants are
citizens of the Slovak Republic. The Applicants have been in Canada since April
2008, when they came here to escape persecution based on their Roma ethnicity.
[3]
The
Applicants say they have faced discrimination in their home countries because
they are Roma. While he was in school, the Male Applicant was often insulted
and beaten because of his race. Although his mother told school officials about
what happened to him, they told her to change schools if she did not like what
was happening. When he began working, the Male Applicant says he could not find
a permanent job because he is Roma.
[4]
In
1991, while he was waiting for a bus, a group of approximately ten youths
attacked the Male Applicant. One of them hit him with a chain, but the Male
Applicant escaped by getting on a bus. In 2007, a group of Neo-Nazis attacked
him in Bratislava, Slovakia, saying,
“Now you die you dirty gypsy, we are going to finish Hitler’s job.” A bystander
yelled out that the police were coming, so the attackers fled. After he was
treated in hospital, a doctor there refused to give him a medical report to
support a complaint. The doctor said “gypsies [are] always making up stories.”
[5]
The
Female Applicant says she was denied medical treatment in the Slovak
Republic
because she is Roma. She has epilepsy and often experiences seizures which
require emergency medical care. Although the Applicants called ambulances when
the Female Applicant had seizures, they would not come to their home because it
was in a Roma area. In 2007, the Female Applicant went to hospital to have a
cyst removed from one of her ovaries. When she awoke after the surgery, her
doctor told her they had sterilized her. When she asked why, the doctor said
“What do you want? You already have two kids, you don’t need any more and we
have enough gypsies in this country.”
[6]
In
April 2008, the Applicants left the Slovak Republic where they
had been living since 2002. They came to Canada on 4 April
2008 and claimed protection the same day.
[7]
The
RPD first heard the Applicants’ claims for protection on 8 May 2009 (First
Hearing). After the First Hearing, the RPD found the Applicants were not
Convention refugees or persons in need of protection. After the RPD’s negative
decision, the Applicants applied to this Court for leave and judicial review.
On 12 April 2010, I granted their application for judicial review and remitted
their case to the RPD for reconsideration. See Gabor v Canada (Minister of
Citizenship and Immigration) 2010 FC 383.
[8]
The
RPD joined the Applicants’ claims under subsection 49(1) of the Refugee
Protection Division Rules SOR/2002-228 (Rules) and appointed the Male
Applicant as representative for the Minor Applicants under subsection 167(2) of
the Act. The RPD conducted a de novo hearing (Second Hearing) into the
Applicants claims over two sittings, one on 31 March 2011 (First Sitting) and
the second on 19 May 2011 (Second Sitting). At the First Sitting, the RPD
marked the record from the Applicants’ previous application for judicial review
as an exhibit. Their counsel said he did not need to submit any additional
documents because he thought there was enough documentary evidence on the
record from their previous application. The RPD noted that, though the hearing
was to be de novo, the documentary evidence from the previous hearing
would be part of the documentary evidence on the Second Hearing.
[9]
The
RPD also noted at the Second Hearing that I granted the application for
judicial review of its first decision because the RPD had overlooked evidence
related to the Female Applicant’s allegation of forced sterilization. At the
First Sitting, the RPD asked Applicants’ counsel for documentary evidence of
the sterilization. Counsel advised that the RPD the only way to prove the
Female Applicant was sterilized was for her to undergo surgery and internal
examination. Although the Female Applicant was willing to undergo the surgery
to prove her claim, her physician advised against it; the risk to her because
of her epilepsy was too great. The RPD then noted that she had originally had
surgery to have a cyst removed from her ovary, and the following exchange
occurred:
RPD: Is there any evidence
she can give me that particular operation took place?
Counsel: We also contacted the
hospital in Slovakia.
RPD: Yes.
Counsel: Okay. And we still
have some family back in Slovakia so we approached the doctor but they are
scared to go anywhere because we know what they did and we are not going to
confirm ---
RPD: Okay. But if you ask
them to provide you just that the operation of the [cyst] took place not that
the other aspect took place? Do you see what I mean?
Counsel: Yes.
RPD: Because what that
would do, sir, it would corroborate the fact that she did go to the hospital on
a particular day to have that operation done.
Counsel: We can try to reach
them regarding this one, yeah, but right now, we are concerned because we
approached them so many times, so we are like…
RPD: May I ask when you
approached them, was it specifically for a report on what?
Counsel: Report on the sterilization.
RPD: Okay. Would it be
possible to ask for a report on the [cyst] operation?
Counsel: We will certainly try
and I could submit to you a proof that we tried and let’s see what happens.
It’s really hard
to ask anything from there because right now they are under so much you (phon.)
from the whole European Union regarding the Roma situation that they are not
giving out anything, any information. And even, we called like directly to a
doctor from Canada, she called.
[10]
Later
in the hearing, the RPD said:
RPD: [Ma’am],
there are some issues I have with your testimony. However, I think that these
issues could be put to rest if I were to have any type of documentation to
indicate that you were in the hospital in 2007 in Slovakia.
I realize that probably no doctor is
going to admit to the fact that you were sterilized. However, just simple proof
that you were in the hospital I think, for me, this issue would lay to rest
some of the questions that I had with respect to your credibility.
So I’m going to put this matter over for
about a month to give you an opportunity to try and obtain this document.
[11]
At
the Second Sitting, the Applicants provided the RPD with the documents
requested, including a report from the hospital (Hospital Report) and the
report from a gynaecologist (Physician Report). Both of these reports say the
Female Applicant was in hospital in the Slovak Republic
between 21 August 2007 and 22 August 2007. Applicants’ counsel did not examine
any of the Applicants with respect to these documents. The RPD clarified
whether the Female Applicant had contacted a lawyer to seek compensation,
saying, “After you had your surgery in 2007 and you found out that you were
sterilized, did you seek help?” The Female Applicant confirmed she had
consulted a lawyer and that she had complained to the hospital.
[12]
At
the end of the Second Sitting, the RPD noted that, if it accepted the Female
Applicant had been sterilized, this would be an act of past persecution and the
claim would have to be based on her future risk. It gave the Applicants
approximately three weeks to provide additional submissions.
[13]
The
Applicants made additional written submissions on 7 June 2011. In these
submissions, they drew attention to the discrimination Roma people face in the Slovak Republic, the need
for the RPD to consider the cumulative effect of the discrimination they faced,
and the ineffectiveness of state protection for Roma people. They also
highlighted the discrimination the Female Applicant experienced because of her
epilepsy, when she was denied adequate health care because she is Roma.
[14]
The
RPD made its Decision on 26 July 2011 and notified the Applicants on 3 August
2011.
DECISION
UNDER REVIEW
[15]
The
RPD found none of the Applicants to be Convention refugees or persons in need
of protection. It found the Male Applicant was neither of these because he had
not rebutted the presumption of state protection in the Czech
Republic.
In a similar way, the RPD rejected the Female Applicant’s claim because she had
not rebutted the presumption of state protection in the Slovak Republic.
The claim of the Minor Applicants fell with their parents’.
The Male
Applicant
[16]
The
RPD reviewed the Male Applicant’s allegations that he was discriminated against
in school, attacked in 1991, and attacked again in 2007, all because he is
Roma. It noted that he said he went to a police station in Bratislava after the
attack in 2007, but the police told him they had more serious matters to deal
with. He also said the police would not allow him into the station because he
is Roma. The RPD found the Applicant had sought state protection only once in Slovakia. Because the
Male Applicant is a citizen of the Czech Republic, he was
required to seek protection there before coming to Canada. The RPD
found the Male Applicant had not established that state protection was not
available to him in the Czech Republic, his country of
citizenship.
[17]
When
it analyzed the state protection aspect of the Male Applicant’s claim, the RPD
noted that Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 establishes the presumption of
state protection. This presumption can only be rebutted on clear and convincing
evidence of the state’s inability to protect. See Carillo v Canada (Minister of
Citizenship and Immigration) 2008 FCA 94. Further, the burden on a
claimant to rebut the presumption of state protection increases with the level
of democracy in the state; where the state is a functioning democracy, the
burden will be heavy. See Kadenko v Canada (Minister of
Citizenship and Immigration), [1996] FCJ No 1376 (FCA). The RPD
found the Czech Republic to
be a functioning democracy with functioning political and judicial systems. As
such, the Male Applicant had to demonstrate more than that he approached a
single police officer for protection and was rebuffed.
[18]
Although
the Applicants said state protection was not available to them, the RPD found
the Czech Republic was taking
steps to address historical discrimination against Roma people. The RPD relied
on a June 2009 report from the Immigration and Refugee Board, the Czech
Republic: Fact Finding Mission Report on State Protection (Mission Report)
to find that police in the Czech Republic employ Roma Police
Assistants and “in general, the police response to Roma complaints or calls of
distress is equal to that of non-Romani citizens.”
[19]
The
RPD also relied on the Mission Report to show the Czech government is taking
steps to include Roma in Society and to address discrimination in children’s
education. It also examined other country condition documents and found the
preponderance of the evidence establishes that the Czech Republic is
making serious efforts to combat discrimination. There is discrimination
against Roma in the Czech Republic, but it is not
systemic.
[20]
The
RPD concluded that, if the Male Applicant were to return to the Czech
Republic,
state protection would be available to him and it would not be unreasonable for
him to seek it. On that basis, the RPD found the Male Applicant was neither a
Convention refugee under section 96 or person in need of protection under
subsection 97(1) of the Act.
The Female Applicant
[21]
The
RPD found the Female Applicant’s claim failed because state protection was
available to her in the Slovak Republic, her country of
nationality. The RPD reviewed the same jurisprudence it relied on with respect
to the Male Applicant’s claim concerning the presumption of state protection.
[22]
The
RPD then examined the Female Applicant’s allegation that she had been
sterilized without her consent in 2007. The RPD found the Hospital Report did
not indicate the Female Applicant was sterilized and there was no other
documentary evidence that said this occurred. The RPD noted the Female
Applicant sought legal advice about compensation for the sterilization, but did
not pursue the matter when her lawyer told her she could get no more than
10,000 Koruna – approximately $400.
[23]
The
RPD found that the Slovak Republic has sterilized Roma
women without their consent. It also found the Slovak government has enacted a
law which codifies the requirement for informed consent to sterilization and
that forced sterilization is now a criminal offence in the Slovak Republic.
The RPD concluded the Slovak Republic acknowledges
the past force sterilization of Roma women, but now provides adequate measures
to ensure this will not occur in the future. Hence, the Female Applicant would
not be at risk of sterilization if she returned to the Slovak Republic.
[24]
The
RPD also examined whether the Female Applicant would be at risk of
discrimination in the Slovak Republic because she is Roma. It
found she would not be at risk because there is adequate state protection in
place there. Although documentary evidence before the RPD indicated
discrimination against Roma people occurs in the Slovak Republic, it found
other evidence showed the Slovak Republic is taking steps to address this
problem. The RPD noted that the Slovak government, in its Third Report on
the Implementation of the Framework Convention for the Protection of National
Minorities in the Slovak Republic to the United Nations Committee on Human
Rights, said that many avenues are available to those who are attacked or
harassed because they are Roma.
[25]
The
RPD found the Female Applicant could go to the Public Defender of Rights if she
had trouble accessing police protection. It also found the Slovak authorities
are making serious efforts to deal with police misconduct and there are signs
of success. Police officers are offered a course in Roma language and culture.
Further, the Slovak government has hired additional police officers to work in
the eastern part of the Slovak Republic where the
concentration of Roma people is the highest. The RPD found the government had
in place an action plan to prevent and suppress racism and xenophobia.
[26]
Although
Rome people have
faced discrimination in employment in the past, the RPD found that statutes are
now in place to protect them from unequal treatment in this regard. In
education, Roma people are constitutionally guaranteed education in their
minority language and in separate educational institutions. The RPD found the Slovak
Republic
is making serious efforts to combat racial discrimination.
[27]
The
RPD found the Female Applicant had not shown state protection would not be
forthcoming if she returned to the Slovak Republic or that it
was unreasonable for her to do so. It concluded that she is neither a
Convention refugee or a person in need of protection.
ISSUES
[28]
The
Applicants raise the following issues in this proceeding:
a.
Whether
the RPD applied an incorrect definition of “Convention refugee”;
b.
Whether
the RPD ignored evidence;
c.
Whether
the Decision is reasonable;
d.
Whether
the RPD unreasonably found the Applicants did not have a well-founded fear of
persecution;
e.
Whether
the RPD erred by not examining the Male Applicant at the Second Hearing;
f.
Whether
the RPD denied the Applicants the opportunity to respond to its concerns;
g.
Whether
the RPD was biased;
h.
Whether
the RPD failed to consider a ground the Applicants advanced to support their
claim.
STANDARD
OF REVIEW
[29]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[30]
The
RPD’s application of the definition of Convention refugee in section 96 of the
Act is a question in which the legal and factual issues are inextricably
intertwined. In Dunsmuir, above, at paragraph 53, the Supreme Court of
Canada held that the standard of review applicable to this kind of issue is
generally reasonableness. The first issue also calls into question the RPD’s
interpretation of the definition set out in section 96 of the Act. As this
calls for the RPD to interpret its enabling statute, the standard of review is
also reasonableness (see Dunsmuir, above, at paragraph 54, Smith v Alliance Pipeline Ltd. 2011 SCC 7
at paragraph 28 and Celgene Corp. v Canada (Attorney
General) 2011 SCC 1 at paragraph 33). The standard of review on
the first issue is reasonableness.
[31]
In
Krishnapillai v Canada (Minister of Citizenship and Immigration) 2005 FC
244, Justice Richard Mosley held at paragraph 5 that the RPD’s determination a
person is not a Convention refugee is subject to the reasonableness standard.
Justice Leonard Mandamin made a similar finding in Hussaini v Canada (Minister of
Citizenship and Immigration) 2012 FC 239 at paragraph 14. The standard
of review on the second issue is reasonableness.
[32]
The
RPD based its determination in this case on the availability of state
protection to the Applicants. In Carillo, above, the Federal Court of
Appeal held at paragraph 36 that the standard of review on a state protection
finding is reasonableness. This approach was followed by Justice Mandamin in Lozado
v Canada (Minister of
Citizenship and Immigration) 2008 FC 397, at paragraph 17. Further, in Chaves
v Canada (Minister of
Citizenship and Immigration) 2005 FC 193, Justice Danièle
Tremblay-Lamer held that the standard of review on a state protection finding
is reasonableness. The third issue will be evaluated on the reasonableness
standard.
[33]
The
reasonableness standard of review is also applicable to the RPD’s finding that
a claimant’s fear of persecution is not well-founded – the fourth issue the
Applicant’s have raised. Justice Sandra Simpson applied the reasonableness
standard of review to this issue at paragraph 7 of Moreno v Canada (Minister of
Citizenship and Immigration) 2011 FC 841. Justice Leonard Mandamin made
a similar finding in Jean v Canada (Minister of
Citizenship and Immigration) 2010 FC 1014 at paragraph 9.
[34]
In Vilmond v Canada (Minister of Citizenship and Immigration)
2008 FC 926, Justice Michel Beaudry found held at paragraph 13 that the RPD’s “failure to
consider the claim as it is put forward by the applicant constitutes a
misapprehension of the facts and the evidence” which is reviewable on the
standard of reasonableness. The standard of review on the eighth issue is
reasonableness.
[35]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[36]
The RPD’s
failure to fully examine the Male Applicant touches on the Applicants’ right to
fully present their case, which is an issues of procedural fairness (see Baker,
above, at paragraph 22). The opportunity to respond to a decision-maker’s
concerns is also an issue of procedural fairness (see Karimzada v Canada
(Minister of Citizenship and Immigration) 2012 FC 152 at paragraph 10 and Guleed
v Canada (Minister of Citizenship and Immigration) 2012 FC 22 at paragraphs
11 and 12).
[37]
In
Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of
Labour) 2003
SCC 29, the Supreme Court of Canada held at paragraph 100 that it “is for the
courts, not the Minister, to provide the legal answer to procedural fairness
questions.”
Further, the Federal Court of Appeal in Sketchley v Canada (Attorney
General)
2005 FCA 404 at paragraph 53 held that the “procedural fairness element is
reviewed as a question of law. No deference is due. The decision-maker has
either complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.” The standard of review on
the fifth and sixth issues is correctness.
[38]
In Baker, above, the Supreme Court of Canada approved the
following test for bias, first articulated in Committee for
Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR
369 at page 394:
[…] 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. . . [The] test is “what would an informed person, viewing the
matter realistically and practically – and having thought the matter through –
conclude. Would he think that it is more likely than not that [the
decision-maker], whether consciously or unconsciously, would not decide
fairly.”
[39]
Whether
the RPD was biased – the seventh issue the Applicants raise – is a question of
fact within the jurisdiction of the reviewing Court.
STATUTORY
PROVISIONS
[40]
The
following provisions of the Act are applicable in this proceeding:
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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.
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
[…]
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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.
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.
[…]
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ARGUMENTS
The
Applicants
The RPD was Biased
[41]
The
Applicants say the RPD did not conduct their hearing de novo as it was
required to do. Although it is permissible for the RPD to rely on transcripts
of their previous hearing, they say the RPD completely adopted the conclusions
of the previous panel. It also did not ask the Applicants many questions at the
hearing, which shows it relied exclusively on the evidence presented at the
First Hearing.
[42]
The
Applicants point to the IRB Policy 2003 - 05 – Court Ordered Rehearings,
which they say shows the RPD may rely on past evidence but not in such a way
that would lead to a reasonable apprehension of bias. The RPD was clearly
biased at the Second Hearing because it relied only on evidence from the First
Hearing. The RPD also denied the Male Applicant the opportunity to be examined
at the Second Hearing.
The RPD Ignored Evidence
[43]
The
RPD ignored the Physician Report after it specifically asked for evidence which
would confirm the Female Applicant’s stay in hospital in order to put to rest
its credibility concerns. Having asked for documentary evidence, which the
Applicants then provided, the RPD went on to find that the documents submitted
did not show the Female Applicant was sterilized. The RPD did not examine any
of the Applicants on this documentary evidence, so they were not aware of its
concerns. Rather, the RPD reserved its critique of these documents for the
Decision. In doing so, the RPD created the impression that all the Applicants
needed was the evidence from the hospital and their claim would be decided
favourably.
[44]
The
RPD also ignored their post-hearing submissions. In these submissions, the
Applicants provided a report from Dr. Susan Goodwin – a neurologist who treated
the Female Applicant in Toronto – which said the Female
Applicant’s life would be at risk in the Slovak Republic because of
inadequate medical treatment (Goodwin Report). The RPD did not mention the
Goodwin Report in its reasons.
Failure to
Consider a Ground Advanced
[45]
The
RPD did not consider the risk to the Female Applicant from her epilepsy. In her
PIF and oral testimony, she said she has seizures; she said in her PIF that
Ambulances would not come to the Applicants’ home because they are in a Roma
neighbourhood. The Applicants also say that health care provided to Roma people
in the Slovak Republic and
Czech
Republic is
inadequate and the documentary evidence before the RPD showed this to be the
case. The RPD did not consider whether the Female Applicant’s experience of
forced sterilization and inadequate health care amounted to persecution.
[46]
The
Applicants note that, where the RPD does not find evidence untrustworthy, it
may not reject that evidence out of hand. When the RPD failed to give weight to
the documentary evidence submitted, it committed a reviewable error. Further,
they say the RPD made assertions not supported by the record and based its
conclusions on speculation.
The
Respondent
The
Decision is Reasonable
[47]
The
Respondent says the RPD based its Decision on the evidence before it and drew
reasonable conclusions from that evidence. Neither the Male nor Female
Applicants provided clear and convincing evidence of their respective states’
inability to protect them, so the RPD’s state protection finding was
reasonable.
No Breach of
Procedural Fairness
[48]
The
RPD considered all the evidence before it from both the First and Second
Hearings and made an independent and reasonable decision. Further, the
Applicants were represented by counsel at the Second Hearing, which shows they
were not denied the opportunity to be examined. The RPD did not impugn the
Female Applicant’s credibility with respect to her allegation of forced
sterilization. Instead, it found that the Slovak Republic could
adequately protect her from any future risk of sterilization.
ANALYSIS
[49]
As
the Decision makes clear for both the Male Applicant and the Female Applicant,
the determinative issue was state protection. No credibility concerns were
raised, and the narratives of what the Applicants have suffered in the past
were not questioned. The sole question for the RPD was whether the Applicants
had rebutted the presumption of state protection for the Czech
Republic
(Male Applicant) or the Slovak Republic (Female Applicant and Minor
Applicants).
[50]
The
Applicants’ submissions do not really acknowledge that the determinative issue
was state protection in both cases. In fact, very little is said about the Male
Applicant and the situation that he faces in the Czech Republic. Generally
speaking, the Applicants simply make a series of allegations that are not borne
out by a reading of the Decision and the record.
[51]
The
first complaint is that the RPD did not really conduct a de novo hearing
and merely adopted the conclusions of the previous panel.
[52]
As
regards the determinative issue of state protection, this is clearly not the
case. The RPD conducted an up-to-date and forward-looking analysis of state
protection in both countries.
[53]
The
Applicants say that the RPD did not ask the Male Applicant more than a few
questions, and so denied him natural justice. No further questions were
required regarding the Male Applicant’s narrative. What he said was accepted.
If he wanted to add more, his counsel was there to ensure that appropriate
questions were asked and his counsel said at the hearing that he had no
questions. In any event, the Male Applicant has not been in the Czech
Republic
since the last hearing, so that nothing more can have happened to him there
since that time. The only issue was whether he had rebutted the presumption of
state protection in the Czech Republic.
[54]
The
Male Applicant has not explained to the Court what he wanted to say that had
not been said at the first hearing, or what he could not have said through
questions from his own counsel at the second hearing. The Male Applicant is
attempting to find formal fault with the Decision without explaining how his
complaint has any substance or relevance for the RPD’s finding that he had not
overcome the presumption of state protection in the Czech Republic. I can find
no evidence of bias or procedural unfairness. The Male Applicant’s narrative of
what had happened to him in the past, including his dealings with the police,
was accepted and incorporated by the RPD into its state protection analysis.
[55]
As
regards the Male Applicant and the Czech Republic, the
Applicants make no further criticism of the RPD’s state protection analysis, so
I must assume they accept it as not containing a reviewable error.
[56]
Turning
to the Female Applicant, the Applicants, first of all, say that the RPD
disregarded the documentary evidence she produced at the second hearing. As
regards the Hospital Report and the Physician Report, this is clearly not the
case. Once again, the RPD does not question the Female Applicant on her past
narrative. Even if she has been sterilized in the past, the RPD has to be
forward-looking in its risk analysis. Clearly, the Female Applicant cannot be
sterilized again, and the RPD has to deal with the forward-looking health risks
she faces. Once again, the determinative issue for the Female Applicant was
state-protection if she returns to the Slovak Republic. This is
what the RPD addresses in its Decision.
[57]
The
Applicants also say that the RPD “completely disregarded the medical document
prepared by Dr. Susan Goodwin, and the two medical documents from Slovakia,
attached to the documentary evidence, stating that the Female Applicant’s
health and life would be at risk, if she was to return to Slovakia.”
[58]
Dr.
Goodwin’s letter has no probative value. She tells us that the Female Applicant
has epilepsy and then goes on to make completely unsupported statements about
the Slovak
Republic and what
will happen to the Female Applicant if she goes there. Dr. Goodwin provides no
explanation about how she knows any of this, or why she feels she is qualified
to speak about the availability of health care in the Slovak Republic.
The RPD specifically addresses health care issues in its Decision, and there is
really nothing in Dr. Goodwin’s letter that has any probative value to place
against the RPD’s conclusions. I do not think that the RPD’s failure to mention
this evidence specifically renders the Decision unreasonable within the
principles established in Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 or otherwise.
[59]
The
Female Applicant also complains that the RPD does not generally address her
epilepsy or the evidence which says that health care provided to Roma in the Czech
Republic
and the Slovak
Republic
is not adequate.
[60]
In
relation to the Female Applicant, the RPD did not need to consider health care
in the Czech Republic
because she is a citizen of the Slovak Republic. As regards
the Slovak
Republic,
the RPD does examine the health-care situation and acknowledges that “many Roma
face severe difficulties and discrimination accessing adequate housing and
employment and that they experienced segregation in schools and health care
facilities.” Notwithstanding this acknowledgment, the RPD goes on to find that
“the documentary evidence indicates that the Slovak Republic has taken
and is taking steps to combat these deficiencies and there are signs of real
progress”:
For example, the right to equality before
the law and the right to equal protection under the law are guaranteed in the
Constitution. and there are provisions for equality in all pertinent
legislation in the areas of education, health care, labour, civil, criminal and
administrative law, and there is legislation to effect what are essentially
affirmative action programs.
[61]
The
RPD looked at health care for the Female Applicant if she returns to Slovakia. Other than
the comments from Dr. Goodwin mentioned earlier, which have no probative value
because we do not know what they are based upon, the Female Applicant has produced
nothing to suggest that the RPD’s findings in this regard are unreasonable.
[62]
The
Female Applicant also says that the RPD told her previous counsel that her
refugee claim would be accepted provided she could produce written evidence of
her hospitalization in the past.
[63]
We
have no evidence from previous counsel on this point. All that has been placed
before me is hearsay evidence from a student-at-law, who says that
The hearing proceeded as usual, and after
having questioned Ms. Gaborova, Member Fiorino decided to adjourn the hearing
for a brief period.
At that moment, Member Fiorino went off
the record and asked for a mid-hearing conference in private with Mr. Sarkozi
at which point everybody else left the hearing room, including myself.
After some time, Mr. Sarkozi met me in
the hallway and told me that Member Fiorino had agreed to accept the claimants
as Convention Refugees as long as we were to provide him with any documentary
proof that Ms. Gaborova had been hospitalized in Slovakia in 2007.
Happy with this turn of events, Mr.
Sarkozi informed the clients that their claim would be successful provided we
produce the said documentary proof of hospitalization at a subsequent date.
We all reconvened in the hearing room and
Member Fiorino made the following declaration on the record: “mam, [sic]
there are some issues that I have with your testimony. However, I think that
these issues could be put to rest if I were to have any type of documentation…
any type of documentation to indicate you were in the hospital in 2007 in Slovakia…” […]
Member Fiorino adjourned the matter for
about a month in order to allow us to get the documentary proof requested.
Mr. Sarkozi and I left the Immigration
and Refugee Board with great satisfaction that day, convinced that it was only
a matter of time before our clients would be accepted as Convention Refugees.
[64]
Mr.
Sarkozi’s reported representation that the claims would be successful makes no
sense at all in light of:
a.
My
reasons when I returned this matter for re-hearing because of an unreasonable
credibility finding about her past sterilization;
b.
The
transcript of the hearing (which occurred in two parts), which shows what was
said and that the RPD addressed the credibility issue, but then went on to deal
with state protection as a separate determinative ground;
c.
The
Decision itself which makes it clear that state protection was the
determinative issue.
[65]
I
do not think that, when read in the whole context of the record, I can give
much weight to hearsay evidence that the RPD promised that both claims would be
successful provided the Applicants could produce documentary proof of
hospitalization. The RPD was simply, in accordance with my judgment returning
this matter for reconsideration, attempting to settle the credibility issue
before going on to deal with state protection, which is what the record as a
whole shows occurred.
[66]
The
Applicants say that the RPD also did not conduct a compelling reasons analysis.
The transcript shows that the RPD raised the topic of compelling reasons with
Applicants’ counsel at the end of the hearing and asked for his submissions on
point. My reading of counsel’s submissions suggests to me that he chose not to
address compelling reasons. He certainly does not do it implicitly and I cannot
say it is raised even indirectly. So I do not think that the Applicants made
any real submissions on compelling reasons that would ground such a claim and
require the RPD to conduct a compelling reasons analysis.
[67]
All
in all, I cannot find a reviewable error with this Decision.
[68]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application for judicial review is dismissed.
2.
There
is no question for certification.
“James
Russell”
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