Date:
20121113
Docket:
IMM-390-12
Citation:
2012 FC 1320
Ottawa, Ontario,
November 13, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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JOSEF DREVENAK,
SIMONA BILLA,
KLARA BILLA, MICHALA
BILLA,
SIMONA BILLA
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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 seek judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated
December 20, 2011, which found that they were neither Convention refugees nor
persons in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). For
the reasons that follow this application is dismissed.
Background
[2]
The
principle applicant, Joseph Drevenak (the applicant), his common law wife,
Simona Billa, and their children (collectively, the applicants) are Roma
citizens of the Czech Republic. They claimed, before the Board to have
experienced violent assaults and discrimination in the Czech Republic because of their ethnicity.
[3]
The
applicant testified that he reported two assaults to the police; in 2000, he
was attacked by a group of skinheads; and in 2006, he and his brother were
assaulted in a restaurant. The applicant testified that the police did not
investigate either incident.
[4]
The
applicant also testified that he and his family were verbally and physically
attacked on three additional occasions, in 2008 and 2009, which he did not
report to authorities. During the 2009 incident a skinhead threatened to kill
them. In addition to these incidents the applicant’s daughters have been
subjected to racial slurs in school. One daughter was slapped by a classmate.
[5]
The
family arrived in Canada on April 1, 2009 and applied for refugee protection.
Decision Under Review
[6]
The
Board decided that the determinative issue was state protection. The Board
found that the applicants did not provide clear and convincing evidence that
they had inadequate state protection in the Czech Republic.
[7]
The
Board found that the applicant did not offer credible testimony about his
attempts to seek state protection in 2000 and 2006 because he had omitted
information from his Personal Information Form (PIF) and did not provide
corroborating evidence. The applicant did not provide police reports to
corroborate his testimony. He had been told that he could appoint a power of
attorney to obtain the reports. The Board drew a negative inference from his
failure to do so.
[8]
The
Board first considered the applicant’s testimony that he made a police report
after being attacked in 2000. The applicant testified that he returned to the
police to follow up and was told that the investigation had been closed. The
applicant had not mentioned returning to the police in his PIF. He explained
that he did not have time to write down everything that had happened. The
Board did not consider this explanation to be reasonable.
[9]
The
applicant testified that he did not report the three subsequent assaults in
2008 and 2009 because of his past experiences with the police. As the Board
found his testimony lacked credibility regarding those experiences, his
explanation for failure to go to the police in 2008 and 2009 was considered
unreasonable.
[10]
The
Board found that the preponderance of the evidence suggested that state
protection was adequate. The Board cited examples of individuals being
convicted for racially-motivated crimes. The Board also described a variety of
programs, such as police specialists who deal with extremism and racism,
Minority Liaison Officers in the police and special measures to recruit Roma
into the police. When the police do not adequately respond to complaints there
are mechanisms to seek redress.
Issue and Standard of Review
[11]
The
issue for this judicial review is whether the Board reasonably decided that the
applicants had not rebutted the presumption of state protection: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Discussion
[12]
Refugee
claimants must produce clear and convincing evidence that state protection is
inadequate, on a balance of probabilities. In the case of a developed
democracy, claimants must first seek protection in their home country: Hinzman
v Canada (Minister of Citizenship and Immigration), 2007 FCA 171. The
strength of the presumption that a democratic country will provide state
protection depends on the robustness of the institutions that constitute a
democratic state: Sow v Canada (Citizenship and Immigration), 2011 FC
646.
[13]
The
Board found that the applicant did not provide credible evidence that he had
ever sought state protection in the Czech Republic. The Czech Republic is a developed democracy; as such, failing to seek state protection was a serious
impediment to their claim.
[14]
In
his PIF, the applicant stated that he reported being assaulted in 2000 and
2006. At the hearing, he testified that he followed up with the police after
making his initial report. This detail was absent from his PIF and the Board
determined that the omission called his credibility into question. This gives
rise to the applicants’ first ground of review. It is contended that the
credibility finding was unreasonable. Predicated as it is on this omission and
viewed in isolation, the applicant’s argument has merit; however, when this
evidence is situated in the broader context of the applicant’s history in
seeking state protection, the inference drawn by the Board sustains scrutiny
and is reasonable.
[15]
The
omission of a significant detail from an applicant’s PIF can reasonably lead
the Board to doubt a claimant’s testimony: Erdos v Canada (Minister of Citizenship and Immigration), 2003 FC 955. This particular
omission bears upon an essential element of the claim; namely whether state
protection was sought. The fact that a PIF is necessarily brief does not
excuse the failure to include all material and relevant facts. This applies
equally in respect of any efforts to seek state protection.
[16]
The
applicants rely on Li v Canada (Minister of Citizenship and Immigration),
2006 FC 868, para 29 to argue that an omission from the PIF should not be fatal
to a claim in the same way that a direct contradiction might be. I agree.
However, the omission must not be considered in isolation. The Board also
considered the lack of corroborating evidence and the failure of the applicants
to seek police protection in respect of the incidents in 2008 and 2009. The
Board was also understandably concerned that the applicant considered the
matter sufficiently relevant to mention it in his evidence in 2011, but not so
in completing his PIF.
[17]
The
applicants also submit that the Board unreasonably expected the applicant to
produce police reports from 2000 and 2006 to corroborate his testimony.
[18]
The
Board may require corroboration when there is a valid reason to doubt the
applicant’s testimony and may make adverse findings based on the failure to
produce corroborating evidence, or to provide reasonable explanations as to why
corroborative evidence was unavailable. Additionally, the failure to produce
documents that the Board would normally expect to be available can be
considered in assessing the applicant’s credibility.
[19]
The
applicant was told that he could execute a power of attorney authorizing the
request of police reports from the Czech authorities. He made no effort to do
this. At the hearing, the applicant speculated that the police would not have
been interested in providing these documents. The Board was entitled to reject
this explanation as it contradicted the documentary evidence which stated that
individuals can obtain police reports through a power of attorney.
[20]
The
Board reasonably expected that the applicant would provide copies of any police
reports. It was open to the Board to consider his failure to do so in
assessing his credibility.
[21]
The
Board is not obligated to show that there is adequate protection available in
the Czech Republic. Rather, the applicants face the burden of overcoming the
presumption of state protection with clear and convincing evidence. In this
case, the Board reasonably found that they had not done so.
[22]
In
closing, the Board had before it evidence that the applicant made no effort to
seek state protection in 2008 and 2009, despite three incidents. His
explanation for his belief that the police could do nothing to assist was based
on his experience with the police in 2000 was reasonably rejected.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review be
and is hereby dismissed. There is no question for certification.
"Donald J.
Rennie"
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